C H A P T E R
11
Strict Liability
CHAPTER OUTLINE
• Introduction
• Animals
• Strict Liability for Abnormally
Dangerous Conditions or
Activities
192 CHAPTER 11 STRICT LIABILITY
INTRODUCTION
As we saw in Chapter 1, there are three main categories of torts: intentional torts,
negligence, and strict liability torts. Strict liability (sometimes referred to as absolute
liability or liability without fault) means responsibility regardless of blameworthiness
or fault. Persons who engage in certain kinds of activity will be liable or responsible
for the harm that results even if they acted with the greatest of care to avoid the harm.
The normal method of demonstrating blameworthiness or fault is for the plaintiff to
show that the defendant’s conduct fit within one of the intentional torts or was un-
reasonable (negligent). For some activities, however, the blameworthiness or fault of
the defendant is irrelevant. As a matter of social policy, the law says that when des-
ignated activities cause harm, the defendant must pay—whether the defendant acted
innocently, intentionally, or negligently. The same is true for harm that results from
certain conditions that exist on the defendant’s land.
In this chapter we will consider two categories of harm that lead to strict liabil-
ity: harm caused by animals and harm caused by abnormally dangerous conditions
or activities. In Chapter 19 on products liability, we will examine the separate tort
called strict liability in tort, which covers harm caused by a defective product irre-
spective of the blameworthiness or fault of the manufacturer or distributor of the
product.
One final point before we begin: there is some overlap among the three cate-
gories of torts studied in this book. For example, some of the intentional torts will
lead to liability even though it may be difficult to find blameworthiness or fault in
the defendant’s conduct. Also, as we will see later, it is sometimes difficult to distin-
guish between negligence and the tort called strict liability in tort. Nevertheless, cat-
egorizing torts is useful as a starting point in studying tort law. Be prepared, how-
ever, to find an absence of rigid boundary lines among the various torts.
ANIMALS
The Centers for Disease Control and Prevention estimates that each year dogs bite
4.7 million people, 800,000 of whom require medical treatment. Half of all children
are bitten by a dog before their twelfth birthday.1 When a dog or other animal causes
harm, the owner might be liable under several possible theories of recovery. The
cause of action might be an intentional tort or negligence.
EXAMPLES: Mary knows that her dog is aggressive around strangers.
One day in the park, she guides her dog close to the leg of a stranger so
that the dog will take a bite. The dog does so. Mary has committed a bat-
tery because she intended a harmful or offensive contact (see Chapter 5).
Mary knows that her dog is aggressive around strangers. To prevent the
dog from bothering anyone, she keeps the dog on a leash. One day in
a crowded park, however, she carelessly drops the leash so that she can
read a newspaper on the bench. A stranger walking by is bitten by the
dog. Mary has committed negligence because her failure to use rea-
sonable care caused harm (see Chapter 14).
What about strict liability? Can a pet owner be strictly liable for harm caused by an
animal even if no intentional tort or negligence has been committed? The answer de-
pends, in part, on whether the animal is wild or domestic.
1
Jane E. Brody, Heeding the Warnings From Dangerous Dogs, N.Y. Times, May 18, 1999, at
D8.
CHAPTER 11 STRICT LIABILITY 193
Wild Animals
A wild animal is an animal in the state of nature, e.g., lion, bear, monkey. In most
states, an owner (or keeper) of a wild animal will be strictly liable for any harm it
causes whether or not the owner knew of the animal’s dangerous propensities, irre-
spective of how well trained the animal may have been, and regardless of how much
care the owner took to prevent harm to others by the animal.
Domestic Animals
A domestic animal is an animal that has been domesticated or habituated to live
among humans, e.g., dog, cat, horse. An owner (or keeper) of a domestic animal will
be strictly liable for the harm it causes if two elements can be established:
i. owner has reason to know the animal has a specific propensity to cause
harm, and
ii. harm caused by the animal was due to that specific propensity.
EXAMPLE: George knows that his dog, Fido, likes to bite joggers.
Fido has never bothered anyone else. One day the dog bites Tom, a jog-
ger. A few hours later, Fido knocks down Mary, a neighbor, while she is
gardening.
In most states, George will be strictly liable to Tom since biting was a known propen-
sity. There was no known propensity, however, for knocking people down. There-
fore, there would be no strict liability to Mary. If she wants to recover, she must show
that George was negligent in failing to prevent Fido from knocking her down or that
he intended this result.
Occasionally, you will see the phrase, “every dog is entitled to one free bite.” The
implication of this statement is that an owner won’t know about the propensity of the
dog to bite until the dog has claimed its first human victim. Yet, this is not accurate.
There might be other evidence of this propensity, e.g., the dog’s inclination to lunge
toward everyone with its mouth wide open. Another reason the first bite may not be
“free” is that an owner might be subject to negligence liability for failing to control
an obviously feisty and aggressive dog even if the dog has never bitten anyone.
A few states have passed special statutes that impose strict liability for harm
caused by domestic animals with no known dangerous propensities. In effect, such
statutes treat domestic animals the same as wild animals.
ASSIGNMENT
Sam knows that his dog bites other dogs. One day Sam’s dog bites a stranger,
the first time it has ever attacked a human. Is Sam subject to strict liability? (See 11.1
General Instructions for the Legal Analysis Assignment in Chapter 2.)
CASE
Nardi v. Gonzalez
165 Misc. 2d 336, 630 N.Y.S.2d 215 (1995)
City Court of Yonkers
Background: A 110-pound German shepherd injures two OPINION OF COURT
small dogs. The owners of the small dogs, the Nardis, Judge DICKERSON delivered the opinion of the court:
sue the owner of the German shepherd, Mrs. Gonzalez, Bianca and Pepe are diminutive, curly coated Bichon
for strict liability. Frises and are, respectively, 9 years old and 3 years old.
