A General Theory of the Inner Structure of Strict Liability Common Law, Civil Law, And Comparative Law (Vernon Palmer)

7/24/2019 A General Theory of the Inner Structure of Strict Liability Common Law, Civil Law, And Comparative Law (Vernon

1/55

Citation: 62 Tul. L. Rev. 1303 1987-1988

Content downloaded/printed from

HeinOnline (http://heinonline.org)

Mon Nov 4 15:18:31 2013

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license

agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do?

&operation=go&searchType=0

&lastSearch=simple&all=on&titleOrStdNo=0041-3992


2/55

A GENERAL

THEORY OF THE INNER

STRUCTURE OF STRICT LIABILITY:

COMMON

LAW,

CIVIL

LAW,

AND COMPARATIVE

LAW

VERNON

PALMER

I. INTRODUCTION

1303

II. SOURCES

AND

CRITERIA

1311

A.

An Inelastic

Concept

of Unlawful

Harm

1315

B. FactualTest

of Causation

thatDisregards

Proximate

Cause

and

Omissions

1320

1

Factual

Causation in Negligence 1321

2. Factual

Causation in Strict

Liability

1322

a OmissionsIrrelevant

t

StrictLiability

1324

b

Proximate Cause

and Superseding

Cause

Excluded 1327

C

Reduction of Defenses

Available t

Defendant

1329

III.

APPLICATION OF THE

GENERAL

THEORY-A

STU Y

OF

CUSTODIAL LIABILITY

1334

A. Unlawfulness 1342

B. Causation

1345

C. Defenses

1350

1 Irresistible Force Act of God, Force

M

ajeure)

1350

2. Fault of a Third Person

1351

3 Fault of the

Victim

1352

D

Summary

of

Custodial

Liability

1353

IV.

GENERAL

CONCLUSION 1354

I. INTRODUCTION

Writing in

1932,

Fowler Harper delivered

this

grim

but

realistic assessment:

Professor

of

Law, Tulane University, and Professeur

Associ6,

University

of

Paris

Sorbonne) 1986-1987;

LL.B.

Tulane University; LL.M. Yale University;

D. Phil

Pembroke

College,

Oxford University. I am greatly indebted to my friends

and

colleagues

Tom Andre, Jack Barcelo, John Dzienkowski,

Suman

Naresh, and

Pat

Sweeney, who read

drafts

of

this

article

and

suggested

many improvements.

1303


3/55

TULANE LAW

REVIEW

Current

statements

of

the law

of strict

liability are extraordina-

rily

unsatisfactory. The paucity

of scientific exposition

of the

law in

this field has made it so difficult to comprehend

the

appropriate

scope

of

the

principles

of

liability

involved

that

courts are frequently

at a

loss adequately to rationalize their

judgments.'

In the succeeding years strict liability

has been a flourishing

and

expanding

notion, yet its

scientific basis has

never

been

more

precarious.

Today

it is almost

impossible

to

distinguish between liabil-

ity based on fault and strict liability.

2

Which theory

is

the

facade,

and

which

is

the inner structure

of

liability?

In

terms

of

what

judges do rather than what they

say,

liability for fault

has

covertly been made to approximate

our understanding of strict

liability.

For instance, an 'objective'

standard

of negligence

may

be applied,

the

requisite

standard

of

care

may be

raised,

the

burden

of proof

may be reversed

and

doctrines such as res

ipsa

loquitur

may

be invoked.

'3

The

broadening of fault

has

made

the province

of strict liability

increasingly obscure,

blurring

the

borders

that were once perceivable.

The two

opposites have

practically

become

fungible. Joel

Bishop,

for

example, insisted

that Rylands v Fletcher

was

based

on

fault,

4

and

Thomas

Cooley

said

that

liability

for

keeping

vicious

animals was fault-based

as

well.

Henri

Mazeaud

believes

that

the tort liability

imposed

upon

lunatics

and

infants

is a kind of objective fault.

' 6

Jer-

emiah Smith argued that liability

for blasting was grounded in

the principle of

fault,

7

while William Prosser noted that the

domain of fault can be constantly enlarged by reasoning

of

this

kind.

8

The

capacity

of the notion of fault

to stretch

its reach

and

1.

Harper, Liability

Without

Fault

and

Proximate

Cause, 30 MICH. L.

REv. 1001,

1013 1932).

2.

See e.g.

Palmer,

TroisPrincipes de

laResponsabilitd

Sans

Faute,

1987

REVUE

DE

DROIT INTERNATIONAL ET DE

DRoIT

COMPARt

[R DR. INT. DR. COMP.] 825;

Powers

The Persistenceo Fault

n

ProductsLiability, 61 TEx. L.

REv.

777 1983).

3. 2 K.

ZWEIGERT H.

K6Tz, AN

INTRODUCTION TO COMPARATIVE

LAW: TH E

FRAMEWORK 315

T. Weir trans. 1977).

4

See

J.

BISHOP,

NON-CoNTRACT

LAW

385-87

n.3

1889).

5.

T. COOLEY, COOLEY

ON

TORTS 343-46 (3d ed. 1907).

6.

Mazeaud, La

Yaute objective'

et la responsibilite

sans aute in 1985 Recueil

DalIoz-Sirey,

Chronique

[D.S. Chr.] 13.

7. Smith,

Liabilityor

SubstantialPhysicalDamage to

Land by

Blasting-TheRule of

the

Future,

33 HARV.

L.

REv.

542, 667, 672-73 1920).

8.

W. PROSSER, HANDBOOK OF

THE

LAW OF TORTS 495 (4th ed.

1971).

1304

[Vol. 62


4/55

988]

STRICT

LIABILITY INNER

STRU TURE

rationalize

any result has denatured the traditional means

by

which we have denoted strict liability. The

phrase liability

without

fault

now contains

the seeds of

an inevitable misunder-

standing,

because

fault may be taken either in

a

subjective or

an

objective sense. Attempting to clarify the matter by saying that

strict

liability means liability

without

subjective fault means hav-

ing a

distinction,

but no

workable definition. Strict liability

would not then

be

distinguishable

from

objective

negligence

because both

would comprise

liability without

subjective fault.

9

On

the other hand,

saying

that strict

liability is liability without

objective

fault

leaves

neither

a

distinction nor a

definition.

If we

empty

fault of

its

moral content and

objectify liability

on

the

basis

of

risk,

what else is left

besides

strict

liability?

At

that

point, do

not the

concepts merge amorphously into

one

another?'

Anyone

who questions

whether

we really

have strict

liability must

also be prepared to question whether we really

have

liability

for fault.

But

if liability

without

fault

conveys very little meaning

or

creates

serious misunderstanding, what

of the

expression

strict

liability ?'

This

phrase

has

become

meaningless

as

well.'

2

We all share an intuitive understanding that

strict

must refer

to some higher level of liability. We intuit

that it

must

be more rigorous than negligence law, yet

less

rigorous

than making

the

defendant an insurer.

3

But the

word

strict

is

9. This problem arises in Jules Coleman's attempted definition.

Coleman

assumes

that fault has

a moral

or subjective connotation

and

that liability

without

fault may occur

in

two situations: (1)

when

liability

is imposed regardless

of

whether the harm was

justifiably

inflicted, as when injures

B

in order to save

but

must nevertheless make good

B s losses; or (2) when

liability is

imposed despite

an adequate

excuse, as when harms B

despite

his best efforts to avoid

doing

so and yet he is

not

relieved

of

responsibility to

compensate

B.

In

both senses

is

not

at fault, morally

speaking and

so his liability is

strict. Coleman, Moral Theoriesof Torts Their

Scope

and

Limits:

PartI 1

LAW PHIL.

370,

376-78

1982).

10.

