PART D. LIABILITY WITHOUT FAULT AND PRODUCTS LIABILITY
From early common law onward, there have been recognized discrete subsets of conduct for which the defendant will be responsible in damages, without regard to due care or fault. This is called “strict liability” or “liability without fault.” This chapter discusses strict liability for damage or injury caused by animals owned or possessed by the defendant, and also strict liability for abnormally dangerous activities. Strict products liability is discussed in Chapter 17.
The original common law rule provided for owner liability without fault for damage done by trespassing livestock. Restatement § 504 imposes strict liability for the possessor of trespassing livestock unless (1) the harm is not a foreseeable one; (2) the trespass by animals being “driven” (herded) along the highway is confined to abutting land; or (3) state common law or statute requires the complaining landowner to have erected a fence. [Maguire v. Yanake, 590 P.2d 85 (Idaho 1978).]
[B] Domestic Animals
Keepers of dogs, cats, horses or other domestic animals are liable for injury caused by the animal only where the possessor knew or should have known of the animal's vicious disposition. Courts have rejected the maxim of ‘”every dog gets one bite.” [Carrow v. Haney, 219 S.W. 710 (Mo. Ct. App. 1920).] In many jurisdictions a dog bite statute creates the exclusive remedy for dog bite victims.
[C] Wild Animals
Many jurisdictions have followed the rule of strict liability for owners or keepers of wild animals that cause harm even though the possessor has exercised the utmost care. [See Restatement § 507.]
Some courts have held that the plaintiff's mere contributory negligence does not bar the claim. In comparative negligence jurisdictions, however, fault principles may be used to reduce the amount of the plaintiff's award. The plaintiff's assumption of the risk is a defense.
Some activities create such grave risks that the defendant may be strictly liable even when he has exercised the utmost care. In such an action, the plaintiff must show that as to the activity (1) the risk of great harm should defendant's safety efforts fail; (2) the impossibility of defendant's elimination of the risk of harm; and (3) injury or harm caused thereby.
Unlike liability for nuisance and trespass, discussed in Chapter 18: (1) the liability described herein does not require a showing that the defendant acted intentionally, negligently or recklessly; and (2) while nuisance and trespass protect an interest in land, abnormally dangerous activities liability is not so confined.
The theory of liability was advanced in British decision in Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), an action against defendant mill owners who had built a large reservoir for the collection of water. When the reservoir's barriers failed, the impounded water flooded into the plaintiff's working mine shafts. The Exchequer Chamber found liability, imposing strict liability upon one who introduces a hazardous condition upon his property that, upon its escape, causes harm to another. The House of Lords added the gloss that liability should attach only if the activity was not typical (“non-natural”) to the land.
The adoption by United States courts of the tenets of Rylands v. Fletcher has moved beyond its original context of impounded water to find application in cases involving activities ranging from the storage of explosives, fumigation, crop dusting, the storage of flammable liquids, pile driving, and the maintenance of a hazardous waste site.
[B] Restatement §§ 519–520
Restatement § 519 states the general principle for liability, and § 520 provides several evaluative factors. Section 519 provides for strict liability for one “who carries on an abnormally dangerous activity” causing harm to persons or property even if he “has exercised the utmost care to prevent the harm.” Section 520 suggests evaluative factors to assist in determining if an activity should be termed abnormally dangerous, and includes (1) the degree of risk of harm; (2) the magnitude of that harm; (3) the inevitability of some risk irrespective of precautionary measures that might be taken; (4) the ordinary or unusual nature of the activity; and (5) the activity's value to the community in comparison to the risk of harm created by its presence.
Restatement § 520(d) requires consideration of whether the activity is “a matter of common usage.” Comment i thereto suggests that while the use of the automobile is so commonplace as to make its operation one of common usage, the use of a far larger tank might be abnormally dangerous. The locality of the activity is also relevant, and comment j to § 520 points out that the storage of explosives in the middle of the desert might be evaluated differently than would such storage in an urban area.
 Danger Unavoidable Even with the Exercise of Due Care
Liability will not lie unless plaintiff shows that the risk involved cannot be eliminated through defendant's exercise of reasonable care. Illustrative is Edwards v. Post Transportation Co., 279 Cal. Rptr. 231 (Cal. App. Ct. 1991), a suit by an employee against the delivery company that pumped sulfuric acid into the wrong storage tank at the manufacturer's waste treatment facility. The resultant toxic gases injured plaintiff, but his claim was disallowed on the grounds that the risk could have been “eliminated through the exercise of reasonable care.”
 Requirement of an Activity Under Defendant's Control
The activity must have been in the control of the defendant at the time of plaintiff's injury. Thus in one suit brought against a manufacturer of chemicals for injuries sustained by a truck driver who inhaled the product when his truck ran over a drum of the product that fell from another truck, liability was denied on the grounds that the manufacturer exercised no control over the independent contractor transporting the drums. [Hawkins v. Evans Cooperage Co., 766 F.2d 904 (5th Cir. 1985).]
Claimants must demonstrate the defendant's engagement in the “activity”. In Heinrich v. Goodyear Tire and Rubber Co., 532 F. Supp. 1348 (D. Md. 1982), a tire company's employee an action against a chemical supplier for chemical exposure injuries, court held that action would not lie absent a showing that the defendant had at least “the right or duty to control, if not actual control over, the activity causing the harm.”
Many plaintiffs have brought causes of action against product manufacturers. In the majority of these cases no liability has been found, as the manufacturer's “activity” ceased at the time of its initial distribution of the product to intermediaries. [Cavan v. General Motors Corp., 571 P.2d 1249 (Or.1977).]
 Type of Hazard Contemplated
Subpart (2) of Restatement § 519 limits the applicability of the strict liability remedy to injuries involving “the kind of harm, the possibility of which makes the activity abnormally dangerous.” [Foster v. Preston Mill Co., 268 P.2d 645, 647 (Wash. 1954).]
[C] Application of the Doctrine
The determination of whether strict liability is justified is explicitly “an adjustment of conflicting interests, which interests include, without limitation, the interest of the person conducting the activity, the interests of the community in which the activity is conducted in the continuation of that activity, and the interests of the injured claimant in receiving compensation for any injury suffered thereby.” [Loe v. Lenhardt, 362 P.2d 312 (Or. 1961).] Restatement §§ 519-520 provide such a balancing test for the determination of whether an activity is to be viewed as abnormally dangerous.
In representative suits, liability has been for: blasting or dangerous storage of explosives or flammable products [Yommer v. McKenzie, 257 A.2d 138 (Md. 1969)]; dangerous release and application [Langan v. Valicopters, Inc., 567 P.2d 218 (Wash. 1977)]; dangerous transportation [Siegler v. Kuhlman, 502 P.2d 1181 (Wash. 1972)]; and dangerous transmission [Ferguson v. Northern States Power Co., 239 N.W.2d 190 (Minn. 1976)].
Under the traditional view accepted by the Restatement in § 523, only the plaintiff's assumption of the risk is a defense to a strict liability action based on an abnormally dangerous activity; the fact that the plaintiff may have failed to use reasonable care for her own protection is irrelevant.