Decision of Court: Mrs. Gonzalez is strictly liable. Bianca and Pepe are owned by the plaintiffs, Dusolina and
194 CHAPTER 11 STRICT LIABILITY
Alfred Nardi [“the Nardis”],. . . Ace is a large 5 year old Some dogs can be more vicious and dangerous than oth-
German Shepherd weighing 110 pounds. Ace is owned by ers. For example, German Shepherds are large, intelligent
the defendant, Maureen Gonzalez [Mrs. Gonzalez],. . . On and strong and, if trained properly, can serve as trusted
March 24, 1993 and again on June 16, 1994, Mrs. Gonza- guard dogs and police dogs. Without proper training, how-
lez allowed Ace to run loose without a leash. On these two ever, German Shepherds can be vicious, indeed [see e.g.,
occasions Ace entered onto the Nardis’ property and vi- Ford v. Steindon, 35 Misc. 2d 339, 232 N.Y.S.2d 473, 474
ciously attacked Bianca causing severe injuries. On both oc- (1962) (vicious German Shepherd attacks man, “the
casions, Bianca was taken to a veterinarian for treatment of dog . . . was a German Shepherd colloquially known as a
the wounds inflicted by Ace. The veterinarian bills were police dog . . . It has been said that with respect to such
$392 for the March 24, 1993 attack and $182 for the June dogs ‘it is a matter of common knowledge that the court
16, 1994 attack. can almost take judicial knowledge of the fact that police
On June 22, 1994 the Nardis commenced a lawsuit be- dogs are, by nature, vicious, inheriting the wild and untamed
fore this Court seeking damages for the injuries sustained characteristics of their wolf ancestors’ ”); DiGrazia v. Cas-
by Bianca and themselves. After a trial held on October 26, tronova, 48 A.D.2d 249, 368 N.Y.S.2d 898 (1975) (vicious
1994, this Court (Smith, J.) found Ace and its owner Mrs. German Shepherd [Sam] attacks six year old boy); Lagoda v.
Gonzalez responsible [“Considering the disparate sizes of Dorr, 28 A.D.2d 208, 284 N.Y.S.2d 130 (1967) (vicious Ger-
the animals and all the circumstances. . . .”] for the injuries man Shepherd attacks boy on bicycle knocking him to
inflicted upon Bianca [“Ace bit (Bianca) causing bite ground); Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d
wounds and bleeding”] and awarded damages of $524. 175, 468 N.E.2d 13 (1984) (dangerous German Shepherd
On February 4, 1995, Pepe, the younger Bichon Frise, was bites infant on mouth and arms); Application of Fugazy, 82
with his owner, Alfred Nardi, who was in his driveway shovel- Misc. 2d 135, 368 N.Y.S.2d 652 (Harrison Town Ct. West.
ing snow. Ace suddenly appeared, sniffed Pepe and then, Cty. 1974) (two dangerous German Shepherds [Kelly & Mur-
without provocation, viciously attacked and mauled Pepe. Al- phy] attack, bite and chase fifteen year old boy)].
fred Nardi chased Ace away and took Pepe to the veterinar- New York recognizes a cause of action which imposes
ian. Pepe remained hospitalized for four days undergoing strict liability [no proof of negligence necessary] upon owners
surgery. The photographs introduced at trial show a 10 inch for injuries inflicted by their vicious dogs, the owners having
gash held together with surgical staples running from Pepe’s knowledge thereof and viciousness being defined as prior
stomach to his back. The veterinarian bills for Pepe’s hospital- bites and/or mischievous propensities [see e.g., Wheaton v.
ization, care and treatment were $819, considerably more Guthrie, 89 A.D.2d 809, 453 N.Y.S.2d 480 (“strict liability ‘vi-
than those incurred by Bianca just the year before. cious dog’ cause of action . . . the proof established that (the
In this action, the plaintiffs seek damages to include the dog) had a vicious propensity known to the defendant. A vi-
costs of veterinarian services [$819], two days lost wages in cious propensity is the tendency of a dog to do an act which
caring for Pepe [$156] and all other appropriate damages. might endanger another . . .”); Morales v. Quinones, 72
In response Mrs. Gonzalez stated that she had built a fence A.D.2d 519, 420 N.Y.S.2d 899, 900 (1979) (“Liability in
around her backyard to keep Ace enclosed. Unfortunately, vicious propensity or dog bite cases is ‘absolute’ . . . and is
Ace escaped from the enclosure on February 4, 1995, went not dependent upon proof of negligence in the manner of
to the Nardi’s house and mauled Pepe. Based upon the keeping the animal. . . The keeping of the animal, knowing
facts of this case the Court finds that plaintiffs have stated a its vicious propensities is the gravamen of the offense. . .”);
cognizable cause of action for strict liability for injuries Lagoda v. Dorr, supra, 28 A.D.2d at 209, 284 N.Y.S.2d, at 132
caused by a vicious and dangerous dog. (“The doctrine that every dog is entitled to ‘one free bite’, if it
Dogs can be wonderful companions and loyal guardians. ever prevailed in this State, is no longer followed. . . The
On occasion, however, dogs can also be vicious animals gravamen of the action is the knowledge of the owner that
that annoy and wound men, women and children. . . . the dog was possessed of vicious or mischievous
Coleman v. Blake, 128 N.Y.S.2d 780, 781–782 (1954) (“Mrs. propensities. . .”); Coleman v. Blake, supra, at 128 N.Y.S.2d
Coleman proffered the dog a bit of cheese. Man’s best 781 (“Knowing dog’s waspish nature and a bite of
friend rewarded her affection by taking a bite out of her record. . .”); Fox v. Martin, 174 A.D.2d 875, 571 N.Y.S.2d
proboscis, and in so doing nipped a beautiful friendship in 161, 162 (1991) (cause of action requires evidence of prior
its origin. . .”, damages of $7,500 for injuries, medical ex- bites or vicious propensities and owner’s knowledge thereof)].