Prosser has said

this another

way: Once the legal

concept

of

'fault' is divorced,

as it

has

been,

from

the

personal

standard of

moral

wrongdoing,

there is a sense in

which

liability with

or without

'fault'

must

beg its

own

conclusion. W. PROSSER, supra note 8,

at

496.

11 The expression was first

proposed

in

1926 by Sir Percy

Winfield in

substitution

for absolute

liability

which

was

then

favored.

Winfield,

The

Myth

of

Absolute

Liability,

42 LAW

Q. R

v. 37, 51

1926).

12. The rare attempt at definition has

proved

astonishingly barren --e-g., Strict

liability

may

be defined as legal responsibility

laid

upon a

person for having

allowed

damage to

occur to

another. D.

Hartmann, The

Concept

of Strict

Liability

in

Tort 3

1956) (Tulane

thesis).

13. Some courts regard ultrahazardous

liability

as a

form

of insurance. The

enterpriser has

an

absolute liability that makes

him virtually an

insurer. The

injured

party

1305


5/55

TULANE

LAW

REVIEW

not

self-defining

nor

indicative by itself

of

any

particular

rung on

the

ladder

of

liability: there

are strict

parents whom

others may

regard

as

permissive;

there

is strict

construction of statutes and

constitutions

that

some

may

view as

latitudinarian. Rigor

always

remains

relative

to

the

surroundings to which

it is compared,

and since the

surroundings

happen to be

objective negligence,

the term strict provides

little

more

than a subjective and

impressionistic guide

that fuels

an unending

war of

words.

14

Furthermore, we cannot

rely

on any consistent

measure of

strictness within the family of actions

that we traditionally

group

under

the

title

of

strict liability. Encompassed

under that

rubric

are

a

wide

variety

of

fields

that

include

products

liability,

ultrahazardous

activities,

warranty,

workmen's

compensation,

ruinous

buildings, nuisance, no-fault automobile plans,

and

defa-

mation. Such actions

result in different kinds

or

levels of liabil-

ity.

They rest upon different predicates,

admit different

defenses,

and rely

upon different tests

of

causal

connection. W e must rec-

ognize

the possibility that strict liability is a sliding

scale

and

not

an exact

point

of

reference.

In

both

common

law

and

civil

law

jurisdictions, the termi-

nological and conceptual

confusion

is severe.

Courts

have pro-

claimed in a number

of

areas that

they have created strict

liability and judges have fashioned a rich gumbo

of

terminol-

ogy to

indicate what

is

meant by that concept. The opinions

speak

of

legal fault,

' '5

non-negligent

fault,

1 6

liability with-

out negligence,

17

and

so

on,

but

there

is

no escape from

the

central meaninglessness

of

these words.

They are in

one sense

tyrannical

labels that only tell us

what

strict

liability

is not.

18

They are in

another

sense

empty containers

into

which

anything

can be

thrown.

A

case

arising several years

ago caused

this

author to take

recovers simply by proving damage and

causation. Kent v. Gulf States

Util.

Co., 418 So.

2d 493, 498

(La. 1982).

14. ee Justice

Barham's lament:

Defining fault

is logomachy.

Langlois v. Allied

Chem.

Corp., 258 La. 1067, 1076, 249 So. 2d

133, 137 (1971).

15.

d

16.

Seals v.

Morris,

410

So.

2d

715,

717

(La.

1982).

17. South Cent. Bell

Tel. v.

Hartford

Accident & Indem. Co., 385 So. 2d 830, 833

(La.

Ct. App.

st

Cir.), writ denied 386

So. 2d

356

(La. 1980).

18. P.S.

Atiyah finds strict

liability a

negative

notion in

itself.

He

argues

that

liability

without fault merely

eliminates fault as a necessary condition

of

liability. What

it

does

not do

is

to put

anything else

in

its

place.

P. ATIYAH

ACCIDENTS, OMPENS TION

AND THE LAW 156

(1970).

1306

[Vol. 62


6/55

19

88]

STRICT

LIABILITY

INNER STR UCTURE

note

of the

present confusion.

19

That

case is popularly

known

as

the

Green Snake case.

20

While approaching

a highway intersec-

tion, a driver noticed a green

snake crawling on his

shoulder. In

his panic he drove through

a stop sign and collided

with another

motorist. The

appellate

judges

took the view that

the accident

was

unavoidable

and

denied

the plaintiff recovery.

The Louisi-

ana

Supreme Court, however, rejected

the defense of

unavoida-

ble

accident

and

held

the defendant

driver

liable for

non-

negligent

fault. Applying

an objective concept of fault,

the

court stated

that fault encompasses

many

acts which are

not

morally

wrong,

but are merely

violative of laws or of legal

duties.

'

21

Green

snake

or

no

green

snake,

the

defendant's

fault

was his failure to stop,

as

the

stop

sign and

traffic

laws

directed him to do.

Shortly thereafter

the

justices sharply reversed course.

They issued a

second opinion

reaffirming

liability but expressly

abandoning

the

non-negligent fault

rationale. They held instead

that given

this

particular

driver's backround as

a woodsman

and

his familiarity

with

green snakes, he had acted negligently. The

court

reasoned

that

he

had

created

the risk of the

snake

being

in

the

truck and

that

he had also failed to react

to this

harmless

species

as a reasonable woodsman

should.

What the court

did

not

explain,

however, was the

degree to which

it

stretched

the

meaning of negligence.

It simply heightened

the defendant's

duty of care to

a standard of perfection

that

only

a

rare

class

of

individuals could meet.

In effect

the

court transformed the

yard-

stick of

the

reasonable

man into that

of

the perfect man

whose

fault, in these circumstances,

was the failure to recognize in

a

split

second

the

harmlessness

of

the reptile

on

his

shoulder

and

to maintain

the detached control necessary

to bring his vehicle

safely to a

halt.

22

In

vacillating

between

the

analytical modes of

strict liability

and negligence,

the

court in the Green Snake case shows how

19. See Palmer,

In Quest of a Strict Liability

Standard Under the

Code 56

TUL L.

REv

317 (1982).

20. Seals

v.

Morris,

410 So.

2d

715

(La.

1982).

21. Id. at 716.

22.

The

perfect man

(l homme parfait)

standard

has

been mentioned before in the

context of

strict liability.

M. l'avocat

general Charbonnier

has stated: [C]e

qui

st

exig6

de chacun de nous,

c'est de se comporter non pas seulement

'en bon pare de famille', mais

en

homme parfait C]'est,

en definitive

un

manquement

a

perfection.

Judgment

of

July 21,

1982,

Cass. civ. 2e, Fr., 1982

Recueil D alloz-Sirey, Jurisprudence

[D.S. Jur.] 449,

450.

1307


7/55

TULANE LAW

REVIEW

interchangeable

liability notions

can become.

But, to

return to

my

central

question, which theory is the

facade

and

which is the

inner

structure?

If non-negligent fault is strict liability, then the

law

of

negligence

has

become

its functional

equivalent

This

observation is

true

even though it is unintelligible to

state the

law in terms

of

duties that are impossible to perform.

Understanding

the inner structure

of

strict liability

has

practical significance because

the

legal community

does not

believe

that negligence

and

strict

liability are

or

should be

inter-

changeable

The legal community in general

believes

that

strict

liability

is

different in kind, in result,

and in theory from liability

based

on

fault.

When

lawyers use

the

words

strict

liability,

they

intend to refer to

a

special

category

of liability, and

it must

be

assumed

that lives,

property, and money

depend upon

the

effect

of their words Assertions and controversies are

waged

on

the

basis

of our

supposed ability to

use the

distinction properly.

Cer-

tain legal

historians maintain

that the

nineteenth century

judges

replaced

strict

liability with the

negligence standards in order

to

protect

infant industries in

the

United

States.

