Tue, 25 Jul 2006 11:21:44 -0500
The Rule in Rylands v Fletcher
Rylands-type strict liability, I believe an activity or
thing does or should qualify as ultrahazardous or abnormally dangerous
and thus subject to strict liability if, no matter how low the probability
of escape (extremely low in Rylands itself and in other
cases, rendering the foreseeability of injury quite low but nevertheless
real rather than fantastic), both the probability of injury if it
escapes and the magnitude of the possible injury are high. This
is pretty much Blackburn's "true rule": "likely to
cause mischief should it escape," which is incorporated in
the first Restatement but totally blown in the Restatement
Second's useless, analytically flawed, and descriptively inaccurate
multi-factor list. The very low probability of escape is what usually
prevents the activity from being negligent. This "true rule"
covers escaping wild or vicious domestic animals, escaping livestock
(quite common in farm and ranching areas), falling airplanes, escape
of radiation from nuclear plants, large bulk accumulations of water,
use or storage or (contra Posner) transportation) of explosives
or bulk quantities of toxic chemicals or gasoline, etc. The "not
a matter of common usage" qualifier in the Restatements
is applied or not applied on an ad hoc basis. Large bulk accumulations
of water are quite common in some areas, as are oil wells, transportation
of gasoline in tanker trucks, cattle, etc.
Steve, I believe that the great bulk of private nuisance cases in
the US involve intentional conduct, in the sense that the defendant
knows that he will cause or is causing and will continue to cause
the substantial interference with the plaintiff's use and enjoyment
of her property in a manner that is not accepted as unavoidable
in the particular locale under the "live and let live"
rule. See eg Boomer, Morgan, Jost, the
Pacific NW fluoride emission cases, and I believe every case used
in torts property, and environmental law casebooks. The courts routinely
state that negligence is not required. I believe considerable confusion
would be avoided if private nuisance actions were restricted to
instances of intentional injury (as stated in Jost), rather
than duplicatively and unnecessarily folding in negligence and ultrahazardous
From: Stephen Sugarman
Sent: Mon 7/24/2006 6:27 PM
Subject: Re: ODG:The Rule in Rylands v Fletcher
don't mean to dispute what Richard Wright wrote about the US law.
But I want to raise a simple point.
seem to have reasonably wide agreement in the US that there are
a few situations when a defendant may be held liable without any
proof of fault on his part.
here are cases of "abnormally dangerous activities" (or
"extrahazardous activities" or "ultrahazardous activities").
To qualify, these activities must be both quite risky and not common.
quite risky, I think we mean at a minimum that a large amount of
damage might (but need not in the actual case) occur if things go
is less clear whether the probability of harm must meet some threshold
(I don't think so.) By uncommon, I think we mean not frequent, but
some would include activities done only be specialists (not ordinary
folks), even if they do the activities a lot.
course, sometimes those engaging in ultrahazardous activities do
so in a careless manner and could held liable under ordinary negligence
law. But the bite of this are of the law is that proof of fault
is not required, and indeed, convincing us that you were not at
fault does not allow you to avoid liability. This is why it is "strict
liability" as Professor Wright stated.
also believe that activities covered under this doctrine are not
ones that it is unreasonable to engage in. Indeed, were it unreasonable
to do the activity at all, then again there would be liability under
fault rules. Rather, these are activities which we have concluded
are socially acceptable (perhaps even desirable) and yet we force
the actors to pay for the accident costs they impose. (Why we do
that is another matter I will not go into here.)
law in the US, in my view, requires either that D was at fault (in
the negligence sense -- either for carrying out an unreasonable
activity or for doing a reasonable act in a careless manner) or
that D's conduct was an ultrahazardous activity that calls for strict
liability as just described. Apart perhaps from some special cases
of truly intentional harm that Professor Wright alluded to, I think
that this exhausts the scope of nuisance liability in the US. Hence,
in my view, nuisance itself does not provide some helpful independent
basis for liability. It just carries over the other two main categories
to actions that tend to be ongoing or at least causing ongoing harm.
Professor Wright says, we take Fletcher v Rylands to be
an example, or to suggest the possibility of an example, of ultrahazardous
activity liability; and so whether the precise actions there would
qualify aside, it represents the idea of how we'd treat, say, dynamite
blasting -- strict liability.
question, then, is to what extent do other common law systems recognize
true strict liability for what we call ultrahazardous activities,
regardless of the label they employ to get there. This has not been
clear to me in the exchange so far.
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