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Literature
B.A. Koch/ H. Koziol (eds.), Unification of Tort Law: Strict Liability (2002).
European Group on Tort Law, Principles of European Tort Law. Text and Commentary (2005), hereafter cited as PETL. Strict Liability is discussed in Chapter 5, 101–111.
The American Law Institute, Restatement of the Law (Third), Torts: Liability for Physical Harm (Basic Principles) Tentative draft no. 1 March 28, 2001, hereafter cited as The Third Restatement. Strict liability is discussed in pp. 291–474 — §§ 20–25 and the following Comments and Reporters’ Notes.
F. Werro/ V. Palmer, The Boundaries of Strict Liability in European Tort Law (2004).
“There seems to be no consistent clear-cut borderline between the two opposing concepts (fault and strict liability)” — B.A. Koch/ H. Koziol, Comparative Conclusions, in: B.A. Koch/ H. Koziol (supra fn. 1), 395.
I. Englard, The Philosophy of Tort Law (1993), 2; B.A. Koch/H. Koziol (supra fn. 5), 432–435; F. Werro/V. Palmer (supra fn. 4), 7, 455.
“... a sort of strictness is inherent in any fault based liability regime that employs objective rather than subjective criteria of negligence” — B.A. Koch/ H. Koziol (supra fn. 5), 434; “This (objective) test... can to some extent be assimilated to a system of strict liability” — F. Werro/V. Palmer (supra fn. 4), 387.
“Many European liability rules, which are commonly qualified as strict liability rules, exclude liability for harm that lies beyond certain limits of foreseeability” — F. Werro/ V. Palmer (supra fn. 4), 10. The English law of Private Nuisance is a prominent example — ibid., 414–416. Foreseeability is also required in strict liability for abnormally dangerous activity, discussed below. See F. Werro/V. Palmer (supra fn. 4), 433–445 (defective products) 423–428 (defective buildings).
See F. Werro/ V. Palmer (supra fn. 4), 433–445 (defective products) 423–428 (defective buildings).
See B.A. Koch/ H. Koziol (supra fn. 5), 395. Other characterizations of such liability include “inelastic”, “quasi-automatic” or “obligation of result” — F. Werro/V. Palmer (supra fn. 4), 11–12 (fn. 31).
“Liability based on fault goes back to the fundamental thought that the tortfeasor has to be liable because of his incorrect, wrongful behaviour” while strict liability is imposed even on a welcome enterprise — B.A. Koch/ H. Koziol (supra fn. 5), 433; “The distinctive factor is whether or not liability rests on the judgment that the defendant should have behaved otherwise” — see F. Werro/V. Palmer (supra fn. 4), 7 and the related references there in fn. 14.
“Many strict liability rules are explained on the basis that the defendant is in the best position to control an activity under his control, and to prevent the occurrence of harm” — F. Werro/ V. Palmer (supra fn. 4), 6, 456.
Although the use of an objective standard in zone 2 may be unfair to actors who cannot meet this standard, liability in this zone is essentially fault-based and not strict because this unfairness is inherent to the prevailing concept of fault-based liability which is imposed on socially undesirable activities — see F. Werro/ V. Palmer (supra fn. 4), 457.
For an economic analysis of strict liability see S. Shavell, Economic Analysis of Accident Law (1987); M. Faure, Economic Analysis, in: B.A. Koch/H. Koziol (supra fn. 1), 361–394; H.B. Schäfer/A. Schönenberger, Strict Liability versus Negligence: an Economic Analysis, in: F. Werro/V. Palmer (supra fn. 4), 37–63.
See, e.g. H.B. Schäfer/ A. Schönenberger (supra fn. 15), 54–55.
Although such outcome-based strict liability may lead to overdeterrence and to subsequent efficiency losses in terms of deterrence, it is justified if the efficiency gains generated by loss spreading exceed these losses. See G. Calabresi, The Costs of Accidents: A Legal and Economic Analysis (1970), 26–31, and the discussion of loss spreading (supra 4. f)).
Some activities may be dangerous and yet the required standard of care may not be a demanding one — keeping a snake, for example — B.A. Koch/ H. Koziol (supra fn. 5), 409.
Against this background, enterprise strict liability is justified on the ground that it “... induces injurers to comb through their activities in search of risk-reducing precautions. Worthwhile precautions whose omissions escape the eye of negligence law may be induced by the imposition of enterprise liability” — G.C. Keating, Distributive and Corrective Justice in the Tort Law of Accidents, [2000] 74 Southern California Law Review (So Cal L Rev), 193, 221. This enterprise liability is obviously activity-based strict liability.
For example, with regard to employers’ primary liability for harm caused by the fault of their employees it is observed that “a rebuttal of the presumption of fault may seem impossible” F. Werro/ V. Palmer (supra fn. 4), 396.