23

Some

commen-

tators

insist

that

a

civil

law

tort

system

differs

from

the

common

law

systems

in

that there are considerably

larger

zones of

strict

liability in

the

former

than

in

the

latter.

24

Other writers

argue

that strict

liability

has

proven to be such

an

expensive

experience

23. The historians

Lawrence Friedman and Morton Horwitz

assert

that

in the

nineteenth century

the state

judges

threw out the

higher

protections

of strict liability

under

the writ

of

trespass

and recognized the negligence standard. In so

doing they purposefully

adopted this lowered standard as a judicial subsidy

to protect and assure the

growth

of

infant

industries

in

the United

States. According

to Friedman,

The thrust

of the

rules,

taken

as

a

whole, approached

the

position

that

corporate

enterprise would

be

flatly immune

from

actions sounding

in tort. L. FRIEDMAN, A

HISTORY

OF

AMERICAN

LAW

417

1973).

Horwitz argues

that

the rising commercial classes and

their allies in

the legal

profession deliberately chose to avoid using the taxing system for

this

covert

subsidy and

instead

employed

common

law

doctrine

as

a

means of promoting economic

development.

M.

HORWITZ,

THE

TRANSFORMATION

OF AMERICAN LAW 1780-1860, 99-101

1977).

For a critical review of Horwitz's

book

and this particular thesis, see McClain, Legal

Change

and Class

Interests: Review

Essay on Morton

Horwitz s THE TRANSFORMATION

OF AMERICAN LAW, 68 CALIF. L.

REV.

382

1980). The

subsidy

scholars focused their

attention upon northeastern jurisdictions

in the

United

States--especially

Massachusetts,

New York, and Pennsylvania. Gary Schwartz's study

of

two geographically

diverse

states-California

and New Hampshire-concludes that the

subsidy

theory is

unwarranted.

He

concludes, [The

nineteenth-century

negligence system

was applied with

impressive sternness to major industries and tort

law

exhibited

a keen concern

for

victim welfare.

Schwartz,

Tort Law and the Economy

in

Nineteenth-Century

America:

Reinterpretation,

90

YALE

L.J. 1717,

1720

1981).

24. See Barham, The

Viability

o Comparative Negligence as a

Defense

to

Strict

Liability in

Louisiana, 44 LA.

L.

REv.

1171, 1172 1984).

3 8

[Vol.

62


8/55

1988]

STRICT LIABILITY

INNER

STRUCTURE

for

industry, government, and taxpayers that

statutory

abolition

of the

doctrine

is

required.

25

These

are all unverifiable claims,

however since they rest on intuitional

and unexamined assump-

tions about

the nature

or

definition

of the

subject.

It

is

against

the

background

of

these problems

that

I will

present a

general

theory

of the

inner

structure

of

strict

liability.

Our

understanding

of strict

liability cannot

be

advanced by

catchphrases or by

our

intuition.

What is

required, as a start,

are affirmative

neutral

criteria

that

may lead to a scientific defini-

tion. This Article asserts that

the

common core

of

these criteria

can be derived from comparative law, common law, civil law

and

legal

history. Strict

liability in

tort

is

a

universal phenome-

non

known in

some degree

to

all legal systems. It is probably

the

oldest

tort

principle in history.

Accordingly, this

Article draws

upon examples ranging from

ancient

Greece to modem France.

From these sources

I

have abstracted

and

synthesized common

features that

form the inner

structure

of

the

concept

of

strict

liability.

Three affirmative criteria

emerged from this

study.

First,

part

II

of this Article

asserts

that

strict

liability rests

upon

an

inelasticconcept of unlawful harm

When

the legal order creates

a strict liability measure,

it

creates a

guarantee

of

safety

or

an

obligation of

result,

favoring the

security of a particular

class

of

individuals. This obligation guarantees against

certain

losses or

injuries

resulting

from a lawful,

but perilous, activity. Thus

unlawfulness characterizes only

the

harm and

not the

activity

producing it. Only

the

materialization

of the

injury

is

unlawful

or wrongful.

The unlawfulness within

strict

liability

is

inelastic

because

the

scope

of

the protection

is

predetermined

by

a

court

or

legislature. The liability

is

not subject-as it

is

in negli-

gence-to being redefined by a

court

or legislature according

to

the

circumstances

of particular

accidents. The injurer

is liable

almost automatically if he has caused

the

defined

event e.g.

death or

the defined

type of damage-regardless

of

whether

he

acted

intentionally, unintentionally, or with

the utmost

care.

Second, under the heading of causation,

this Article

asserts

that

strict

liability

has

a

distinctive

approach

that

rests

upon

factual test of causation that

disregards

proximate cause and

25 See

generally AN

ANALYSIS OF

TORT

LI BILITY

EXPOSURE

OF

THE

ST TE

OF

LOUISIANA

6-7

(1985) (prepared by the Legislative Fiscal Office). The study claims that if

the doctrine

were abolished with respect

to

governmental agencies,

the state

would have

saved

over

12 million in

1983

and

over

22 million in

1984.

13 9


9/55

TULANE

LAW.REVIEW

omissions.

Contrary to the

use of proximate

cause

notions

in

negligence strict liability uses only a but for or

sine

qua non

test. The causal relation must be

factual and

not

hypothetical;

the

factfinder

is

not

asked

to

speculate

upon the

role

of

the

injurer's omissions

or negligent

conduct.

Some

proximate

cause

issues

such as superseding cause

are removed from the causal

analysis of the

prima facie case.

They are

funnelled

into the

analysis

of defenses

where they may emerge as

the

plea of an act

of

God,

victim

fault,

or

fault

of a third person. Other

proximate

cause

issues relating to

the extent of damages are also

disre-

garded in

this analysis because

they

are policy questions

regard-

ing

the

scope

of

the

unlawful

harm.

Finally,

this

Article asserts

that the

defenses available

in

strict liability

reveal

a

third criterion: causal

defenses of reduced

s ope and number.

Strict

liability defenses are the recognized

instances in which

the injurer's

conduct

does not

entail

causal

responsibility.

The

defenses are seen as interruptions in the

chain of causation. This view limits the

number

of defenses

and

their scope. Certain defenses

normally

applicable in negligence

like contributory negligence

or

assumption

of

risk,

are

attenu-

ated

or

drop

away

entirely.

As

the

reader

considers

these criteria

there are

three

caveats

to bear in mind.

First,

these criteria

are not

intended to

serve as

a scientific definition of strict liability.

No

adequate definition

exists

and

I

do

not

propose one

here.

26

These criteria, however

represent

the salient traits

or

the

inner

components

allowing

identification

and

differentiation

of

this

elusive concept Second

whereas the

orthodox approach to

strict liability uses a

single

criterion (the

presence

or

absence

of fault) and

arrives

at

a

binary classification by placing all

emphasis upon the duty ques-

tion, my theory requires three analyses before

a

final

classifica-

tion can be made. Thus, fulfillment

or

nonfulfillment of

any

single criterion

may

not

be determinative; rather, it is the overall

degree

of compliance

or noncompliance

that is

significant.

27

In

this

sense

my

criteria

are cumulative. This

leads to

a final

26. Definitions cannot be created by

a

writer in

his armchair.

They rest

on consensus

and common

usage

that do

not

exist at present in regard to

strict

liability. Any

attempt

to

refashion contemporary

usage

is quixotic and perhaps doomed from the

start.

27

The

effect of

this cumulative approach

is significant. In the past tort scholars

have attempted to

identify strict liability from

the narrow

perspective of

the duty question

making the classification turn upon the question, Does

fault

have to be proven? My

contention is

that

the nature

of strict

liability depends upon other

important

questions

as

well namely what principle of causation is

followed

and what defenses are allowed.

3

[Vol. 62


10/55

1988]

STRICT LIABILITY INNER

STR

UCTURE

caveat which is

that

strict

liability must

be

regarded as a genus

of

liability

and

not a species.

