5. Typically used when there are superseding intentional actions that occur after a party is negligent XIII) STRICT LIABILITY *don’t forget to do causation analysis* 12
_____________________________________________________________________________________ ______ No SL RST Normative model CJ SL (LOSEE) (KING) Strict SL A. 4 theories of SL 1. RYLANDS (historical)- A “common sense” look at the “inappropriateness” of D’s “activities” – neutral or pro-P? between fault based and pure SL 2. LOSSEE (historical)- A “utilities” look at the “good” of D’s “activities” – pro-D NO SL 3. Collective justice (CJ SL) (MODERN)- A “very strict” look at liability for D’s “activities” – pro-P Pure SL 4. L&E (Modern)- A purportedly “neutral” look at all of the “good” + “bad” of D’s “activities” – neutral or pro-D??? B. Acts vs. activities 1. Acts- ex: hitting brakes. Society does not depend on individual acts. Uses negligence theory. Very narrow conduct. 2. Activities: ex: driving. Society depends on activities to move forward. Uses SL (but fault/theory must still be provided.) Broad conduct. C. Strict liability is liability imposed without regard to the defendant’s negligence or intent to cause the harm, question of law for the judge to determine D. Transfers risk from V to actors E. POSNER 1. RST: between Losee and fault based SL 2. Non-optimal activities: weight risks/utility 3. Liability requires activities to be highly unreasonable 4. If risky levels are Non-optimal, need to make activity level changes or substitutions 5. Inability to reduce risk with reasonable care? Commonness? Inappropriate? F. RYLANDS (historical)- puts RESPONSIBILITY above FREEDOM 1. We think that the true rule of law is that the person who, for his own purposes brings on his land, and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, he is prima facie answerable for all the damages which is the natural consequence of escape 2. Suggested SL applied only to non-natural uses of land- activities that are out of place in the area where the D chooses to conduct them 3. Must be “escape” from D’s property 4. Trespass did not apply- was not direct injury which was required at the time 5. Nuisance did not apply- injury resulted from single incident rather than continuing interference w P’s use and enjoyment of his property 6. Unnatural? Risky? Inappropriate? Sacredness of person? G. Modern day principles of SL for Abnormally dangerous activities 1. Actor who carries on an abnormally dangerous activity is subject to SL for physical harm resulting from the activity 2. Reasons for SL: economic concepts of cost avoidance and risk spreading (a) Threat of liability will encourage actors to forgo risky activities entirely (b) SL encourages actors to reduce cost of accidents by taking extra precautions 13
(c)SL places loss from high-risk activities on the party who can most easily spread the costs of the enterprise by adding the cost of compensation for accidents resulting from the activity to the price of the product H.KING (Normative SL model)1.Middle way, combines other more extreme SL theories
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