STRICT LIABILITY(Prepared by Mary warutere)

The negligence standard is not the only possible basis for imposing tort liability. Sometimes courts will hold a defendant liable even if he acted without fault (i.e., without intent or negligence). The liability flows not from carelessness, but from the very choice to conduct the activity at all. Such “strict liability” is not premised on fault in the conventional sense of the term, but on the policy choice to place accident losses from the activity on the actor rather than on its victims. The defendant, it is said, “acts at her peril” in conducting such activities. NO matter how much care she takes to avoid injuries to others, she will be held strictly liable” if such injuries result. Thus, strict liability means liability without fault.

Four major areas where strict liability is assessed are: harm caused by animals abnormally dangerous activity (ultra-hazardous activity) products liability vicarious liability

A. Harm caused by animals Dangerous/wild animals : Owner is strictly liable for any harm that a

dangerous animal causes if (a) victim did not contribute to animal’s behaviour AND (b) the harm results from the dangerous propensity which is characteristic to this type of animal, OR the owner knew or should have known for the animal’s specific propensity.

Domestic animals : The owner is strictly liable only if he knows or should have known that his animal has dangerous propensities. “First bite” rule: owner is liable for the second time that his animal bites somebody but not the first time it bites if it never showed such a propensity to bite before.

B. Abnormally dangerous activityThere is strict liability for activities that involve an inherently substantial risk of harm in their performance. If the defendant engages in such an activity, and unintentionally and non-negligently causes harm to the plaintiff, the defendant is strictly liable, subject to a few limitations which are not covered in this course. Examples of abnormally dangerous activities are nuclear reactors, explosives and crop spraying.

In order to determine whether an activity is abnormally dangerous or not, the courts look at the following factors:

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The high degree of risk of harm to person or property The seriousness of the harm that could result Whether actor cannot perform the activity with complete safety; and Is the activity commonly carried out in the community/locale in which

defendant engages in it? In other words, extent to which activity is not a matter of common usage, appropriateness of activity to the place where it is carried on.

Strict liability encourages those who conduct high risk enterprises to avoid costs in the following ways:

First, the threat of liability will encourage actors to forgo these risky activities entirely. Because it makes the actor pay for all injuries associated with the activity, strict liability encourages her to consider alternative ways of achieving the same goal. Thus, imposing strict liability may lead to less high risk activity and fewer accident losses from it.

Second, because actors who conduct abnormally dangerous activities must compensate even for blameless injuries, strict liability encourages them to reduce the cost of accidents by taking extra precautions. Thus, the threat of liability will make high risk activities safer, though it cannot make them completely safe.

Finally, economic analysts (and, increasingly, courts) argue that losses should be placed on the party who can most easily spread the costs of the enterprise by adding the costs of compensation for accidents resulting from the activity to the price of the product. This policy also supports strict liability for abnormally dangerous activities.

DEFENSES Plaintiff’s contributory negligence is not a defense for the defendant. The

reason is the policy of the law that places the full responsibility for preventing the harm resulting from abnormally dangerous activities upon the person who has subjected others to the abnormal risk. Other authorities suggest that, since strict liability is not based on negligence, plaintiff’s negligence should not be relevant either.

Assumption of risk: If the plaintiff unreasonably exposed himself to the risk, fully aware of its existence, then defendant will not be liable.

Cases as illustration: Rylands v. Fletcher, 3 H.L. 330 (1868)

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C. Products LiabilityProducts liability refers to the liability of a seller/manufacturer of a product that causes damages to the buyer, user or even a bystander, because it was defectively made. To recover damages, a plaintiff may sue under the following three theories:

negligence warranty strict products liability

1. Negligence: A plaintiff can use ordinary negligence principles (duty, breach, causation, damages, standard of care, etc...) to hold the manufacturer liable for a defective product.

Manufacturer’s duty of care: P can sue the manufacturer in negligence if manufacturer failed to properly ensure that:

Product is designed in a reasonably safe way Products must be reasonably tested/inspected Products must be packaged and shipped with reasonable safety Manufacturer has to use reasonably competent component manufacturers

Retailers: It is extremely difficult to hold the retailer of a product liable under a negligence theory. Usually retailers do not have duty to inspect the products they sell. However, a retailer who knows or should have known that a product was unreasonably defective has a duty to warn. NOTE: Car dealers must inspect in some jurisdictions.

Bystanders: They may be able to sue a manufacturer if they can show that they were foreseeable plaintiffs.

2. Warranty: Where the defendant (manufacturer) was not negligent, plaintiff can still recover damages, if he can show that the seller made representations or warranties as to the quality of the product which prove to be false.

3. Strict Products Liability: A manufacturer is strictly liable if an item it places on the market which is defective causes injury to others. The policy reasons for holding a manufacturer of a defective product strictly liable (regardless of fault) include:

The manufacturer is in a better position to anticipate and avoid defects. Loss spreading: The manufacturer can spread the costs better by charging

all of its customers a little more and using the money to compensate the plaintiff.

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Encourage research: Holding manufacturer liable will give them incentive to develop safer products.

Difficulty of proof: It is almost impossible for the plaintiff to prove the defendant’s faulty conduct given the complex technologies and procedures of modern production.

Reciprocal risk: Manufacturer marketed the product and he should be responsible.

