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Citation: 62 Tul. L. Rev. 1303 1987-1988

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A GENERAL THEORY OF THE INNER

STRUCTURE OF STRICT LIABILITY: COMMON
LAW, CIVIL LAW, AND COMPARATIVE LAW
VERNON PALMER*

I. INTRODUCTION ....................................
II. SOURCES AND CRITERIA ...........................
A. An Inelastic Concept of Unlawful Harm .......
B. Factual Test of Causation that Disregards
Proximate Cause and Omissions ...............

1303

1311
1315
1320

1. Factual Causation in Negligence ........... 1321

2. Factual Causation in Strict Liability ....... 1322
a. Omissions Irrelevant to Strict Liability .. 1324
b. Proximate Cause and Superseding Cause
Excluded ............................... 1327
C. Reduction of Defenses Available to Defendant.. 1329
III.

APPLICATION OF THE GENERAL THEORY-A

STUDY OF CUSTODIAL LIABILITY ..................

1334
A. Unlawfulness .................................. 1342
B. Causation ..................................... 1345
C. Defenses ....................................... 1350

1. Irresistible Force (Act of God, Force

Majeure) .................................. 1350

2. Fault of a Third Person ................... 1351

3. Fault of the Victim ........................ 1352
IV.
I.

D. Summary of Custodial Liability ............... 1353

GENERAL CONCLUSION ............................
1354

INTRODUCTION

Writing in 1932, Fowler Harper delivered this grim but

realistic assessment:
* Professor of Law, Tulane University, and Professeur Associ6, University of Paris
(Sorbonne) 1986-1987; LL.B. Tulane University; LL.M. Yale University; D. Phil.
Pembroke College, Oxford University. I am greatly indebted to my friends and colleagues
Tom Andre, Jack Barcelo, John Dzienkowski, Suman Naresh, and Pat Sweeney, who read
drafts of this article and suggested many improvements.

1303

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TULANE LAW REVIEW

[Vol. 62

Current statements of the law of strict liability are extraordinarily unsatisfactory. The paucity of scientific exposition of the
law in this field has made it so difficult to comprehend the
appropriate scope of the principles of liability involved that
courts are frequently at a loss adequately to rationalize their
judgments.'
In the succeeding years strict liability has been a flourishing
and expanding notion, yet its scientific basis has never been more
precarious.
Today it is almost impossible to distinguish between liability based on fault and strict liability. 2 Which theory is the
facade, and which is the inner structure of liability? In terms of
what judges do rather than what they say, liability for fault has
covertly been made to approximate our understanding of strict
liability. For instance, "an 'objective' standard of negligence
may be applied, the requisite standard of care may be raised, the
burden of proof may be reversed and doctrines such as res ipsa
loquitur may be invoked." '3 The broadening of fault has made
the province of strict liability increasingly obscure, blurring the
borders that were once perceivable. The two opposites have
practically become fungible. Joel Bishop, for example, insisted
that Rylands v. Fletcher was based on fault,4 and Thomas Cooley
said that liability for keeping vicious animals was fault-based as
well. Henri Mazeaud believes that the tort liability imposed
upon lunatics and infants is a kind of "objective fault."' 6 Jeremiah Smith argued that liability for blasting was grounded in
the principle of fault,7 while William Prosser noted that the
domain of fault can be constantly enlarged by reasoning of this
kind.8
The capacity of the notion of fault to stretch its reach and
1. Harper, Liability Without Fault and Proximate Cause, 30 MICH. L. REv. 1001,
1013 (1932).

2. See, e.g., Palmer, Trois Principesde la ResponsabilitdSans Faute, 1987 REVUE DE

DROIT INTERNATIONAL ET DE DRoIT COMPARt [R. DR. INT. DR. COMP.] 825; Powers,

The Persistence of Fault in ProductsLiability, 61 TEx. L. REv. 777 (1983).

3.

2 K. ZWEIGERT & H. K6Tz, AN INTRODUCTION TO COMPARATIVE LAW: THE

FRAMEWORK 315 (T. Weir trans. 1977).

4. See J. BISHOP, NON-CoNTRACT LAW 385-87 n.3 (1889).
5. T. COOLEY, COOLEY ON TORTS 343-46 (3d ed. 1907).
6. Mazeaud, La Yaute objective' et la responsibilite "sansfaute" in 1985 Recueil
DalIoz-Sirey, Chronique [D.S. Chr.] 13.
7. Smith, Liabilityfor SubstantialPhysicalDamage to Land by Blasting-The Rule of
the Future, 33 HARV. L. REv. 542, 667, 672-73 (1920).
8. W. PROSSER, HANDBOOK OF THE LAW OF TORTS 495 (4th ed. 1971).

1988]

STRICT LIABILITY INNER STRUCTURE

1305

rationalize any result has denatured the traditional means by

which we have denoted strict liability. The phrase "liability
without fault" now contains the seeds of an inevitable misunderstanding, because fault may be taken either in a subjective or an
objective sense. Attempting to clarify the matter by saying that
strict liability means liability without subjective fault means having a distinction, but no workable definition. Strict liability
would not then be distinguishable from objective negligence
because both would comprise liability without subjective fault.9
On the other hand, saying that strict liability is liability without
objective fault leaves neither a distinction nor a definition. If we
empty fault of its moral content and objectify liability on the
basis of risk, what else is left besides strict liability? At that
point, do not the concepts merge amorphously into one
another?'" Anyone who questions whether we really have strict
liability must also be prepared to question whether we really
have liability for fault.
But if "liability without fault" conveys very little meaning
or creates serious misunderstanding, what of the expression
"strict liability"?' This phrase has become meaningless as
well.' 2 We all share an intuitive understanding that "strict"
must refer to some higher level of liability. We intuit that it
must be more rigorous than negligence law, yet less rigorous
than making the defendant an insurer. 3 But the word "strict" is
9. This problem arises in Jules Coleman's attempted definition. Coleman assumes
that fault has a moral or subjective connotation and that liability without fault may occur
in two situations: (1) when liability is imposed regardless of whether the harm was
justifiably inflicted, as when A injures B in order to save C but must nevertheless make good
B's losses; or (2) when liability is imposed despite an adequate excuse, as when A harms B
despite his best efforts to avoid doing so and yet he is not relieved of responsibility to
compensate B. In both senses A is not at fault, morally speaking, and so his liability is
strict. Coleman, Moral Theories of Torts: TheirScope and Limits: PartI, 1 LAW & PHIL.
370, 376-78 (1982).
10. Prosser has said this another way: "Once the legal concept of 'fault' is divorced,
as it has been, from the personal standard of moral wrongdoing, there is a sense in which
liability with or without 'fault' must beg its own conclusion." W. PROSSER, supra note 8, at
496.
11. The expression was first proposed in 1926 by Sir Percy Winfield in substitution
for "absolute liability" which was then favored. Winfield, The Myth ofAbsolute Liability,
42 LAW Q. R v. 37, 51 (1926).
12. The rare attempt at definition has proved astonishingly barren--e-g., "Strict
liability may be defined as legal responsibility laid upon a person for having allowed
damage to occur to another." D. Hartmann, The Concept of Strict Liability in Tort 3
(1956) (Tulane thesis).
13. Some courts regard ultrahazardous liability as a form of insurance. The
enterpriser has an absolute liability that makes him virtually an insurer. The injured party

1306

TULANE LAW REVIEW

[Vol. 62

not self-defining nor indicative by itself of any particular rung on

the ladder of liability: there are strict parents whom others may
regard as permissive; there is strict construction of statutes and
constitutions that some may view as latitudinarian. Rigor always
remains relative to the surroundings to which it is compared,
and since the surroundings happen to be objective negligence,
the term "strict" provides little more than a subjective and
impressionistic guide that fuels an unending war of words.14
Furthermore, we cannot rely on any consistent measure of
strictness within the family of actions that we traditionally
group under the title of strict liability. Encompassed under that
rubric are a wide variety of fields that include products liability,
ultrahazardous activities, warranty, workmen's compensation,
ruinous buildings, nuisance, no-fault automobile plans, and defamation. Such actions result in different kinds or levels of liability. They rest upon different predicates, admit different defenses,
and rely upon different tests of causal connection. We must recognize the possibility that strict liability is a sliding scale and not
an exact point of reference.
In both common law and civil law jurisdictions, the terminological and conceptual confusion is severe. Courts have proclaimed in a number of areas that they have created strict
liability and judges have fashioned a rich "gumbo" of terminology to indicate what is meant by that concept. The opinions
' ' "non-negligent fault," 1 6 "liability withspeak of "legal fault,"15
17
out negligence," and so on, but there is no escape from the
central meaninglessness of these words. They are in one sense
tyrannical labels that only tell us what strict liability is not.18
They are in another sense empty containers into which anything
can be thrown.
A case arising several years ago caused this author to take
recovers simply by proving damage and causation. Kent v. Gulf States Util. Co., 418 So.

2d 493, 498 (La. 1982).

14. See Justice Barham's lament: "Defining fault is logomachy." Langlois v. Allied
Chem. Corp., 258 La. 1067, 1076, 249 So. 2d 133, 137 (1971).
15. Id.
16. Seals v. Morris, 410 So. 2d 715, 717 (La. 1982).
17. South Cent. Bell Tel. v. Hartford Accident & Indem. Co., 385 So. 2d 830, 833
(La. Ct. App. Ist Cir.), writ denied, 386 So. 2d 356 (La. 1980).
18. P.S. Atiyah finds strict liability "a negative notion in itself." He argues that
liability without fault "merely eliminates fault as a necessary condition of liability. What it
does not do is to put anything else in its place." P. ATIYAH, ACCIDENTS, COMPENSATION
AND THE LAW 156 (1970).