penses and loss of earnings); Fontecchio v. Esposito, 108 In this case Mrs. Gonzalez knew full well that Ace pos-
A.D.2d 780, 485 N.Y.S.2d 113 (1985) (dog bites woman, sessed vicious propensities since on two prior occasions Ace
damages of $240,000 and $70,000 reversed as excessive); had viciously attacked Bianca causing substantial injuries
Zager v. Dimilia, 138 Misc. 2d 448, 524 N.Y.S.2d 968 for which this Court (Smith, J.) found her liable and re-
(1988) (McDuff bites Tucker, damages limited to veterinar- sponsible. That Mrs. Gonzalez thereafter constructed a
ian bills, no punitive damages without evidence of prior fence to enclose Ace is of no significance [see Lynch v.
known bites); Corso v. Crawford Dog and Cat Hospital, Inc., Nacewicz, 511 N.Y.S.2d 121, 122 (1987) (“Liability is not
97 Misc. 2d 530, 415 N.Y.S.2d 182, 183 (1979) (“a pet is dependent upon proof of negligence in the manner of
not just a thing but occupies a special place somewhere in keeping or confining the animal. . .”) ] since, in fact, Ace
between a person and a piece of personal property”, dam- escaped on February 4, 1995 and viciously attacked and
ages of $700); Fowler v. Town of Ticonderoga, 131 A.D.2d mauled Pepe. All of the elements of a strict liability cause of
919, 516 N.Y.S.2d 368 (1987) (dog shot by Dog Control action-vicious dog are met herein and the Court finds Mrs.
Officer, no damages for owner’s psychic trauma). Gonzalez strictly liable for all appropriate damages.
CHAPTER 11 STRICT LIABILITY 195
The Court awards the following damages to the plaintiffs. dog’s vicious propensities. Punitive damages are appropriate
First, damages will include the $819 veterinarian bills for in this case and are needed to deter other dog owners from
Pepe’s hospitalization, care and treatment; second, damages failing to protect humans and other animals from vicious
will include $156 lost wages incurred by Alfred Nardi in car- and dangerous dogs. Further, such damages will encourage
ing for Pepe; third, this Court finds defendant’s misconduct defendant to take appropriate measures in the future to pro-
to be morally culpable [see e.g., Walker v. Sheldon, 10 N.Y.2d tect her neighbors from Ace or similar like minded dogs. The
401, 223 N.Y.S.2d 488, 490, 179 N.E.2d 497 (1961) ]. Ace Court awards plaintiffs punitive damages of $1,000.
was a dangerous instrumentality and defendant knew of the Ordered accordingly.
ASSIGNMENT
a. Does the court say that all owners of German shepherds will always be strictly
liable for the harm they cause? 11.2
b. Do you agree with the award of punitive damages against Mrs. Gonzalez?
What could she have done to avoid punitive damages so that she would pay
only the vet bills and lost wages?
c. Reread the facts of Assignment 11.1. How would Nardi v. Gonzalez apply to
Sam? Would he be strictly liable for the harm his dog caused the stranger?
Give arguments for both sides on the applicability of Nardi.
STRICT LIABILITY FOR ABNORMALLY
DANGEROUS CONDITIONS OR ACTIVITIES
Next we examine those conditions or activities causing harm that can lead to strict
liability. The tort is called strict liability for abnormally dangerous conditions or ac-
tivities and sometimes, absolute liability for abnormally dangerous conditions or ac-
tivities. It is important to keep in mind that the defendant is not necessarily home free
if the plaintiff fails to establish that the condition or activity of the defendant quali-
fies for strict liability status. The plaintiff may still be able to win by showing that
the defendant committed other torts such as trespass to land, nuisance, or negligence
in maintaining the condition or engaging in the activity.
Most of the cases on strict liability for abnormally dangerous conditions or ac-
tivities involve the way in which the defendant uses or abuses his or her land. It is also
possible, however, to commit this tort while on someone else’s land, e.g., transporting
a large quantity of explosives over a neighbor’s land or over a public highway.
Strict Liability for Abnormally Dangerous
Conditions or Activities Checklist
Definitions, Relationships, Paralegal Roles, and Research References
Category
Strict liability for abnormally dangerous conditions or activities is a strict liability tort (nei-
ther negligence nor intent must be shown).
Interest Protected by This Tort
The right to be free from harm caused by abnormally dangerous conditions or activities.
Elements of This Tort
i. Existence of an abnormally dangerous condition or activity
ii. Knowledge of the condition or activity
iii. Damages
iv. Causation
196 CHAPTER 11 STRICT LIABILITY
Strict Liability for Abnormall Dangerous
Conditions or Activities Checklist Continued
Definitions of Major Words/Phrases in the Elements
Abnormal: Unusual or non-natural for the area.
Dangerous: Creating a substantial likelihood of great harm to persons or property,
which cannot be eliminated by the use of reasonable care by the defendant.
Proximate Cause: The defendant is the cause in fact of the harm that results. The
kind of harm that results was foreseeable by the defendant, or should have been
foreseeable. The plaintiff was within the class of people who were foreseeably
endangered by the condition or activity.
