Strict Liability

Strict Liability in the United States

Strict Liability in Environmental Law

A standard used to determine whether a particular action or connection with an activity should be the primary basis for holding the actor responsible for damages caused by the activity. The concept does not require proof of fault.

Strict liability evolved as a theory in tort law, the branch of law that deals with private injuries, and has its roots in social issues. At first, it was imposed only in situations where the activity was ultra hazardous yet useful to society. For example, dynamiting an area to clear it may be justified, but it is hazardous, even when dynamiters are careful. Courts created a compromise of sorts so such activities could be carried out but innocent bystanders would be compensated for their injuries without having to prove negligence. The idea was an extension of a longstanding rule that if a person kept animals and they escaped and caused damage, the owner was responsible for any damage.

Historical Development

Strict liability in tort has its origins in an English case from 1866, Rylands v. Fletcher, which involved a water reservoir created by a mill owner on his own property. The mill owner’s diversion of the water eventually resulted in its escape into an abandoned mine shaft. A neighbor was mining in an adjacent mine, and the water traveled into the active mine. When deciding the case, the court did not have a theory of liability to use that directly applied to the facts. There had been no negligence, and the court ruled out nuisance. However, a wrong had been done, so the court borrowed from the law about trespassing cattle. The law of the case formed the basis of strict liability.

Strict liability is not as onerous as many believe. To find strict liability for an activity on one’s own property, the court must determine that it is either abnormal or unusual within the community and poses a great danger to others, even if it is done properly. For example, an oil well is not unusual in parts of Texas, but drilling in one’s backyard in a residential community is an abnormal use of the land. Strict liability is not appropriate in the first situation but is in the second, if someone is injured.

Product Liability

Tort law reflects society’s values. As a result, new theories evolve from time to time to address contemporary situations. When manufacturing and mass production began, courts had no explicit way of addressing injuries caused by those products. For example, in one case decided in 1842, Winter bottom v. Wright, a passenger injured in a coach that collapsed could not get damages because the passenger did not have a direct contract with the person who was supposed to repair the vehicle.

Quickly courts began to see a problem with that approach. Privity of contract had been a reliable way of limiting liability to the first sale of goods. Privity of contract is the relationship between the parties to a contract. Before the Industrial Revolution, it was often used as a bar to a lawsuit, because the plaintiff could only sue the person with whom he had dealt directly. As an example, if Tom bought an axle from a person who did not make it, he could not sue the person who made it if it was defective because Tom was not in privity of contract with the maker. But in an industrial society, products were usually sold to a distributor and then resold to the ultimate consumer. The injustice was apparent, since the person most likely to be harmed by a defective product is the person who takes it home.

Tort law changed to accommodate the societal changes. A new field of tort law, product liability, emerged, using established legal concepts as bases of liability: negligence, warranty, and strict liability. Courts determined that the manufacturer of goods could foresee that they would be passed on to an ultimate consumer. If the product was such that it could harm someone if not properly manufactured, the manufacturer was negligent if the consumer was injured by defective goods. This principle first appeared in the case of MacPherson v. Buick Motor Co. in 1916.

Product liability law added strict liability to its arsenal to cover inherently dangerous products that could cause severe injury if defective. In 1963, strict liability for products was adopted in Greenman v. Yuba Power Products, Inc., a California case that dealt with an injury resulting from a defective multipurpose power tool. Since that time, the strict liability theory has been used for industrial equipment, motor vehicles, drugs, pharmaceutical products such as the Daikon shield, disposal of hazardous waste, and escape of hazardous or toxic substances.

Toxic Torts

Anew wave of problems accompanies today’s lifestyles, so tort lav/ is again expanding to encompass them. Chemical use and storage, waste disposal practices, and manufacturing byproducts and emissions have all contributed to the growth of a new area of law called toxic torts. It uses the familiar theories nuisance, trespass, negligence and strict liability but the name refers to an injury resulting from a toxic agent of some type.