In

other

words,

strict

liability

includes pure, mixed

and

hybrid forms.

Part III

of this Article

applies

these

criteria to

a

relatively

new

and

controversial form of liability

developed

by the judici-

ary in

Louisiana:

custodial liability.

This example

was chosen

because

its sources

are

both

American

and French,

and it

bridges

the common law and civil law

worlds

of

tort. Custodial

liability

demonstrates

the

universal character

of strict liability.

An

additional advantage

is

that this example

combines

the

judi-

cial and legislative techniques

of

developing strict liability.

Part

III

will

trace the

rise

of this

liability

during the

1970s

and then

follow its

elaboration in

the

case law. The purpose

is

to

assess

the

validity

of the

claim that

custodial liability in Louisiana

is

a

species

of strict

liability.

In reviewing

a single form

of

liability, I believe that my

the-

ory proves

its

analytical usefulness: custodial

liability has a

hybrid

nature resembling strict

liability

in

some respects

and

negligence in

others.

By systematically

applying strict liability

criteria,

we

can distinguish these functions, plus

understand the

nature of

custodial

liability

specifically

and

of

strict liability

generally.

II. SOURCES AND

CRITERIA

Historically, tort systems in the West have vacillated

between

two

ideas: fault and causation.

28

These systems

have

had

to

make

a choice-either

to

base

liability

upon

fault

and

make causation

a

separate question,

or to

disregard

fault and

make

causation itself

the

basis

of liability. No system

is

purely

causal or purely fault-based but a system can be

classified by the

degree

to

which it makes

fault or

causation

the dominant

ground

of liability.

The

younger

and more

familiar of

these two

approaches

is

the

fault

system. Its

first appearance

in

the civil law came

centu-

ries

before the rise of the common law.

The notion of

fault

can

be

traced

to

the jurists at the

end

of the Roman

Republic-

among

them Quintus

Mucius

Scaevola-who

were influenced by

Greek ideas and thus stressed the

requirement of

fault

under

the

28.

[T

he major premise of most legal systems (until perhaps

the recent past) is that

causation provides, as a matter o policy

the

reason

to

decide

cases

in one way rather

than

the

other. Epstein, Theory o

Strict Liability

2 J LEGAL

STUD

151, 163 (1973).

1311


11/55

TULANE LAW

REVIEW

Aquilian action.

2

9

While becoming

the dominant

liability princi-

ple,

fault gradually displaced an older rights-based principle

of

strict

liability-the principle

of unlawfulness

(injuria).

Thereaf-

ter, injuria

became

strongly

associated

with fault. Later

the

Byzantines

made an abstraction

out

of

the

notion of fault and

thereby

created an element distinct from the

older

notion

of

injuria.

3

1

But it was

not

until

1689 that Jean

Domat

advanced

the

principle that damage caused by even

the

slightest degree

of

fault is

the subject of tort

liability.

32

To

Domat

belongs the

credit for conceiving

the

basis of Code Napoleon article

1382.

33

Turning to the older causal

systems

that held sway long

before

the

rise

of fault, it is interesting

that

these

early causal

systems

were

based

upon

strict liability.

The dominant source of

liability focused

on

the

question of causation, viz. whether a per-

son or thing was in fact the

cause

of an unlawful result. Such

systems can be found in the law of ancient Athens, Babylon,

Rome

under the

XII Tables,

various

primitive legal systems,

and

in the English

common law before liability for

fault

arose

in

the

29. INST.

3.211

(Impunitus est qui sine culpa et dolo malo casu quodam damnum

committit.).

DIG.

9.2.29,

9.2.31,

9.2.52

(De

Zulueta

trans.

1958 ;

J.

INST.

4.3.3-4.3.8;

1

H.

MAZEAUD L. MAZEAUD A. TUNC TRAiTt

THf-ORIQUE

ET

PRATIQUE

DE LA

RESPONSABILITt

CIVILE 37 (6th

ed.

1965); 1

F.

LAWSON B. MARKESINIS, TORTIOUS

LIABILITY

FOR

UNINTENTIONAL

HARM

IN THE

COMMON

LAW

AND THE CIVIL LAW 22-

34

(1982); 4 G.

VINEY, TRAITf

DE DROIT CIVIL, LES

OBLIGATIONS-LA

RESPONSABILITt:

CONDITIONS nos. 3-12, at 4-13 (1982). See generally P. OURLIAC J. DE MALAFOSSE,

HISTOIRE DU

DROIT

PRIvA

379-418

(1957).

On

the

role

of Quintus

Mucius

Scaevola as an

analytical

jurist in developing the definition of

culpa,

see B. FRIER, THE

RISE

OF

TH E

ROMAN

JURISTS

160-161

(1985).

30. 1

B.

BEINART,

THE

RELATIONSHIP OF INJURIA AND CULPA IN THE

LEx

AQUILIA,

STUDI

IN ONORE DI

VINCENZO

ARANGIO-RUIZ, 279 (1953) [hereinafter

B.

BEINART; F.

SCHULZ,

CLASSICAL

ROMAN

LAW

1006

at

589,

1013

at

593

(1951).

Under the

unlawfulness principle, damage

caused

in

the exercise of a

right or

example, obeying lawful

commands, cutting trees on

one's

own property,

or

acting in self-

defense-was free of

liability.

B. BEINART,

supra, at

290.

On

the other hand

damage

inflicted

unlawfully

or without right, although

done

unintentionally

or even

despite the

utmost

care,

gave

rise to

an

Aquilian action.

The ultimate triumph of fault

was

not so

complete

that the older

rights-based

notion was altogether

displaced

or forgotten,

but

injuria

became increasingly synonymous with

culpa

and disassociated from the older

concept of

unlawfulness.

B. BEINART, supra, at 281-82, 285.

31. 1 F. LAWSON

B.

MARKESINIS, supra

note

29, at 22.

32. Toutes les

pertes et tous les dommages, qui

peuvent

arrives par le fait de quelque

personne,

soit

imprudence,

legiret6,

ignorance

de

ce

qu'on

doit

savoir, ou

autres

fautes

semblables, si legfres qu'elles puissent &re, doivent &re repares

par

celui dont imprudence

ou

autre faute

y

a donne lieu. 2 LEs LoIs CIVILES

DANS LEUR

ORDRE NATUREL,

tit.

VIII. Another formulation of the

principle

is attributed to Hugo Grotius, but

P. OURLIAC

AND J.

DE

MALAFOSSE, supra note 29, regard Grotius' synthesis as assez timide and give

the real

credit

to

Domat.

33. P. OURLIAC I. DE MALAFOSSE; supra note 29, at 410.

1312

[Vol. 62


12/55

19 88] STRICT

LIABILITY

INNER STR

UCTURE

nineteenth century.

34

These

systems chose

strict liability but

not

because the notion of fault was unknown. The victim's

remedies

evolved from an uncontrolled right of retaliation, to a limited

right

of proportional retaliation, and

finally

to

the right

to

be

compensated. In ancient law it seems that strict

liability

responded to a policy of social need.

The collectivity-the

injurer

and

his

kinsmen-bore

the

responsibility

for

the

injurer's

unlawful acts.

35

The injurer could not be excused for the harm

he inflicted

just because he was not at fault. Offended gods and

religious taboos demanded his

punishment

irrespective of fault,

and

clan violence-the

clans reacting

to

results more

than

to

faults-needed

to

be

controlled.

In

any event

rudimentary

trial

methods

did not

readily permit

the gathering of facts

about the

injurer's

state of mind.

These causal

systems

have

long since passed from

the legal

scene. In

modem

law they

have

been

replaced

by fault sys-

tems in which strict

liability is relegated to

certain actions

or

particular

statutes that

are exceptions

to the

rule.

Nevertheless,

in the twentieth century,

strict liability has been

expanding rap-

idly.

