Article by Vernon Palmer
Writing in 1932, Fowler Harper delivered this grim but realistic assessment:
Current statements of the law of strict liability are extraordinarily 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 liability based on fault and strict liability. 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.' 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, 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.’ Jeremiah Smith argued that liability for blasting was grounded in the principle of fault, while William Prosser noted that the domain of fault can be constantly enlarged by reasoning of this kind.
The capacity of the notion of fault to stretch its reach and 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 misunderstanding, 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 having a distinction, but no workable definition. Strict liability would not then be distinguishable from objective negligence because both would comprise liability without subjective fault. 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. 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. But the word ‘strict’ is 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.
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 defamation. Such actions result in different kinds or levels of liability. They rest upon different predicates, admit different defenses, and rely upon different tests of causal connection. We must recognize 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 terminological and conceptual confusion is severe. Courts have proclaimed in a number of areas that they have created strict liability and judges have fashioned a rich ‘gumbo’ of terminology to indicate what is meant by that concept. The opinions speak of ‘legal fault,’ ‘non-negligent fault,’ ‘liability without negligence,’ 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. They are in another sense empty containers into which anything can be thrown.
A case arising several years ago caused this author to take note of the present confusion. That case is popularly known as the Green Snake case. While approaching a highway intersection, 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 Louisiana Supreme Court, however, rejected the defense of unavoidable 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.’ 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.
In vacillating between the analytical modes of strict liability and negligence, the court in the Green Snake case shows how 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 interchangeable. 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. Certain 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. Some commentators 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. Other writers argue that strict liability has proven to be such an expensive experience for industry, government, and taxpayers that statutory abolition of the doctrine is required. These are all unverifiable claims, however, since they rest on intuitional and unexamined assumptions 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 definition. 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 phenomenon 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 modern 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 inelastic concept 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 negligence—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 a factual test of causation that disregards proximate cause and 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 factifinder 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 disregarded in this analysis because they are policy questions regarding 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 scope 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 attenuated 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. 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 question, my theory requires three analyses before a final classification 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. In this sense my criteria are cumulative. This leads to a final 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 judiciary 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 judicial 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 theory 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.
About the Author
Vernon Palmer. Professor of Law, Tulane University, and Professeur Associé, University of Paris (Sorbonne) 1986-1987; LL.B. Tulane University; LL.M. Yale University; D. Phil. Pembroke College, Oxford University.
Citation
62 Tul. L. Rev. 1303 (1988)