Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
[T]here is no better established rule of law than that when damage is done to personal
property, and even to the person, by collision either upon the road or at sea, there must be
negligence in the party doing the damage to render him legally responsible, and if there be no
negligence the party sustaining the damage must bear with it. The existence of this rule is proved
by the exceptions to it, the cases of the innkeeper and common carrier of goods for hire, who are
quasi insurers. These cases are said to be by the custom of the realm, treating them as exceptions
from the ordinary rule of law. In the absence of authority to the contrary, I can see no reason why
damage to real property should be governed by a different rule or principle than damage to
personal property. There is an instance also of damage to real property, when the party causing it
was at common law liable upon the custom of the realm as a quasi insurer, viz, the master of a
house if a fire had kindled there and consumed the house of another. In such case, the master of
the house was liable at common law without proof negligence on his part. This seems to be an
exception from the ordinary rule of law, and in my opinion, affords an argument that in other
cases such as the present, there must be negligence to create a liability. . . .
POLLOCK, C. B. . . . I agree with my brother Martin that no action will lie. It appears to
me that my brother Bramwell assumes too strongly that the complainant “had a right to be free
from what is called ‘foreign water.’” That may be so with reference to surface-rights; but I am not
prepared to hold that this applies to every possible way in which water may happen to come.
There being, therefore, no authority for bringing such an action, I think the safer course is to
decide in favour of the defendants. . . .
Fletcher v. Rylands, L.R. 1 Ex. 265 (Exchequer Chamber 1866)
BLACKBURN, J. We have come to the conclusion that the opinion of Bramwell, B., was
right, and that . . . the plaintiff was entitled to recover damages from the defendants . . . .
The plaintiff, though free from all blame on his part, must bear the loss, unless he can
establish that it was the consequence of some default for which the defendants are responsible.
The question of law therefore arises, what is the obligation which the law casts on a person who,
like the defendants, lawfully brings on his land something which, though harmless whilst it
remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that
he must take care to keep in that which he has brought on the land and keeps there, in order that it
may not escape and damage his neighbours, but the question arises whether the duty which the
law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is,
as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and
prudent precautions, in order to keep it in, but no more. If the first be the law, the person who has
brought on his land and kept there something dangerous, and failed to keep it in, is responsible for
all the natural consequences of its escape. If the second be the limit of his duty, he would not be
answerable except on proof of negligence, and consequently would not be answerable for escape
arising from any latent defect which ordinary prudence and skill could not detect. . . .
We think that the true rule of law is, that the person who for his own purposes brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in
at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the
natural consequence of its escape. He can excuse himself by shewing that the escape was owing to
the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of
120