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

Witt & Tani, TCPI 3. Strict Liability and Negligence
Notes
1. Is strict liability possible? In Rylands, the Court of Exchequer and the House of Lords
purported to identify a basis for liability other than negligence. Many have characterized the
Rylands case as a form of “strict liability.” But what does that mean? Strict liability, as Professor
Stephen Perry points out, may not be conceptually available, at least not if it simply means causebased
liability. After all, both the plaintiff and the defendant in Rylands were causes of the injury
at issue; no injury would have taken place had the plaintiff not been mining coal, just as no injury
would have taken place had the defendant not built a reservoir. See Stephen R. Perry, The
Impossibility of Strict Liability, 1 CAN J. L. & JURISPRUDENCE 147, 169-70 (1988). To put it a
different way: causation alone does not distinguish between the two parties to the case. So what
then is the ground for liability offered by the judges in Rylands who differ with Judge Martin’s
negligence standard?
2. The reciprocity view. In discussing the defense of necessity in Vincent v. Lake Erie
Transportation Co., above, we noted the argument advanced by torts jurists like George Fletcher
that the real basis for the liability in torts is the imposition of a non-reciprocal risk. Fletcher
contends that Rylands is precisely such a case: “The critical feature of [Rylands] is that the
defendant created a risk of harm to the plaintiff that was of an order different from the risks that
the plaintiff imposed on the defendant.” George Fletcher, Fairness and Utility in Tort Theory, 85
HARV. L. REV. 537, 546 (1971). Does the reciprocity argument offer a sound basis for allocating
the cost of the harm to the reservoir-building defendant in Rylands? Critics insist that the
reciprocity argument is just as circular here in Rylands as it was in Vincent. It is circular because
the relative risks of the activities turn on tort law’s underlying allocation of those risks. If the
plaintiff coal miner has the right to compensation for the costs imposed by the defendant reservoir
builder’s conduct, then the defendant has created a risk of harm for itself, not for the plaintiff.
The risk to the coal mining plaintiff is only asymmetrical if we imagine a baseline of what
belongs to whom in the situation. But that of course is precisely what the torts judge is supposed
to do to resolve the dispute in the first place!
3. First in time? What about a first-in-time principle? The coal mine operator was removing
coal from the land before the construction of the defendant’s large new reservoir and mill. Should
this timing factor be enough to decide the case, or should temporal priority be disregarded? Does
it matter that the defendant already operated a much smaller reservoir and mill nearby? Note, too,
that the plaintiff and the defendant were linked in a web of contracts with a common landlord. If
the parties had contemplated risks like the one that came to fruition, what kind of a term would
they have adopted in their respective leases to deal with it?
4. Unusual behavior. Another possible justification for the Rylands outcome focuses on the
kinds of conduct that are ordinary in the neighborhood. When actors engage in new or otherwise
unusual activities, others may not be in a position to anticipate the risks that such conduct poses.
Does this distinction offer a ground for explaining the Rylands case?
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