3 Introduction to Strict Liability

Strict liability is a regime in tort law in which neither fault nor intent is relevant to liability: the actions that caused injury were of a particular kind so dangerous, or for other reasons deemed so risky, that courts or legislators have decided to classify the conduct as a strict liability activity. A plaintiff merely needs to prove that the defendant acted in such a way that caused the plaintiff’s injuries: the elements are action, causation, and harm. In theory then, this looks simple; in practice, it can be more complex, either because a factual question exists as to whether the action properly falls within a category of behavior deemed strict liability or because the question is one “of first impression”–never decided by this court before—and a court must newly decide how to categorize this new form of behavior or risk.

Often when faced with such a question, courts and legislatures look to existing categories of actions subject to strict liability. For example, ownership of wild animals is strict liability (and in many jurisdictions, even dog bites are treated under strict liability). Uses of dynamite and other forms of “ultrahazardous activity” fall under strict liability in most instances, and in some jurisdictions, this means that firework displays are governed by strict liability. Students are sometimes surprised to learn that gun use and manufacture are not subject to strict liability. Finally, one kind of product liability action is generally considered under strict liability, as you’ll learn if your course covers products liability later in the term. Courts may analogize the conduct in question to one of those existing categories. In evaluating whether an action should be categorized as strict liability courts may also consider the level and kind of risks the action poses versus the benefits that flow from such action (or from the use of such a product, in product liability cases). Policy determinations about the possibilities for innovation may depend on tort law’s fact-sensitive capacity for balancing the benefits and risks to various different stakeholders. These policy questions become especially salient with respect to emerging technologies which often seem to carry great promise but also come with unknowns regarding how they will be integrated into society and how their risks will be fully discovered and managed.

What are your intuitions about the proper balance when it comes to regulating new technologies? As a normative question, consider whether you think driverless cars, drones or highly immersive games such as Pokémon GO should be subject to strict liability. Descriptively, numerous regulatory provisions at the state and federal level already cover some aspects of these technologies but it’s worthwhile to think, in this introductory module, about what you think as a policy matter is a sound answer for tort law, and why.

Introduction to the Restatements

As courts and legislatures reflect on these issues, they often turn to an important resource called the Restatement of Law. There are four Restatements for tort law: The Restatement Third of Torts: Liability for Physical and Emotional Harm (2010/2012), Apportionment of Liability (2000), Products Liability (1998), and Liability for Economic Harm (2020). You can learn more about them here: https://www.ali.org/publications/show/torts/ or search online for general discussions of them. They are descriptions of existing black-letter law, drafted by practitioners, academics and judges in committees that spend years contributing to making these extensive records of the law. The Restatements predated the widespread availability of legal databases that have since made researching national law comparatively easy. Before such databases were available, it was often hard to locate and survey “court reporters,” which were expensive, heavy tomes not necessarily organized in uniform or consistent ways. The Restatements provided an efficient means of learning the contours of an area of law in many jurisdictions at once. Even in the era of databases, however, the Restatements have remained useful in their capacity to provide reliable summaries of the law along with extensive examples and comments.

The Restatements—as their name implies—are meant to restate or summarize the law, descriptively. In some areas of law, including torts, they grew more prescriptive or normative. Instead of expressly trying to state what the law simply “was” for instance, the drafters of the Restatement on Products Liability added to its summaries of the law their recommendations for what the law “should be, ideally.” (This distinction provides an example of why it’s helpful to learn to distinguish between descriptive and normative statements of law.) Restatement Third is not yet completed so you may see courts, treatises and this casebook refer to provisions of either the Second or the Third at different points. Various controversies have arisen with respect to some of the positions taken by the drafters of the Third Restatement. Judicial opinions sometimes reflect this by stating that they will retain the rule of the Second rather than adopting the Third on a given issue. Armed with this basic background on the Restatements of law, you are now in a better position to understand the role they play in the formation of strict liability law, especially in the last case in this section, Toms v. Calvary, below.

