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Date: 24 July 2006 14:54:51 From: Richard Wright Subject: The Rule in Rylands v Fletcher
For what it is worth, I think that Australia has it wrong. Rylands is very much alive in the United States as a strict liability rule. Although only a few jurisdictions in the United States adopted the Rylands rule when it was first announced, or later during the nineteenth century, many of them reached the same results through distinct doctrines based on trespass or nuisance rules or the quite liberal application of the doctrine of res ipsa loquitur. In the twentieth century, the rule increasingly gained explicit recognition. Restatement [1st] §§ 519 and 520, which were published in 1938, were based on the Rylands rule, although, given the then-divided state of the case law, the Restatement took no position on the precise situation at issue in Rylands: whether the storage of large bulk accumulations of water or other fluids should be treated as an ultrahazardous activity, subject to strict liability. See Restatement [1st] § 520 caveat. Prosser reported in 1953 that Rylands had been repudiated in name (but not in result) in 10-12 states and adopted in at least 18-20, and that the cases repudiating the Rylands rule generally were cases to which the doctrine should not apply. See William Prosser, The Principle of Rylands v. Fletcher, in Selected Topics on the Law of Torts 135, 149 et seq. (1953). In 1971, he reported that 30 states then explicitly accepted the Rylands principle and only 7 rejected it, with the number of states accepting the principle expanding at the rate of about one a year. William L. Prosser, The Law of Torts 509 (4th ed. 1971); see 3 Harper, James & Gray, The Law of Torts § 14.3 at 193-95 (2d ed. 1986). Indeed, it is now usually held that there is strict liability for flood damage caused by bursting dams. See, e.g., Clark-Aiken Co. v. Cromwell-Wright Co., 323 N.E.2d 876 (Mass. 1975). Defendants will not be held strictly liable to participatory plaintiffs in an ultrahazardous activity (participants, spectators, employees, customers, and others who voluntarily seek to directly benefit from the ultrahazardous activity) for the normal, inherent, "irreducible" risks associated with that activity, but still may be held liable in negligence for unreasonably exposing such participatory plaintiffs to unreasonable foreseeable risks. E.g., workers and spectators at zoos or fireworks displays, passengers in airplanes, etc. I don't think it is correct to view Rylands as an extension of nuisance law rather than as a distinct SL tort. The definition of private nuisance in the first and second Restatements encompasses negligence and ultrahazardous (Rylands) situations as well as intentional substantial interferences with the plaintiff's use and enjoyment of her land (the gist of private nuisance). However, private nuisance is a distinct, nonduplicative strict liability tort only when the interference is intentional (almost always intentional in the "known to be nearly certain to happen" rather than purpose sense). The Restatements say "intentional and unreasonable", but it is clear in the cases (and if you wade through all the Restatement's meandering comments) that "unreasonable" does not mean negligent. The focus is not on the reasonableness of the defendant's activity but rather on the unreasonable effect on the plaintiff: whether it is a substantial interference with the plaintiff's use and enjoyment of her property, viewed objectively under the community-based "live and let live" gloss.
Richard
W. Wright
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