A 1907 case involving a release of oil into the Potomac River that resulted in damage to boats was one of the first to apply a strict liability theory to environmental damage. The court in Brennan Construction Co. v. Cumberland determined that oil was a dangerous substance, certain to injure others if it escaped.

Toxic torts are often difficult to prove because the injured person must establish exposure, damage resulting from the exposure, and a connection between the exposure and the damage. Scientific testimony for toxic tort cases frequently conflicts. Also, toxic tort cases may involve hundreds of plaintiffs, as in asbestos cases, and managing the cases efficiently is a tedious and demanding job. Many courts now require plaintiffs to present enough evidence to show a scientific basis for their claim or they dismiss the cases. Also, in very large lawsuits the court may permit only a representative group of the plaintiffs to actually put on a case.

For toxic tort cases, the strict liability rule is similar to the Rylands v. Fletcher principle. Courts will look not only at the activity conducted, but also at the surrounding community. If the activity is abnormal, unusual, and dangerous for that location, strict liability is an option. For example, a hazardous waste disposal facility within a residential neighborhood is not a common enterprise. Neighbors injured by released hazardous waste should be able to convince a court to impose strict liability.

For toxic tort cases, the strict liability rule is similar to the Rylands v. Fletcher principle. Courts will look not only at the activity conducted, but also at the surrounding community. If the activity is abnormal, unusual, and dangerous for that location, strict liability is an option. For example, a hazardous waste disposal facility within a residential neighborhood is not a common enterprise. Neighbors injured by released hazardous waste should be able to convince a court to impose strict liability.

Statutes and Strict Liability

In environmental law, strict liability is used to establish violations of major statutes. The first primary law to embrace the concept was the Clean Water Act. The law simply prohibits a discharge of pollutants to waters of the United States without a permit or an exclusion. In a 1979 case, United States v. Earth Sciences, the defendant had discharged cyanide into a creek during its goldleaching process. The defendant did not have a permit, and the court said the law did not require proof of intent. If the discharge occurred, strict liability applied.

Since many environmental laws require reporting of violations, the defendant will often have no defense to an enforcement action. However, it can and often does negotiate with the government on the remaining issue, the amount of the penalty. If negotiations do not occur, the court must consider a number of factors when setting the fine. The interesting effect of the penalty provisions is restoring negligence principles to the determination of the penalty amount. For example, both the court and the EPA must consider the seriousness of the violation, the duration, the past conduct of the violator, whether the violator gained an economic benefit, the cooperation of the violator, and ability to pay when they establish the penalty. In a sense, these components do figure in an analysis of the negligence and fault of the defendant. Thus, arguing about liability may not be as important as examining the defendant’s conduct before and after the violation.

Conclusion

Strict liability has earned its place in tort law, but it has its limits. Because the theory ignores specific intent (and sometimes behavior) of the defendant, courts want to see a reason that the defendant should be held responsible for the results of the defendant’s activity. Therefore, courts examine the type of activity, whether it is abnormal in the neighborhood, its inherent dangerousness, its utility to society, and whether it is a commercial activity. The basic question in tort law remains this: if a person is injured as a result of the defendant’s actions, who should bear the cost?.

Not only is strict liability used to address private injuries, but it is also the standard of liability for many environmental statutes. By using strict liability, the government has significantly reduced its burden of proof of the violation of a law. However, the courts can still take intent and behavior into consideration when they set the penalty for the violation. (1).

Vicarious Liability: Historical Basis of Strict Liability: Animals and Ultrahazardous Activities

To this point, we have considered principles of liability that in some sense depend upon the “fault” of the tortfeasor. This fault is not synonymous with moral blame.

Aside from acts intended to harm, the fault lies in a failure to live up to a standard of reasonableness or due care. But this is not the only basis for tort liability. Innocent mistakes can be a sufficient basis. As we have already seen, someone who unknowingly trespasses on another’s property is liable for the damage that he does, even if he has a reasonable belief that the land is his. And it has long been held that someone who engages in ultrahazardous (or sometimes, abnormally dangerous) activities is liable for damage that he causes, even though he has taken every possible precaution to avoid harm to someone else.