Major Defenses and Counterargument Possibilities That Need to Be Explored
1. The condition or activity was not abnormally dangerous. (NOTE: The objective of the
defendant is to try to force the plaintiff to prove negligence. This is accomplished if
the plaintiff fails to show that the condition or activity was abnormally dangerous.
Items 2 to 5 below try to establish that the condition or activity was not abnormally
dangerous.)
2. The condition or activity was usual or natural for the environment in question.
3. The likelihood of serious harm from the condition or activity was small.
4. The danger in the condition or activity could have been eliminated by the use of rea-
sonable care. (Defendant does not admit, however, that such care was not used.)
5. The value of the condition or activity to the community outweighed any possible
danger.
6. A statute required or authorized the condition or activity.
7. The defendant was not aware of the condition or activity.
8. The defendant was not the cause in fact of the harm suffered by the plaintiff.
9. The kind of harm that resulted was not foreseeable.
10. The person injured was not a foreseeable plaintiff.
11. The plaintiff was aware of the danger, understood it, and unreasonably encountered
it (assumption of the risk).
12. The plaintiff consented to what the defendant did (on the defense of consent, see
Chapter 27).
13. The plaintiff’s suit against the government for strict liability for abnormally dangerous
conditions or activities committed by a government employee may be barred by sov-
ereign immunity (on sovereign immunity, see Chapter 27).
14. The plaintiff’s suit against the government employee for strict liability for abnormally
dangerous conditions or activities may be barred by public official immunity (on offi-
cial immunity, see Chapter 27).
15. The plaintiff’s suit against the charitable organization for strict liability for abnormally
dangerous conditions or activities committed by someone working for the organiza-
tion may be barred by charitable immunity (on charitable immunity, see Chapter 27).
16. The plaintiff failed to take reasonable steps to mitigate the harm caused when the de-
fendant committed strict liability for abnormally dangerous conditions or activities;
therefore, damages should not cover the aggravation of the harm caused by the plain-
tiff (on the doctrine of avoidable consequences, see Chapter 16).
Damages
The plaintiff can recover compensatory damages for the harm caused by the defendant’s
condition or activity. Punitive damages may also be possible if the plaintiff can show that the
defendant was malicious or reckless in allowing the harm to occur. (On the categories of
damages, see Chapter 16.)
Relationship to Criminal Law
There may be a criminal statute that prohibits the defendant from maintaining the condi-
tion or engaging in the activity involved, e.g., a statute making it a crime to explode fire-
works in public areas. The consequences of violating such a statute may include criminal
penalties as well as civil liability for the strict liability tort under discussion in this chapter.
Other Torts and Related Actions
Negligence: If the condition or activity of the defendant does not qualify for strict
liability status because the condition or activity is not abnormally dangerous, the
CHAPTER 11 STRICT LIABILITY 197
Strict Liability for Abnormall Dangerous
Conditions or Activities Checklist Continued
plaintiff may be able to show that the defendant was negligent in connection with the
condition or activity.
Nuisance: Nuisance should be considered when the condition or activity of the
defendant interferes with the use and enjoyment of the plaintiff’s land. In some states,
there is liability for an absolute nuisance on the same facts that would constitute strict
liability for an abnormally dangerous condition or activity.
Trespass to Land: This tort is used when there is an entry of a physical object on the
land of the plaintiff due to the abnormally dangerous condition or activity of the
defendant.
Wrongful Death: This action can be brought by the survivors of the plaintiff if death
results from the abnormally dangerous condition or activity of the defendant.
Federal Law
Under the Federal Tort Claims Act, the United States Government will not be liable for a
claim based on strict liability for abnormally dangerous conditions or activities committed
by one of its federal employees. (See Figure 27–7 in Chapter 27.)
Employer-Employee (Agency) Law
An employee who commits strict liability for abnormally dangerous conditions or activ-
ities is personally liable for this tort. His or her employer will also be liable for this tort if
the conduct of the employee was within the scope of employment (respondeat supe-
rior). The employee must be furthering a business objective of the employer at the
time. (On the factors that determine the scope of employment, see Figure 14–10 in
Chapter 14.)
Paralegal Roles in Litigation for Strict Liability for Abnormally Dangerous
Conditions or Activities
(See also Figures 3–1, 3–14, and 29–1 in Chapters 3 and 29.)
