Black’s Law Dictionary defines a “tort” as a “civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages.” In some situations, tort law imposes a greater duty on individual actors with regard to the standard of care they must exercise in order to avoid civil liability. Not surprisingly, when it comes to abnormally dangerous activities, tort law imposes n extremely high standard of care on defendants: a duty to avoid injury entirely or pay damages to individuals who incur any injuries resulting from the activity.
Thus, a defendant who is under an obligation to adhere to this strict standard of care becomes “strictly liable” for any injuries resulting from his decision to conduct abnormally dangerous activities, regardless of how careful he was in conducting the activity. Black’s Law defines “strict liability” as “liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.”
Although Tort Law varies depending on the jurisdiction, when it comes to abnormally dangerous activities and the strict liability imposed on actors conducting such activities, many, if not most, jurisdictions follow some version of the Restatement (Second) of Torts. The Restatement formulates the doctrine of strict liability as follows:
“One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Restatement (Second) of Torts, Section 519(1).
The rationale for this policy is reflected in comment D to Section 519(1) which states: “The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity. It is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant’s enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.” Restatement (Second) of Torts, Section 519(1) cmt. d.
Though most jurisdictions impose strict liability for activities that pose extremely high risks of injuries, courts have traditionally struggled with determining which activities constitute “abnormally dangerous activities” and should, therefore, be subject to strict liability. While the First Restatement of Torts confined strict liability to ‘ultrahazardous activities’, the Second Restatement applies strict liability to “abnormally dangerous” activities, which encompass a wider scope of conduct. Section 520 of the Second Restatement outlines six factors that courts have (and should) consider in their determinations of whether or not to impose strict liability:
“In determining whether an activity is abnormally dangerous [and hence, subject to strict liability], the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement (Second) of Torts, Section 520. Nevertheless, the comment to this section emphasizes the importance of flexibility in weighing these factors and suggests that courts should not venture to adhere to the aforementioned factors in a strict, mechanical way. Rather, all of the factors are “to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.” Restatement (Second) of Torts, Section 520 cmt. f.
Overall, tort laws governing abnormally dangerous activities are generally premised not on fault, but rather on public policy, which allows courts to place responsibility for losses that have occurred as a result of the activity on the actor rather than on the victims. In other words, actors must be cautious because when it comes to these activities, a defendant will be deemed to have acted at his or her peril if injuries result, no matter how much care he or she used when engaging in the abnormally dangerous activity.