Date: Mon, 24 Jul 2006 18:50:46 -0500

From: John Goldberg

Subject: The Rule in Rylands v Fletcher

Steve:

If I understand you right you are saying that, in the U.S., every case of nuisance liability boils down to negligence liability or Rylands/ultrahazardous activity liability. If I've got it wrong, sorry, but if that is the claim, I don't think it's correct.

Nuisance is purposefully undertaking an activity so as to cause an ongoing and unreasonable interference with another's use and enjoyment of her land. (For these purposes, I mean to take no position on what sort of intent is required for the interference to count as a nuisance.) "Unreasonable" in this formulation of the tort addresses the nature and degree of the interference with plaintiff's use and enjoyment, not the qualities of the defendant's act, so there's at least conceptually a gap between nuisance and negligence. And there are surely cases of conduct generating liability that would not be considered ultrahazardous that would still constitute nuisances. For example, the operation of a sewage treatment plant or pig farm might generate minimal risks of physical injury yet constitute a nuisance because of the odors it generates. I suppose you might say that the latter are examples of nuisance qua negligence, but I think then you are turning the concept of negligence -- meaning a failure to act with reasonable care for certain interests of others -- into silly putty. Nuisance liability can attach even if the plant is run with extraordinary care, and I don't think it is always or necessarily 'careless' simply to operate a sewage treatment plant or a pig farm. The old English case of the confectioner and the doctor -- Sturges v. Bridgman -- seems to capture the idea of a faultless nuisance very nicely, which is perhaps why Coase was able to seize on it and cases like it as a paradigm for thinking about torts in terms of transaction cost economics instead of traditional notions of wrongdoing and responsibility. So far as I know Sturges has not been repudiated in U.S. law.

JG

-----Original Message-----
From: Stephen Sugarman
Sent: Monday, July 24, 2006 6:27 PM
Subject: Re: ODG:The Rule in Rylands v Fletcher

I don't mean to dispute what Richard Wright wrote about the US law. But I want to raise a simple point.

We seem to have reasonably wide agreement in the US that there are a few situations when a defendant may be held liable without any proof of fault on his part.

Relevant here are cases of "abnormally dangerous activities" (or "extrahazardous activities" or "ultrahazardous activities"). To qualify, these activities must be both quite risky and not common.

By quite risky, I think we mean at a minimum that a large amount of damage might (but need not in the actual case) occur if things go awry.

It is less clear whether the probability of harm must meet some threshold (I don't think so.) By uncommon, I think we mean not frequent, but some would include activities done only be specialists (not ordinary folks), even if they do the activities a lot.

Of course, sometimes those engaging in ultrahazardous activities do so in a careless manner and could held liable under ordinary negligence law. But the bite of this are of the law is that proof of fault is not required, and indeed, convincing us that you were not at fault does not allow you to avoid liability. This is why it is "strict liability" as Professor Wright stated.

I also believe that activities covered under this doctrine are not ones that it is unreasonable to engage in. Indeed, were it unreasonable to do the activity at all, then again there would be liability under fault rules. Rather, these are activities which we have concluded are socially acceptable (perhaps even desirable) and yet we force the actors to pay for the accident costs they impose. (Why we do that is another matter I will not go into here.)

Nuisance law in the US, in my view, requires either that D was at fault (in the negligence sense -- either for carrying out an unreasonable activity or for doing a reasonable act in a careless manner) or that D's conduct was an ultrahazardous activity that calls for strict liability as just described. Apart perhaps from some special cases of truly intentional harm that Professor Wright alluded to, I think that this exhausts the scope of nuisance liability in the US. Hence, in my view, nuisance itself does not provide some helpful independent basis for liability. It just carries over the other two main categories to actions that tend to be ongoing or at least causing ongoing harm.

As Professor Wright says, we take Fletcher v Rylands to be an example, or to suggest the possibility of an example, of ultrahazardous activity liability; and so whether the precise actions there would qualify aside, it represents the idea of how we'd treat, say, dynamite blasting -- strict liability.

The question, then, is to what extent do other common law systems recognize true strict liability for what we call ultrahazardous activities, regardless of the label they employ to get there. This has not been clear to me in the exchange so far.

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