Questions for the Readings

As you read the next two cases, please keep the following questions in mind:

  • When is strict liability applicable?
  • Why does policy dictate the imposition of strict liability in some instances, but not in others?
  • What does this tell us about tort law’s deeper purposes?

A note about confusing terminology in the next case: Respondent Halsett is considered a “licensor” of laundry equipment because he allows customers of his laundromat to enter his property and use his machines. Petitioner Garcia is a “licensee.” The court makes reference to an argument that’s been omitted here for length and clarity, in which Halsett tried to argue that Garcia was a “bailee” of the defective washing machine. The court dismisses that theory, which was Halsett’s attempt to argue that the young injured boy should have borne responsibility for the operation of Halsett’s commercial washing machine.

Garcia v. Halsett, Court of Appeals of California, First App. Dis., Div. Three (1970)
(3 Cal.App.3d 319)

The plaintiffs appeal from a judgment in favor of the defendant following a jury trial. On July 19, 1962 the appellant, Arthur Garcia, an 11-year old boy, was injured in respondent’s Happy Coin Launderette in San Jose. Respondent had owned the business since 1959. Launderette Sales designed the store layout and sold and installed all of the equipment. Respondent had nothing to do with the design of the store or with installation of the equipment. The facilities of the launderette included four rows of coin operated washing machines. The machines were Philco-Bendix, front-loading, commercial washers. These machines have a washing cycle, three rinse cycles, two spin cycles, and one long extraction cycle. The last of these cycles is a spin cycle lasting 4 1/2 of 5 minutes, during which the tub of the machine obtains a velocity of 370 revolutions per minute. The entire procedure lasts 30 minutes.

At the time of the accident, the machines were equipped with a circuit breaker, or reset button. The circuit breaker is a fuse, and has one purpose only: In the event of a short in the machine, or of a motor overload, which would create a heavy draw of current and consequently constitute a fire *322 hazard, the circuit breaker will break the circuit and stop the machine completely. If the circuit breaker button is depressed while the machine is running, it will stop the machine. However, the moment that the button is released the machine will start operating again. The circuit breaker is not used to stop the machine manually. Respondent testified that the manufacturer did not intend that this button should be used to stop a machine in order to reach into the loaded machine.

The appellant, Arthur Garcia, had been instructed by his mother as to how to run the machines and had been going there to wash clothes about once a week. He had also read the posted instructions regarding the loading of the machine. The uncontradicted testimony of the appellants establishes that the accident took place in the following manner: On the date of the accident, Arthur went to the Happy Coin Launderette with his 10-year old brother to do some laundry. When he entered the launderette, he looked for available machines, and found machines 1 and 2 at the far end of the launderette. On prior occasions when he went to the launderette, he always used this same type of washing machine. He took a portion of the clothes and put them in machine No. 1, and then inserted a quarter and started the machine. He then went to machine No. 2, put in the balance of the laundry, inserted a quarter, and started the second machine. Both machines started. In accordance with the posted instructions, he put soap in each machine, and began to read a magazine.

While he was sitting there, machine No. 2, the machine which he had started second, stopped. He actually saw the machine stop. Prior to that time, the machine had been spinning. He had seen it spinning through the window in the machine. The water had all drained out and it was clean; he could see through the window in the washer. After machine No. 2 stopped, he waited until machine No. 1 stopped, three or four minutes later. He unloaded the clothes from machine No. 1. During this time machine No. 2 was stopped. He then went to machine No. 2 and began removing the clothes.

The first batch of clothes he pulled out of machine No. 2 were ‘all dry, like spin dry’. When he inserted his hand into the machine the second time, the machine made a funny noise and started up fast. When the machine started up, his arm became entangled in the clothing. His arm was twisted around and he himself was twisted around until he had his back to the machine.