19 88]

STRICT LIABILITY INNER STR UCTURE

1307

note of the present confusion. 19 That case is popularly known as

the Green Snake case. 20 While approaching a highway intersection, a driver noticed a green snake crawling on his shoulder. In
his panic he drove through a stop sign and collided with another
motorist. The appellate judges took the view that the accident
was unavoidable and denied the plaintiff recovery. The Louisiana Supreme Court, however, rejected the defense of unavoidable accident and held the defendant driver liable for nonnegligent fault. Applying an objective concept of "fault," the
court stated that fault "encompasses many acts which are not
morally wrong, but are merely violative of laws or of legal
duties. ' 21 Green snake or no green snake, the defendant's
"fault" was his failure to stop, as the stop sign and traffic laws
directed him to do.
Shortly thereafter the justices sharply reversed course.
They issued a second opinion reaffirming liability but expressly
abandoning the non-negligent fault rationale. They held instead
that given this particular driver's backround as a woodsman and
his familiarity with green snakes, he had acted negligently. The
court reasoned that he had created the risk of the snake being in
the truck and that he had also failed to react to this harmless
species as a reasonable woodsman should. What the court did
not explain, however, was the degree to which it stretched the
meaning of negligence. It simply heightened the defendant's
duty of care to a standard of perfection that only a rare class of
individuals could meet. In effect the court transformed the yardstick of the reasonable man into that of the perfect man whose
fault, in these circumstances, was the failure to recognize in a
split second the harmlessness of the reptile on his shoulder and
to maintain the detached control necessary to bring his vehicle
safely to a halt.22
In vacillating between the analytical modes of strict liability
and negligence, the court in the Green Snake case shows how
19. See Palmer, In Quest of a Strict Liability Standard Under the Code, 56 TUL. L.
REv. 1317 (1982).
20. Seals v. Morris, 410 So. 2d 715 (La. 1982).
21. Id. at 716.
22. The perfect man (l'homme parfait) standard has been mentioned before in the
context of strict liability. M. l'avocat general Charbonnier has stated: "[C]e qui est exig6
de chacun de nous, c'est de se comporter non pas seulement 'en bon pare de famille', mais
en homme parfait ....[C]'est, en definitive un manquement Ala perfection." Judgment of
July 21, 1982, Cass. civ. 2e, Fr., 1982 Recueil Dalloz-Sirey, Jurisprudence [D.S. Jur.] 449,
450.

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TULANE LAW REVIEW

[Vol. 62

interchangeable liability notions can become. But, to return to

my central question, which theory is the facade and which is the
inner structure? If non-negligent fault is strict liability, then the
law of negligence has become its functional equivalent. This
observation is true even though it is unintelligible to state the
law in terms of duties that are impossible to perform.
Understanding the inner structure of strict liability has
practical significance because the legal community does not
believe that negligence and strict liability are or should be interchangeable. The legal community in general believes that strict
liability is different in kind, in result, and in theory from liability
based on fault. When lawyers use the words strict liability, they
intend to refer to a special category of liability, and it must be
assumed that lives, property, and money depend upon the effect
of their words. Assertions and controversies are waged on the
basis of our supposed ability to use the distinction properly. Certain legal historians maintain that the nineteenth century judges
replaced strict liability with the negligence standards in order to
protect infant industries in the United States. 23 Some commentators insist that a civil law tort system differs from the common
law systems in that there are considerably larger zones of strict
liability in the former than in the latter.24 Other writers argue
that strict liability has proven to be such an expensive experience
23. The historians Lawrence Friedman and Morton Horwitz assert that in the
nineteenth century the state judges threw out the higher protections of strict liability under

the writ of trespass and recognized the negligence standard. In so doing they purposefully
adopted this lowered standard as a judicial subsidy to protect and assure the growth of
infant industries in the United States. According to Friedman, "The thrust of the rules,
taken as a whole, approached the position that corporate enterprise would be flatly immune
from actions sounding in tort." L. FRIEDMAN, A HISTORY OF AMERICAN LAW 417
(1973). Horwitz argues that the rising commercial classes and their allies in the legal
profession deliberately chose to avoid using the taxing system for this covert subsidy and
instead employed common law doctrine as a means of promoting economic development.
M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, 99-101 (1977).
For a critical review of Horwitz's book and this particular thesis, see McClain, Legal
Change and Class Interests: A Review Essay on Morton Horwitz's THE TRANSFORMATION
OF AMERICAN LAW, 68 CALIF. L. REV. 382 (1980). The subsidy scholars focused their
attention upon northeastern jurisdictions in the United States--especially Massachusetts,
New York, and Pennsylvania. Gary Schwartz's study of two geographically diverse
states-California and New Hampshire-concludes that the subsidy theory is
unwarranted. He concludes, "[The nineteenth-century negligence system was applied with
impressive sternness to major industries and . . . tort law exhibited a keen concern for
victim welfare." Schwartz, Tort Law and the Economy in Nineteenth-Century America: A
Reinterpretation, 90 YALE L.J. 1717, 1720 (1981).
24. See Barham, The Viability of Comparative Negligence as a Defense to Strict
Liability in Louisiana, 44 LA. L. REv. 1171, 1172 (1984).

1988]

STRICT LIABILITY INNER STRUCTURE

1309

for industry, government, and taxpayers that statutory abolition

of the doctrine is required. 25 These are all unverifiable claims,
however, since they rest on intuitional and unexamined assumptions about the nature or definition of the subject.
It is against the background of these problems that I will
present a general theory of the inner structure of strict liability.
Our understanding of strict liability cannot be advanced by
catchphrases or by our intuition. What is required, as a start,
are affirmative neutral criteria that may lead to a scientific definition. This Article asserts that the common core of these criteria
can be derived from comparative law, common law, civil law,
and legal history. Strict liability in tort is a universal phenomenon known in some degree to all legal systems. It is probably the
oldest tort principle in history. Accordingly, this Article draws
upon examples ranging from ancient Greece to modem France.
From these sources I have abstracted and synthesized common
features that form the inner structure of the concept of strict
liability.
Three affirmative criteria emerged from this study. First,
part II of this Article asserts that strict liability rests upon an
inelasticconcept of unlawful harm. When the legal order creates
a strict liability measure, it creates a guarantee of safety or an
obligation of result, favoring the security of a particular class of
individuals. This obligation guarantees against certain losses or
injuries resulting from a lawful, but perilous, activity. Thus
unlawfulness characterizes only the harm and not the activity
producing it. Only the materialization of the injury is unlawful
or wrongful. The unlawfulness within strict liability is inelastic
because the scope of the protection is predetermined by a court
or legislature. The liability is not subject-as it is in negligence-to being redefined by a court or legislature according to
the circumstances of particular accidents. The injurer is liable
almost automatically if he has caused the defined event (e.g.,
death) or the defined type of damage-regardless of whether he
acted intentionally, unintentionally, or with the utmost care.
Second, under the heading of causation, this Article asserts
that strict liability has a distinctive approach that rests upon a
factual test of causation that disregards proximate cause and
25.

See generally AN ANALYSIS OF TORT LIABILITY EXPOSURE OF THE STATE OF

LOUISIANA 6-7 (1985) (prepared by the Legislative Fiscal Office). The study claims that if
the doctrine were abolished with respect to governmental agencies, the state would have
saved over $12 million in 1983 and over $22 million in 1984.

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omissions. Contrary to the use of proximate cause notions in

negligence, strict liability uses only a "but for" or "sine qua non"
test. The causal relation must be factual and not hypothetical;
the factfinder is not asked to speculate upon the role of the
injurer's omissions or negligent conduct. Some proximate cause
issues, such as superseding cause, are removed from the causal
analysis of the prima facie case. They are funnelled into the
analysis of defenses, where they may emerge as the plea of an act
of God, victim fault, or fault of a third person. Other proximate
cause issues relating to the extent of damages are also disregarded in this analysis because they are policy questions regarding the scope of the unlawful harm.
Finally, this Article asserts that the defenses available in
strict liability reveal a third criterion: causaldefenses of reduced
scope and number. Strict liability defenses are the recognized
instances in which the injurer's conduct does not entail causal
responsibility. The defenses are seen as interruptions in the
chain of causation. This view limits the number of defenses and
their scope. Certain defenses normally applicable in negligence,
like contributory negligence or assumption of risk, are attenuated or drop away entirely.
As the reader considers these criteria there are three caveats
to bear in mind. First, these criteria are not intended to serve as
a scientific definition of strict liability. No adequate definition
exists, and I do not propose one here.26 These criteria, however,
represent the salient traits or the inner components allowing
identification and differentiation of this elusive concept. Second,
whereas the orthodox approach to strict liability uses a single
criterion (the presence or absence of fault) and arrives at a
binary classification by placing all emphasis upon the duty question, my theory requires three analyses before a final classification can be made. Thus, fulfillment or nonfulfillment of any
single criterion may not be determinative; rather, it is the overall
degree of compliance or noncompliance that is significant.27 In
this sense my criteria are cumulative. This leads to a final
26. Definitions cannot be created by a writer in his armchair. They rest on consensus
and common usage that do not exist at present in regard to strict liability. Any attempt to
refashion contemporary usage is quixotic and perhaps doomed from the start.
27. The effect of this cumulative approach is significant. In the past tort scholars

have attempted to identify strict liability from the narrow perspective of the duty question,
making the classification turn upon the question, "Does fault have to be proven?" My
contention is that the nature of strict liability depends upon other important questions as

well, namely what principle of causation is followed and what defenses are allowed.

1988]

STRICT LIABILITY INNER STR UCTURE

1311

caveat, which is that strict liability must be regarded as a genus

of liability and not a species. In other words, strict liability
includes pure, mixed, and hybrid forms.
Part III of this Article applies these criteria to a relatively
new and controversial form of liability developed by the judiciary in Louisiana: custodial liability. This example was chosen
because its sources are both American and French, and it
bridges the common law and civil law worlds of tort. Custodial
liability demonstrates the universal character of strict liability.
An additional advantage is that this example combines the judicial and legislative techniques of developing strict liability. Part
III will trace the rise of this liability during the 1970s and then
follow its elaboration in the case law. The purpose is to assess
the validity of the claim that custodial liability in Louisiana is a
species of strict liability.
In reviewing a single form of liability, I believe that my theory proves its analytical usefulness: custodial liability has a
hybrid nature resembling strict liability in some respects and
negligence in others. By systematically applying strict liability
criteria, we can distinguish these functions, plus understand the
nature of custodial liability specifically and of strict liability
generally.
II.

