Date: Tue, 25 Jul 2006 11:21:44 -0500

From: Richard Wright

Subject: The Rule in Rylands v Fletcher

For Rylands-type strict liability, I believe an activity or thing does or should qualify as ultrahazardous or abnormally dangerous and thus subject to strict liability if, no matter how low the probability of escape (extremely low in Rylands itself and in other cases, rendering the foreseeability of injury quite low but nevertheless real rather than fantastic), both the probability of injury if it escapes and the magnitude of the possible injury are high. This is pretty much Blackburn's "true rule": "likely to cause mischief should it escape," which is incorporated in the first Restatement but totally blown in the Restatement Second's useless, analytically flawed, and descriptively inaccurate multi-factor list. The very low probability of escape is what usually prevents the activity from being negligent. This "true rule" covers escaping wild or vicious domestic animals, escaping livestock (quite common in farm and ranching areas), falling airplanes, escape of radiation from nuclear plants, large bulk accumulations of water, use or storage or (contra Posner) transportation) of explosives or bulk quantities of toxic chemicals or gasoline, etc. The "not a matter of common usage" qualifier in the Restatements is applied or not applied on an ad hoc basis. Large bulk accumulations of water are quite common in some areas, as are oil wells, transportation of gasoline in tanker trucks, cattle, etc.

Contra Steve, I believe that the great bulk of private nuisance cases in the US involve intentional conduct, in the sense that the defendant knows that he will cause or is causing and will continue to cause the substantial interference with the plaintiff's use and enjoyment of her property in a manner that is not accepted as unavoidable in the particular locale under the "live and let live" rule. See eg Boomer, Morgan, Jost, the Pacific NW fluoride emission cases, and I believe every case used in torts property, and environmental law casebooks. The courts routinely state that negligence is not required. I believe considerable confusion would be avoided if private nuisance actions were restricted to instances of intentional injury (as stated in Jost), rather than duplicatively and unnecessarily folding in negligence and ultrahazardous activities.

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From: Stephen Sugarman
Sent: Mon 7/24/2006 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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