Fact finding (help the office collect facts relevant to prove the elements of strict liabil-
ity for abnormally dangerous conditions or activities, the elements of available de-
fenses, and extent of injuries or other damages):
• client interviewing
• field investigation
• online research (e.g., records on weather conditions on the date of the accident)
File management (help the office control the volume of paperwork in a litigation of a
case asserting strict liability for abnormally dangerous conditions or activities):
• open client file
• enter case data in computer database
• maintain file documents
Litigation assistance (help the trial attorney prepare for a trial and appeal, if needed):
• draft discovery requests
• draft answers to discovery requests
• draft pleadings
• digest and index discovery documents
• help prepare, order, and manage trial exhibits (visuals or demonstratives)
• prepare trial notebook
• draft notice of appeal
• order trial transcript
• cite check briefs
• perform legal research
Collection/enforcement (help the trial attorney for the judgment creditor to collect the
damages award or to enforce other court orders at the conclusion of the case):
• draft postjudgment discovery requests
• field investigation to monitor compliance with judgment
• online research (e.g., location of defendant’s business assets)
198 CHAPTER 11 STRICT LIABILITY
Strict Liability for Abnormall Dangerous
Conditions or Activities Checklist Continued
Research References for This Tort
Digests
In the digests of West, look for case summaries on this tort under key topics such as:
Explosives Damages
Trespass Torts
Waters and Water Courses Death
Nuisance
Corpus Juris Secundum
In this legal encyclopedia, see the discussion under topic headings such as:
Explosives Damages
Trespass Torts
Waters and Water Courses Death
Nuisance
American Jurisprudence 2d
In this legal encyclopedia, see the discussion under topic headings such as:
Explosions and Explosives Damages
Waters Torts
Premises Liability Death
Adjoining Landowners Nuisance
Legal Periodical Literature
There are two main index systems to use to locate legal periodical literature on this tort:
INDEX TO LEGAL CURRENT LAW INDEX
PERIODICALS AND BOOKS (ILP) (CLI)
See literature in ILP under subject See literature in CLI under
headings such as: subject headings such as:
Water and Water Courses Strict Liability
Liability without Fault Explosives
Animals Water
Fires and Fire Prevention Damages
Trespass Torts
Real Property Real Property
Torts Liability for Landslide Damages
Damages Liability for Condition and
Adjoining Landowners Use of Land
Example of a legal periodical article you will find by using ILP or CLI:
Common Carriers and Risk Distribution: Absolute Liability for Transporting Hazardous Ma-
terials by James R. Roberts, 67 Kentucky Law Journal 441 (1978–79).
A.L.R., A.L.R.2d, A.L.R.3d, A.L.R.4th, A.L.R.5th, A.L.R. Fed.
Use the ALR Index to locate annotations on this tort. In this index, check subject headings
such as:
Absolute Liability Torts
Floods and Flooding Damages
Explosions and Explosives Water
Example of an annotation you can locate through this index:
Liability for Property Damage caused by Vibrations, or the like, Without Blasting or Explo-
sion by T. S. Tellier, 79 A.L.R.2d 966 (1961).
Words and Phrases
In this multivolume legal dictionary, look up abnormally dangerous and every other
word or phrase connected with strict liability for abnormally dangerous conditions
CHAPTER 11 STRICT LIABILITY 199
Strict Liability for Abnormall Dangerous
Conditions or Activities Checklist Continued
or activities discussed in this chapter. The dictionary will give you definitions of these
words or phrases from court opinions.
CALR: Computer-Assisted Legal Research
Example of a query you could ask on WESTLAW to try to find cases or other legal materials
on this tort: “strict liability for abnormally dangerous activities” /p damages
Example of a query you could ask on LEXIS to try to find cases or other legal materials
on this tort: strict liability for abnormally dangerous activities /p damages
Example of search terms you could use on an Internet legal search engine such as
LawCrawler (http://lawcrawler.findlaw.com) to find cases, statutes, or other legal
materials on this tort: “strict liability for abnormally dangerous activities”
Example of search terms you could use on an Internet general search engine such as
Alta Vista (http://www.altavista.com) to find cases, statutes, or other legal materials on
this tort: “strict liability for abnormally dangerous activities”
More Internet sites to check for materials on strict liability for abnormally dangerous
conditions or activities and other torts:
Jurist: (http://jurist.law.pitt.edu/sg_torts.htm)
LawGuru: (http://www.lawguru.com/search/lawsearch.html)
See also Torts Law Online at the end of Chapter 1.
Abnormally Dangerous Condition or Activity
The first element is the existence of an abnormally dangerous condition or activity.
Some conditions or activities are so dangerous to persons or property that the de-
fendant will be liable for the harm they cause even if the defendant neither intended
the harm nor was negligent in producing the harm. It is not a defense for the defen-
dant to show that he or she acted reasonably or used the greatest of care—strict lia-
bility will still be imposed.
A great deal of the law in this area stems from a famous English case, Rylands v.
Fletcher.2 The defendants built a reservoir on their land. The plaintiff owned a mine
nearby. The mine was flooded when water from the defendant’s reservoir broke
through and reached the mine. The rule from this case, which was eventually ac-
cepted in most American states, is as follows:
If the defendant knows he or she is engaging in:
(a) a non-natural or abnormal use of land,
(b) that creates an increased danger to persons or property,
the defendant will be strictly liable for harm caused by this use. The plaintiff will
not have to prove negligence.
In short, there is strict liability for abnormally dangerous conditions or activities. (As
we will see later, however, there are foreseeability requirements that must also be met
before a court will impose strict liability.)
The determination of what is abnormal or non-natural will, of course, depend
on the environment. The following are examples that have been found to be abnor-
mally dangerous:
• storing large quantities of inflammable liquids in an urban area
• blasting in a residential area
• extensive pile driving
• emitting noxious gases from a factory in a residential area
2
L.R. 3 H.L. 330 (1868).
200 CHAPTER 11 STRICT LIABILITY
The activity or condition must be unusual for the area and present a serious threat
of harm. The following are examples of cases that were not found to be abnormally
dangerous because they did not meet both criteria:
• electric wiring in a business
• gasoline stored at a gas station underground
• a small amount of dynamite stored in a factory
• an oil well dug in a Texas field
Although damage caused by such activities may not be considered abnormally dan-
gerous enough to qualify for strict liability status, a plaintiff may still be able to re-
cover under other theories. If the defendant acted unreasonably, a negligence case is
possible, perhaps with the help of res ipsa loquitur (see Chapter 14). Nuisance and
trespass to land should also be explored (see Chapter 23).
Is airplane flying an abnormally dangerous activity? Suppose a plane crashes
onto someone’s land, causing substantial damage to people and property below.