SOURCES AND CRITERIA

Historically, tort systems in the West have vacillated

between two ideas: fault and causation. 28 These systems have
had to make a choice-either to base liability upon fault and
make causation a separate question, or to disregard fault and
make causation itself the basis of liability. No system is purely
causal or purely fault-based but a system can be classified by the
degree to which it makes fault or causation the dominant ground
of liability.
The younger and more familiar of these two approaches is
the fault system. Its first appearance in the civil law came centuries before the rise of the common law. The notion of fault can
be traced to the jurists at the end of the Roman Republicamong them Quintus Mucius Scaevola-who were influenced by
Greek ideas and thus stressed the requirement of fault under the
28. "[TIhe major premise of most legal systems (until perhaps the recent past) is that
causation provides, as a matter ofpolicy, the reason to decide cases in one way rather than
the other." Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 163 (1973).

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TULANE LAW REVIEW

[Vol. 62

Aquilian action.2 9 While becoming the dominant liability principle, fault gradually displaced an older rights-based principle of
30
strict liability-the principle of unlawfulness (injuria).
Thereafter, injuria became strongly associated with fault. Later the
Byzantines made an abstraction out of the notion of fault and
thereby created an element distinct from the older notion of
injuria.31 But it was not until 1689 that Jean Domat advanced
the principle that damage caused by even the slightest degree of
fault is the subject of tort liability.32 To Domat belongs the
credit for conceiving the basis of Code Napoleon article 1382. 33
Turning to the older causal systems that held sway long
before the rise of fault, it is interesting that these early causal
systems were based upon strict liability. The dominant source of
liability focused on the question of causation, viz. whether a person or thing was in fact the cause of an unlawful result. Such
systems can be found in the law of ancient Athens, Babylon,
Rome under the XII Tables, various primitive legal systems, and
in the English common law before liability for fault arose in the
29. INST. 3.211 (Impunitus est qui sine culpa et dolo malo casu quodam damnum
committit.). DIG. 9.2.29, 9.2.31, 9.2.52 (De Zulueta trans. 1958); J. INST. 4.3.3-4.3.8; 1 H.
MAZEAUD, L. MAZEAUD, & A. TUNC, TRAiTt THf-ORIQUE ET PRATIQUE DE LA
RESPONSABILITt CIVILE 37 (6th ed. 1965); 1 F. LAWSON & B. MARKESINIS, TORTIOUS
LIABILITY FOR UNINTENTIONAL HARM IN THE COMMON LAW AND THE CIVIL LAW 2234 (1982); 4 G. VINEY, TRAITf DE DROIT CIVIL, LES OBLIGATIONS-LA RESPONSABILITt:
CONDITIONS nos. 3-12, at 4-13 (1982). See generally P. OURLIAC & J. DE MALAFOSSE,
HISTOIRE DU DROIT PRIvA 379-418 (1957). On the role of Quintus Mucius Scaevola as an
analytical jurist in developing the definition of culpa, see B. FRIER, THE RISE OF THE
ROMAN JURISTS 160-161 (1985).
30. 1 B. BEINART, THE RELATIONSHIP OF INJURIA AND CULPA IN THE LEx

AQUILIA, STUDI IN ONORE DI VINCENZO ARANGIO-RUIZ, 279 (1953) [hereinafter B.

BEINART; F. SCHULZ, CLASSICAL ROMAN LAW 1006 at 589, 1013 at 593 (1951).
Under the unlawfulness principle, damage caused in the exercise of a right-for
example, obeying lawful commands, cutting trees on one's own property, or acting in selfdefense-was free of liability. B. BEINART, supra, at 290. On the other hand damage
inflicted unlawfully or without right, although done unintentionally or even despite the
utmost care, gave rise to an Aquilian action. The ultimate triumph of fault was not so
complete that the older rights-based notion was altogether displaced or forgotten, but
injuria became increasingly synonymous with culpa and disassociated from the older
concept of unlawfulness. B. BEINART, supra, at 281-82, 285.
31. 1 F. LAWSON & B. MARKESINIS, supra note 29, at 22.
32. "Toutes les pertes et tous les dommages, qui peuvent arrives par le fait de quelque
personne, soit imprudence, legiret6, ignorance de ce qu'on doit savoir, ou autres fautes
semblables, si legfres qu'elles puissent &re, doivent &re repares par celui dont imprudence
ou autre faute y a donne lieu." 2 LEs LoIs CIVILES DANS LEUR ORDRE NATUREL, tit.
VIII. Another formulation of the principle is attributed to Hugo Grotius, but P. OURLIAC
AND J. DE MALAFOSSE, supra note 29, regard Grotius' synthesis as "assez timide" and give
the real credit to Domat.
33. P. OURLIAC & I. DE MALAFOSSE; supra note 29, at 410.

19 88]

STRICT LIABILITY INNER STR UCTURE

1313

nineteenth century.34 These systems chose strict liability but not

because the notion of fault was unknown. The victim's remedies
evolved from an uncontrolled right of retaliation, to a limited
right of proportional retaliation, and finally to the right to be
compensated. In ancient law, it seems that strict liability
responded to a policy of social need. The collectivity-the
injurer and his kinsmen-bore the responsibility for the injurer's
unlawful acts.35 The injurer could not be excused for the harm
he inflicted just because he was not at fault. Offended gods and
religious taboos demanded his punishment irrespective of fault,
and clan violence-the clans reacting to results more than to
faults-needed to be controlled. In any event rudimentary trial
methods did not readily permit the gathering of facts about the
injurer's state of mind.
These causal systems have long since passed from the legal
scene. In modem law they have been replaced by "fault" systems in which strict liability is relegated to certain actions or
particular statutes that are exceptions to the rule. Nevertheless,
in the twentieth century, strict liability has been expanding rapidly. Insofar as its evolution within this modem framework is
concerned, two distinct legal families exist: those in which strict
liability is generally, or perhaps exclusively, a legislative creature, and those in which it is generally or perhaps exclusively a
judicial creature.36 For example, Germany has a long series of
special statutes, not incorporated into the Bzirgerliches
Gesetzbuch, which establishes strict liability in such fields as the
operation of railways, the transmission of gas and electricity, the
34. For principles and examples of strict liability found in ancient and primitive law,
see 4 L. BEAUCHET, HISTOIRE Du DRorr PRIV9 DE LA RPUBLIQUE ATH]fNIENNE 384-

405 (1969); 11 CODE OF MAIMONIDES (BOOK OF TORTS) (H. Klein trans. 1954); A.
DIAMOND, PRIMITIVE LAW PAST AND PRESENT 95-96, 341, 396 (1971); 1 G. DRIVER
AND J. MILES, THE BABYLONIAN LAWS 407-15, 461-66 (1956); N. FUSTEL DE
COULANGES, THE ANCIENT CITY (1864); HAMMURABI CODE, arts. 195-246 (Edwards
trans. 1904); E. HARTLAND, PRIMITIVE LAW 147-156 (1924); E. HOEBEL, THE LAW OF
PRIMITIVE MAN (1954); J. JONES, THE LAW AND LEGAL THEORY OF THE GREEKS 26365, 274 (1956); LAWS OF MANU (Buhler trans. Dover ed. 1969); L. LEvY-BRUHL,
PRIMITIVE MENTALITY (Clare trans. 1923); D. MACDOWELL, THE LAW IN CLASSICAL
ATHENS 109-10, 113-20 (1978); H. MAINE, ANCIENT LAW 326-29, 337-38 (1915); R.
POSNER, THE ECONOMICS OF JUSTICE, 192-203 (1981); Perrin, Le CaractireSubjectifde la
Rdpression Pinaledans les XII Tables, 1951 REVUE HISTORIQUE DE DROIT FRANCAIS ET
ETRANGER [REV. HIST. DR. FR. ET.] 383; Wigmore, Responsibilityfor TortiousActs: Its
History, in SELECTED LEGAL ESSAYS ON THE LAW OF TORTS 18 (1924).
35. R. POSNER, supra note 34, at 192-97.
36. The textual material in this and the next paragraph is based upon my earlier
article. Palmer, supra note 19, at 1322.

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driving of automobiles, the flying of airplanes, and the pollution

of water. 37 The German legislator still regards the principle of
fault as the essence of the law of delict, and considers strict liability as anomalous, thus meriting only the less exalted status of
a non-codal statute. In such a system, legislation has been
almost the exclusive instrument; courts have played virtually no
.creative role in the development of strict liability.
On the other hand, there are systems, as in France, Louisiana, Belgium, and Quebec, in which strict liability has developed
through the reinterpretation of their codes or, put another way,
simply through jurisprudence. Such codes are no longer consecrated to the proposition of no liability without moral fault.
There are some important strict liability statutes outside of the
Code, notably a workers' compensation statute, but there is no
pattern of exclusive legislation. Rather the pattern has been one
of judge-made rule and policy which rests upon no other authority than the court's inherent powers.
The case law of the United States reflects an almost equal
balance between the judicial and legislative forms of strict liability. The courts have conceived and developed strict liability
doctrines in the fields of nuisance, products liability, and
ultrahazardous activities, while many state legislatures have
enacted workers' compensation laws, no-fault motor-vehicle
accident plans and product liability reform statutes.
The sources for the criteria that follow were drawn from
both judicial and legislated forms of strict liability. These two
forms differ developmentally 8 but not conceptually or essentially. From this study there emerge three criteria that form the
inner structure of strict liability.
37. An excellent description of the German system of strict liability is found in 2 K.
ZWEIGERT & H. K6Tz, supra note 3, at 315-20; see also B. MARKESINiS, A COMPARATIVE
INTRODUCTION TO THE GERMAN LAW OF TORT 349-508 (1986).
38. Judicial and legislative forms of strict liability develop in different ways, at a
different pace, and display different characteristics. The judicial variety usually gestates
slowly, over a period of a half century or more. The development may only be noticed at
first through the heightening of duties or subtle manipulation of the requirements of
evidence, proof, and procedure (e.g., res ipsa loquitur, reversal of burden of proof, creation
of presumptions). The period may culminate with an admission that strict liability has

emerged as the net result of a lengthy evolution. Legislated strict liability, on the other
hand, not only develops quickly, but it reflects the compromise inherent in the political
world. The injurer and the injured party in effect exchange greater certainty of recovery in

return for limited recovery. Hence characteristics of legislated strict liability are ceilings on
damages and the exclusion of certain kinds of damages.

1988]
A.

