Strict Liability — Torts

A demolition company brings down an abandoned grain silo with explosives. It does everything right. Certified blasters, the minimum necessary charge, the drill pattern calculated precisely, every warning the law requires. The blast still throws a chunk of concrete over a fence, into a neighbor's greenhouse two hundred feet away, destroying a season's worth of orchids. The company's whole defense is its spotless safety record and its complete compliance with every blasting regulation. How much does that help?

Not at all. This is the one corner of tort law where perfect care is a losing argument. By the end of this episode you will know which activities get this treatment, and why the defendant's care stops mattering. And the two limits that can still send a plaintiff back to negligence.

Here is the route. First what liability without fault actually means, and what it does not. Then the test for an abnormally dangerous activity, and the two lists worth memorizing. Then who may sue and who may be sued. Then the limit that decides most hard questions, the type of harm. And finally the defenses.

Start with what strict means. In a negligence case the plaintiff proves the defendant fell below the standard of care. Here the plaintiff does not. The defendant's carefulness is simply irrelevant. We used the best crew and followed every regulation is a winning argument in a negligence case and a losing one here. The law picks a small set of activities so dangerous they hurt people even when everyone is careful, and puts the loss on whoever chose the activity.

But strict is not absolute. Three things survive. First, causation. The plaintiff must still prove the activity actually caused the harm, and that the harm was a foreseeable result of the activity's danger. Strict liability removes the fault element, not the causation element. Second, the harm must be the kind of harm that made the activity dangerous. Third, defenses. The plaintiff's own carelessness can shrink the award.

And one framing point that saves you on the exam. Whether an activity is abnormally dangerous is a question of law for the judge, not a fact question for the jury. The judge decides it as a threshold matter. Only then does the case move on to causation and damages.

So the elements. One. The defendant carried on an abnormally dangerous activity, decided by the court. Two. The activity's dangerous character was the actual and proximate cause of the harm. Three. The harm was of the type that made the activity abnormally dangerous. Four. Actual damage to person or property. Notice what is missing. No negligence. No intent.

Now the heart of the topic. What makes an activity abnormally dangerous? The newer Restatement, § 20, gives a clean two-part test. One. Does the activity create a foreseeable and highly significant risk of physical harm even when everyone involved uses reasonable care? Two. Is the activity not one of common usage? Both yes, and it is abnormally dangerous.

The genius is in one phrase. Even when reasonable care is exercised. That is exactly what separates strict liability from negligence. If being careful can design the danger away, the law just requires care, and you have a negligence problem. Strict liability is reserved for the residual risk that careful conduct cannot eliminate. The flying rock that blasting produces no matter how good the crew.

Many courts still weigh the older six factors, from § 520. A high degree of risk of harm. A likelihood that any harm will be serious. An inability to eliminate the risk with reasonable care. Not a matter of common usage. Inappropriate to the place where it is carried on. And danger to the community that outweighs its value. No single factor decides, and the two that matter most are the two the modern test kept.

Two of those trip people up. Common usage means the activity is carried on by a large fraction of the community. Driving a car. Piping natural gas into a home. Widely shared activities are governed by negligence even when they are risky, because everyone both creates the risk and is exposed to it. Rare activities carried on by only a few, commercial blasting, a toxic-gas plant, are the candidates.

Location matters too. The same activity can be abnormally dangerous in one place and ordinary in another. Storing explosives in a remote quarry may be perfectly fine. Storing the same explosives under a Columbia apartment building is a different story. Quick challenge. A fuel distributor keeps half a million gallons of gasoline at a rural terminal miles from anyone. Then it opens an identical tank farm between an apartment complex and an elementary school. Same activity, same answer? No.

Now the two lists, worth memorizing outright. Usually abnormally dangerous. Blasting or using explosives, the paradigm case. Storing large quantities of explosives or highly flammable liquids. Manufacturing, storing, or transporting highly toxic chemicals or gases. Fumigating with poisonous gas. Crop-dusting with dangerous chemicals. Impounding large quantities of water in an unsuitable place, the old escape-of-a-dangerous-thing idea. Handling radioactive or nuclear materials. And disposing of hazardous or toxic waste.

Usually not. Driving an ordinary automobile. Supplying or using electricity or natural gas in a home. Operating an aircraft in flight, where the modern trend treats aviation as a negligence matter. Ordinary industrial, factory, or construction work whose risks careful conduct can control. And everyday commercial activity. Parking, building, shipping ordinary goods.

Who may be sued? The one who carries on the activity, who chose to do it and usually profits from it. And here is the wrinkle the exam loves. The duty is non-delegable. A developer who hires a licensed blasting contractor and leaves every decision to the experts does not escape strict liability by pointing at the contractor. Both can be strictly liable. You cannot hire your way out of an abnormally dangerous activity.

Who may sue? Any foreseeable plaintiff harmed by the activity's dangerous character. The doctrine grew out of land disputes and historically protected the neighbor next door, but the modern rule is broader. A passerby, a nearby worker, a cyclist on a public road struck by flying rock. The test is foreseeability of harm from the danger that makes the activity abnormally dangerous.

Two limits on that. First, abnormally sensitive plaintiffs. A distant, lawful blast so agitates a chinchilla breeder's high-strung females that they kill their own pups, and nobody else nearby is harmed at all. No strict liability. The loss flowed from the animals' unusual sensitivity, not from the flying debris and ground concussion that make blasting dangerous. Second, someone who comes near the activity to get a benefit from it may be left to negligence.

