XIX. Strict Liability | Jonathan Zittrain | December 21, 2012


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XIX. Strict Liability

by Jonathan Zittrain Show/Hide

So far we’ve studied intentional torts and negligence, and their respective defenses. All else equal, the level of bad behavior required to establish negligence is lower. Is there behavior that might yet fall short of negligent behavior and still result in a finding of liability? Yes. At the most extreme end of the spectrum is absolute liability: under some particular factual circumstance, you pay, regardless of your “fault,” as represented by bad behavior or the taking on of undue risk. Insurance companies contract for precisely that kind of liability: if the specified harm happens, they agree to pay.

In between negligence and absolute liability lies strict liability. Strict liability may serve a useful function when it’s difficult to establish how to do something “right” – perhaps the proper answer is not to do it at all. In its most common form, strict liability exists when a defendant is engaging in an especially dangerous activity – one that’s dangerous even if done with the utmost of care. A classic example is keeping a tiger as a pet, or riding in a hot air balloon not long after they were invented. Such activities – described in one of the Restatements as “abnormally dangerous” – are thought to be ripe for having to pay as they go, making whole whatever harm they cause without any inquiry into whether they were undertaken in a reasonable way.

Can you think of any past time you’ve engaged in within the past year that might be suitable for strict liability treatment?


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  1. 1 Show/Hide More Sullivan v. Dunham -- "The Exploding Tree Case"
    Original Creator: Jonathan Zittrain
    Even if the dangerous activity in question is not illegal, should courts be allowed to find the actor “strictly liable” for any harm flowing from his or her activity?
    Defendants were excavating a tree through the use of dynamite. After being blasted more than four hundred feet, through the air, a section of tree fell on the plaintiff and killed her. The plaintiff was traveling lawfully on a public highway at the time of the impact. There was no evidence of negligence or lack of skill on the part of the defendant, in dynamiting the tree. No law prohibited the defendant's use of dynamite.
  2. 2 Show/Hide More Hammontree v. Jenner -- "Strict Liability While Driving?"
    Original Creator: Jonathan Zittrain
    Should drivers be strictly liable for injuries they cause when they lose control of their car?
    The defendant suffered an epileptic seizure while driving. During the seizure, he crashed into the plaintiff's bike shop without warning, injuring the plaintiff. Defendant had a history of epileptic seizures, but was taking medication to reduce the frequency of his seizures.
  3. 3 Show/Hide More Crosby v. Cox Aircraft Co. -- "The Airplane that Ran Out of Fuel"
    Original Creator: Jonathan Zittrain
    Should courts extend strict liability towards hazardous instrumentalities—like airplanes?
    A pilot ran out of fuel while flying an aircraft owned and maintained by defendant. The plane crash landed on the plaintiff's garage, causing property damage.
  4. 4 Show/Hide More Torchia v. Fisher -- "The Stolen Airplane Case"
    Original Creator: Jonathan Zittrain
    How should courts interpret statutes that impose strict liability? Should public policy affect how courts construe strict liability statutes?
    Defendant's airplane was stolen by Fisher. Fisher crashed the stolen plane into the plaintiff's house, injuring the plaintiff. At trial, the plaintiff argued that the defendant was liable for Fisher's crash, under a state statute which imposed absolute liability on aircraft owners.
  5. 5 Show/Hide More Franken v. City of Sioux Center--"The 'Pet' Tiger Case"
    Original Creator: Jonathan Zittrain
    When a plaintiff is injured by an animal owned by the defendant, who should bear the cost of the injuries?
    Defendant city purchased a Bengal tiger and temporarily housed it in plaintiff's warehouse. Plaintiff was seriously injured when he stuck his hand into the tiger's cage. The plaintiff alleged that he had witnessed others safely petting the tiger before.

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February 17, 2014

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