STRICT LIABILITY INNER STRUCTURE

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An Inelastic Concept of Unlawful Harm

Whoever strips away the requirement of fault in search of

strict liability must reexamine the concept of unlawfulness. The
phrase "liability without fault" tells us what liability is not based
upon. It does not tell us what takes its place, and herein lies the
residual role of unlawfulness.
Contemporary tort systems, such as the common law and
the Germanic systems, base liability upon both the concepts of
unlawfulness and fault.3 9 In contrast, the French-based systems
attempt to resolve the problem of liability by the single concept
of fault.
Historically, unlawfulness emerged before the notion of
fault. The historical priority of unlawfulness is illustrated by the
Lex Aquilia, 4 which carried no connotation of a requirement of
culpa or negligence when it was passed. The penalties prescribed under both chapters one and three did not depend upon
whether the injury was inflicted intentionally or negligently, thus
41
suggesting that the penalties were inflicted irrespective of fault.
39. In using the word "unlawfulness" in this context, I am attempting to express a
fundamental concept that underlies the tort law of several western systems. This concept
has been expressed as a damage "without right" (injuria)in Roman law, as "unlawfulness"
in Anglo-American law, and as illicitness (l'illicditd) in continental systems. It may
correspond, in French law, to the violation of an obligation of guarantee (obligation de
garantie). See generally H. HART & T. HONORt, CAUSATION IN THE LAW lxxv (2d ed.
1985) ("And it is certainly a feature of most, if not all, modern legal systems, that they
classify conduct as lawful or unlawful and, on the basis of that classification,impose liability
for causing harm."); Limpens, Kruithof, & Meinertzhagen-Limpens, Liabilityfor One's
Own Act, in 11 INT'L ENCYCLOPEDIA OF COMPARATIVE LAW (TORTS) 15-16 (1979);
Palmer, supra note 2.
For a discussion of Roman law, see B. BEINART, supra note 30; F. SCHULTZ, supra
note 30. At common law, the discussion of unlawfulness is in terms of a duty situation, for
it is recognized that there are certain situations where one may lawfully inflict harm,
whether negligently or intentionally, upon another without incurring liability. R. DIAS &
B. MARKESINIS, THE ENGLISH LAW OF TORTS 29 (1976); R. HEUSTON & R. CHAMBERS,
LAW OF TORTS 183 (18th ed. 1981); W. ROGERS, WINFIELD & JOLOWICZ ON TORT 46
(10th ed. 1975). For a discussion concerning continental systems, see B. MARKESINIS,
supra note 37, at 40-43; M. PUECH, L'ILLICITrr DANS LA RESPONSIBILIT CIVILE
EXTRACONTRACTUELLE (1973); Deliyannis, L'iicditd comme eldment de la responsibiliti
civile extracontractuelle,JOURNfES DE LA SOCIETP DE LEGISLATION COMPARfIE [J. SOC.
LEG. COMP.] 77 (1984).
40. The Lex Aquilia was a statute of uncertain date sometime in the third century
B.C. It covered losses caused by injury to things. See F. SCHULZ, supra note 30, at 587-92.
41. B. BEINART, supra note 30, at 279; 1 F. LAWSON & B. MARKESINIS, TORTIOUS
LIABILITY FOR UNINTENTIONAL HARM IN THE COMMON LAW AND THE CIVIL LAW

19

(1982); A. WATSON, THE LAW OF OBLIGATIONS IN THE LATER ROMAN REPUBLIC 236
(1965); MacCormack in Daube Noster, 201. But cf 41 STUDIA ET DOCUMENTA
HISTORIAE ET JURIS (1975).

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As Roman law evolved into its classical period, injuriatook on a

new meaning, so that it signified not only unlawfulness but also
implied the existence of culpa.42 Through this fusion of ideas,
Roman law took a turn that would later be taken by modern
negligence systems.
Unlawfulness may be an older and less sophisticated concept than fault, but its chief merit is to furnish a precise and
objective standard. Under the Twelve Tables of Rome, for
example, this notion was designated by the term injuria which
served as a predicate to liability.43 Particular provisions in the
Twelve Tables repress harm objectively whether or not the
wrongdoer had an intention of causing it. This was true of
membrum ruptum-any bodily mutilation or wounding done
without right was a wrong-and it was also true of osfractum,
the breaking of a bone. The penalty could be the talion, the right
of the aggrieved to reply with like force, an eye for an eye, tooth
for tooth, hand for hand.44
Another example of unlawful harm is the view of the
ancient Athenians that any homicide was prima facie unlawful,
subjecting the perpetrator to the penalty of death or exile.
Homicide was held in horror for religious reasons.4 5 Purification
through punishment was essential because killing caused
miasma, a spiritual pollution that could harm the entire community. The severe Athenian god, writes Fustel de Coulanges,
"admitted no excuse; he did not distinguish between involuntary
murder and a premeditated crime. The hand stained with blood
could no longer touch sacred objects." 4 6 So strong were these
beliefs and the unyielding view of unlawfulness growing out of
them, that even deaths caused by animals or objects had to be
purified by killing the animal or by flinging the object beyond the
42.

R. LEE, THE ELEMENTS OF ROMAN LAW 387 (3d ed. 1952); B. NICHOLAS,

INTRODUCTION TO ROMAN LAW 222 (1962); F. SCHULZ, supra note 30, 1006, at 589.
43. Limpens, Kruithof, & Meinertzhagen-Limpens, supra note 39.
44. Exodus XXI. See Perrin, supra note 34, at 383-405.
45. D. MACDOWELL, supra note 34, at 110.
46. N. FUSTEL DE COULANGES, supra note 34, at 96. In Sophocles' Oedipus Rex, a
plague afflicts the citizens for this very reason. An unpunished killer lives among them.
Creon declares that the god Phoebus has told him that the Greeks must drive out the
pollution and defilement harbored in their land. Oedipus questions the rite by which
Creon's declared task is to be effected. Creon replies that they should banish the guilty
man, or let blood be shed for bloodshed since it is blood that brought this storm of death
upon the state. Sophocles, Oedipus Rex, in 1 OUR DRAMATIC HERITAGE 64 (P. Hill ed.

1983).

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STRICT LIABILITY INNER STRUCTURE

1317

frontier of the city. 7

The Writ of Trespass vi et armis under the old common law
depended upon an equally rigid notion of unlawfulness. Any
harm from direct and nonconsensual application of force to
another's person or property was actionable. Regardless of
whether the defendant applying such force was as careful and
diligent as possible, or as blameless as a sleepwalker who breaks
expensive china, he must answer for the harm done.48
The harm repressed under strict liability rules may have a
narrow scope, for example, harm from specific perils, like keeping wild animals or storing dangerous materials, or the scope
may extend to broader categories exemplified in the Athenian
law of homicide (any killing of another) or modem workers'
compensation schemes (any injury arising out of a worker's
employment). 49 The scope of such laws-their policy reach-is
a matter of judicial interpretation and normative evaluation. 0
Once the particular scope of the law is settled, however, the cardinal feature of the liability comprised within that scope is that it
is inelastic. One whose conduct causes a particular harm, or
who stands in a particular relation to the thing/person who
caused it, is prima facie liable. The effect of this, in Jean
Carbonnier's words, is to create a kind of quasi-automatic liability
The inelastic quality of this liability has been properly
described by both common law and civil law authors as an obligation of result.5 2 Boris Starck's thesis that strict liability represents a guaranty to the victim seems basically in accord.5 3 This
47. The legally sanctioned mutilation, destruction, or forfeiture of offending objects is
characteristic of primitive law. A. DIAMOND, supra note 34, at 95-96.
48. As late as 1783 it was stated that "'if a man rising in his sleep walks into a china
shop and breaks everything about him, his being asleep is a complete answer to an
indictment [criminal] for trespass.... but he must answer in an action [civil] for everything
he has broken."' F. POLLOCK, THE LAW OF TORTS 146 (13th ed. 1929).

49. The scope may seem boundless, as indicated in Ripert's remark that the only type
of accident not falling within the terms of Code civil article 1384 would be the collision of
two nudists in mid-air. Judgment of February 13, 1930, Cass. civ. Ire, Fr., 1930 Recueil
P6riodique et critique [D.P.] I 57 note G. Ripert.
50. In this respect there is some resemblance between strict liability and the duty/risk
methodology, particularly when a court attempts to evaluate whether a risk that

materializes into an accident was within the scope of a statutory duty. The parameter of
"duty" in this context seems little different than measuring the scope of unlawfulness. For
a lucid account of duty/risk analysis, see W. MALONE, ESSAYS ON TORTS 198-200 (1986).
51.
52.
& PHIL.
53.

4 J. CARBONNIER, DRorr CIVIL-LEs OBLIGATIONS 403 (6th ed. 1969).

Mazeaud, supra note 6; Weinrib, Toward a Moral Theory of Negligence, 2 LAW
37, 59 (1983).
B. STARCK, DROrr CIVIL: OBLIGATIONS nos. 58-90, at 34-44 (1972); Starck, The

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strictness originates from a judicial decision that a high level of

security is justified. This liability lies entirely outside of the law
of negligence, for it is based upon the
peremptory duty to pre54
vent certain damage from happening.
This first criterion implies that courts and juries have a different role in applying strict liability than they have in applying
negligence. First, under strict liability the kind of activity may
be perfectly lawful (blasting, possessing an animal, operating a
workplace subject to workers' compensation) but at the same

time the harmful result of that activity is unlawful. Thus, in

strict liability, the tribunal's focus must be upon the results of
behavior, whereas the focus of negligence liability must be upon
the risks of behavior and the choices open to the actor or some-

one of his type.