Respondent Halsett testified that upon hearing Arthur’s screams he came out of the office at the rear of the launderette. The quickest thing he could think of to do under the circumstances was to pull the plug, *323 which is located at the back of the machine. In order to pull the plug, he had to go over the top of the machine and reach down in back. He could have depressed the reset button, but as soon as one let go of the button, the machine would start up again. When respondent returned to the launderette, after having taken Arthur home, he plugged in machine No. 2, and at that time the machine was in its fast spin cycle. Respondent also testified that he thought the washing machine in question was perfectly safe and had all the safety features that were required. However, he also testified that the machine did not have a micro switch and that they were not available at that time.

A micro switch is a sensitive, pressure-activated switch which is placed across the main electrical circuit of the machine. It serves as a safety device. When activated, by opening the door, it completely shuts off the electricity going through the machine. The purpose of the micro switch is to prevent the machine from operating when the door is opened. Respondent admitted that if such a switch had been on the machine on the date of the accident, the machine could not have started spinning when Arthur opened the door and inserted his arm.

Micro switches sell for around $2.00. Shortly after the accident respondent obtained 12 of these micro switches and installed them himself on the machines. Experts for both appellants and respondent testified that micro switches had been on the market for a number of years. Appellants’ expert witness, an experienced appliance dealer, testified that, in his opinion, the washing machine in question was defective because, first, the timing mechanism was defective, and, second, a 1958 Bendix commercial washer manufactured without a micro switch would be defective. If the machine was manufactured without a micro switch, a switch could be purchased and installed. This machine was defective because it did not have a micro switch on it. Other Philco-Bendix machines manufactured as early as 1952 had micro switches. Machines produced by other manufacturers have micro switches which serve as safety switches. Appellants’ expert witness also testified, in effect, that wear and tear resulting from years of use may result in a timer becoming faulty, thus causing the machine to stop during a cycle and then start again when the machine is jarred or the door opened.

The appellants contend that the trial court committed reversible error in that it refused to give the instructions offered by appellants on (1) bailment, and (2) strict liability.

[***] There is no question raised as to the form of the instructions, only as to their applicability. The appellants’ contention is without merit since the facts do not establish a bailment of the washing machine. [***] In order to constitute a bailment, possession of the article bailed must be given or delivered to the bailee. [cc] Appellants contend that appellant Arthur had at least constructive[1] possession of the washing machine during the time he was using it. However, this argument is also without merit. Appellant Arthur assumed no responsibility for the safekeeping of the machine, and did not have the right to remove it or tamper with the mechanical parts of the washer. Appellant Arthur merely acquired a license to use the washing machine and was not a bailee. [c] Since respondent could have prevented appellant Arthur from using the washing machines, and respondent impliedly gave Arthur permission to use them, Arthur merely had a license and cannot be considered a bailee of the machines.

The appellants submitted proposed jury instructions on the issue of strict liability in tort which the court refused to give. Again, there is no contention that the form of the instructions was incorrect. and (2) strict liability. *324 … there is no contention that the form of the instructions was incorrect. Appellants contend that … the doctrine of strict liability is applicable to the instant case. This contention is correct, and instructions on strict liability should have been given by the court.

Strict liability applies to the manufacturer of chattels which cause personal injury. (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63 1049.) This liability *325 has been extended to retailers and distributors of chattels. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262—263.) In the recent case of McClaflin v. Bayshore Equipment Rental Co., 274 A.C.A. 487, strict liability was imposed upon the lessor of a chattel. In McClaflin, plaintiff’s decedent rented a ladder from defendant and subsequently died from injuries received when the leg of the ladder cracked, and decedent fell from it.

The precise legal relationship between the parties has not played a particularly significant role in the cases imposing strict liability. The court in McClaflin stated [c]: ‘The Greenman rule, moreover, extends its protection to the injured party without reference to the role he played, or even if he played none, in the transaction wherein the defective chattel was acquired from its purveyor. He can be a retail buyer (Greenman v. Yuba Power Products, Inc., supra [c]), a member of the buyer’s family (Vandermark v. Ford Motor Co., supra [c]), the buyer’s employee (Casetta v United States Rubber Co. (1968), 260 Cal.App.2d 792, 795), or a ‘mere bystander’ totally unconnected with the chattel’s purveyor except as an ultimate victim. (Elmore v. American Motors Corp., supra, 70 A.00 C. 615, 618, 623—624.)’