There are three general types of product “defects” for which a manufacturer may be held strictly liable: (NOTE: plaintiff could actually base his action on negligence, warranty or strict liability)

1. construction/manufacturing defect2. design defect3. unavoidable unsafe products and the duty to warn

Liability for defective products (“product” or “products” liability) has been codified in many common law and civil law jurisdictions.Restatement (Second) of Torts §402 A (USA)§2 Consumer Protection Act of 1987 (England)

Cases as illustration:1. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 (1962)2. Two Rivers Co. v. Curtiss Breeding Service, 624 F.2d 1242 (5th Cir. 1980)3. Elmore v. American Motors Corp., 451 P.2d 84 (Cal. 1969)4. Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436 (Cal. 1944)

4. Vicarious LiabilityA person may be liable for the torts committed by others because of his relationship to them. Vicarious liability usually arises in:

employer-employee relationships; joint ventures; automobile owner and driver; or family relationships.

What the doctrine of vicarious liability actually does is to impute the wrongful conduct of the tortfeasor (i.e. negligence) to a third person who is considered to be responsible for the tortfeasor’s actions. One of the key motivating factors of this doctrine is the need to find a defendant who can compensate the plaintiff.

A. Employer-Employee RelationshipUnder the doctrine of respondeat superior an employer is liable for the torts that his employee commits within the scope of his employment.

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Who is an employee? An employee is considered to be a worker who is subject to the control of his employer.Who is an independent contractor? An independent contractor is a worker who is not subject to the control of the employer. He decides for himself how to do the work. An employer is NOT liable for the torts committed by an independent contractor unless:

the work involved abnormally dangerous activities or public policy makes the duty non-delegable (i.e. duty to keep premises

reasonably safe for business visitors, or an employer’s duty to make the workplace reasonably safe), or

if employer negligently selected an independent contractor who is not competent or does work haphazardly.

What is meant by in the “scope of employment”? It includes all actions that are closely connected to the employee’s work (i.e. what he was hired to do) that are done with a purpose, at least in part, to advance the employer’s business interests. Acts that an employer expressly prohibits are not automatically outside the scope of employment. Rather the court will consider both the fact that they were prohibited and whether they were done for the employer’s benefit. Likewise an employer’s instruction to use care in avoiding harm to others will not suffice to relieve him of liability if the employee was not careful.

Travelling between work and home is outside the scope of employment. Thus, for example, the employer is not liable if commuting employee negligently runs over a pedestrian.

“Frolic and detour” during business trips: This occurs when an employee makes a detour for personal reasons while on a business trip (and causes damage). Courts will hold employer liable if the detour is reasonably foreseeable. One of the factors to consider in foreseeability is the distance of the detour.

What about intentional torts? The employer is liable for intentional torts by the employee if they were done for the benefit of the employer’s business. However, if the employee acted for personal reasons, i.e. racism, then employer is not liable. Some courts allow liability for intentional torts only if they are reasonably foreseeable by the employer.

B. Joint VenturesAll members of a joint venture are vicariously liable for the torts of each other.Elements of a joint venture:

Mutuality of control : Each member must have an equal say on the issue of how things are done. This does not always mean equal physical control, but at least a situation where all have equal influence.

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Agreement : The members must be acting in concert by some express or implied agreement.

Common pecuniary purpose : All the members must have a common purpose of a pecuniary nature. If they all share a social interest only - that will not suffice. Furthermore, merely sharing expenses will not be enough unless there is a common pecuniary goal.

C. Automobile Owner and DriverGenerally, an automobile owner is not vicariously liable for the conduct of another person who drives his car. However the rule is subject to exceptions:

“permissive use”/auto consent statutes : Some states have enacted statutes that make a car owner vicariously liable for the tortious conduct of any person that drives the car with the owner’s consent. Of course the driver has to act reasonably within the scope of what the owner agreed to, i.e., A lends his car to B who wants to go to a movie, B drives 2,000 miles - no consent. If an owner lends his car to a driver who in turn lends it out again, the owner will be liable for damages by the second driver if the first driver was in the car at the time of the accident.

“family purpose” doctrine : In the absence of a statute some courts will hold the owner of a family car vicariously liable for the torts committed by immediate family or household members driving with express or implied permission. A “family purpose” exists anytime any family member (including the one who is driving) benefits from the use of the car.

Fine line distinction: Negligent owner vs. vicarious liability.Negligence: An owner may have been negligent to lend the car (i.e.

to a minor or a drunk).

Vicarious liability: Owner is not negligent but still liable (i.e. under the “family purpose” doctrine”).

D. Family RelationshipsParents are usually not vicariously liable for the negligence of their child. Exceptions:

Parent was negligent Child was acting as a “family agent” Statutes which make parents liable for their children’s negligence.

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Case problem for review:

1. Franklin Pest Control Company is called in to fumigate an apartment house. The process calls for spraying the premises with Vikane, a toxic chemical which kills bugs. Unfortunately, Vikane is also toxic to people.

Prior to spraying the building, Carl, an employee of Franklin, carefully investigates to be sure that the chemical fumes cannot spread through the party wall into the adjacent apartment building. She is assured that the party wall is an impenetrable fire wall, and her own inspection confirms this. Unfortunately, a crack almost impossble to find, exists in the wall. The chemical fumes spread through the wall and ovecome Mr. Peters in the next building.

Mr. Peters sues Franklin for his injuries. The company argues that it took all reasonable precautions and had no reason to suspect that the fumes could travel into Mr. Peters building.

(a) Assume that the court concludes that fumigation is a strict liabillity activity, and agrees that the company conduct was reasonable. Is Franklin liable to Mr. Peters?

(b) Mr. Peters sues Carl, the employee who sprayed the Vikane, for his injuries. Should the court apply a negligence or strict liability standard in determining liability?

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