Strict liability? Years ago, many courts would say yes. As aviation has become more
common and accepted, however, modern courts are inclined to say no. A plaintiff,
therefore, must establish negligence or some other tort in order to recover.
Statutes often play a role in this area of strict liability. A statute, for example,
might require or simply authorize a common carrier to transport dangerous sub-
stances. In such cases, strict liability is usually not applied when damage results from
the activity. Liability will result only if negligence can be shown. On the other hand,
there may be statutes that prohibit certain activity, e.g., blasting in certain areas or
selling drugs to minors. It is sometimes unclear what civil consequences, if any, the
legislature intended for a violation of such statutes. Research into the legislative his-
tory of the statute must be undertaken. A court might interpret the statute as calling
for strict liability, negligence liability, or no civil liability at all for its violation.
The Restatement of Torts lists a number of factors that a court should analyze
in determining whether something is abnormally dangerous:3
• the degree of risk of some harm to people, land, or chattels of others
• the likelihood that the harm that results from the activity will be great
• the inability to eliminate the risk by the exercise of reasonable care
• the extent to which the activity is not a matter of common usage
• the inappropriateness of the activity to the place where the activity is carried on
• the extent to which the value of the activity to the community is outweighed
by its dangerous attributes
None of these factors is usually conclusive in deciding whether an activity is abnor-
mally dangerous. The factors are simply aids for a court to determine the extent of
the abnormality and the extent of the danger posed by the defendant. (On the mean-
ing of factors in legal analysis, see Legal Analysis Guideline #12 in Chapter 2.)
In balancing these factors, if a court tips the scale against strict liability, it does
not necessarily mean that the defendant has won the case. It simply means that the
plaintiff must try to fit the facts of the case under the elements of other torts: negli-
gence, nuisance, trespass to land, etc.
ASSIGNMENT
In each of the following situations, assume that the object or activity in question
11.3 has resulted in damage or harm to someone. Do you think a court will impose
strict liability? Why or why not? (See General Instructions for the Legal Analysis
Assignment in Chapter 2.)
a. Tom is moving his own barn. He places it on a huge truck platform and drives
it on a public highway. It crashes into a bridge.
b. The XYZ Company has installed a large steam boiler in its factory. It explodes.
3
Restatement (Second) of Torts § 520 (1965).
CHAPTER 11 STRICT LIABILITY 201
c. The large lake on Linda’s land overflows into neighboring land after a
thunderstorm.
d. From an army base in Florida, scientists send up a satellite. Unfortunately it
lands in Newark, New Jersey.
e. Fred knows that he is HIV positive. Yet, he continues to have unprotected sex
with others who are unaware of Fred’s HIV status.
f. A bystander is shot when a handgun accidentally goes off during a robbery.
The bystander sues the manufacturer of the handgun for engaging in an ab-
normally dangerous activity.
Knowledge of the Condition or Activity
A defendant will not be strictly liable for an abnormally dangerous condition or ac-
tivity of which the defendant is unaware. The plaintiff must establish knowledge on
the part of the defendant.
Causation: Cause in Fact and Proximate Cause
The harm that the plaintiff’s person or property has suffered must have been caused
by the defendant’s abnormally dangerous condition or activity. The cause-in-fact
tests are as follows:
• but for the defendant’s conduct, the plaintiff would not have been harmed, or
• the defendant’s conduct was a substantial factor in producing the harm suf-
fered by the plaintiff
The second test is used when there is more than one cause factor involved.
Once cause in fact has been established, proximate cause must be explored.
When we study proximate cause in Chapter 15, we will learn that the rules of prox-
imate cause establish a cutoff point beyond which the defendant will not be liable for
the harm he or she caused in fact. Proximate cause, therefore, is more of a policy
question than a causation question.
The harm that results must be within the type of harm that was initially fore-
seeable, and the individual injured must be part of the group or class of people that
were included in the foreseeable risk posed by the abnormally dangerous activity.
The foreseeability of both is required in order to establish proximate cause. In a mo-
ment, we will study the famous mink case (Foster v. Preston Mill). This case teaches
that some consequences (e.g., a mink killing its young) are so unforeseeable that the
condition or activity of the defendant (e.g., dynamite blasting near the mink) is not
considered unusually dangerous for those consequences.
The proximate cause rules for strict liability are not as broad as the proximate cause
rules for negligence (see Chapter 15). A court is more willing to find proximate cause in
a negligence case than in a strict liability case involving abnormally dangerous activities.
Unforeseeable intervening causes such as an act of God or an act of a third person are
more likely to cut off liability in a strict liability case than in a negligence case. Courts
are willing to limit the extent of liability in this way when there is an absence of fault in
a defendant who is strictly liable. No such reluctance is shown toward defendants who
are negligent or intentional wrongdoers. Suppose, for example, that the defendant main-
tains a lake that is abnormally dangerous. An unusual frost results in leakage, causing
damage to neighboring land. In many courts, this act of God (the frost) would cut off
the defendant’s strict liability, whereas if the defendant had been careless in maintaining
the lake, the act of God would probably not terminate negligence liability.
Defenses
Contributory negligence on the part of the plaintiff is not a defense to the tort of main-
taining an abnormally dangerous condition or activity. This is so with all strict liabil-
ity torts—the negligence of the plaintiff will not defeat liability. Suppose, for example,
202 CHAPTER 11 STRICT LIABILITY
that Tom carelessly walks into an area where construction blasting is occurring. Tom
fails to realize that blasting is going on, but if he had been exercising reasonable care
for his own safety, he should have realized this. Tom is injured by the blasting. There
is clear contributory negligence. This is not a defense, however, when the plaintiff is
suing under the strict liability tort of maintaining an abnormally dangerous condition
or activity.