Insofar

as

its evolution

within this

modem

framework

is

concerned,

two distinct legal families

exist: those

in

which strict

liability is

generally,

or perhaps

exclusively,

a legislative crea-

ture, and those

in

which

it is

generally

or perhaps

exclusively a

judicial creature.

36

For example Germany

has

a long

series of

special statutes, not incorporated into the Bzirgerliches

Gesetzbuch

which establishes

strict liability in

such

fields as the

operation of railways the transmission of gas and electricity the

34.

For

principles

and

examples of

strict

liability found in ancient and primitive law,

see 4 L. BEAUCHET, HISTOIRE

u

DRorr PRIV9 DE LA

RPUBLIQUE ATH]fNIENNE

384-

405

1969); 11

CODE

OF

MAIMONIDES

BOOK OF

TORTS)

(H. Klein trans. 1954); A.

DIAMOND, PRIMITIVE

LAW

PAST

AND

PRESENT

95-96 341, 396 1971); 1 G. DRIVER

AND J.

MILES, THE BABYLONIAN

LAWS 407-15, 461-66

1956);

N. FUSTEL

DE

COULANGES, THE

ANCIENT CITY

1864);

HAMMURABI CODE,

arts. 195-246 (Edwards

trans. 1904); E.

HARTLAND, PRIMITIVE

LAW

147-156

1924); E.

HOEBEL,

THE LAW OF

PRIMITIVE

MAN 1954); J.

JONES,

THE LAW

AND LEGAL THEORY OF

THE

GREEKS

263-

65, 274 1956);

LAWS

OF MANU

Buhler

trans. Dover ed. 1969); L. LEvY-BRUHL,

PRIMITIVE

MENTALITY

Clare

trans. 1923);

D. MACDOWELL,

THE LAW

IN CLASSICAL

ATHENS 109-10 113-20 1978); H. MAINE, ANCIENT LAW 326-29 337-38 1915); R.

POSNER, THE ECONOMICS OF

JUSTICE, 192-203

1981); Perrin, Le Caractire

ubjectifde la

RdpressionPinaledans lesX Tables 1951 REVUE HISTORIQUE

DE DROIT FRANCAIS ET

ETRANGER [REV.

HIST.

DR. FR. ET ] 383; Wigmore, Responsibility or Tortious

Acts: Its

History in SELECTED LEGAL

ESSAYS ON

THE

LAW OF

TORTS

18 1924).

35.

R.

POSNER,

supra

note 34, at 192-97.

36.

The

textual

material in this and the next paragraph is

based

upon

my

earlier

article. Palmer, supra note

19,

at

1322.

1313


13/55

TULANE

LAW REVIEW

driving of

automobiles,

the flying

of

airplanes, and

the pollution

of

water.

37

The German legislator

still regards the principle of

fault as

the

essence

of

the

law

of

delict,

and

considers

strict

lia-

bility

as

anomalous,

thus meriting

only

the

less

exalted

status

of

a non-codal statute.

In

such

a

system,

legislation has been

almost the exclusive instrument; courts have played

virtually

no

.creative

role in

the

development

of strict

liability.

On the other hand, there

are systems, as in France, Louisi-

ana,

Belgium,

and

Quebec, in which strict liability has developed

through

the reinterpretation

of their

codes

or,

put another way,

simply through jurisprudence. Such

codes are no longer con-

secrated

to the proposition

of

no

liability

without moral fault.

There are some

important strict

liability

statutes outside of the

Code, notably a workers compensation statute,

but

there is no

pattern

of exclusive legislation.

Rather

the pattern

has been

one

of

judge-made

rule

and policy which rests upon no other author-

ity

than the

court s

inherent powers.

The case law of

the

United

States reflects an

almost

equal

balance between the judicial and

legislative

forms

of

strict liabil-

ity. The

courts

have

conceived

and

developed

strict

liability

doctrines in

the fields

of

nuisance,

products liability, and

ultrahazardous activities,

while many state

legislatures

have

enacted

workers compensation laws, no-fault motor-vehicle

accident plans and

product

liability reform

statutes.

The

sources

for

the

criteria

that follow

were drawn

from

both judicial

and legislated

forms

of strict

liability. These

two

forms

differ

developmentally

8

but not conceptually

or essen-

tially.

From

this study there

emerge

three criteria

that

form

the

inner

structure of strict

liability.

37. An excellent

description of the German system of strict liability is

found

in 2 K.

ZWEIGERT H.

K6Tz supra

note

3,

at 315-20;

see also

B.

MARKESINiS

A

COMPARATIVE

INTRODUCTION TO

THE GERMAN LAW OF TORT 349-508 1986).

38.

Judicial

and

legislative

forms

of strict

liability

develop

in

different

ways, at

a

different

pace, and display

different

characteristics. The judicial variety usually

gestates

slowly,

over a period of a half

century

or

more. The

development may only

be

noticed

at

first through

the

heightening

of

duties

or

subtle manipulation of the

requirements of

evidence, proof, and

procedure

e.g.,

res ipsa

loquitur

reversal of burden

of

proof, creation

of

presumptions). The period

may

culminate with

an admission

that strict

liability has

emerged as the net result

of

a lengthy evolution. Legislated

strict liability, on the other

hand, not only develops

quickly, but it reflects the

compromise

inherent in the political

world. The injurer and

the injured party in effect

exchange

greater certainty

of

recovery

in

return for limited recovery.

Hence characteristics of legislated strict liability are ceilings

on

damages and the exclusion of

certain kinds

of damages.

1314

[Vol.

62


14/55

1988]

STRICT LIABILITY INNER STRUCTURE

A An Inelastic Concept

of

Unlawful Harm

Whoever

strips away

the

requirement of fault

in

search of

strict

liability

must

reexamine

the

concept

of

unlawfulness.

The

phrase liability

without

fault

tells

us what liability is not

based

upon. It does

not

tell us

what

takes

its place, and

herein

lies

the

residual role

of unlawfulness.

Contemporary tort systems, such as

the common law and

the Germanic

systems, base liability

upon

both the concepts of

unlawfulness and fault.

3 9

In contrast,

the

French-based

systems

attempt

to

resolve

the

problem

of liability

by

the

single concept

of

fault.

Historically, unlawfulness

emerged before

the

notion of

fault.

The

historical priority ofunlawfulness

is illustrated

by the

Lex Aquilia,

4

which carried no

connotation of a requirement of

culpa or negligence

when it was passed. The penalties pre-

scribed under both chapters one and

three

did not depend upon

whether the injury was

inflicted

intentionally or negligently, thus

suggesting

that

the

penalties

were

inflicted

irrespective

of fault.

41

39. In

using

the word unlawfulness in this context, I am attempting to express a

fundamental concept

that

underlies

the tort

law

of

several western systems. This concept

has been expressed as a

damage

without right

(injuria)

n Roman law, as unlawfulness

in Anglo-American law,

and

as illicitness (l illicditd) in continental systems.

It may

correspond, in French law, to the

violation

of an

obligation

of guarantee (obligation

garantie).

See generallyH.

HART

T. HONORt, CAUSATION

IN

THE LAW lxxv

(2d

ed.

1985) ( And it

is

certainly

a

feature of

most, if not

all,

modern

legal

systems, that they

classify

conduct as lawful or

unlawful

and,

on

the basisof that classification, mpose liability

for causing

harm. );

Limpens,

Kruithof, Meinertzhagen-Limpens, Liabilityfor

One s

Own Act in 11 INT L

ENCYCLOPEDIA

OF

COMPARATIVE

LAW

(TORTS)

15-16 1979);

Palmer, supranote

2.

For

a

discussion

of

Roman law, see

B.

BEINART, supra note 30;

F. SCHULTZ,

supra

note

30.