Likewise, the owner of animals that escape from their pastures or homes and damage neighboring property may be liable, even if the reason for their escape was beyond the power of the owner to stop (e.g., a fire started by lightning that burns open a barn door). In such cases, the courts invoke the principle of strict liability, or, as it is sometimes called, liability without fault. The reason for the rule is explained in Klein v. Pyrodyne Corporation. (2)

For information about strict product liability, click here.

Strict Liability in Tort

Because the doctrines of breach of warranty and negligence did not provide adequate relief to those suffering damages or injuries in products-liability cases, beginning in the 1960s courts developed a new tort theory: strict products liability, restated in the Second Restatement, section 402A. Basically the doctrine says that if goods sold are unreasonably dangerous or defective, the merchant-seller will be liable for the immediate property loss and personal injuries caused thereby. But there remain obstacles to recovery even under this expanded concept of liability: disclaimers of liability have not completely been dismissed, the plaintiff’s conduct or changes to the goods may limit recovery, and—with some exceptions—the remedies available are limited to personal injury (and damage to the goods themselves); economic loss is not recoverable. Almost forty years of experience with the Second Restatement’s section on strict liability has seen changes in the law, and the Third Restatement introduces those, but it has not been widely accepted yet. (3). For more information about strict liability in Tort law, click here.

Cause of Action for Injury from Ladder or Scaffold Defects Under Strict Liability in Tort: an Overview

This section examines this type of action. This subject identifies the various elements of the Cause of Action for Injury from Ladder or Scaffold Defects Under Strict Liability in Tort, offering a practical approach to the litigation issues of this cause of action. See also the entry about legal risks.

Resources

Notes

  1. Based on “Environment and the Law. A Dictionary”
  2. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.
  3. Id.

See Also

  • Actus Reus.
  • Mens Rea
  • Mistake
  • Rape
  • Vicarious Liability
  • Negligence
  • Proximate Cause
  • Rylands v. Fletcher.

Further Reading (Books)

Husak, Douglas. “Varieties of Strict Liability.” Canadian Journal of Law & Jurisprudence 8 (1995): 189.

Knoll, Mark, and Singer, Richard. “Searching for the ‘Tail of the Dog’: Finding Elements of Crimes in the Wake of McMillan v. Pennsylvania.” Seattle University Law Review 22 (1999): 1057.

Levinson, Laurie. “Good Faith Defenses: Reshaping Strict Liability Crimes.” Cornell Law Review 78, no. 3 (1993): 401.

Michaels, Alan. “Constitutional Innocence.” Harvard Law Review 112, no. 4 (1999): 828.

Priester, Benjamin. “Further Developments on Previous Symposia: Sentence for a ‘Crime’ the Government Did Not Prove: Jones v. United States and the Constitutional Limitations of Factfinding by Sentencing Factors Rather Than Elements the Offense.” Law & Contemporary Problems 61 (1998): 249.

Sayre, Francis. “Public Welfare Offenses.” Columbia Law Review 33, no. 1 (1933): 55.

Simons, Kenneth. “When Is Strict Criminal Liability Just?” Journal of Criminal Law and Criminology 87 (1997): 1075.

Singer, Richard. “The Resurgence of Mens Rea: III The Rise and Fall of Strict Liability.” Boston College Law Review 30, no. 2 (1989): 327.

Singer, Richard, and Husak, Douglas. “Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert Packer.” Buffalo Criminal Law Review 2 (1999): 226.

Wasserstrom, Richard. “Strict Liability in the Criminal Law.” Stanford Law Review 12 (1960): 731.

Wiley, John. “The New Federal Defense: Not Guilty by Reason of Blamelessness.” Virginia Law Review 85, no. 5 (1999): 1021.

