When Risky Behavior Leads to Strict Liability
By Len Zandrow, NSCIA General Counsel
As a general rule, persons seeking to recover civil damages for personal injuries must prove that the responsible party was negligent. In this regard, negligence is typically defined as the failure to exercise reasonable, ordinary care in the circumstances.
If the responsible party is a professional who caused harm while acting in his or her field (medicine, engineering, etc.), an expert witness in that same field typically must testify about the degree of care applicable in that profession. Otherwise, the standard of care is usually determined by jurors applying common sense standards of reasonableness in the totality of circumstances.
In some situations, however, the law has identified certain categories of risk that are either so important or so dangerous that liability may be imposed on responsible parties even in the absence of negligence. In these cases, principles of so-called "strict liability" govern, and parties may be held accountable regardless of traditional notions of fault. To recover in these situations, a plaintiff need only show a causal connection between his or her damages and the responsible party's conduct. This article briefly identifies some of the most common categories of strict liability.
Ultra-hazardous Activities. Strict liability is often imposed on land owners who take abnormal risks of serious harm that cannot be eliminated even with the exercise of utmost care. Such activities include the storage of large quantities of inflammable liquids, the use of explosives or fireworks, unusual mining or drilling operations and the creation of other substantial nuisances on premises. When deciding whether or not a particular activity is abnormally dangerous, courts often compare the conduct involved to the general character of the surrounding area or neighborhood.
Product Liability/Consumer Rights. A manufacturer or retailer who sells defective and dangerous products or appliances may be strictly liable to consumers or users for physical harm caused by those products. This theory of strict liability also applies in the work place to employees injured by defective products and machinery supplied by defendants other than their employers. In some contexts, liability is based on common law or warranty theories. In others, liability is based on statutes and related regulations.
Liquor Liability. A number of states impose strict liability on the sellers of intoxicating liquors, when the sale results in harm to a third party injured by the buyer's intoxication. Under so-called "Dram Shop" statutes and evolving common law principles, fault can be assessed upon retailers, taverns or bartenders for supplying liquor to persons who are already intoxicated or under the legal drinking age. In some states, liability is also imposed on social hosts for serving alcohol to intoxicated or underage drinkers who then injure third parties as a result of their diminished capacity.
Aircraft. In general, owners and operators of aircraft are strictly liable for personal injuries caused by the ascent, descent or flight of airplanes or by the dropping or falling of objects from aircraft. These principles apply to "normal" aviation, like commercial air flights, as well as "abnormal" aviation, such as stunt flying, crop dusting and experimental aircraft.
Animals. The law in most jurisdictions distinguishes between "wild" animals, who are not customarily devoted to "the service of mankind" when and where they are kept, and "domestic" animals, such as dogs and cats, who are more traditionally associated as pets. Typically, owners and keepers of wild animals are strictly liable for any personal injuries that their animals cause, regardless of the reasonable care and restraints they may have used. Owners and keepers of domestic animals may also be strictly liable unless the injured plaintiff was either committing a trespass or teasing or tormenting the animal at the time of injury.
The above discussion provides only a broad overview of the most common categories of strict liability. There may be other categories that apply in your state and to your circumstances. The law in these particular categories, moreover, differs from state to state, so you may wish to consult an attorney for specific advice on the additional factors and exceptions that may govern.