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Caveat Actor: Strict Liability for Abnormally Dangerous Activities

INTRODUCTION

Many students come to law school with the belief that an actor who causes injury to another is always liable for that injury. However, in cases governed by negligence law, this is not the case. Recovering in an action for negligence requires proof that the defendant breached the duty of due care. Since many accidents result from unexpected circumstances, unknowable mechanical defects, weather conditions or other nonnegligent causes, injured parties are often unable to recover, even though another person caused their injuries.

In Cohen v. Petty, 65 F.2d 820 (D.C. Cir. 1933), for example, the plaintiff was denied recovery where the defendant suffered a sudden fainting spell, lost control of his car and injured the plaintiff. The plaintiff lost in Cohen because the defendant did not owe her an absolute duty to avoid injuring her, but only a duty to exercise reasonable care to prevent injuries from his driving. Where injury results despite the exercise of reasonable care, that duty has not been breached, and the injured party cannot recover under a negligence standard.

However, the negligence standard is not the only possible basis for imposing tort liability. In some situations tort law imposes either more demanding or lesser duties of care on actors. For example, many courts hold that common carriers owe their passengers “the highest degree of care,” clearly a more stringent standard than negligence. See Prosser & Keeton at 208-209. In other situations, courts hold that a defendant owes a lesser duty than the exercise of reasonable care. For example, many courts hold that a landowner only owes a trespasser a limited duty to avoid willful or wanton injury due to conditions on her property. Dobbs, Hayden & Bublick, Dobbs’ Law of Torts §273.

This chapter deals with situations in which the law imposes a very heavy duty on actors, a duty to avoid injury to the plaintiff entirely or pay for any resulting injuries. When such a duty exists, the defendant is liable regardless of the care with which she conducts the activity. “Strict liability is liability imposed without regard to the defendant’s negligence or intent to cause harm.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm, Scope Note to chapter 4. The liability flows not from carelessness, but from the very choice to conduct the activity at all. Such “strict liability” is not premised on fault in the conventional sense of the term, but on the policy choice to place accident losses from the activity on the actor rather than on its victims. The defendant, it is said, “acts at her peril” in conducting such activities. No matter how much care she takes to avoid injuries to others, she will be held “strictly liable” if such injuries result.