Abnormally Dangerous Activities

When I think of Torts, I think of a spectrum of fault. On one end of the spectrum are intentional torts; these require the most amount of fault. The tort of negligence falls in the middle of the spectrum, requiring less fault than intentional torts. And then strict liability offenses fall on the opposite end: no fault is required.

Strict liability will apply to, among other things, abnormally dangerous activities (formerly referred to as ultrahazardous activities). This means that in order to prove damages when injured by another's abnormally dangerous activity, it is not required as part of that proof to show that the person engaging in that activity intended any harm. Likewise, there's no requirement to prove that the person engaged in that activity did not act as a reasonably prudent person would have acted.

Because fault is not required to prove liability here, but is required to prove liability elsewhere, it's essential to understand what is and what is not an "abnormally dangerous activity."

First, the activity deemed abnormally dangerous must pose some physical, rather than merely economic, danger to persons or property. The importance of the adjective "abnormal" cannot be overstated: the activity cannot merely pose a danger towards others: the danger has to be of such a magnitude as to be deemed abnormal.

To determine whether an activity qualifies as abnormally dangerous for application of strict liability, each of the following factors should be considered. 

~ the existence of a high degree of risk of some harm to the person, land, or chattel of others

~ the likelihood that the resulting harm will be great

~ the inability to eliminate the risk by the exercise of reasonable care

~ the extent to which the activity is not a matter of common usage

~ inappropriateness of the activity to the place where it is carried on

~ the extent to which the value of the activity is outweighed by its dangerous attributes

Though these factors are the essential component of the analysis, it's worth remembering that as with the tort of negligence, the duty to avoid causing harm is only owed to foreseeable plaintiffs. Further, the defendant's activity must be both he actual and proximate cause of plaintiff's injury. 

Although contributory negligence isn't something to consider when analyzing strict liability, the defense of assumption of risk is always worth exploring. Comparative (as opposed to contributory) negligence is a tricky one: some states have reduced plaintiff's recovery in strict liability cases where plaintiff's own careless actions were partially to blame for plaintiff's injuries.