Examples & Explanations for The Law of Torts by Glannon Joseph W

Author:Glannon, Joseph W.
Language: eng
Format: epub
Publisher: Wolters Kluwer
Published: 2020-01-15T00:00:00+00:00

RECAP AND CLOSING COMMENTS

The Second Restatement’s multifactor approach to strict liability has been embraced by a good many courts. The Third Restatement suggests a somewhat simpler analysis, but is largely consistent with the thrust of the Second. Under both formulas, strict liability should apply to activities so inherently dangerous that the level of risk will remain high despite all reasonable efforts to reduce it. If reasonable care can make the activity generally safe, courts will not impose strict liability. See Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir. 1990); see generally G. Boston, Strict Liability for Abnormally Dangerous Activities: The Negligence Barrier, 36 San Diego L. Rev. 597, 653-659 (1999). If reasonable care cannot eliminate a substantial risk of grave physical injury, strict liability will probably apply, even though the activity is socially valuable and conducted conscientiously. The defendant’s best argument to avoid strict liability in such cases is that the activity is one of “common usage.” Whether or not courts expressly adopt the Third Restatement formulation in place of the widely adopted Second Restatement, they will probably decide cases almost entirely on the two factors emphasized in the Third.

Abnormally dangerous activities are not the only example of strict liability in American tort law. The most common is strict products liability, which holds a manufacturer or seller strictly liable for injuries resulting from the sale of defective products. Strict products liability is based on different rationales than strict liability for abnormally dangerous activities, and requires proof of different elements. We will cope with its complexities in the next two chapters.

The examples below illustrate the application of strict liability for abnormally dangerous activities. In analyzing them, assume that the Third Restatement formulation applies, unless otherwise indicated.

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