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University of South Carolina School of Law
Montgomery, John E.

Torts II Outline
Chapter 7: Strict Liability
” Strict Liability – Imposition of liability in the absence of negligence
y B>PL – Liable, but not negligent
” Strict Liability v. Absolute Liability
y With strict liability, there are some defenses
y With absolute liability, there a re relatively few elements to by proved by p
” Fletcher v. Rylands (Mine flooded by water from adjacent reservoir)
y Strict liability imposed in the absence of negligence of the D.
M D could be released from liability if it was p’s fault or act of god.
M Appeals – made distinction between natural and non-natural use of land and held that if water has accumulated there naturally, he would not be liable.
M Trespassing cattle – Strict liability
¨ Rancher knows cattle have tendency to wander (probability) Easier to impose SL than get into Negl. Analysis
M Unruly horse – Negligence only
¨ When you go on roads, you accept some risk
y Holding: If a person brings something on his land, which is potentially harmful and that something escapes onto his neighbor’s land, he is strictly liable.
y Lame Geese – Owner of pond introduced lame geese, which attracted wild geese that ate neighbor’s crops – held strictly liable
y SC Case – Suppose commercial laundry uses propane gas to fire boilers. Gas escapes and ignites causing explosion that damages neighbor’s house.
M Distinguished from Rylands b/c of social importance – Neighbor gets compensation for damages by the general good and the right to do the same thing on his property –
¨ Strict liability not the rule
¨ In SC – If water main breaks – Rylands v. Fletcher does NOT apply –
S Social utility is more valuable than mill works
y More inclined to impose strict liability when we believe that activity is not valuable.
y Turner v. Big Lake (Texas reservoir floods adjacent lands) – Arid land – Reservoir is a natural use of land (Rejected Rylands)
” Explosion Cases
y Nature of Activity – Blasting v. NonBlasting
M Should it matter that D created explosion or that explosion just happens
M 1st Restatement – Use and storage of explosives are carried out by few people and therefore is uncommon
y Kind of Injury – Personal vs. Property
M Distinction doesn’t make sense. Goes by wayside
y Source of Injury – Debris vs. Concussion
M Early on p could only recover if injury caused by debris. This distinction dropped away
y Location – Activity Common vs. Activity Uncommon
M Location may be a good indicator of how valuable an activity is and how common it is.
M Turner v. Big Lake (Texas reservoir escapes) – Impounding water in Texas is more common than in England (Rylands) – Limits Rylands to uncommon activities. Rylands does not apply if activity is common.
M 1st Restatement – Covered activity is “ultra hazardous” – Risk that cannot be eliminated by the exercise of the utmost care and is not a matter of common usage.
¨ Use and storage of explosives is uncommon
” 2nd Restatement – One who carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity although he has exercised the utmost care to prevent the harm (No commentary that explosives are always subject to strict liability)
y 6 Factors for “abnormally dangerous”:
M Existence of a high degree of risk of some harm to the person, land or chattels of others
M Likelihood that the harm that results from it will be great
M Inability to eliminate the risk by the exercise of reasonable care
M Extent to which the activity is not a matter of common usage
M Inappropriateness of the activity to the place where it is carried on AND
M Extent to which its value to the community is outweighed by its dangerous attributes.
” Explosion Cases
y Lossee v. Buchanon (Steam boiler catapulted into neighbor’s house upon explosion) – No strict liability
M “I hold my property subject to the risk that it may be unavoidably or accidentally injured by those who live near me.”
M Support of Industry
y Sullivan v. Dunham (Explosion hurls tree part onto highway where it kills someone)
M p had a right to be on the highway and D had a right to blow up trees. p’s right to safety is greater than D’s property right.
M D should be responsible for voluntary actions whether they are negligent or not.
M Hay v. Cohes (Flying Rocks) – damage to property
¨ It is better th

is not valuable, may want to reduce activity level)
M Minimize administration costs
¨ With negligence – more lengthy trials
¨ With strict liability – more trials
¨ Optimal rule to do this – no liability
M Encourage research and development
¨ Use in situations only where D is in better position to reduce costs (ex. Planes falling on houses)
M Minimize Costs of Evidentiary Uncertainty
¨ Under Negligence
S If Negligent– liable for precautions and accident cost
S If not negligent – Liable only for precautions
S Systematically leads to over precaution
¨ Under Strict Liability – always liable for precautions and accident cost
S Don’t gain anything by taking too much precaution
S Costs are symmetrical if you take too much precaution or too little precaution. T/F no incentive for over precaution
¨ SL reduces the level of care b/c actors will be liable anyway. Why build 11 foot fence when 10 foot fence is enough and they will be liable anyway
¨ SL reduced incentive for p to take precautions b/c p will be compensated.
¨ SL reduces dangerous activities by raising costs of such activities
¨ Liability should rest on the cheapest cost avoider. This is often the person with the most information.
M Calbresi – Law should determine which classes of activities are typically negligent and impose strict liability
M Epstein – Equity arguments – Put SL on those who cause accidents
M Fletcher – Victim has right to recover from non-reciprocal risks – apply SL when victim imposes less risk.

Chapter 8: Liability for Defective Products

” Products Liability – – Failed product claim originated in contract. When it produces an injury, it is a tort. (Crossroads of Contract and Tort)
” No privity requirement