Respondent’s argument would exclude from the protected class a person who has a license to use a product but has no control over it. Appellants’ position in the present case is somewhat analogous to that of the innocent bystander protected in Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652. Appellant Arthur in the present case did not have control over the washing machine, or have the opportunity to inspect it for mechanical defects other than those which would be obviously apparent. In this regard, appellant Arthur is actually in a worse position than a retail buyer or member of the buyer’s family, who arguably have an opportunity to inspect a product before buying and using it. Appellant Arthur’s only choice was to pick, at random, a washing machine provided by respondent for use by the public. The fact that he picked one that may have had a latent defect should not bar his recovery for injuries sustained when the machine malfunctioned.

Licensors of personal property, like the manufacturers or retailers or lessors thereof, ‘are an integral part of the overall * * * marketing enterprise that should bear the cost of injuries resulting from defective products.’ [authorities omitted] *326 Although respondent is not engaged in the distribution of the product, in the same manner as a manufacturer, retailer or lessor, he does provide the product to the public for use by the public, and consequently does play more than a random and accidental role in the overall marketing enterprise of the product in question. Thus, the rationale of Greenman and Vandermark applies as logically and desirably to a licensor of chattels as to the manufacturers, retailers and lessors thereof. The trial court should have instructed on the issue of strict liability.

Respondent contends that there is no evidence of a defect and thus strict liability is not applicable in this case. However, it is well settled that a defect may be established by circumstantial evidence. [cc] The facts summarized above demonstrate that there was ample evidence from which it could be concluded that the machine in question was defective.

The judgment is reversed.

Note 1. Why does the court address “the precise legal relationship between the parties”?

Note 2. Does the court hold that there was a defect? What do you think is the legal significance of this issue and who decides it?

Note 3. In the era in which this case was decided, there were hundreds of laundromats in greater San Francisco. This site claims that in 1966 there were nearly 500, compared with fewer than 100 in 2016: https://hoodline.com/2017/05/trend-analysis-san-francisco-is-losing-its-laundromats

Generally, significantly fewer single-family homes owned their own laundry machines in large cities, compared with today’s rates. If laundromats were a primary way that urban households did their laundry, a ruling on the liability for machine defects carried substantial implications. I have been unable to find data on the plaintiff, and it would be a mistake to infer very much from the surname, Garcia. However, we know that the plaintiff was a young male and the name “Garcia” suggests he may have been of color. Moreover, we know that his family depended on the laundromat and on his efforts there for the household. Do you think any of these factors were taken into account by the court? Normatively, do you think they should be in cases like this one?

Check Your Understanding – Set 3

Note: The following case is a classic tort law case featuring explosives that cause injury to animals, specifically mink kittens. It illustrates an important set of points about the applicability and scope of strict liability but it’s not going to garner much love from readers who are also animal lovers. In the case, you will see references to a theory of tort liability associated with the use of land, called “nuisance.” A person may be found liable for nuisance based on unreasonable or unlawful use of their property in a manner that substantially interferes with the enjoyment or use of another’s property. It can accompany a trespass or be separate from it; odors or sounds, for instance, that travel across property lines, can count. Private nuisance affects the possessor or owner of property; public nuisance affects the community as a whole. The case presents nuisance only as an alternative theory but you may still find it helpful to have that definition upfront.