Second, the scope of unlawful harm is determined through
a priori balancing of competing socioeconomic, political and
moral considerations. In contrast to the calculus of negligence,
under strict liability all balancing between risk and utility has
been done by the lawgiver, even when that lawgiver was originally a court or a series of courts.5 6 This a priori balancing may
reflect a compromise over the coverage of the measure. Once
that scope is declared, however, it is not the role of the judge or
jury to rebalance the interests de novo in the arising case. 7 This
constraint causes predictability and uniformity, features of strict
liability that cannot be as fully realized under the law of negliFoundation of Delictual Liability in Contemporary French Law: An Evaluation and a
Proposal,48 TuL. L. REv. 1043 (1974).
54. Terry, Negligence, 29 HARV. L. REV. 40 (1915), reprinted in SELECTED ESSAYS
ON THE LAW OF TORTS 261, 263 (1924).
55. Ernest Weinrib has properly observed, "The attention to results in strict liability
renders irrelevant not only the process of choice envisaged in the negligence calculus but
also the volitional basis of choice which is embodied in the tort concept of an act."
Weinrib, supra note 52, at 59. Some commentators insist that an actor's behavior may be
considered negligent even when there was no duty situation and no harm flows from the
negligence. W. KEETON, D. DOBBS, R. KEETON, & B. OWEN, PROSSER AND KEETON ON
THE LAW OF TORTS 545-46 (5th ed. 1984) [hereinafter W. KEETON]; Terry, supra note 54,
at 261.
56. For example, the common-law rule ofRylands v. Fletcher, 3 H.L. 330 (1868), was
finally defined by more than 100 subsequent British decisions. See W. KEETON, supra note
55.
57. This prohibition against balancing does not simply stem from separation of power
considerations inherent in statutory commands to courts. It is conceptually required even
when the rule was originally judge-made. No similar prohibition against rebalancing,
however, applies to negligence theory, for there the judge is invited to compare the
magnitude of the risks to which the plaintiff was exposed and the social worth of the class
of persons that a plaintiff represented with the social utility of the defendant's conduct.

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STRICT LIABILITY INNER STRUCTURE

1319

gence.5 8 Again in contrast to the negligence calculus, it is the

foreknowledge of the lawgiver, not the foreknowledge of the
injurer, which is the baseline of liability. The lawgiver's foreknowledge was general (the estimate of risks associated with the
activity) rather than the specific foreseeability associated with a
particular accident. 59 All pure instances of strict liability manifest this last trait, but the familiar example of workers' compensation may make the point clear.
Under workers' compensation laws, the legislature has
examined the risks arising in the workplace and determined who
should bear the cost of workplace injuries. The legislature typically imposes liability upon an employer for injuries to his
employee arising out of, and in the course of, his employment.
Nonetheless, a court has some leeway in interpreting what accidents and which persons are covered by the statutory language.
For example, a court may decide that a worker employed to
operate dangerous machinery is covered under the statute even
though his injury resulted from being burned by a campfire that
he built in order to keep warm while working.61 Or the court
58. It has been said that uniformity and predictability are not possible in negligence
cases because of the balancing process:
[Tihe uniformity of the negligence principle was lost, since different judges might
balance interests differently in given cases and thus give different meanings to
'negligence.' In addition, the capacity of the negligence principle to be
predictably applied was lost, because a general hierarchy of social 'interests' could
not invariably be agreed upon by the judges, and thus even a routinized judicial
balancing of interests would not produce predictable results.
G. WHITE, TORT LAW IN AMERICA 107 (1980). By the same token, when so-called forms
of strict liability involve unpredictable balancing in their application, they may be rightly
exposed as disguised forms of negligence law. Thus, PROSSER AND KEETON ON THE LAW

OF TORTS has criticized the six-factor liability rule for abnormally dangerous activity contained in 520 of RESTATEMENT (SECOND) OF TORTS: "When a court applies all of the
factors suggested in the Second Restatement it is doing virtually the same thing as is done
with the negligence concept, except for the fact that it is the function of the court to apply
the abnormally dangerous concept to the facts as found by the jury." W. KEETON, supra
note 55, at 555.
59.

A. BECHT & F. MILLER, THE TORT OF FACTUAL CAUSATION IN NEGLIGENCE

AND STRICT LIABILITY CASES 47 (1961).

Ehrenzweig has analyzed this generalized

foresight in terms of typical risks associated with the enterprise, Le.,

that "general type of harm" the causation of which was foreseeable and avoidable
when he [the entrepreneur] started his hazardous activity, no less-no more.
This "typicality" test, unlike the general "foreseeability" test of fault liability,
delimits the liability for hazardous lawful activities as "one of the necessary
burdens and expenses incident to such activities."
A. EHRENZWEIG, NEGLIGENCE WITHOUT FAULT 50 (1951).

60. See 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION (MB) 6 (1985).

61. 13 W. MALONE & H. JOHNSON, WORKERS' COMPENSATION LAW AND
PRACTICE 141 (13 Louisiana Civil Law Treatise 2d ed. 1980 and Supp. 1987).

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may decide that injuries to a worker struck by lightning or

blown away by a tornado are covered under the statute.62 But if
there is no question relating to coverage, there is no de novo
weighing of liability. A court cannot reshape the coverage in
each case by weighing whether risks posed by the employer's
conduct or by the condition of his plant at the time of an accident were reasonable or unreasonable risks. That approach
would no longer be strict liability, even if the court stated that
such liability was strict and even if in this weighing process it
viewed the risks "objectively" and presumed the employer's
knowledge of the risks.63 In strict liability the scope of unlawful
harm is not a constantly changing de novo criterion. It is a fixed
predicate of the prima facie case.
B.

Factual Test of Causation that DisregardsProximate

Cause and Omissions

Factual causation is the heart of strict liability. It provides

an objective and a moral basis for individual accountability. An
insurer is liable though he himself has not caused the harm suffered by the insured. Insurance as a voluntary contractual
undertaking is a stringent form of liability that meets with no
objection. Masquerading as a proposition governing individual
tort responsibility, however, the insurance principle is an uncivilized notion distinguishable from strict liability.' A system that
62. Id. 194, at 395-96.
63. Cf Entrevia v. Hood, 427 So. 2d 1146 (La. 1983); Kent v. Gulf States Util. Co.,
418 So. 2d 493 (La. 1982).
64. The mysticism prevalent in primitive societies may unconsciously produce an
insurance system, Le., a system of liability without causation. Lucien Levy-Bruhl has
documented his assertion that the primitive mentality "remains indifferent to the relation of
cause and effect and attributes a mystic origin to every event which makes an impression on
it. Thus there is no such thing as an accidentaldeath or injury due to chance. Some culprit
or wrongdoer, possessed by an evil spirit, must be found and killed or punished.

PRIMITIVE MENTALITY 43 (Clare trans. 1923).

The early Greeks, on the other hand, recognized that causation was a fundamental
basis for individual accountability. They were perhaps the first jurists to make a deep study
of it and they analyzed liability in terms which modems would recognize as issues of cause
in fact and proximate cause. A favorite example was that of a javelin thrower in a
gymnasium who hits a boy running out from the spectators. The defence was that the boy
caused his own death by running into the path ofajavelin that was not aimed at him. If he
had not moved, he would not have died. Nevertheless it could be urged that a javelin
thrower is still a killer, however unwilling, and should be punished. Pericles is said to have
spent a whole day with Protagoras discussing whether such a death during javelin throwing
was caused by the javelin, or by the thrower, or by the sponsors of the games. J. JoNEs,
LAW AND LEGAL THEORY OF THE GREEKS 262-63 (1956).

Pericles' discussion of

causation is treated in Stone, A Problem for Pericles, 59 CALIF. L. REV. 769 (1971).

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would impose liability without causation has transformed tort

law into a crude form of insurance, 65 and to that extent has
ceased to concern itself with notions of corrective justice or individual deserts.
If factual causation is the key to understanding strict liability, how is this any different from the causal principles of negligence law? There is some respectable authority maintaining,
incorrectly I believe, that the causal principles are basically the
same in strict liability and in negligence. 66 My thesis is that these
concepts are separate and distinct. I will begin by discussing
causation in negligence and then proceed to compare it with
strict liability.
1. Factual Causation in Negligence
Under the orthodox view of negligence, the question of causation is resolved by a two step process: first, was the defendant's act a cause-in-fact of the injury, and second, was it the legal
or proximate cause of the injury.67 Essentially the two steps
involve a factual test ("cause in fact," "but for" or "sine qua
non") followed by a normative test usually discussed as proximate cause or the legal cause. Proximate cause differs from
cause-in-fact because it is a normative limitation that may relate
both to the existence and extent of liability. In negligence cases
this determination gives courts room to engage in creative decisions of social policy.
Within the field of negligence, a major dispute exists
between those theorists who would minimize the role of causation in liability determinations and those who would maximize
it.68 Causal minimalists adhere to the cause-in-fact test because
in their view the fundamental issues of liability are not either
causal or factual and to treat them as such overloads the causal
Aristotle broke new ground by analyzing causation in a way that approached the notion of
proximate cause and clearly implied the concept of fault. Aristotle distinguished
consequences which are and are not to be reasonably anticipated. He argued there should
be responsibility for the former; the latter should be treated as accidental. Although he
opened the way for eventual recognition of negligence as a ground for moral culpability,
there is no evidence that Greek law ever took advantage of it. J. JONES, supra, at 274.
65. This distinction between strict liability and insurance is discussed by H. HART &
T. HONORS, supra note 39, at xlvi, 85-86, 286-90.
66. RESTATEMENT (SECOND) OF TORTS 431 comment e (1965) (rule of legal cause
based upon substantial factor is applicable equally in negligence and strict liability).
67. Epstein, supra note 28, at 160.
68. H. HART & T. HONORf, supra note 39, at xxxiv-xxxvi, lxvii-lxxvii.

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question with issues of legal policy.6 9 In Leon Green's view,

once some moral consideration is introduced into the inquiry,
the issue is no longer one of causal relation. "Causal relation is a
neutral issue, blind to right and wrong."' 70 Another distinguished author maintains that the test of proximate cause'71is "the
most deceptive and elusive concept known to tort law.
Causal maximalism, in contrast, holds that causal connection is to be understood as ordinary people understand it, that is,
in accordance with the moral principle that those who cause
harm should compensate the injured.72 As Richard Epstein
states the principle, "[T]he defendant must bear the costs of
those injuries that he inflicts upon others as though they were
injuries he had suffered himself. '7 3 He rejects the cause-in-fact
or but-for version of causation because it is too wide and is not
employed in ordinary discourse. Yet, the normative cast of
Epstein's causal theory has not deflected the charge from certain
quarters that his theory produces a system of universal strict liability.74 Yet, the causation of ordinary discourse has little to do
with the factual test embodied in strict liability.
2.

