Strict liability

Standard (Thorns) – liability w/out fault or intent

Historical trespass

• Two writs, trespass (direct) and case (non-direct)

“superhuman” efforts excuse?

• (Thorns) liability simply for trespassing but opened up the possibility that if the D had proved that he had done all in his power to keep the thorns off the plaintiff’s land, the result might have been otherwise.

Erosion

“utterly without fault” (Weaver v. Ward)

• Two soldiers engaged in a military exercise, P shot D which made out a prima facie case for trespass. Only defense was proving that P was “utterly without fault.” “Utterly without fault” in this case, would mean that the D ran across P as he was firing.

Inevitable accident

Weaver (again)

Involuntariness (Smith v. Stone)

• Stone was carried onto Stone’s property by others involuntarily. Party(s) that brought Stone on the land were guilty of trespass not Stone.

Imposes liability IN ADDITION TO negligence. Does not necessary increase safety in how activities are done. If an activity is worth doing and the benefit of that activity is greater than the costs of potential injuries the result will be the same under SL and Negligence (especially with Hand Formula).

• Negligence = Negligence liability for injurers and SL for injurees of non-negligently causes injuries.

• Benefits of SL

• Greater Accuracy

• Possible if currently D’s are negligent 60% of time but juries only find negligence 10% of the time. Imposing SL is now wrong 40% of the time which is less than the current 50% error rate under negligence.

• Lower administrative costs

• No need to prove negligence

• Activity level effects

• If liability is imposed no matter HOW the activity is conducted, it will only be conducted when its benefits outweigh its potential costs.

• Under SL potential injurers must focus not only on how they are doing the activities but there is a greater incentive to shift to safer activities or reduce the activity level.

• Research incentives

• Under negligence, injurers are not held liable for injuries not worth avoiding.

• They may seek to reduce negligence but not eliminate it

• Loss distribution

• Strict liability is better at loss distribution if injurers happen to be large corporations.

• United States is the ultimate risk spreader

Where do we impose SL?

“unnatural” use of land causes damages (Fletcher v. Rylands)

• D had a reservoir constructed on his property which escaped flooding the P’s property.

“unnatural”? Vs. what?

• J. Blackburn – escape of anything brought on the land that was not naturally there.

Unnatural = artificial?

Unnatural = unreasonable?

Unnatural = out of ordinary?

Unnatural = anything that will do damage if escape

• Unnatural use of land that causes damages

alternative: res ipsa?

Ultrahazardous activities

High risk of some harm

Harm is usually great

• Most significant Modern Factors

Danger cannot be abated with care

Not a matter of common usage

• (Amer. Cyanamid) – Court declined to impose SL on the operator of a rail car that leaked dangerous gas in a residential area. Court found that the operator probably could have prevented the leak through the exercise of reasonable care in the inspection and maintenance of the tank car in question. The court distinguished cases holding transporters of gasoline strictly liable for explosions, on the ground that explosions typically destroy evidence of negligence, whereas leaks do not. Further, the court noted the impossibility of SL’s having an activity level effect in this kind of case because of the difficulty in routing rail-transported material away from the metropolitan areas that serve as railroad hubs.

Inappropriate to place carried on (scratched, 3d R)

Benefit to community outweighed by danger (also scratched, 3d R)

Further points

Kind of harm is relevant (concussion damage vs. panicked minks)

Madsen v. East Jordan Irrigation Co. - P’s mother mink ate their young after being frightened by blasting. The D was held not to be strictly liable precisely because the possibility that this would occur is not even one of the secondary risk that enters into the decision to impose SL for blasting.

• If the P had warned D about the mink’s it could have been foreseeable. Or if the P had known about the mink’s it could have been seen as D’s duty to warn P.

• The risk is not only more foreseeable to mink owners but the risk is more controllable by them (move the minks during blasting, etc.) With respect to the risk that blasting will frighten nervous animals, mink owners are in a better position than blasters to make the activity-level and research calculations that SL induces.

Why not negligence?

Negligence per se?

Care level vs. activity level?

Destruction of evidence (RIL?)

• RIL would have to be bent to allow accidents that HAPPEN AT ALL rather than just accidents that only occur because of negligence.

Vicarious liability (absent employer’s negligence)

Employee (liable) v. Contractor (not liable), Employees may not have “means” to be effective D’s but contractors usually do.\

• Employers are vicariously liable for the actions of their employees if done within the “foreseeable scope” of their employment

• Bushey sinking ship after opening release valve because of negligence (arguably foreseeable and thus liable) vs. same defendant beating his wife after leaving the ship (not liable)

W/in scope of employment?

Frolic vs. detour

• Frolic – extreme departure from employment activities (going to NY in the course of a delivery in town to Cville)

• Detour – stopping for lunch on the way to a delivery

Why not negligence?

Risk spreading?

Other efficiency?

Employer superior risk bearer (insurance)?

Default rule? (contract) (Bushey)

Necessity (Privilege)

Limits trespass

• Public vs. Private Necessity

• Public necessity when there is a risk to the property of a sufficiently large number of people to make the risk “public” and that risk can be reduced or eliminated by damaging or destroying the...

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