Gerald Boston, ‘Strict Liability for Abnormally Dangerous Activity: The Negligence Barrier’

My main thesis is that the doctrine of strict liability for abnormally dangerous activity (which I sometimes refer to by the acronym SLADA), memorialized in sections 519 and 520 of the Restatement (Second) of Torts, has evolved to the point of near extinction because courts have concluded that the negligence system functions effectively to deter the serious risks posed by the activities involved. The Restatement (Second) provides that strict liability is inapplicable when the high degree of risk can be eliminated by the exercise of reasonable care. The evidence demonstrates that courts are increasingly making precisely that finding, usually without any reliance on record evidence, but instead on a judicial sense that very few risks are incapable of being rendered safe by reasonable precautions. This movement away from strict liability and toward negligence I refer to as ‘the negligence barrier’.

Gerald W Boston, Strict Liability for Abnormally Dangerous Activity: The Negligence Barrier, 36 San Diego Law Review (2020).

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