Strict liability

The Floor and the Six-Factor Gate: When Activity Becomes Abnormally Dangerous

On the NCBE outline, Abnormally dangerous activities is the relevant strict-liability sub-area. It concerns no-fault liability for physical harm caused by an activity whose unusual danger remains significant even when reasonable care is used. Defective products and private nuisance use different liability paths.

This entry is NOT STARRED. An unstarred entry may be tested with legal resources supplied. When tested without resources, you need only demonstrate recognition that the topic is at issue. You are not required to hold this topic cold because resources may be supplied. You must, however, hold the floor: the vocabulary, the six-factor classification, the order of the questions, the dangerous-risk limitation, and the special treatment of plaintiff conduct.

The governing common-law framework is the Restatement (Second) of Torts treatment of abnormally dangerous activities. The recognition triggers are concrete: blasting, storing or transporting explosives, keeping large quantities of toxic chemicals, fumigating, crop dusting, or similar allegations that liability exists “regardless of precautions” or “even though the defendant exercised utmost care.”

The activity is classified by considering six factors:

• The activity creates a high degree of risk of harm.

• The likely harm is great if the risk materializes.

• The risk cannot be eliminated by exercising reasonable care.

• The activity is uncommon usage, rather than a common activity of ordinary life.

• The activity is inappropriate to the location where it is conducted.

• The activity’s social value is insufficient compared with its dangerous attributes.

These factors are weighed together; no single factor automatically decides the issue. Blasting in a densely populated neighborhood strongly supports classification. Blasting in a remote quarry may make location less unfavorable, but the remaining factors can still support classification. Ordinary risky conduct-driving, ordinary construction, or using common machinery-is not transformed into strict liability merely because an accident is possible.

The Dangerous Risk Link: When Strict Liability Reaches the Injury

Strict liability is not liability for every event occurring during an abnormally dangerous activity. It reaches harm resulting from the dangerous propensity or risk that makes the activity abnormally dangerous. This limitation is the central causation question.

Ask what danger caused the classification. For blasting, the relevant danger may be flying rock, concussion, vibration, or the uncontrolled force of an explosion. An injured neighbor whose window breaks from blast vibration presents the right kind of harm. A person struck by debris propelled by the blast does too. The activity and injury are connected because the injury is an expected manifestation of the very danger that made blasting unusually hazardous.

By contrast, a person who trips over an ordinary hose while walking past a blasting site may not recover on strict liability. The injury was not produced by the explosive force, flying debris, concussion, or vibration.

Run the issue in this order:

1. Name the activity. Do not begin with the injury. Identify the unusual activity the defendant conducted.

2. Name the dangerous aspect. State the particular force, substance, or propensity that supports abnormally dangerous classification.

3. Match the mechanism of injury to that aspect. Ask whether the injury occurred through the blast, toxic release, crop-dusting chemical, or other identified danger.

4. Stop or continue. If the injury is unrelated to that danger, strict liability fails on this theory. If it resulted from that danger, continue to plaintiff conduct and any supplied exceptions.

The defendant’s careful planning, compliance with regulations, warnings, and use of the safest available equipment do not erase liability once the activity is properly classified and the injury comes from its dangerous aspect. Those facts may show that the defendant could not have eliminated the risk with reasonable care, which is one reason strict liability is used.

The Voluntary Encounter: When Plaintiff Conduct Limits Recovery

The principal plaintiff-conduct limitation is knowing and voluntary encounter with the specific risk, often described as assumption of risk. The plaintiff must know the danger that actually caused the injury and freely choose to encounter it. General awareness that an activity is hazardous is not always enough.

For example, a person who knowingly enters a clearly marked blasting exclusion zone after a warning has sounded has encountered the blast risk. A person who merely walks on a public road near a quarry, without knowing that a blast is scheduled or that debris could reach the road, has not necessarily accepted that specific risk.

Voluntariness matters. A worker compelled to pass through the danger, a person unable reasonably to leave, or a person who encounters the risk without meaningful choice presents a weaker defense. The question is not simply whether the plaintiff could have behaved more carefully. It is whether the plaintiff knew the relevant danger and deliberately exposed himself or herself to it.

Ordinary contributory negligence generally is not a defense to strict liability. A plaintiff’s failure to look carefully, ordinary inattentiveness, or other careless conduct does not ordinarily defeat the claim when the injury resulted from the activity’s dangerous propensity. The special exception is knowing and unreasonable exposure to that specific danger.

Likewise, reasonable care by the defendant is not a defense after classification and dangerous-risk linkage are established. A permit, warning system, trained crew, or compliance with safety regulations may be relevant to the classification factors, but it does not automatically defeat strict liability. The claim fails instead when the activity is not abnormally dangerous, when the injury is unrelated to the dangerous aspect, or when the plaintiff knowingly and voluntarily accepted that particular risk.

When supplied authority uses different wording-such as “knowingly and unreasonably subjected” or “assumed the risk”-locate the operative language and apply its requirements precisely. Do not replace a specific-risk inquiry with the broader proposition that the plaintiff was careless.

The Quarry Blast: Classifying, Linking, and Testing Risk Acceptance

For this question, use the following supplied provision:

A person who carries on an abnormally dangerous activity is subject to liability for physical harm to another resulting from the activity, even when the person has exercised reasonable care.

An activity is abnormally dangerous when its risks remain highly significant despite reasonable care and the activity is not a matter of common usage. In deciding whether the activity is abnormally dangerous, consider:

(1) the high degree of risk;

(2) the likelihood that the harm will be great;

(3) the inability to eliminate the risk through reasonable care;

(4) whether the activity is uncommon;

(5) whether the activity is inappropriate to its location; and

(6) whether its social value is outweighed by its dangerous attributes.

Liability extends only to harm resulting from the dangerous propensity or risk that makes the activity abnormally dangerous. Ordinary contributory negligence is not a defense. A plaintiff may not recover if the plaintiff knowingly and voluntarily encounters that specific risk.

A quarry operator used dynamite to blast granite. The operator posted warning signs, sounded a siren, and cleared a 500-foot exclusion zone before each blast. Maya, an experienced photographer, saw the signs and heard the siren but entered the exclusion zone to photograph the explosion. A blast propelled a rock fragment that struck and injured her. The quarry was beside a residential neighborhood, and the operator complied with every applicable safety regulation.

A fireworks company stores explosives safely, but a visitor slips on a spilled drink during an unrelated tour. No strict liability attaches because the slip did not result from the explosive danger that made the activity abnormally dangerous.

High-Yield Points - ⚡ Biggest Takeaways

Classify the activity using all six factors before addressing liability. Strict liability reaches blast debris and vibration, not every accident during blasting. Knowing and voluntary exposure to the specific danger can bar recovery. Ordinary carelessness usually does not defeat strict liability.