Factual Causation in Strict Liability

It must be noted first that the concept of "cause in fact" in

negligence theory is not completely a factual determination: 75
the trier of fact determines whether the defendant's omission
caused the plaintiff's harm and this involves a supposition as to
what would have happened if the defendant had acted differently. Becht and Miller point out that causal determinations in
negligence, so often inextricably connected to omissions, are not
usually concerned with "simple cause" but with "hypothetical
69. Adherents to causal minimalism include Leon Green, Becht and Miller, Wex
Malone, and Robert Keeton, as well as the economic theorists. See A. BECHT & F.
MILLER, supra note 59; Calabresi, Concerning Cause and the Law of Torts: An Essay for
Harry Kalven, Jr., 43 U. CHI. L. REv. 69 (1975); Green, The Causal Relation Issue in
Negligence Law, 60 MICH. L. REV. 543 (1962); Malone, Ruminations on Cause-in-Fact, 9

STAN. L. REV. 60 (1956-57); Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972).

70. Green, supra note 69, at 549.

71. Malone, Ruminations on Liabilityfor the Acts of Things, 42 LA. L. REv. 979, 990
(1982).
72. Epstein, supra note 28, at 162; Epstein, Causationand CorrectiveJustice: A Reply
to Two Critics, 8 J. LEGAL STUD. 477, 479 (1979).

73. Fletcher, The Searchfor Synthesis in Tort Theory, 2 LAW & PHIL. 63 (1983).
74. H. HART & T. HONORS, supra note 39, at lxxiv; Fletcher, supra note 73.
75. Malone, supra note 69, at 61.

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STRICT LIABILITY INNER STRUCTURE

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cause." 76 Hypothetical cause (what would have happened if...

?) involves counterfactual speculation and the use of a parallel
series of facts. The point can be illustrated by a variation upon
an example used by Becht and Miller."
Suppose it is alleged that the death of a pedestrian crossing
the road was caused by a driver who did not keep a proper lookout. If the trier of fact can infer that the driver would have seen
the pedestrian in time to slow down, and that he would have
used the opportunity to avoid the accident, then the trier may
conclude that the omission was a cause-in-fact of the harm. If it
appears that even with a proper lookout the driver would have
hit the plaintiff and could not have swerved his car (e.g., if the
plaintiff darted out into the traffic), the trier will say that the
omission was not the "cause in fact" of the accident.78 Clearly,
whether or not the omission is viewed in a "but for" sense as a
cause of the injury, the cause is hypothetical, not purely factual,
since it is based not upon what did happen but upon what did
not happen. How can a court know that if the defendant had
kept a proper lookout, the plaintiff would not have injured himself anyway and thus concede as a fact that defendant's failure to
keep a lookout was a cause of the injury? As Hart and Honor6
ask, how can a question about
facts which concededly never
79
existed be a question of fact?
The causal principle in strict liability, on the other hand,
obviates the problem of omissions and hypothetical causation. It
attaches responsibility to general affirmative conduct (e.g., inf the
above example, the defendant's general activity of driving) and
not with particular omissions (like the failure to keep a proper
lookout). Becht and Miller's central insight, then, is that causal
relation in strict liability has a factual and nonhypothetical quality. In their own words,
The difference between strict liability and negligence is
precisely that a causal relation between conduct and harm is all
that is needed for strict liability. As no negligence need be
proved, there can be no problem whether there was an act or
76. A. BECHT & F. MILLER, supra note 59, at 23-24.
77. Id.
78. For a discussion of this type of reasoning in the case of Texas & Pac. Ry. Co. v.
McCleery, 418 S.W.2d 494 (Tex. 1967), see Thode, The Indefensible Use of the
Hypothetical Case to Determine Cause in Fact,46 TEx. L. REv. 423, 426-27 (1968). But see
Henderson, A Defense of the Use of the Hypothetical Case to Resolve the CausationIssueThe Needfor an Expanded, Rather than Contracted,Analysis, 47 TEX. L. REV. 183 (1969).
79. H. HART & T. HONORA, supra note 39, at 101.

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an omission, and no causal relation, simple or hypothetical, can

be traced between a negligent segment and the harm. By the
same token, since the liability rests upon an evaluation that the
defendant should pay because of what he is doing, it follows
that the causal relation between the conduct and the harm in
strict liability cases must usually be simple, not hypothetical8 0
a

Omissions Irrelevant to Strict Liability

Strict liability's blindness to omissions permits a truly factual test of causation to determine the existence of liability.81 An
examination of ancient and modem examples of strict liability
shows that the causal problem posed by omissions has usually
been avoided by using two techniques. Under the first technique, omissions are deprived of causal significance by linking
injuries back to conduct preceding the particular events of any
accident. The injury is directly linked to this conduct by enlarging the time frame or the relevant behavior frame for which the
defendant is accountable. Into this category fall a number of
strict liability statutes, such as those compensating the public for
injuries arising "through the operation" of railways or electric
transmission lines. Here, provided that the injury resulted from
a risk within the scope of the statute (the unlawfulness question),
the liability follows upon causally linking the injury (say to a
train passenger) to a railway activity (such as sudden braking,
collapse of the track, signal failure or other technical incidents of
running a railway).8 2 There may be negligent omissions on the
part of an engineer, a switchman or some other railway
employee that might explain the cause of the accident if the liability were in negligence. Such causal evidence is irrelevant in
strict liability because it is subsumed by a broader preceding
activity that is purely a question of fact and not hypothetical.
The narrower "time frame" and "behavior frame" of negligence,
which normally focus upon events just prior to the incident, are
80. Id at 46.
81. There is a related normative issue that should be distinguished from the question
of the existence of liability. Whether the plaintiff's injury lies within the scope of the strict
liability rule or statute falls partly into the unlawfulness question, but this is also a matter
of whether the plaintiff is entitled to all the damages he has sustained (the extent of
damages question). In this Article I have treated it below under the latter heading.
82. Zweigert and K6tz's description of the Imperial Law of Liability in Germany
exemplifies this approach. See 2 K. ZWEIGERT & H. KoTz, supra note 3, at 316. The
statute, as consolidated in the Strict Liability Act of 1976, can be found in translation in B.
MARKESINIS, supra note 37, at 498-50.

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supplanted by a broader statutory frame that encompasses the

overall activity. 3
Another example in this category is the typical workmen's
compensation statute. Here the employer is liable if the worker's
injury broadly results from the employment activity and not as a
result of any particular failure by the employers such as to install
a safety guard or to mop a slippery floor.s4 The negligence that
explains how a particular worker's accident came about is
merely a dramatic circumstance of the story. What is causally
relevant is only whether the accident arose out of and during the
course of the employment.
These examples reflect that when a type of "conduct" with
wide parameters in time and space is used as a causal baseline, as
in worker's compensation laws, the causal issues presented are
nonhypothetical.8 But when the causal baseline is defined more
narrowly, hypothetical causation enters into a cause-in-fact
enquiry. This would be true in products liability where the rules
impose liability upon the manufacturer of a defective product
causing an injury. The scope of the conduct is narrowed by the
necessity of proving a defect. In such cases the jury must frequently decide whether the injury would have resulted even if
the product was nondefective8 6 The weakened strictness of
83. Those reluctant to use strict liability in the criminal law have been accused of
adopting "a rationally indefensible narrow time frame" in focusing upon the defendant's
conduct. "It is significant to note that only by constructing the underlying material in the
strict-liability situations with a very narrow time frame that the distinction between liability
predicated on negligence, and strict liability, maintains its practical import in many critical
situations." Kelman, Strict Liability: An Unorthodox View, in 4 ENCYCLOPEDIA OF CRIME

AND JUSTICE 1516 (1983). Leon Green's view of "cause in fact" approaches the wider
factual test of strict liability. For him the proper ambit of the cause-in-fact issue never goes
beyond inquiring into whether a causal relation exists between the totality of defendant's
conduct and the harm in question-that is, whether the defendant "had anything to do
with" the harm which occurred. Green, supra note 69.
84. See W. PROSSER, supra note 8, at 531.
85. It may be thought that hypothetical factual issues will still arise however great the
generality of this baseline. For example, the question could arise under a workers'
compensation law whether an employee who died at work of congenital heart failure would
have died irrespective of situs or work connection. Yet this is not a question of causation
for the jury but a question of law for the court concerning the scope of the statute. The
normative question is whether the statute should be read narrowly to cover only risks
distinctly associated with the employment, or perhaps more broadly to embrace risks
personal to the claimant (as may be the case of a congenital heart condition) or indeed
"neutral" or "mixed" risks. 1 A. LARSON, supra note 60, 7.10-7.40.
86. See, eg., Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 901 (Pa. 1975);
Stewart v. Von Solbrig Hosp. Inc., 24 Ill. App. 3d 599, 603, 321 N.E.2d 428, 431-32 (Ill.
App. Ct. 1974).

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products liability, as compared to that in workmen's compensation, is partly attributable to this causal difference.
The second technique is the adoption of an artificial rule of
causation whereby only proof of positive acts is sufficient to create liability. This technique has been closely identified with judicially developed strict liability. Omissions are made irrelevant
because the causal nexus is defined by the quality of the act
bringing about the harm, rather than relating back, as in the first
technique, to a general set of activities at an earlier time. For
instance, under the Writ of Trespass the royal courts counted as
causation only direct force. So if A clubbed B on the head with
a pole, B would have a good action. However, if A left the pole
in a place where B was likely to trip over it, and B in fact did trip
accidentally, B could not recover because A had not used direct
force upon him. 7 Here the causal test is strict by ignoring omissions. "Not doing" was no trespass under the Writ. 88 Another
form of "direct" causation (corpore corpori) was required at
Roman Law for an actio directa under the Aquillian action.
Typical is a decision of Labeo found in the Digest.8 9 If a midwife
with her own hands gave a slave woman a drug from which she
died, the statute applied and the actio directa would lie; but if
she gave it to the slave woman to take herself then the actio legis
Aquiliae did not lie. 90
French jurists, interpreting what constitutes the "act of a
thing" (le fait de la chose) under article 1384, also resort to an
artificial notion. They invoke the distinction between the active
and passive role: if the thing played only a passive role in causing the plaintiff's damage, it would not be considered the cause
of the damage. For instance, if a vehicle leaves the road and
crashes into a wall, it would be absurd to a French jurist to say
that the custodian of the wall is responsible for the damage to
the vehicle or its driver under article 1384.91 The wall passively
87. J. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 341-42 (2d ed.
1979); C. FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW 44, 56-65 (1949); S.
MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 1 (1985).

