Torts: Strict Liability vs. Negligence

Question:

Thank you for this most helpful blog! Perhaps you could help me understand an issue in torts I always get confused on. My question surrounds strict liability vs negligence, how to keep them seperate in questions which state the standard for each in the possible answers, and when will a reasonable inspection, or failure to carry out a reasonable inspection be valid? I hope that makes sense.

Response:

Throughout my time tutoring, this is an area that has caused a lot of confusion, and is also an area that shows up often on the test.

Let's first discuss the similarities between a cause of action in negligence, and a cause of action in strict liability. With both, the elements of the prima facie case are the same: Duty, breach of duty, actual and proximate cause, and damages.

The differences are as follows: In regards to negligence, a person has a duty to conform to a specific standard of conduct, thereby protecting the plaintiff against an unreasonable risk of injury. This is sometimes referred to as the "reasonable person" standard.

In regards to strict liability, however, the duty is not to act as a reasonable person would have acted, but instead, Defendant has an absolute duty to make safe that which is the subject of the lawsuit.

When examining the differences above between the duty of care in regards to negligence and strict liability, it follows that there will also be differences regarding how one might breach that duty of care. Because the duty of care for negligence is to act as a reasonable person, that duty is breached when a person fails to act as a reasonable person would have acted under similar circumstances. Because the duty of care for strict liability is absolute, without any concern for reasonableness, the duty is breached simply by failing to make safe whatever it is that is the subject of the lawsuit. There is no need for further inquiry in a strict liability action to determine whether Plaintiff was acting reasonably when the harm occurred; even if he was, he may still be liable.

Accordingly, you would only concern yourself with whether there was a reasonable inspection if the cause of action against the inspector is one of negligence. If the cause of action is one of strict liability, then you need not concern yourself with whether there was a reasonable inspection. Under a cause of action in strict liability, Defendant can be liable even if his inspection was entirely reasonable.