Article by Vernon V. Palmer
Defining the concept of strict liability shares the same problem that constitutional scholars and jurists have had in defining the concept of obscenity—a problem that led former Justice Potter Stewart of the United States Supreme Court to throw up his hands in exasperation, saying he could not define obscenity, but adding, "I know it when I see it." The topic of strict liability has an additional difficulty, for not only has it not been defined, but as far as this author is aware, it has never been seen! It seems to be a concept left largely to intuition; all have used it, many have abused it, and rarely have two lawyers attached the same meaning to it.
Strict liability to some people means a kind of absolute and exceptionless liability characterized both by an absence of moral wrongdoing and an absence of defenses; it is based purely and simply upon some causal relation between one party's conduct and the other party's damage. This view seems to equate strict liability with absolute liability, and is sometimes summed up in the expression, "the defendant acts at his peril." Others, myself included, intend something narrower than absolute liability; that is, a form of liability which, while more extensive than the traditional fault system, is subject to a number of defenses, and thereby must be distinguished from absolute liability. The difficulty lies in finding an acceptable and precise set of words. The purpose of this article is to attempt some clarification of this elusive concept by first, discussing and illustrating it in light of an interesting recent example; second, placing strict liability in a certain context conceptually and historically; and third, drawing a few conclusions as to what role defectiveness plays in that concept in Louisiana.
About the Author
Vernon V. Palmer. Professor of Law, Tulane University; B.A., LL.B., Tulane University; LL.M., Yale University.
Citation
56 Tul. L. Rev. 1317 (1982)