88. See Milsom, Not Doing Is No Trespass, 1954 CAMBRIDGE L.J. 105; Prichard,
Trespass, Case and the Rule in Williams v. Holland, 1964 CAMBRIDGE L.. 234.
89. J. DIG. 9.2. pr (Mommsen trans.) (Watson ed. 1985).
90. An actio utilis, however, could be brought. B. NICHOLAS, AN INTRODUCTION TO
ROMAN LAW 219 (1962) (the jurists' approach to causation was casuistic and could also be
expressed as whether the actor was at fault); F. SCHULZ, supra note 30, at 588-89; 12 F.
STONE, TORT DOCTRINE 32-33 (12 Louisiana Civil Law Treatise 1977).
91. 1 K. ZWEIGERT & H. KoTz, supra note 3, at 324.

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remained in its normal place and normal condition at the time.

Passive does not always mean inert, since moving objects can
also play a passive role-for example, where a pedestrian throws
himself onto a moving automobile in an attempt to commit suicide. On the other hand, if a thing is in an abnormal condition
(a car with defective brakes) or an abnormal position (parked in
the middle of the road), it plays an active role even though inert
at the time of the accident. It is then considered the cause of the
92
damage.
To some French authors this distinction reintroduces the
concept of fault under the guise of causation because the abnormal behavior of the thing often coincides with evidence of the
carelessness of the gardien. Nonetheless, French jurisprudence
reflects that policy, and equity dictated the creation of the
active/passive distinction to reduce the scope of unlawfulness
under the Code Napoleon.9 3 The distinction decreases the
causal sphere by disqualifying passive behavior that might otherwise qualify under a but-for or factual test. The active/passive
distinction seems, however, to have nothing to do with the question of omissions. It is still the general conduct of the custodian
(his direction, use, and control) that provides the causal basis of
his liability, even within the reduced sphere created by the
distinction.
b.

Proximate Cause and Superseding Cause Excluded

Once responsibility is established, the problem is to keep it

within reasonable and principled limits. The fear exists that if
the chain of causation were strung out to its full length, then the
social and economic effects would be burdensome and undesirable. Some limitation is called for, and in a negligence action,
this is the role of proximate cause. Fowler Harper maintained
that the concept of proximate cause "applies equally under all
principles of strict liability. ' ' 94 He failed to note that the concept
applies in a different way. In strict liability the issues of proximate cause receive consideration but not as causal issues. For
92. Whether the thing is inert or in motion affects the burden of proof. Where the
thing was in motion, the plaintiff benefits from a rebuttable presumption that the thing
played an active role, whereas if the thing was inert, he must prove its active role. 4 G.
VINEY, supra note 29, at 777-84.
93. F. LAWSON & B. MARKESINIS, supra note 29, at 156-57; 1 H. MAZEAUD, L.
MAZEAUD, & A. TUNC, supra note 29, at 89-90.

94. Harper, supra note 1, at 1005.

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example, remoteness of damage issues emerge in strict liability

as questions on the scope of the strict liability rule (the
unlawfullness issue).
Prosser says that the scope of strict liability is generally
drawn "at the limits of the risk, or even within it."' 95 For
instance, it has been held that although a defendant keeps a wild
animal that is vicious by nature, he is not liable for injuries produced by a horse becoming frightened and running away at the
sight of the animal on the road. 96 The principle of this limitation
is that the consequence must lie within the risk, and if the harm
was not compensable, it is because the harm resulting from
fright was not unlawful. It has nothing to do with factual causation. Thus, the Restatement rule on "abnormally dangerous
activities" 97 carries this proviso: "This strict liability is limited
to the kind of harm the possibility of which makes the activity
abnormally dangerous.19 8 In this formulation remoteness issues
associated with proximate cause are transposed into questions
determining unlawful harm. The same statement would apply
to workers' compensation cases. Harper thought that the phrase
"'accident arising out of and in the course of the employment"
was equivalent to "accident proximately caused by the employment," 99 but this view makes foreseeability a test of compensation and is not accepted. 1o In injuries resulting from lightning
95. W. PROSSER, supra note 8, at 517.
96. Eastern and S. African Tel. Co. v. Cape Town Transways, 1902 App. Cas. 381.
97. RESTATEMENT (SECOND) OF ToRTs 519 (1965).
98. As an illustration, it is stated: "A, with reasonable care, carries on blasting
operations in a closely settled rural district. A has no reason to know of the presence of B's
mink ranch nearby. The noise of the blasting frightens the mink and the fright causes them
to kill their young. A is not subject to strict liability to B for the loss of the mink." W.
PROSSER, supra note 8, at 517 ("[T]he line is generally drawn at the limits of the risk, or
even within it.").
99. Harper, supra note 1, at 1010-11.
100. Arthur Larson states that proximate cause is "out of place" in compensation law
because it is suffused with notions of fault and foreseeability, whereas the only criterion in
workers' compensation is connection in fact with the employment. In rejecting proximate
cause analysis, he gives a persuasive illustration:
For example, suppose that a wheel flew off a high-speed machine, and splashed
molten metal from a vat onto the controls of a sprinkler system, which, in turn,
set off the sprinklers, which wet a hot light bulb, which exploded just as claimant
was yawning, with the result that claimant swallowed a piece of glass. Any such
set of improbabilities, of the sort familiar to first-semester tort students, would at
an early stage pass out of the bounds of foreseeability .... And yet, if claimant
was working at his job, there can be no doubt that he is entitled to compensation,
for the injury was clearly connected with his work, although the causal sequence
was unforeseeable.

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or horseplay, the issue is one of scope-of work connection and

not proximate cause.
Proximate cause issues other than remoteness are funnelled
out of causal analysis, but they are funnelled in a different direction. As shown below, issues such as superseding causes, Act of
God, victim fault, and fault of a third person emerge in strict
liability as matters of defense. The factual simplicity of the
causal inquiry in effect shifts the burden of proving these "external" causes onto the defendant.
C. Reduction of Defenses Available to Defendant
The discussion of the nature and meaning of strict liability
is not exhausted by an analysis of the plaintiff's case alone. The
development of the concept depends upon the type and number
of defenses available. Indeed, by examining defenses we have
additional means of distinguishing strict liability from negligence, on the one hand, and absolute liability on the other. By
these means, we can indicate the appropriate place of strict liability in the hierarchy of liability. Apparently, the greater the
number of defenses and the more flexible their nature, the further we move away from the rigor of strict liability. Conversely,
the fewer the defenses and the more causal their nature, the
greater is the tendency to approximate strict liability.
The distinguishing mark of an absolute liability seems to be
the total (or virtually total) rejection of defenses of any kind,
whether we speak of defenses that negate causation, defenses
that inculpate the plaintiff, or defenses that exonerate the
defendant.101 Absolute liability may be rarely encountered, but
examples may exist in modem law. For instance, the Restatement's rule on ground damage caused by aircraft says that for
any physical harm to land, persons, or chattels on the ground
caused by the ascent, descent or flight of aircraft, the operator is
liable, although he has exercised the utmost care. 102 The liability
appears to be unqualified, with no defenses open to the
defendant.
On the other hand, strict liability defenses display three
1 A.

LARSON, supra note 60, 6.60, at 3-10.

101. This writer's distinction between absolute (no defenses) and strict liability
(reduced defenses) is supported by G. WILLIAMS & B. HEPPLE, FOUNDATIONS OF THE
LAW OF TORTS 87 (1976), and Winfield, The Myth of Absolute Liability, 42 L.Q. RPv. 37
(1926).
102. RESTATEMENT (SECOND) OF TORTS 520A (1977).

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characteristics: (1) a fixed number of defenses are available;

(2) a break in the chain of causation is the common rationale of
these defenses; and (3) some defenses applicable to an action in
negligence 0 3 tend to be eliminated.
Exemplifying these characteristics is the liability that the
Restatement of Torts imposes upon the keeper of wild animals. 04 The keeper is liable for any harm caused by the animal,
though he has exercised the utmost care. The scope of defenses
open to him has been sharply reduced, and they share the quality of destroying his causal responsibility. Neither the plaintiff's
contributory negligence, the reckless conduct of a third person,
05
nor the foreseeable operation of a force of nature is a defense.'
Perhaps the only clearly stated defenses are those of intentional
trespass onto the premises where the animal is kept, the plaintiff's assumption of the risk, or the intentional act of a third person. 106 Without these defenses, the keeper has little chance to
escape liability. Lord Bramwell once indicated this by saying
that if a man kept a tiger and lightning broke his chain, the man
07
might be liable for all the mischief that the tiger might do.'
Liability of this type clearly goes beyond the standards of negligence, yet it falls short of being absolute liability since a trio of
defenses is retained.
The limited defenses available in strict liability actions seem
to have been a characteristic throughout history. For example,
the Athenian law of homicide was not a form of absolute liability. The defendant who had killed was neither defenseless nor
punished to the same extent irrespective of his intention. The
Athenians recognized a number of cases where a killing warranted no punishment at all. These cases included the death of
an opponent during an athletic contest, the death of a patient
under a doctor's care, killing an attacker in self-defense or a supposed enemy in time of war, and killing a man engaged in sexual
intercourse with one's wife or close female kin. 10 8 Some of these
defenses may seem to involve the victim's fault or the victim's
consent, but to the Greek mind they were probably viewed as
breaking the causal responsibility of the actor.
103. For example, the defense of contributory negligence.
104. RESTATEMENT (SECOND) OF TORTS 514 (1977).
105. Id. 484, 507, 510, 515.

106. Id. 510, 511, 515. "

107. Nichols v. Marsland, 10 L.R.-Ex. 255 (1875). See
TORTS 510, illustration 3 (1977).
108.

. JONES, supra note 34, at 259, 261.