Foster v. Preston Mill Co., Supreme Court of Washington (1954)
(44 Wash.2d 440)

Blasting operations conducted by Preston Mill Company frightened mother mink owned by B. W. Foster, and caused the mink to kill their kittens. Foster brought this action against the company to recover damages. His second amended complaint, upon which the case was tried, sets forth a cause of action on the theory of absolute liability, and, in the alternative, a cause of action on the theory of nuisance.*441 After a trial to the court without a jury, judgment was rendered for plaintiff in the sum of $1,953.68. The theory adopted by the court was that, after defendant received notice of the effect which its blasting operations were having upon the mink, it was absolutely liable for all damages of that nature thereafter sustained. The trial court concluded that defendant’s blasting did not constitute a public nuisance, but did not expressly rule on the question of private nuisance. Plaintiff concedes, however, that, in effect, the trial court decided in defendant’s favor on the question of nuisance. Defendant appeals.

Respondent’s mink ranch is located in a rural area one and one-half miles east of North Bend, in King county, Washington. The ranch occupies seven and one half acres on which are located seven sheds for growing mink. The cages are of welded wire, but have wood roofs covered with composition roofing. The ranch is located about two blocks from U. S. highway No. 10, which is a main east-west thoroughfare across the state. Northern Pacific Railway Company tracks are located between the ranch and the highway, and Chicago, Milwaukee, St. Paul & Pacific Railroad Company tracks are located on the other side of the highway about fifteen hundred feet from the ranch.

The period of each year during which mink kittens are born, known as the whelping season, begins about May 1st. The kittens are born during a period of about two and one-half weeks, and are left with their mothers until they are six weeks old. During this period, the mothers are very excitable. If disturbed by noises, smoke, or dogs and cats, they run back and forth in their cages and frequently destroy their young. However, mink become accustomed to disturbances of this kind, if continued over a period of time. This explains why the mink in question were apparently not bothered, even during the whelping season, by the heavy traffic on U. S. highway No. 10, and by the noise and vibration caused by passing trains. There was testimony to the effect that mink would even become accustomed to the vibration and noise of blasting, if it were carried on in a regular and continuous manner.

*442 Appellant and several other companies have been engaged in logging in the adjacent area for more than fifty years. Early in May, 1951, appellant began the construction of a road to gain access to certain timber which it desired to cut. The road was located about two and one-quarter miles southwest of the mink ranch, and about twenty-five hundred feet above the ranch, along the side of what is known as Rattle-snake Ledge. It was necessary to use explosives to build the road. The customary types of explosives were used, and the customary methods of blasting were followed. The most powder used in one shooting was one hundred pounds, and usually the charge was limited to fifty pounds. The procedure used was to set off blasts twice a day-at noon and at the end of the work day.

Roy A. Peterson, the manager of the ranch in 1951, testified that the blasting resulted in ‘a tremendous vibration, is all. Boxes would rattle on the cages.’ The mother mink would then run back and forth in their cages and many of them would kill their kittens. Peterson also testified that on two occasions the blasts had broken windows. Appellant’s expert, Professor Drury Augustus Pfeiffer, of the University of Washington, testified as to tests made with a pin seismometer, using blasts as large as those used by appellant. He reported that no effect on the delicate apparatus was shown at distances comparable to those involved in this case. He said that it would be impossible to break a window at two and one-fourth miles with a hundred-pound shot, but that it could cause vibration of a lightly-supported cage. It would also be audible. Charles E. Erickson, who had charge of the road construction for appellant in 1951, testified that there was no glass breakage in the portable storage and filing shed which the company kept within a thousand feet of where the blasting was done. There were windows on the roof as well as on the sides of this shed.

Before the 1951 whelping season had far progressed, the mink mothers, according to Peterson’s estimate, had killed thirty-five or forty of their kittens. He then told the manager *443 of appellant company what had happened. He did not request that the blasting be stopped. After some discussion, however, appellant’s manager indicated that the shots would be made as light as possible. The amount of explosives used in a normal shot was then reduced from nineteen or twenty sticks to fourteen sticks. Officials of appellant company testified that it would have been impractical to entirely cease road-building during the several weeks required for the mink to whelp and wean their young. Such a delay would have made it necessary to run the logging operation another season, with attendant expense. It would also have disrupted the company’s log production schedule and consequently the operation of its lumber mill. In this action, respondent sought and recovered judgment only for such damages as were claimed to have been sustained as a result of blasting operations conducted after appellant received notice that its activity was causing loss of mink kittens.