At

common

law, the

discussion

of unlawfulness

is

in terms of a duty situation, fo r

it

is

recognized that

there

are certain situations where one may lawfully inflict

harm,

whether

negligently or intentionally, upon

another without

incurring liability. R. DIAS

B.

MARKESINIS,

THE

ENGLISH

LAW OF

TORTS 29

1976); R.

HEUSTON

R.

CHAMBERS,

LAW OF

TORTS

183 (18th

ed.

1981); W.

ROGERS,

WINFIELD

JOLOWICZ ON TORT 46

(10th

ed.

1975). For a discussion concerning continental systems, see B. MARKESINIS

supra

note 37

at 40-43; M.

PUECH, L ILLICITrr DANS LA RESPONSIBILIT CIVILE

EXTRACONTRACTUELLE

(1973); Deliyannis, L iicditd comme eldment de la responsibiliti

civile

extracontractuelle, OURNfES DE

LA SOCIETP

DE

LEGISLATION COMPARfIE

[J. SOC.

LEG.

COMP.]

77 1984).

40.

The Lex

Aquilia

was a statute of uncertain date

sometime in

the

third century

B.C. It

covered

losses

caused by

injury

to

things. See F. SCHULZ,

supra

note

30 at 587-92.

41.

B. BEINART,

supra

note 30,

at 279; 1

F.

LAWSON

B.

MARKESINIS,

TORTIOUS

LIABILITY

FOR

UNINTENTIONAL HARM IN

THE COMMON

LAW

AND THE

CIVIL LAW 19

1982); A. WATSON, THE

LAW

OF OBLIGATIONS IN

THE

LATER ROMAN

REPUBLIC 236

1965); MacCormack in Daube Noster, 201. But cf 41 STUDIA

ET

DOCUMENTA

HISTORIAE ET JURIS

1975).

1315


15/55

TULANE

LAW

REVIEW

As Roman

law evolved into its

classical period,

injuria

ook

on a

new

meaning,

so

that

it signified

not

only

unlawfulness

but also

implied the

existence

of

culpa.

4

Through

this

fusion of

ideas,

Roman

law

took

a

turn

that

would

later

be

taken

by

modern

negligence

systems.

Unlawfulness

may

be

an

older

and less

sophisticated con-

cept than

fault,

but

its

chief

merit

is

to furnish

a precise

and

objective standard.

Under

the

Twelve

Tables

of Rome, for

example,

this notion

was

designated

by the term

injuria

which

served

as

a predicate to liability.

43

Particular

provisions in the

Twelve

Tables repress

harm objectively

whether or

not

the

wrongdoer

had

an

intention

of

causing

it.

This

was

true

of

membrum

ruptum-any bodily

mutilation

or wounding done

without

right

was

a

wrong-and

it

was

also true of

osfractum

the breaking of

a

bone.

The

penalty could be the

talion

the right

of the aggrieved

to reply

with

like force,

an

eye

for an

eye,

tooth

for tooth,

hand for hand.

44

Another example of

unlawful

harm

is the view

of the

ancient Athenians

that any homicide was

prima

facie unlawful,

subjecting

the perpetrator

to the penalty

of

death

or

exile.

Homicide was

held

in

horror for religious reasons.

4 5

Purification

through punishment

was essential because

killing caused

miasma

a spiritual

pollution that

could harm the

entire commu-

nity.

The

severe

Athenian

god, writes Fustel

de Coulanges,

admitted

no

excuse;

he

did

not

distinguish

between

involuntary

murder and a

premeditated crime. The

hand

stained

with blood

could

no

longer

touch sacred

objects.

46

So strong

were

these

beliefs and the

unyielding

view

of

unlawfulness growing out of

them,

that

even

deaths

caused

by

animals

or

objects

had

to

be

purified

by killing the animal or

by flinging the object beyond

the

42.

R.

LEE,

THE ELEMENTS

OF

ROMAN

LAW

387 3d ed. 1952); B. NICHOLAS,

INTRODUCTION TO ROMAN

LAW 222

1962); F.

SCHULZ, supra

note 30 1006,

at

589.

43.

Limpens,

Kruithof,

Meinertzhagen-Limpens,

supra

note

39.

44.

Exodus XXI See

Perrin,

supra

note 34,

at

383-405.

45. D. MACDOWELL, supra

note 34, at

110.

46. N.

FUSTEL DE COULANGES, supra note

34,

at

96. In Sophocles' Oedipus

Rex

a

plague

afflicts the

citizens

for

this very

reason.

An

unpunished

killer lives

among

them.

Creon declares

that the god

Phoebus

has

told him that

the

Greeks

must

drive

out

the

pollution and

defilement harbored in their

land. Oedipus

questions

the

rite by

which

Creon's declared task

is

to

be effected.

Creon replies

that

they

should

banish the

guilty

man,

or let blood be shed

for bloodshed

since it

is

blood that brought

this

storm

of death

upon the state. Sophocles, OedipusRex

in OUR

DRAMATIC

HERITAGE

64

(P. Hill ed .

1983).

1316

[Vol.

62


16/55

1988]

STRICT

LIABILITY

INNER STRUCTURE

frontier of the

city.

7

The Writ of Trespass vi et armis under the

old common

law

depended upon an

equally rigid

notion of

unlawfulness.

Any

harm from direct

and

nonconsensual application of force to

another's person or property was actionable. Regardless

of

whether the

defendant applying such

force was as careful and

diligent as possible, or as blameless as a sleepwalker who breaks

expensive china,

he

must answer

for the harm

done.

48

The harm

repressed

under

strict

liability rules may

have a

narrow

scope, for example,

harm

from

specific

perils, like keep-

ing wild

animals or

storing dangerous materials,

or the

scope

may extend

to broader

categories

exemplified

in

the

Athenian

law

of

homicide (any killing

of

another) or modem

workers'

compensation

schemes (any

injury

arising

out of

a worker's

employment).

49

The scope of such

laws-their policy

reach-is

a matter of

judicial interpretation and normative

evaluation.

0

Once

the particular scope of the law is

settled, however,

the car-

dinal feature of the liability comprised within that

scope

is that it

is

inelastic.

One

whose

conduct causes a

particular

harm, or

who

stands in

a

particular

relation to

the

thing/person

who

caused it, is prima facie liable. The

effect

of this, in Jean

Carbonnier's words,

is

to create a

kind

of quasi-automatic liabil-

ity The

inelastic quality of

this

liability has

been properly

described by both common law

and

civil

law

authors

as an obli-

gation of

result.

5 2

Boris Starck's thesis that strict liability

repre-

sents

a guaranty to the

victim

seems

basically

in

accord.

5 3

This

47. The legally

sanctioned

mutilation, destruction,

or forfeiture of

offending

objects is

characteristic of primitive law.

A. DIAMOND

supra

note 34, at 95 96

48. As late as 1783 it was

stated

that 'if

a

man rising in his sleep walks into

a

china

shop

and

breaks everything

about

him, his being asleep is

a

complete answer

to

an

indictment

[criminal] for

trespass.... but

he must

answer

in an

ction [civil] for everything

he has broken. ' F.

POLLOCK,

THE

LAW OF

TORTS

146 (13th

ed.

1929).

49.

The

scope may

seem

boundless, as indicated in Ripert s

remark

that the only

type

of accident not

falling within

the

terms

of ode civil article

1384

would be the collision

of

two nudists in mid-air.

Judgment

of

February

13, 1930, Cass. civ. Ire,

Fr.,

1930 Recueil

P6riodique

et critique [D.P.]

I

57 note

G.

Ripert.

50. In this

respect

there is some resemblance

between

strict liability and the

duty/risk

methodology,

particularly

when

a court attempts to

evaluate

whether

a

risk

that

materializes

into

an accident was within

the

scope of

a

statutory duty. The

parameter of

duty in this context seems little different

than measuring the scope of unlawfulness. For

a lucid account of duty/risk analysis, see W.

