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

Witt & Tani, TCPI 3. Strict Liability and Negligence
All concur.
Notes
1. Torts and the social contract. Judge Earl’s account seems to suggest that people in
civilized societies enter into a social contract under which they trade away their natural rights to
compensation for injuries caused without fault. Why would they do so in Judge Earl’s account?
Is a negligence rule necessarily one of the terms of the social contract? Taking up the social
contractarianism of John Rawls, Professor Gregory Keating argues that distributive fairness in tort
law would require the adoption not of a negligence standard but of a no-fault approach that
allocates injury costs to the enterprises that benefit from the activity creating the risk—an
approach that Keating calls “strict enterprise liability.” See Gregory C. Keating, Rawlsian
Fairness and Regime Choice in the Law of Accidents, 72 FORDHAM L. REV. 1857 (2004). How
does Keating know that it is the enterprise and not the injured party—or both—who created the
risk in the relevant sense? The plaintiff in Losee v. Buchanan engaged in and benefited from an
activity creating a risk: he built a structure that was at risk of collapse. This is not to say that the
plaintiff ought to be thought of as responsible for the structure’s collapse when the steam boiler
flew from the defendant’s property and smashed into it. That would be an unlikely way to
characterize the situation. But it does suggest that the reason for holding the defendant liable—or,
as in the actual case, holding the defendant not liable—cannot be that one party was engaged in a
beneficial activity and the other was not. They both were!
Note that in cases between parties with ongoing consensual relationships, an analysis of
which party was benefitting from the action will be even more difficult. In such situations, both
parties are (by hypothesis) beneficiaries of the activity in question. For example, when an
enterprise sells a product to a consumer, they both benefit from the activity of producing and
selling the product.
2. The floodgates of strict liability. Although Brown and Losee rejected Rylands, recent
research in the caselaw concludes that other American jurisdictions were far more open to the
Rylands doctrine than either Brown or Losee suggest. In his student note, Professor Jed
Shugerman found:
[A] significant majority of the states actually accepted Rylands in the late nineteenth
and early twentieth centuries, at the height of the “era of fault.” . . . A few states
split on the validity of Rylands in the 1870s, but a wave of states from the mid-
1880s to the early 1910s adopted Rylands, with fifteen states and the District of
Columbia solidly accepting Rylands, nine more leaning toward Rylands or its rule,
five states wavering, and only three states consistently rejecting it. Just after the
turn of the century, the California Supreme Court declared, more correctly than not,
that “[t]he American authorities, with hardly an exception, follow the doctrine laid
down in the courts of England [in Rylands].” In the following years, some states
shifted against Rylands, but an equivalent number of new states also adopted
Rylands. Accordingly, a strong majority of states has consistently recognized this
precedent for strict liability from about 1890 to the present.
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