If, however, the plaintiff knows of and understands the danger posed by the de-
fendant and voluntarily proceeds to encounter it, then the plaintiff has assumed the
risk of the danger. Assumption of the risk is a defense to a strict liability tort. To avoid
permitting a defendant to use this defense as an unfair weapon against a plaintiff,
however, the defendant must establish that the plaintiff’s assumption of the risk was
unreasonable. A plaintiff has a right to the reasonable use and enjoyment of his or
her property. A defendant cannot encircle the plaintiff’s land with a dangerous con-
dition or activity and then assert assumption of the risk when the plaintiff uses his or
her land and is injured because of the condition or activity. The defendant must show
that this use was unreasonable, and courts are reluctant to make such a finding when
the defendant has prevented the plaintiff from making ordinary and reasonable use
of his or her property.
CASE
Foster v. Preston Mill Co.
44 Wash. 2d 440, 268 P.2d 645 (1954).
Supreme Court of Washington
Background: Blasting for road construction frightened excitable. If disturbed by noises, smoke, or dogs and cats,
mother mink owned by B. W. Foster, which caused the they run back and forth in their cages and frequently de-
mink to kill their kittens. Foster brought this action stroy their young. However, mink become accustomed to
against the company doing the blasting (Preston Mill) disturbances of this kind, if continued over a period of
to recover damages on the theory of absolute liability. time. This explains why the mink in question were appar-
The trial court found for Foster in the sum of ently not bothered, even during the whelping season, by
$1,953.68. The case is now on appeal before the the heavy traffic on U.S. highway No. 10, and by the noise
Supreme Court of Washington where Preston Mill is the and vibration caused by passing trains. There was testi-
appellant and Foster is the respondent. mony to the effect that mink would even become accus-
Decision on Appeal: Judgment reversed. Absolute tomed to the vibration and noise of blasting, if it were car-
liability does not extend this far. ried on in a regular and continuous manner.
Appellant and several other companies have been en-
OPINION OF COURT gaged in logging in the adjacent area for more than fifty
Justice HAMLEY delivered the opinion of the court . . . : years. Early in May, 1951, appellant began the construction
Respondent’s mink ranch is located in a rural area one of a road to gain access to certain timber which it desired to
and one-half miles east of North Bend, in King County, cut. The road was located about two and one-quarter miles
Washington. The ranch occupies seven and one half acres southwest of the mink ranch, and about twenty-five hun-
on which are located seven sheds for growing mink. The dred feet above the ranch, along the side of what is known
cages are of welded wire, but have wood roofs covered as Rattlesnake Ledge.
with composition roofing. The ranch is located about It was necessary to use explosives to build the road. The
two blocks from U.S. highway No. 10, which is a main customary types of explosives were used, and the custom-
east-west thoroughfare across the state. Northern Pacific ary methods of blasting were followed. The most powder
Railway Company tracks are located between the ranch used in one shooting was one hundred pounds, and usu-
and the highway, and Chicago, Milwaukee, St. Paul & Pa- ally the charge was limited to fifty pounds. The procedure
cific Railroad Company tracks are located on the other used was to set off blasts twice a day—at noon and at the
side of the highway about fifteen hundred feet from the end of the work day.
ranch. Roy A. Peterson, the manager of the ranch in 1951, tes-
The period of each year during which mink kittens are tified that the blasting resulted in “a tremendous vibration,
born, known as the whelping season, begins about May is all. Boxes would rattle on the cages.” The mother mink
1st. The kittens are born during a period of about two and would then run back and forth in their cages and many of
one-half weeks, and are left with their mothers until they them would kill their kittens. Peterson also testified that on
are six weeks old. During this period, the mothers are very two occasions the blasts had broken windows.
CHAPTER 11 STRICT LIABILITY 203
Appellant’s expert, Professor Drury Augustus Pfeiffer, “It is one thing to say that a dangerous enterprise must
of the University of Washington, testified as to tests made pay its way within reasonable limits, and quite another to
with a pin seismometer, using blasts as large as those say that it must bear responsibility for every extreme of
used by appellant. He reported that no effect on the deli- harm that it may cause. . . . Prosser on Torts, 457, § 60.
cate apparatus was shown at distances comparable to Applying this principle to the case before us, the ques-
those involved in this case. He said that it would be im- tion comes down to this: Is the risk that any unusual vibra-
possible to break a window at two and one-fourth miles tion or noise may cause wild animals, which are being
with a hundred-pound shot, but that it could cause vibra- raised for commercial purposes, to kill their young, one of
tion of a lightly-supported cage. It would also be audible. the things which make the activity of blasting ultrahaz-
Charles E. Erickson, who had charge of the road construc- ardous?
tion for appellant in 1951, testified that there was no We have found nothing in the decisional law which
glass breakage in the portable storage and filing shed would support an affirmative answer to this question. The
which the company kept within a thousand feet of where decided cases, as well as common experience, indicate that
the blasting was done. There were windows on the roof the thing which makes blasting ultrahazardous is the risk
as well as on the sides of this shed. that property or persons may be damaged or injured by
Before the 1951 whelping season had far progressed, coming into direct contact with flying debris, or by being
the mink mothers, according to Peterson’s estimate, had directly affected by vibrations of the earth or concussions of
killed thirty-five or forty of their kittens. He then told the the air.