B.A. Koch/ H. Koziol (supra fn. 5), 396–398.
Even Richard Epstein, who wrote the leading article justifying strict liability on the basis of mere causation (A Theory of Strict Liability, [1973] 2 Journal of Legal Studies (J Legal Stud), 151 later recognized that harms are often caused by the collisions of activities (Intentional Harms, [1975] 4 J Legal Stud, 391). For the literature in this regard, see The Third Restatement (supra fn. 3, 317–318 (Reporters’ notes to comment f)).
R. H. Coase, The Problem of Social Cost, [1960] 3 Journal of Law and Economics (J L & Econ), 1.
The distinction between unilateral accidents and bilateral accidents on which the Third Restatement relies in this regard (ibid.) does not support the argument that in some situations only one of the colliding activities is the single “cause”. This distinction is indeed common — see M. Faure (supra fn. 15), 364–367; H.B. Schäfer/A. Schönenberger (supra fn. 15). Yet, it is basically limited to the use of precautions — an accident is defined as “unilateral” in this sense where precautions can be taken only by one activity. Yet, the same “unilateral” accident can be perceived as “bilateral” in the broader sense, namely, that each activity can prevent it by reduction of the activity level or by its avoidance. For example, an automobile-bicycle accident is unilateral in the limited “precautions” sense assuming that the bicyclist can take no precautions (S. Shavell (supra fn. 15), 7), but it is bilateral in the broader sense that the bicyclist could have prevented the accident by avoiding bicycle riding or by reducing the level of this activity.
See_Coase’s famous article on the Problem of Social Cost — supra fn. 31.
For the “internalization” justification for strict liability see F. Werro/ V. Palmer (supra fn. 4), 16 and M. Faure (supra fn. 15), 377. Notably, Englard argues that the origins of the idea that internalization justifies strict liability can already be found in 1888 in the writings of the Victor Mataja, an Austrian Scholar — I. Englard (supra fn. 6), 98.
See supra section 2.d).
For the argument that internalization per se does not support strict liability see S. Shavell (supra fn. 15), 30.
It is argued that caps are problematic because they lead to underdeterrence — M. Faure (supra fn. 15), 387–8; H.B. Schäfer/A. Schönenberger (supra fn. 15), 57–60. But this affects only undesirable (inefficient) conducts and not desirable (efficient) ones.
See infra 4.g).
This concept “... takes justice in general to be concerned with apportioning fairly the burdens and benefits of social life, and justice in tort law to be concerned with apportioning fairly the burdens and benefits of risky, yet valuable, activities” — G.C. Keating, [2000] 74 So Cal L Rev, 195.
He who benefits from an activity should incur its costs — Ubi emolumentum, ibi onus; Cuius commodum, eius damnum — see, F. Werro/ V. Palmer (supra fn. 4), 17 and B.A. Koch/H. Koziol (supra fn. 5), 412. “... The burdens and benefits of mutually advantageous but harmful activities should be structured so that those who reap the benefits also bear the burdens” — G.C. Keating, [2000] So Cal L Rev 74, 195. The case for strict liability would be even stronger where the victim suffers from “structural weakness” — B.A. Koch/H. Koziol (supra fn. 5), 411.
See B.A. Koch/ H. Koziol (supra fn. 5), 412–413.
Such a presumption can be found in G.C. Keating, [2000] 74 So Cal L Rev, 218, who argues that strict liability is presumably preferable to negligence on fairness grounds and that this rebuttable presumption is rebutted in five circumstances.
On the different approaches of the EU Member States to liability for development risks see F. Werro/ V. Palmer (supra fn. 4), 441–442.
G. Calabresi (supra fn. 17), 27–28.
“This ability to spread losses within a wider community is at the same time one of the main reasons for the introduction of strict liability” F. Werro/ V. Palmer (supra fn. 4), 6.
See G.C. Keating, [2000] 74 So Cal L Rev, 224.
According to G. Fletcher, who introduced the paradigm of reciprocity, people may be expected to bear, without indemnification, those risks imposed reciprocally on each other — G. Fletcher, Fairness and Utility in Tort Theory, 85 Harvard Law Review (Harvard L. Rev.), 537. “Reciprocity of reasonable risk imposition thus defines a circumstance where risk is fairly distributed” — G.C. Keating, [2000] 74 So Cal L Rev, 207. Yet, Keating argues that fairness requires not only ex ante reciprocity of risk but also ex post reciprocity of harm in the sense that both sides share the burden of the materialized risk. According to this view, fairness may justify strict liability where the risk is reciprocal but the harm is not — ibid., at 208.
Supra fn. 3, 293–355.
PETL (supra fn. 2), 101–111.