The primary question presented by appellant’s assignments of error is whether, on these facts, the judgment against appellant is sustainable on the theory of absolute liability.

The modern doctrine of strict liability for dangerous substances and activities stems from Justice Blackburn’s decision in Rylands v. Fletcher, 1 Exch. 265, decided in 1866 and affirmed two years later in Fletcher v. Rylands, L.R. 3 H.L. 330. Prosser on Torts, 449, § 59. As applied to blasting operations, the doctrine has quite uniformly been held to establish liability, irrespective of negligence, for property damage sustained as a result of casting rocks or other debris on adjoining or neighboring premises. [cc]

There is a division of judicial opinion as to whether the doctrine of absolute liability should apply where the damage *444 from blasting is caused, not by the casting of rocks and debris, but by concussion, vibration, or jarring. 92 A.L.R. 741, annotation. This court has adopted the view that the doctrine applies in such cases. In the Patrick case, it was held that contractors who set off an exceedingly large blast of powder, causing the earth for a considerable distance to shake violently, were liable to an adjoining owner whose well was damaged and water supply lost, without regard to their negligence in setting off the blast, although there was no physical invasion of the property. [cc]

However the authorities may be divided on the point just discussed, they appear to be agreed that strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility. Prosser on Torts, 458, § 60; Harper, Liability Without Fault and Proximate Cause, 30 Mich.L.Rev. 1001, 1006; 3 Restatement of Torts, 41, § 519. This limitation on the doctrine is indicated in the italicized portion of the rule as set forth in Restatement of Torts, supra:

‘Except as stated in §§ 521-4, one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.’ (Italics supplied.) This restriction which has been placed upon the application of the doctrine of absolute liability is based upon considerations of policy. As Professor Prosser has said:

‘* * * It is one thing to say that a dangerous enterprise must pay its way within reasonable limits, and quite another to say that it must bear responsibility for every extreme of harm that it may cause. The same practical necessity for the restriction of liability within some reasonable bounds, which arises in connection with problems of ‘proximate cause’ in negligence cases, demands here that some limit be set. * * * This limitation has been expressed by saying *445 that the defendant’s duty to insure safety extends only to certain consequences. More commonly, it is said that the defendant’s conduct is not the ‘proximate cause’ of the damage. But ordinarily in such cases no question of causation is involved, and the limitation is one of the policy underlying liability.’ Prosser on Torts, 457, § 60.

Applying this principle to the case before us, the question comes down to this: Is the risk that any unusual vibration or noise may cause wild animals, which are being raised for commercial purposes, to kill their young, one of the things which make the activity of blasting ultrahazardous?

We have found nothing in the decisional law which would support an affirmative answer to this question. The decided cases, as well as common experience, indicate that the thing which makes blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air. Where, as a result of blasting operations, a horse has become frightened and has trampled or otherwise injured a person, recovery of damages has been upheld on the theory of negligence. [cc] Contra: Uvalde Construction Co. v. Hill, 142 Tex. 19, where a milkmaid was injured by a frightened cow. But we have found no case where recovery of damages caused by a frightened farm animal has been sustained on the ground of absolute liability.

If, however, the possibility that a violent vibration, concussion, or noise might frighten domestic animals and lead to property damages or personal injuries be considered one of the harms which makes the activity of blasting ultrahazardous, this would still not include the case we have here. *446 The relatively moderate vibration and noise which appellant’s blasting produced at a distance of two and a quarter miles was no more than a usual incident of the ordinary life of the community. See 3 Restatement of Torts, 48, § 522, comment a. The trial court specifically found that the blasting did not unreasonably interfere with the enjoyment of their property by nearby landowners, except in the case of respondent’s mink ranch.