manager of appellant company what had happened. He Where, as a result of blasting operations, a horse has be-
did not request that the blasting be stopped. After some come frightened and has trampled or otherwise injured a
discussion, however, appellant’s manager indicated that the person, recovery of damages has been upheld on the the-
shots would be made as light as possible. The amount of ory of negligence. Klein v. Phelps Lumber Co., 75 Wash. 500,
explosives used in a normal shot was then reduced from 135 P. 226. Contra: Uvalde Construction Co. v. Hill, 142 Tex.
nineteen or twenty sticks to fourteen sticks. 19, 175 S.W.2d 247, where a milkmaid was injured by a
Officials of appellant company testified that it would frightened cow. But we have found no case where recovery
have been impractical to entirely cease road-building dur- of damages caused by a frightened farm animal has been
ing the several weeks required for the mink to whelp and sustained on the ground of absolute liability.
wean their young. Such a delay would have made it nec- If, however, the possibility that a violent vibration, con-
essary to run the logging operation another season, with cussion, or noise might frighten domestic animals and lead
attendant expense. It would also have disrupted the com- to property damages or personal injuries be considered one
pany’s log production schedule and consequently the op- of the harms which makes the activity of blasting ultrahaz-
eration of its lumber mill. ardous, this would still not include the case we have here.
In this action, respondent sought and recovered judg- The relatively moderate vibration and noise which ap-
ment only for such damages as were claimed to have been pellant’s blasting produced at a distance of two and a quar-
sustained as a result of blasting operations conducted after ter miles was no more than a usual incident of the ordinary
appellant received notice that its activity was causing loss life of the community. See 3 Restatement of Torts, 48, § 522,
of mink kittens. comment a. The trial court specifically found that the blast-
The primary question presented by appellant’s assign- ing did not unreasonably interfere with the enjoyment of
ments of error is whether, on these facts, the judgment their property by nearby landowners, except in the case of
against appellant [Preston Mill] is sustainable on the theory respondent’s mink ranch.
of absolute liability. It is the exceedingly nervous disposition of mink, rather
The modern doctrine of strict liability for dangerous sub- than the normal risks inherent in blasting operations,
stances and activities stems from Justice Blackburn’s deci- which therefore must, as a matter of sound policy, bear
sion in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). Prosser on the responsibility for the loss here sustained . . . . [T]he
Torts, 449, § 59. As applied to blasting operations, the doc- policy of the law does not impose the rule of strict liability
trine has quite uniformly been held to establish liability, ir- to protect against harms incident to the . . . extraordinary
respective of negligence, for property damage sustained as and unusual use of land. . . .
a result of casting rocks or other debris on adjoining or It is our conclusion that the risk of causing harm of the
neighboring premises. Patrick v. Smith, 75 Wash. 407, 134 kind here experienced, as a result of the relatively minor
P. 1076. . . . However . . . strict liability should be confined vibration, concussion, and noise from distant blasting, is
to consequences which lie within the extraordinary risk not the kind of risk which makes the activity of blasting
whose existence calls for such responsibility. Prosser on ultrahazardous. The doctrine of absolute liability is there-
Torts, 458, § 60; 3 Restatement of Torts, 41, § 519. . . . This fore inapplicable under the facts of this case, and respon-
restriction which has been placed upon the application of dent is not entitled to recover damages. The judgment is
the doctrine of absolute liability is based upon considera- reversed.
tions of policy. As Professor Prosser has said:
204 CHAPTER 11 STRICT LIABILITY
ASSIGNMENT
a. What other theories of recovery could Foster try to use against Preston Mill
11.4 Co. to recover for the damages the blasting did to its mink kittens?
b. A company blasts in an area. This excites a horse, which then runs into and
kills a prize cow. The owner of the cow sues the blasting company on a the-
ory of absolute liability. What result? Does Foster apply?
SUMMARY
Strict liability is the imposition of liability or responsibility for harm whether or not
the person causing the harm displayed any fault or moral impropriety. In most
states, an owner of a wild animal will be strictly liable for any harm it causes
whether or not the owner knew of the animal’s dangerous propensities and irre-
spective of how careful the owner was in trying to prevent any harm from occur-
ring. In most states, an owner of a domestic animal will be strictly liable for the
harm it causes if the owner had reason to know the animal had specific propensi-
ties to harm others, and the harm caused by the animal was due to that specific
propensity.
A condition or activity is abnormal (for purposes of establishing strict liability
for abnormally dangerous conditions or activities) if it is unusual or non-natural for
the area. It is dangerous when it poses a substantial likelihood of great harm to per-
sons or property that cannot be eliminated by the use of reasonable care by the
defendant. If the abnormal condition or activity does not meet this definition of
“dangerous,” there can be no strict liability. In order to recover, the plaintiff must
establish that the defendant created a nuisance, caused a trespass to land, or acted
negligently with the condition or activity. For strict liability, the defendant must
know that the condition or activity is dangerous, must be the cause in fact of the
harm, and must be the proximate cause of the harm. For proximate cause, the
harm that results must be within the type of harm that was initially foreseeable,
and the plaintiff must be part of the group within the foreseeable risk posed by the
abnormally dangerous condition or activity. Some consequences are so unforesee-
able that the condition or activity of the defendant is not considered unusually dan-
gerous for those consequences. Contributory negligence is not a defense, but un-
reasonable assumption of risk is.
KEY TERMS
strict liability 192 strict liability for abnormally but for 201
absolute liability 192 dangerous conditions or substantial factor 201
activities 195
liability without fault 192 proximate cause 201
abnormally dangerous condition
strict liability in tort 192 intervening causes 201
or activity 199
wild animals 193 act of God 201
Rylands v. Fletcher 199
domestic animals 193 contributory negligence 201
cause in fact 201
assumption of the risk 202