Further Reading (Articles)

Strict Liability in Contemporary European Codification: Torn between Objects, Activities, and Their Risks, Georgetown Journal of International Law; January 1, 2013; Buyuksagis, Erdem van Boom, Willem H.

Full disclosure: why strict liability is the only acceptable standard for failure to warn of pharmaceutical risks.(California), Trial; July 1, 1997; Finzen, Bruce A. Toepfer, David S.

The Theory of Enterprise Liability and Common Law Strict Liability, Vanderbilt Law Review; April 1, 2001; Keating, Gregory C.

On strict liability crimes: preserving a moral framework for criminal intent in an intent-free moral world., Michigan Law Review; February 1, 2012; Thomas, W. Robert

The Comprehensive Environmental Response, Compensation, and Liability Act: The Correct Paradigm of Strict Liability and the Problem of Individual Causation, UCLA Journal of Environmental Law & Policy; December 22, 2000; MacAyeal, James R.

Paved with Good Intentions: The Fate of Strict Liability under the Migratory Bird Treaty Act, Environmental Law; March 22, 2012; Robbins, Kalyani

In Search of a Remedy: Do State Laws Exempting Sellers from Strict Product Liability Adequately Protect Consumers Harmed by Defective Chinese-Manufactured Products?, Journal of Corporation Law; January 1, 2009; Feeney, Adam

The Immorality of Strict Liability in Copyright, Marquette Intellectual Property Law Review; January 1, 2013; Hetcher, Steven

Strict Product Liability Reform Legislation in Japan: Learning from “Design Defects” in the American and European Legal Systems, Management International Review; January 1, 1993; Weber, Robert C.

STRICT PRODUCT LIABILITY AND SAFETY: EVIDENCE FROM THE GENERAL AVIATION MARKET, Economic Inquiry; July 1, 2008; Nelson, Randy A Drews, James N

Distinguishing the Concept of Strict Liability in Tort from Strict Products Liability: Medusa Unveiled, The University of Memphis Law Review; July 1, 2003; Cantu, Charles E

Stipulated damages, super-strict liability, and mitigation in contract law., Michigan Law Review; June 1, 2009; Levmore, Saul

Applying Federal Rule of Evidence 407 in Strict Liability: A Discussion of Changes to the Rule, The Review of Litigation; July 1, 1997; Vinson, Eric L.

Criminal Law Reform and the Persistence of Strict Liability, Duke Law Journal; November 1, 2012; Brown, Darryl K.

In (partial) defense of strict liability in contract., Michigan Law Review; June 1, 2009; Scott, Robert E.

When is strict criminal liability just?, Journal of Criminal Law and Criminology; July 1, 1997; Simons, Kenneth W

The Judicial Posner on Negligence versus Strict Liability: Indiana Harbor Belt Railroad Co. V. American Cyanamid Co, Harvard Law Review; March 1, 2007; Rosenberg, David

When Is Strict Criminal Liability Just?, Journal of Criminal Law and Criminology; June 22, 1997; Simons, Kenneth W.

Rolling the “Barrel” a Little Further: Allowing Res Ipsa Loquitur to Assist in Proving Strict Liability in Tort Manufacturing Defects, William and Mary Law Review; March 1, 1997; Johnson, Matthew R.

Damages for Pain and Suffering and Emotional Distress in Products Liability Cases Involving Strict Liability and Negligence, Faulkner Law Review; March 22, 2012; Hunter, Richard J., Jr. Amoroso, Henry

Strict Liability in the International Business Landscape

Definition of Strict Liability in the context of U.S. international business and public trade policy: A no-fault theory of product liability, when neither care nor good faith can absolve the manufacturer of a defective product.

Strict Liability: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Strict Liability. This part provides references, in relation to Strict Liability, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Strict Liability by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Strict Liability and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Strict Liability or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Strict Liability and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Strict Liability. Finding these decisions can be challenging. In many cases, researchers about Strict Liability should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Strict Liability when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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