First Page
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Abstract
The fundamental claim that the Restatement (Third) of Torts: General Principles makes about strict liability is striking and bold. The Restatement (Third) claims that there are only special instances of strict liability. Negligence is a general legal principle, but strict liability is a set of particular doctrines. Curiously, however, the Restatement (Third) also takes the position that strict liability is a unified form of liability; it characterizes strict liability as liability for the characteristic risks of an activity.' So the Restatement (Third)'s claim that strict liability is a set of special cases seems to be a claim that strict liability is not a coherent general conception of responsibility for accidental physical injury in the way that fault liability is. This claim strikes me as mistaken. The idea of liability for characteristic risk expresses a conception of responsibility for accidental physical injury that is as coherent and as general as the conception embodied by the fault principle. Whereas the fault principle holds actors accountable for injuries issuing from risks whose imposition should have been prevented ab initio, the strict liability principle holds actors accountable for injuries that flow from their agency. Strict liability expresses "the notion that losses should be borne by the doer, the enterprise, rather than distributed on the basis of fault." Fault liability makes wrongful agency the fundamental basis of responsibility for harm accidentally done; strict liability makes agency itself the fundamental basis of responsibility.
The distinctive modern form of strict liability-enterprise liability-is a particular articulation of what it means to make agency the basis of responsibility. Two propositions form the core of enterprise liability. First, activities should bear their characteristic accident costs. Fault liability pins the costs of the nonnegligent accidents that are the long-run price of an activity's presence in the world on the random victims of the activity. Enterprise liability pins those accident costs on the activity-the enterprise-which imposed the nonnegligent risks responsible for the injuries at issue. Second, enterprise liability holds that an enterprise's accident costs should be distributed among the members of the enterprise. The costs of an injury should be shared by those who profit from the activity responsible for the injury; they should not be concentrated on the injured party, or be dispersed across unrelated activities. These two propositions are often linked to a particular conception of fairness.
Fairness requires a just distribution of burdens and benefits. It therefore gives rise to a presumption that the costs of the accidental physical injuries characteristic of an activity should be borne by those who benefit from the activity, whether or not they are culpably responsible for precipitating the injuries at issue. These propositions are also frequently linked to economic ideas of allocative efficiency and loss-spreading.
Recommended Citation
Gregory C. Keating,
The Theory of Enterprise Liability and Common Law Strict Liability,
54 Vanderbilt Law Review
1285
(2001)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/20