XIX. Strict Liability | Scott Soloway | March 09, 2018

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XIX. Strict Liability

Original Creator: Jonathan Zittrain Current Version: Scott Soloway 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 Current Version: Scott Soloway
    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?
  2. 2 Show/Hide More Hammontree v. Jenner -- "Strict Liability While Driving?"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should drivers be strictly liable for injuries they cause when they lose control of their car?
  3. 3 Show/Hide More Crosby v. Cox Aircraft Co. -- "The Airplane that Ran Out of Fuel"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should courts extend strict liability towards hazardous instrumentalities—like airplanes?
  4. 4 Show/Hide More Torchia v. Fisher -- "The Stolen Airplane Case"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    How should courts interpret statutes that impose strict liability? Should public policy affect how courts construe strict liability statutes?
  5. 5 Show/Hide More Franken v. City of Sioux Center--"The 'Pet' Tiger Case"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    When a plaintiff is injured by an animal owned by the defendant, who should bear the cost of the injuries?
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March 09, 2018

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Scott Soloway

business lawyer practicing law

Boston

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