MALONE

ESS YS

O TORTS

198-200 (1986).

51.

4 J.

CARBONNIER

DRorr CIVIL-LEs

OBLIGATIONS

403

(6th

ed.

1969).

52.

Mazeaud, supra

note

6; Weinrib, Toward

Moral

Theory o Negligence 2

LAW

PHIL.

37,

59 (1983).

53.

B.

STARCK,

DROrrCIVIL:

OBLIGATIONS nos.

58-90,

at 34-44 (1972); Starck, The

1317


17/55

TULANE

LAW

REVIEW

strictness

originates from a judicial decision that a high level

of

security is justified.

This

liability lies

entirely

outside

of the law

of negligence, for it is based

upon the peremptory duty to pre-

vent

certain

damage

from happening.

5

4

This

first criterion

implies

that

courts

and juries

have a

dif-

ferent role

in applying

strict

liability

than

they

have in applying

negligence.

First,

under

strict liability the kind of activity may

be perfectly lawful (blasting, possessing an

animal,

operating a

workplace subject to

workers'

compensation)

but at the same

time the

harmful

result

of that activity

is

unlawful.

Thus, in

strict

liability, the

tribunal's

focus

must

be upon the results of

behavior

whereas

the

focus

of

negligence

liability

must

be

upon

the

risks

o

behavior and the choices open to the

actor or some-

one of his type.

Second, the scope

of unlawful harm

is

determined through

a

priori

balancing of competing

socioeconomic,

political and

moral considerations. In

contrast

to the calculus of negligence,

under strict liability all balancing

between

risk and

utility

has

been done

by

the

lawgiver,

even when that

lawgiver was origi-

nally

a

court or

a series

of

courts.

5 6

This

a

priori

balancing

may

reflect a

compromise

over the coverage of

the

measure.

Once

that scope

is declared,

however,

it is not

the role of the judge

or

jury to rebalance the

interests de novo

in the

arising case.

7

This

constraint

causes predictability and uniformity,

features of

strict

liability

that

cannot

be

as

fully realized

under the law of negli-

Foundation

of

Delictual

Liability

in Contemporary French Law An Evaluation and

a

Proposal 48 TuL. L.

REv. 1043

1974).

54. Terry, Negligence 29

HARV. L.

REV.

40 1915), reprinted in

SELECTED

ESSAYS

ON

THE

LAW

OF

TORTS

261,

263 1924).

55.

Ernest Weinrib

has

properly observed, The attention to

results in strict

liability

renders

irrelevant

not

only

the

process

of choice

envisaged

in the

negligence

calculus

but

also the

volitional

basis of choice

which

is

embodied in the tort

concept of an act.

Weinrib, supra

note 52,

at 59.

Some

commentators insist that

an actor's behavior may be

considered negligent even when

there

was no

duty

situation

and

no harm flows from the

negligence. W.

KEETON, D.

DOBBS, R.

KEETON,

B.

OWEN, PROSSER AND KEETON ON

THE

LAW

OF TORTS

545-46

(5th

ed. 1984

[hereinafter

W.

KEETON];

Terry

supra

note 54,

at

261.

56 For

example, the common-law rule ofRylands

v Fletcher 3 H.L.

330 1868),

was

finally

defined by more than 100

subsequent

British decisions.

See W. KEETON supra note

55 .

57. This prohibition against balancing

does not simply

stem

from separation

of power

considerations inherent in

statutory commands to courts.

It is

conceptually

required even

when

the rule was

originally judge-made.

No

similar

prohibition

against

rebalancing,

however,

applies to negligence theory,

for there the judge is

invited

to

compare

the

magnitude

of the

risks to

which

the plaintiff was exposed and the social worth

of the class

of

persons

that a plaintiff represented

with the social utility of the defendant's

conduct.

1318

[Vol.

62


18/55

1988]

STRICT

LIABILITY

INNER

STRUCTURE

1319

gence.

5 8

Again

in contrast to

the

negligence

calculus,

it

is the

foreknowledge

of the

lawgiver, not the

foreknowledge of

the

injurer, which

is the

baseline

of

liability. The

lawgiver's fore-

knowledge

was

general

(the

estimate

of

risks associated

with

the

activity)

rather than

the specific

foreseeability associated

with a

particular

accident.

59

All pure instances of strict

liability mani-

fest this last

trait, but

the familiar

example

of workers'

compen-

sation may

make the point

clear.

Under

workers' compensation

laws,

the

legislature

has

examined

the

risks

arising in

the

workplace and

determined

who

should bear

the

cost

of

workplace injuries.

The legislature typi-

cally

imposes

liability

upon

an employer

for

injuries

to

his

employee

arising

out

of,

and

in

the

course

of,

his

employment.

Nonetheless,

a

court

has some leeway

in interpreting what acci-

dents

and which persons

are covered by

the

statutory

language.

For example,

a

court

may decide that

a worker employed

to

operate

dangerous machinery is

covered

under the statute

even

though his injury resulted

from being

burned

by a campfire that

he built

in

order

to keep warm

while working.

61

Or the

court

58. It

has

been said

that uniformity and predictability are not

possible in negligence

cases

because of the balancing

process:

[Tihe uniformity of the

negligence principle

was lost, since

different judges might

balance interests differently in

given cases and thus

give different

meanings

to

negligence.

In

addition,

the

capacity

of

the

negligence

principle

to

be

predictably applied was

lost,

because a general hierarchy of

social

interests

could

not

invariably be agreed

upon by the judges,

and thus

even a

routinized

judicial

balancing

of interests would

not

produce

predictable results.

G.

WHITE,

TORT LAW

IN AMERICA

107

(1980). By

the

same

token, when so-called

forms

of strict

liability involve unpredictable balancing

in their application, they may

be

rightly

exposed as disguised forms

of negligence law.

Thus,

PROSSER AND

KEETON

ON

THE

LA W

OF

TORTS

has criticized the six-factor liability

rule for abnormally dangerous activity

con-

tained

in 520 of RESTATEMENT SECOND) OF TORTS:

When

a

court

applies

all

of the

factors suggested

in the Second Restatement

it is doing virtually the same thing

as is done

with

the negligence

concept, except for the

fact

that it is

the

function

of the court to

apply

the

abnormally

dangerous concept to

the facts as found by the

jury.

W. KEETON,

supra

note

55,

at 555.

59. A.

BECHT

F.

MILLER,

THE

TORT OF

FACTUAL

CAUSATION

IN

NEGLIGENCE

AND STRICT LIABILITY CASES

47 (1961). Ehrenzweig

has analyzed this generalized

foresight

in terms

of typical risks associated

with the enterprise,

Le

that general

type

of harm the causation

of

which

was foreseeable

and avoidable

when

he

[the entrepreneur]

started

his hazardous activity, no

less no

more.

This typicality test, unlike

the general foreseeability test

of

fault

liability,

delimits

the

liability

for hazardous

lawful

activities as

one

of the

necessary

burdens

and

expenses

incident

to

such

activities.

A.

EHRENZWEIG,

NEGLIGENCE WITHOUT

FAULT

50 1951).

60 See 1 A. LARSON,

THE

LAW O WORKMEN'S COMPENSATION

(MB)

6

(1985).

61.

13

W. MALONE

H.

JOHNSON, WORKERS' COMPENSATION

LAW AN D

PRACTICE

141

(13

Louisiana

Civil

Law Treatise 2d ed.

1980 and Supp. 1987).


19/55

TUL NE

L W REVIEW

may

decide that

injuries

to

a

worker struck

by lightning

or

blown away

by a

tornado

are

covered under

the

statute.

62

But

if

there

is

no question

relating

to coverage,

there is

no de novo

weighing

of

liability.