It is the exceedingly nervous disposition of mink, rather than the normal risks inherent in blasting operations, which therefore must, as a matter of sound policy, bear the responsibility for the loss here sustained. We subscribe to the view expressed by Professor Harper (30 Mich.L.Rev. 1001, 1006, supra) that the policy of the law does not impose the rule of strict liability to protect against harms incident to the plaintiff’s extraordinary and unusual use of land. This is perhaps but an application of the principle that the extent to which one man in the lawful conduct of his business is liable for injuries to another involves an adjustment of conflicting interests. [c]

It may very well be that, under the facts of a particular case, recovery for damages of this kind may be sustained upon some theory other than that of absolute liability. In Hamilton v. King County, 195 Wash. 84, for example, recovery of such damages was sanctioned on the ground that defendant had trespassed upon plaintiff’s land in doing the blasting which caused the disturbance.

Likewise, if the facts warrant, it is possible that such damages may be predicated upon a violation of RCW 70.74.250, cf. Rem.1941 Sup., § 5440-25, requiring notice to be given at certain times of the year when blasting is to be undertaken within fifteen hundred feet of any fur farm or commercial hatchery, except in certain cases. In Maitland v. Twin City Aviation Corp., 254 Wis. 541, where a low-flying airplane frightened mink and loss of kittens resulted, recovery was allowed upon a showing that the airplanes were flown at an unlawfully low elevation. *447 In Madsen v. East Jordan Irrigation Co., 101 Utah 552, recovery was denied under facts very similar to those of the instant case, on the ground that the mother mink’s intervention broke the chain of causation.

It is our conclusion that the risk of causing harm of the kind here experienced, as a result of the relatively minor vibration, concussion, and noise from distant blasting, is not the kind of risk which makes the activity of blasting ultrahazardous. The doctrine of absolute liability is therefore inapplicable under the facts of this case, and respondent is not entitled to recover damages.

The judgment is reversed.

Note 1. What is the holding in this case? Who loses?

Note 2. What does the court suggest (in dictum) about the possibility of recovery in future cases on similar facts?

Note 3. Practice stating how this opinion serves—or disserves—tort law’s purposes. In so doing, take note of whether your normative view of the case matches or diverges from your intuitions about the facts. What do you notice about the relationship between framing the risks and harms in the fact pattern and determining whether tort law’s larger purposes are served?

Check Your Understanding – Set 4

Expand On Your Understanding – Essay: Foster v. Preston Mill Co.

Essay: How would you explain your answer to the T/F question above, in 200 words or fewer?

When you study proximate cause more deeply, under causation (in the full module on Negligence), you’ll see that there are interrelated issues of strategic framing involved: if you define an activity by its harms, how you define its harms will dispose of the legal question. Consequently, it produces a feedback loop in which parties will try to define the harm and the risk strategically. (Stay tuned—this will make more sense when you encounter proximate cause. Note, for now that causation is always required: if a plaintiff cannot show that the defendant’s actions—measured by whatever culpability level—caused their injury, the plaintiff will fail. Proximate cause often is more important in negligence law, partly because of the lower culpability standard imposed on defendants and negligence is the area of law in which proximate cause is traditionally taught. But provding proximate cause is always required, whether explicitly or implicitly.)

Check Your Understanding – Set 5

As you will learn when you study Product Liability Law, some claims may be bought under strict liability. The Restatement (Third) limits “strict liability” for injuries caused by defective products based on the kind of defects alleged. If claims are based on manufacturing defect, strict liability applies; if the claims are based on design or warning defects, the Restatement articulates a different standard, more akin to negligence. For now, keep in mind that understanding the differences between these regimes will pay dividends later as your substantive knowledge deepens.


  1. Editor’s note: “Constructive” is a term of art that indicates that the law will make an assumption, regardless of the truth. Constructive possession would mean that whether or not Arthur actually possessed the machine, he could, for legal purposes, be assumed to be a possessor. The court immediately rejects this idea but the word “constructive” will return later in the course as a way of signaling that the law is making an assumption or relying on a legal fiction for particular purposes.

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