Now the limitation that decides most hard questions, and the one the NCBE outline calls out by name. Strict liability reaches only the harm that results from the very risk that made the activity abnormally dangerous. Come at it from some other, ordinary risk and strict liability drops out.

Two crew members carry a crate of dynamite from a delivery truck to the storage magazine. One of them loses his grip, and the crate lands on a bystander's foot and crushes it. The dynamite never detonated. That is a falling-weight injury, not an explosion injury, so strict liability does not reach it.

Same idea again. A delivery worker at a toxic-gas plant slips on rainwater pooled on the loading dock and fractures his wrist. The cylinders are sealed and had nothing to do with it.

And notice what does not happen. The plaintiff does not simply lose. The type-of-harm limit removes the no-fault shortcut, not every theory of recovery. Strict liability drops out, and ordinary negligence is still sitting there.

Finally, defenses. Start with the traditional rule, because the exam likes the contrast. Traditionally, ordinary contributory negligence was not a defense to strict liability. A plaintiff who merely failed to notice the danger still recovered in full. The point was that the defendant, not the victim, bears the risk. But two kinds of conduct did matter. Knowingly and unreasonably subjecting yourself to the danger, and voluntarily assuming a known risk.

Modern law, the majority, folds all of that into comparative fault. The factfinder assigns the plaintiff a percentage of responsibility and reduces the award by it, exactly as in a negligence case.

Back to the blast. A bystander ducks under the warning tape for a closer look and is hit by debris. The jury finds the crew strictly liable and assigns him 30% of the responsibility. He recovers 70%. Change one fact. Put him at 60% in a state that bars recovery above 50%, and he recovers nothing.

Two more points. Express assumption of the risk, a clear voluntary agreement to accept the danger, remains a complete bar in most states. A photographer who signs a waiver to stand inside the firing area of a fireworks show has given one. Implied assumption of risk is usually absorbed into the comparative-fault calculation and reduces rather than bars. And notice what never enters that calculation. The defendant's carefulness.

A word on authorities, because this episode named no case, and that is deliberate. Strict liability is a rules topic. NextGen hands you a fact pattern and asks whether the activity qualifies, not who decided what. The law comes from the Restatements. The older one gives the six factors of § 520, the newer one the two-part test of § 20.

If you keep only three things, keep these. The two-part test, because it decides the threshold question. Care is irrelevant once the activity qualifies, because that is the bait every fact pattern dangles. And the harm must flow from the dangerous risk, because that is where the hard questions live.

Now the traps. One. Do not confuse strict with absolute. The plaintiff still proves causation, the harm must be within the activity's special risk, and comparative fault can shrink the award. Two. Do not apply strict liability to a common activity. Driving, wiring a house, ordinary factory work are negligence problems even when someone is badly hurt. They fail the not-common-usage prong.

Three. Watch the type-of-harm switch. An abnormally dangerous activity that injures someone through an ordinary, everyday risk is a negligence case, not a strict-liability one. Four. A careful defendant is not a defense. If a stem stresses how careful the blaster was, that is bait. Care is irrelevant once the activity is abnormally dangerous, and it matters only to whether the activity qualifies at all.

Five. Remember the non-delegable duty. Hiring an independent contractor does not let the hiring party off the hook. Six. Do not reach for animals or products here. On the NextGen scope, animal strict liability is not a listed topic, and defective-product strict liability is a separate topic with its own rules.

Time for the quick check, and this one comes straight from the BARGO question bank. A company hauls dynamite by truck through a city that treats transporting explosives as an abnormally dangerous activity. The driver glances at his phone, drifts through a red light, and strikes a pedestrian in a crosswalk. The dynamite never detonates.

She sues under strict liability. Is the company strictly liable? Option one. Yes, because transporting explosives is an abnormally dangerous activity. Option two. No, because the injury did not flow from the explosive risk. Option three. No, because a delivery truck is common usage regardless of its cargo. Pause here if you want a moment.

The answer is option two. What makes hauling dynamite dangerous is the risk of explosion. Here it never detonated, and the pedestrian was hurt by ordinary careless driving, so the harm sits outside the special risk and the case sounds in negligence.

Option one stops at the abnormally dangerous label without asking whether this harm came from the explosive danger. Dangerous cargo does not turn every traffic mishap into strict liability.

Option three reaches the right result for the wrong reason, which is exactly why it tempts you. The claim fails not because trucks are common, but because this was a driving injury. Had the dynamite blown up, the truck being common usage would not have saved the company. There are thirty-plus more questions on this topic alone, each option explained like that.

Five things to take away. One. Strict liability is liability without fault. Once the activity qualifies, the defendant's care is irrelevant, and whether it qualifies is a question of law for the judge. Two. The two-part test. A foreseeable and highly significant risk of physical harm even when everyone uses reasonable care, and not a matter of common usage.

Three. Learn the lists. Blasting leads the yes list. Driving, home gas and electricity, aviation, and ordinary industrial work sit on the no list. Four. The harm must flow from the risk that made the activity dangerous. Otherwise strict liability drops out and you are back in negligence.

Five. Modern law applies comparative fault. The plaintiff's share reduces the award, and above the statutory threshold it bars recovery entirely. Which is why the demolition company still pays for a greenhouse full of orchids, having done nothing wrong at all. Next time, Products Liability.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.