So far we’ve studied intentional torts and negligence, along with their respective defenses. All else equal, the level of bad behavior required to establish negligence compared to intentional torts is lower. Is there behavior that might yet fall short of negligent behavior and still result in a finding of liability? Yes. At the most extreme end of the spectrum is absolute liability: under some particular factual circumstance, you pay, regardless of your “fault” — that is, even if you didn’t engage in intentionally bad behavior or the taking on of undue risk. Insurance companies contract for precisely that kind of liability: if the specified harm happens, they agree to pay. And last section’s vicarious liability is a flavor of absolute liability.
In between negligence and absolute liability lies strict liability. Strict liability may serve a useful function when it’s difficult to establish how to do something “right” — perhaps the proper answer is not to do it at all. In its most common form, strict liability exists when a defendant is engaging in an especially dangerous activity — one that’s dangerous even if done with the utmost of care. A classic example is keeping a tiger as a pet, or riding in a hot air balloon not long after they were invented. Such activities — described in one of the Restatements as “abnormally dangerous” — are thought to be ripe for having to pay as they go, making whole whatever harm they cause without any inquiry into whether they were undertaken in a reasonable way.
Can you think of any pastime you’ve engaged in within the past year that might be suitable for strict liability treatment?
This book, and all H2O books, are Creative Commons licensed for sharing and re-use. Material included from the American Legal Institute is reproduced with permission and is exempted from the open license.