The liability we have seen thus far has been based either upon intent or upon negligence. We examine in this chapter certain situations, particularly those involving animals and abnormally dangerous activities, in which liability is imposed even where neither intent nor negligence is present. Such liability is sometimes called “liability without fault” or “absolute liability.” However, the more commonly-accepted term, and the more descriptive one, is “strict liability.” The key concepts in this chapter are:
- Basis for: The basis for strict liability is that those who engage in certain kinds of activities do so at their own peril, and must pay for any damage that foreseeably results, even if the activity has been carried out in the most careful possible manner. Our society has made the judgment that such activities should “pay their own way.” This judgment stems in part from the belief that it is generally easier for the defendant to bear the loss (probably through liability insurance) than for the injured plaintiff to do so.
- Animals: Court impose strict liabilities on the keepers of certain animals. If an animal is “wild,” there is strict liability for any damage that results from a “dangerous propensity” of that species. If an animal is “domestic,” there is only strict liability where the owner knows or has reason to know of the particular animal’s dangerous characteristics.
- Abnormally dangerous activities: One who carries out an abnormally dangerous (or “ultra-hazardous”) activity is strictly liable – liable without regard to whether he is at fault – for any damage that proximately results from the dangerous nature of the activity.
- Workers’ compensation: All states have enacted “Workers’ Compensation” statutes. These statutes basically establish a strict liability scheme for on-the-job injuries: in essence, the employer must pay specified “damages” for any on-the-job injury suffered by the employee, even if this occurs completely without the employer’s fault. Payments provided by the WC statute are generally less than would be awarded by a court in tort, and do not allow anything for pain and suffering. The WC remedy is the employee’s sole one – in return for not having to prove fault, she must be content with a lower level of recovery, whether she wants to make this trade-off or not.
I. STRICT LIABILITY GENERALLY
A. Generally: Apart from the special situation of defective products (see infra, p. 358), there are three major contexts in which D can have “strict liability” – that is, liability regardless of D’s intent and regardless of whether D was negligent. We examine those contexts in this chapter. They are:
- strict liability for keeping wild or other dangerous animals;