Sec. 20 of the Third Restatement (supra fn. 3) states: a) A defendant who carries on abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. b) The activity is abnormally dangerous if: 1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors: and 2) The activity is not a matter of common usage. Article 5:105 of the PETL, (supra fn. 2), 101–111 essentially uses the same language but there are some differences — it is not limited to physical harm, it explicitly requires that the damage should be “characteristic to the risk presented by the activity” and it further adds that “A risk of a damage may be significant having regard to the seriousness or the likelihood of the damage”.
F. Werro/ V. Palmer (supra fn. 4), 400.
PETL (supra fn. 2), 109.
Supra fn. 3, 296, 306 — Comments b and i to §20. For justifying strict liability for abnormally dangerous activity as being an extension of fault liability, see E.J. Weinrib, The Idea of Private Law (1995), 185–196.
S. Shavell (supra fn. 15), 31–32.
Supra fn. 55.
Third Restatement (supra fn. 3), 295 — Comment b to §20.
PETL (supra fn. 2), 105.
Supra fn. 3, 300 — Comment f to §20.
Ibid., 301.
S. Shavell (supra fn. 15), 30–31, refers to strict liability for abnormally dangerous activities as liability which is imposed in order to lower undesirable levels of such activities and not as liability imposed on grounds of causation. Regarding the distinction between unilateral accidents and bilateral accidents, see supra fn. 33.
B.A. Koch/ H. Koziol H. Koziol (eds.), Unification of Tort Law: Strict Liability (2002) (supra fn. 5), 408.
“The risk can be highly significant because the likelihood of the harm is unusually high, even though the severity of the expected harm is no more than ordinary” — Third Restatement (supra fn. 3), 301 — Comment f to §20. “If chances are high that somebody is injured, strict liability might make sense even though the harm to be expected is only minor” — B.A. Koch/H. Koziol (supra fn. 5), 408.
Restatement Third (supra fn. 3), 308 (Comment j). See also PETL (supra fn. 2), 107.
Restatement Third (supra fn. 3), 308.
See also the observation that “the wide recognition of liability for ultra-hazardous activities is based on the idea that whoever derives benefits from such an activity should also bear the related loss” — F. Werro/ V. Palmer (supra fn. 4), 400.
See the discussion of this factor in 341–349 — Reporters’ Notes to §20.
PETL (supra fn. 2), 108–109.
The Third Restatement suggests a different kind of fairness justification, one which is embodied in the foreseeability requirement. It is argued that where a person is engaged in an abnormally dangerous activity although reasonably aware of its risks, it is fair to make her strictly liable — supra fn. 3, 305–306 — Comment i to §20. But if the activity is a desirable one, why does the foreseeability of its outcome justify liability? “Foreseeable per se” does not justify strict liability as there are many foreseeable risks that do not involve tort liability because they are generated by desirable, reasonable activities.
Ibid., 300 — Comment e.
For the observation that this liability is a “far cry” from a concept of “absolute liability” see F. Werro/ V. Palmer (supra fn. 4), 409.
For a criticism of this form of strict liability as being too vague, see ibid., 20. The authors conclude that it “remained a controversial concept” — at 400.
See W.V.H. Rogers, Winfield and Jolowitcz on Tort (16th edn., 2002), 548–553.
“‘absolute liability’ in the sense of liability resting on a merely factual test of causation and comprising responsibility for utterly unforeseeable harm, is extremely rare in European tort law” — F. Werro/ V. Palmer (supra fn. 4), 456–7.
It appears that under the Third Restatement strict liability for intruding livestock, wild animals and abnormally dangerous animals is mainly justified by a non-rebuttable presumption of undesirable conduct. See Comment e to Sec. 21 (intruding livestock), 361–363; Comment d to Sec. 22 (wild animals), 387–388; Comment b to Sec. 23 (Abnormally dangerous animals), 398–399. For the deterrence function of strict liability for animals in Europe see B.A. Koch/H. Koziol (supra fn. 5), 396–398, F. Werro/V. Palmer (supra fn. 4), 8.
See F. Werro/ V. Palmer (supra fn. 4), 393–394.
Ibid., 397.
Supra fn. 22.
B.A. Koch/ H. Koziol H. Koziol (eds.), Unification of Tort Law: Strict Liability (2002) (supra fn. 5), 395–6. F. Werro/V. Palmer (supra fn. 4), 401–403, 405. The major exceptions are Austria and France.
See supra 4.d).
For the distinction between these defects and its underlying justifications, see The Third Restatement on the Law of Tort: Products Liability, Sec. 2, comment a.
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Gilead, I. (2005). On the Justifications of Strict Liability. In: Koziol, H., Steininger, B.C. (eds) European Tort Law 2004. Tort and Insurance Law Yearbook, vol 2004. Springer, Vienna. https://doi.org/10.1007/3-211-30875-X_2
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