A

court

cannot reshape

the

coverage

in

each

case

by

weighing whether risks posed

by

the employer s

conduct

or

by

the condition

of his plant

at the time of

an

acci-

dent

were

reasonable

or

unreasonable risks. That approach

would

no longer

be strict liability, even if

the court stated

that

such liability was

strict and even

if

in this

weighing process it

viewed

the risks objectively

and

presumed the employer s

knowledge

of the risks.

63

In

strict liability the

scope

of unlawful

harm

is

not

a constantly

changing

de

novo

criterion. It is

a fixed

predicate of the

prima

facie

case.

B FactualTest

of Causation

that Disregards

Proximate

Cause and

Omissions

Factual

causation is the heart of

strict liability.

It provides

an

objective

and

a moral basis for

individual

accountability. An

insurer

is liable though

he himself

has not caused the harm

suf-

fered

by the insured.

Insurance

as

a

voluntary

contractual

undertaking

is a stringent

form of liability

that

meets

with

no

objection.

Masquerading

as

a proposition governing

individual

tort responsibility,

however,

the

insurance principle

is an uncivi-

lized notion

distinguishable

from

strict

liability.'

A system that

62. Id 194, at 395-96.

63. f Entrevia

v.

Hood,

427

So. d 1146

(La. 1983);

Kent

v.

Gulf

States Util.

Co.,

418 So.

d 493

(La. 1982).

64. The

mysticism

prevalent in primitive

societies

may unconsciously

produce an

insurance system,

Le.

a system

of

liability

without

causation. Lucien Levy-Bruhl

has

documented his

assertion

that

the primitive

mentality

remains indifferent

to the

relation of

cause

and effect

and

attributes a

mystic origin

to

every

event which makes

an impression

on

it.

Thus there is no

such

thing

as an

accidentaldeath

or injury

due to chance.

Some

culprit

or

wrongdoer, possessed by

an

evil

spirit,

must

be

found and killed or

punished.

PRIMITIVE MENTALITY 43

(Clare

trans.

1923).

The early

Greeks, on the other hand,

recognized that

causation was a fundamental

basis

for individual

accountability. They

were perhaps

the

first

jurists to make a deep

study

of it and

they analyzed liability in terms

which

modems would

recognize as issues of cause

in fact and

proximate cause. A favorite

example was that

of

a

javelin

thrower

in

a

gymnasium

who hits

a boy running out

from

the

spectators. The

defence

was

that the boy

caused

his own

death

by

running into the path

ofajavelin that

was

not

aimed

at

him.

If

he

had not

moved, he

would

not

have

died. Nevertheless

it

could be urged

that

a

javelin

thrower

is

still

a

killer,

however

unwilling, and should be punished. Pericles

is

said

to

have

spent a

whole day with

Protagoras

discussing

whether

such a

death during javelin throwing

was caused

by

the

javelin,

or

by the thrower, or

by

the

sponsors of the games.

J JoN s

LAW

AND

LEGAL THEORY

OF

THE

GREEKS 262-63

(1956).

Pericles' discussion

of

causation

is

treated in

Stone, A

Problem

for

Pericles 59

CALIF

L.

REV 769 (1971).

[Vol.

62

320


20/55

1988] STRICT LIABILITY

INNER

STRUCTURE

would

impose liability

without

causation

has

transformed tort

law into

a

crude form of insurance,

65

and

to that

extent has

ceased

to concern itself with

notions of corrective

justice or indi-

vidual

deserts.

If factual

causation is the key to understanding

strict liabil-

ity, how is this

any different from the

causal principles of

negli-

gence

law?

There is

some

respectable

authority maintaining,

incorrectly I believe,

that the causal

principles are basically

the

same

in strict

liability

and

in negligence.

66

My thesis

is

that these

concepts

are separate

and

distinct. I will

begin

by

discussing

causation in

negligence and then

proceed to compare

it with

strict

liability.

1. Factual Causation

in

Negligence

Under the orthodox

view of negligence,

the question of cau-

sation

is

resolved by

a two step process: first,

was the defend-

ant's

act

a cause-in-fact

of the injury,

and second, was

it the legal

or

proximate

cause

of the

injury.

67

Essentially

the

two steps

involve

a factual

test ( cause

in

fact, but for

or

sine

qua

non )

followed

by a normative

test

usually

discussed

as

proxi-

mate

cause or the legal

cause. Proximate

cause

differs

from

cause-in-fact

because

it is

a

normative

limitation that

may relate

both

to the existence and

extent

of liability.

In

negligence

cases

this determination gives

courts room to

engage in

creative deci-

sions

of

social

policy.

Within the field

of negligence, a

major dispute

exists

between

those

theorists

who

would

minimize the

role

of causa-

tion

in liability

determinations and those

who

would maximize

it.

68

Causal

minimalists

adhere

to

the

cause-in-fact

test

because

in

their view the fundamental

issues

of liability

are

not either

causal

or

factual and to

treat

them as

such

overloads

the causal

Aristotle broke

new

ground

by analyzing causation in

a way that approached the notion

of

proximate cause

and

clearly

implied the

concept of fault.

Aristotle

distinguished

consequences

which are and are

not

to

be reasonably anticipated. He

argued

there

should

be

responsibility

for the former; the

latter

should be treated as

accidental.

Although he

opened

the

way for eventual recognition

of

negligence as

a

ground for moral

culpability,

there is no

evidence that Greek law ever

took advantage of

it.

J.

JONES supra, at 274.

65. This distinction between

strict liability and insurance is

discussed by H. HART &

T. HONORS supra

note 39, at xlvi, 85-86,

286-90.

66.

RESTATEMENT

SECOND)

OF TORTS

431 comment e 1965)

(rule of legal

cause

based upon

substantial factor

is applicable equally in

negligence

and strict

liability).

67.

Epstein,

supra note 28, at 160.

68. H. HART & T. HONORf,

supra

note

39, at

xxxiv-xxxvi,

lxvii-lxxvii.

1321


21/55

TULANE

LAW

REVIEW

question with

issues

of

legal policy.

6 9

In Leon Green's view,

once some moral consideration

is

introduced into the inquiry,

the issue

is

no longer one of causal relation.

Causal relation

is

a

neutral

issue,

blind to

right

and

wrong.

70

Another distin-

guished author maintains that the

test

of proximate cause

is

the

most

deceptive

and

elusive

concept

known

to

tort

law.

'7

1

Causal

maximalism, in contrast,

holds that causal connec-

tion

is

to be

understood as ordinary

people

understand it, that is,

in

accordance

with

the

moral principle

that those who cause

harm

should compensate the

injured.

72

As

Richard Epstein

states

the principle,

[T]he

defendant must bear the

costs of

those

injuries

that

he

inflicts

upon others

as

though they

were

injuries

he had suffered

himself.

'

7

3

He rejects

the cause-in-fact

or but-for version

of

causation because

it is too wide

and

is not

employed

in ordinary discourse. Yet, the

normative

cast

of

Epstein's causal theory has not deflected

the charge from certain

quarters

that

his

theory

produces

a

system of

universal strict lia-

bility.

74

Yet, the causation

of

ordinary discourse has little to do

with the factual

test

embodied

in

strict

liability.

2.

Factual

Causation in Strict Liability

It must be noted

first that

the concept of

cause

in fact in

negligence

theory

is

not completely

a factual determination:

75

the

trier

of

fact determines

whether

the

defendant's

omission

caused the plaintiff's

harm and this involves a supposition as

to

what would have

happened

if

the

defendant

had

acted

differ-

ently. Becht and

Miller point out that causal determinations

in

negligence,

so

often

inextricably connected

to

omissions,

are

not

usually concerned

A General Theory of the Inner Structure of Strict Liability Common Law, Civil Law, And Comparative Law (Vernon Palmer)

Documents