RESTATEMENT (SECoND) OF

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The common law's writ of trespass had an aura of absoluteness but defenses could be argued to the jury. In 1894 Wigmore
pointed out, "[T]here has never been a time, in English law,
since (say) the early 1500s, when the defendant in an action for
trespass was not allowed to appeal to some standard of blame or
fault in addition to and beyond the mere question of his act having been voluntary ... "109 Though trespass only required the
plaintiff to allege that the defendant had harmed him by the
application of direct force, Wigmore showed that fault was
smuggled in via arguments such as "inevitable necessity," "unavoidable accident," and "could not do otherwise."' 10
The defenses available in the law may be grouped into three
categories-natural events (e.g., vis major), intervening act of a
third party, and act (usually fault) of the plaintiff.'
The last
category contains the defenses of contributory negligence and
assumption of the risk, but strict liability systems tend to reduce
the scope of such defenses. In modem law the most consistently
attenuated defense regarding strict liability has been contributory negligence. For example, the carelessness of a product user
is not a defense in strict products liability. 1 2 The negligence or
even the recklessness of an employee covered under a workmen's
compensation statute is generally not a bar to his recovery
109. Wigmore, Responsibilityfor Tortious Acts: Its History-III,7 HARV. L. REv.
441, 443 (1894), reprinted in SELECTED ESSAYS ON THE LAW OF TORTS 64, 66 (1924).
110. Id. at 443-44. Professor Baker apparently agrees. He says that, when examined
carefully, the decisions in trespass were not as sweeping as random dicta suggested. The
defense of inevitable accident did not only mean that the accident was predestined, but

included the situation where there was no reasonable opportunity to prevent it.
If he had not done the act at all, if his own act had not caused the accident, or if
he had done all he could to prevent it, then his proper course was to plead the
general issue [not guilty] and tell his story to the jury. Thus, although negligence
played no formal part in the action of trespass vi et armis, it seems likely that a
man was only considered guilty of such a trespass if he had at least been negligent
in causing direct, forcible harm.
J. BAKER, supra note 87, at 341-42.
S.F.C. Milsom agrees that accident was not irrelevant in trespass. Though there was
no special plea permitted, this "defense" was pushed back into the general denial and could
reach the jury. S. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 254-56

(1969). Max Gluckman has noticed a related tendency in African law. He maintains that
strict liability is characteristic of the system, but that the mental elements of an offense are
always taken into account. See S. MOORE, LAW AS PROCESS 92-93 (1978) (citing M.
GLUCKMAN, THE IDEAS IN BAROTSE JURISPRUDENCE 203, 207, 213, 234, 235 (1965)).
111. F. LAWSON & B. MARKESINIS, supra note 29, at 127-40.

112. This is at least true when such negligence consists merely of a failure to discover
the defect in a product or to guard against the possibility of its existence. RESTATEMENT
(SECOND) OF TORTS 402A comment n (1977).

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against his employer.11 3 Nor is a plaintiff's negligence a defense

to the strict liability of the animal's keeper or of one who carries
on an abnormally dangerous (ultrahazardous) activity." 4 Prosser believed that this created a logical anomaly: victim fault was
a viable defense to actions in negligence but not to actions in
strict liability, meaning that the fault of the plaintiff will relieve
defendant of liability when the latter is negligent but not when
he is innocent.11 5 The answer, however, may lie in a combination of factors-the different strengths of the policies behind
strict liability in these fields, the desire to relieve the plaintiff of
the harshness of the "all or nothing" doctrine of contributory
negligence, and the logical point that strict liability and the
defense of contributory negligence are conceptually
incongru1 16
ous, like square pegs that cannot fit round holes.
The more consistently retained defense to strict liability is
plaintiff's assumption of risk. It would operate as a defense
where a plaintiff was injured by a defendant's wild animal or by
his abnormally dangerous activity, like blasting or transporting
explosives.1 1 7 A "subjectivized" version of assumption of risk
may still bar the recovery of a plaintiff injured by a defective
product, 118 although a few courts have recently merged assump113. See W. MALONE & H. JOHNSON, supra note 61, 341-45. The employer's
defenses are statutorily listed and include only the worker's drunkenness, deliberate breach
of safety regulations, and willful intention to inflict injury upon himself.
114. RESTATEMENT (SECOND) OF TORTS 484, 524 (1977).

115. W. PROSSER, supra note 8, at 522.

116. Beyond the incongruity of the semantics, there could also be a causal
explanation for this difference. The plaintiff's negligence must be a "substantial factor" in
causing his own damages. This inquiry focuses on the particular sequence of the accident.
Yet the defendant's liability should be measured by causal principles that do not take into
account his omissions or the circumstances of this accident. The incongruity may result
from the clash between two opposing theories of causation. In any event, with the recent
advent of comparative negligence, the conceptual objection has lost support in the face of
the equitable attractions of apportioning responsibility. See, eg., Edwards v. Sears,
Roebuck & Co., 512 F.2d 276, 290 (5th Cir. 1975); Butaud v. Suburban Marine & Sporting
Goods, Inc., 555 P.2d 42 (Alaska 1976); Daly v. General Motors Corp., 20 Cal. 3d 725,
736-42, 575 P.2d 1162, 1168-73, 144 Cal. Rptr. 380, 386-90 (1978).
117. See RESTATEMENT (SECOND) OF ToRTs 484, 523-24 (1977). Comment d to

section 523 states that a plaintiff who accepts a job driving a truck loaded with
nitroglycerin with full knowledge of the danger must be taken to have assumed the risk of
an explosion.
118. Id. 402A comment n. The cases generally require three elements to coalesce
before plaintiff will be barred from recovery-(1) plaintiff himself knew and appreciated the
particular risk or danger (subjective test), (2) plaintiff voluntarily encountered the risk, and
(3) plaintiff's decision to encounter the known risk voluntarily was unreasonable. Messick
v. General Motors Corp., 460 F.2d 485, 488 (5th Cir. 1972); Johnson v. Clark Equip. Co.,
274 Or. 403, 409, 547 P.2d 132, 138 (1976).

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tion of risk in products cases into modem comparative fault

schemes.119

In the attempt to merge the "victim fault" defenses into

new comparative fault doctrines, the courts are realizing that the
causal basis of strict liability demands reformulation of the
"fault" defenses into their more basic and historic causal terms.
Thus, in place of discussing comparative fault, a growing
number of judges have turned to the concept of comparative
causation to apportion losses. 120 For the common law lawyers,
this represents a return to an earlier time when a defense of victim fault existed but there was not yet an action based on negligence. The contributory negligence defense recognized in
1809121 was a rule of causation that antedated negligence itself.
In the case where there were joint actors, the defense attempted
to answer the question who had caused an accident. As Morton
Horwitz has said, "modem negligence made its first limited
appearance as a question of causation'12or,
in contemporary termi2
nology, of contributory negligence."
Recently, the French Cour de cassation has virtually banished the defense of victim fault in the context of custodial liability. In the 1982 Affaire Desmares, the court ruled that the
gardien under French article 1384 cannot exonerate himself,
even partially, by proving the fault of the victim, unless the victim's behavior was imprdvisible (unforeseeable) and irresistible
(unavoidable). 123 In effect the Cour de cassationhas placed all of
the defenses to liability for the act of a thing on a causal basis. It
will also refuse to recognize the "fault" of the victim unless it
assumes the dimension of force majeure.124 This narrowed
119. See Blackburn v. Dorta, 348 So. 2d 287, 293 (Fla. 1977); see also W. KEETON,
D. OWEN, & J. MONTGOMERY, PRODUCTS LIABILITY AND SAFETY 568-69 (1980).
120. See Justice Politz's dissenting opinion in Lewis v. Timco, Inc., 716 F.2d 1425,
1433 (5th Cir. 1983) (en bane) (Politz, J., dissenting); Justice Rabinowitz's concurring
opinion in Butaud v. Suburban Marine & Sporting Goods Inc., 555 P.2d 42, 47 (Alaska
1976) (Rabinowitz, J., concurring); Justice Reavley's opinion in General Motors Corp. v.
Hopkins, 548 S.W.2d 344, 350 (Tex. 1977), overruled,Turner v. General Motors Corp., 584
S.W.2d 844 (Tex. 1979).

121. Butterfield v. Forrester, 10 Rev. Rep. 433, 434 (K.B. 1809).

122. M. HORWITZ, supra note 23, at 95; W. MALONE, supra note 50, at 201-02.

123. Judgment of July 21, 1982, Cass. civ. 2e, Fr., 1982 D.S. Jur. 449, 452, note C.
Larroumet (an arrit de principe concerning a driver who struck a pedestrian crossing the
street without keeping a proper lookout); see also Judgement of January 25, 1984, Cass. civ.
2e, Fr., 1984 D.S. Jur. 242, note C. Larroumet.
124. Judgment of July 21, 1982, Cass. civ. 2e, Fr., 1982 D.S. Jur. 453.

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causal basis illustrates that defenses provide a separate source of

strictness in the field of strict liability.
III.

APPLICATION OF THE GENERAL THEORY-A STUDY OF

CUSTODIAL LIABILITY

The criteria developed in Part II of this article will now be

tested and applied in a single context-custodial liability in Louisiana. This particular example possesses distinct advantages
and was chosen for three reasons.
First, it is an example that can be easily understood by the
widest audience. The legal sources of this liability example are
both European and American; consequently, it bridges the gap
between the traditions, categories, and concepts of the common
law and the civil law. Second, because of these mixed sources,
applying the criteria to this example will seriously test the contention that the criteria cover all forms of strict liabilityregardless of source or tradition. Since custodial liability is not
exclusively a creature of the legislature or the judiciary, the criteria's coverage will be tested from this standpoint as well.
Finally, custodial liability represents a relatively new phenomenon and a live controversy. Its nature and proper classification
are still debatable in Louisiana.
Little more than a decade ago the Louisiana Supreme Court
recognized a principle of law that had slept for more than one
hundred and fifty years within the delictual scheme of the Louisiana Civil Code. "We are responsible," article 2317 declares,
"not only for the damage occasioned by our own act, but for
that which is caused by the act of persons for whom we are
answerable, or of the things which we have in our custody. This,
however, is to be understood with the following modifica'
tions." 125
The five Code articles that follow article 2317 deal
with particular custody rules for parents, curators, employers,
owners of animals, and owners of ruinous buildings. 126 Until
1975, article 2317's broad reference to "things which we have in
125. LA. CIv. CODE ANN. art. 2317 (West 1979).
126. A parent is liable for damage caused by a child residing with him (LA. CIv.
CODE ANN. art. 2318 (West Supp. 1987)); a curator for damage done by an insane person
under his care (LA. CIV. CODE ANN. art. 2319 (West 1979)); employers, teachers, and
artisans for damage caused by employees, scholars, and apprentices, respectively (LA. Civ.
CODE ANN. art. 2320 (West 1979)); the owner of an animal for the damage caused by it
(LA. CIV. CODE ANN. art. 2321 (West 1979)); and the owner of a building for damage
caused by its ruin (LA. CiV. CODE ANN. art. 2322 (West 1979)).

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1335

our custody" had never been read as a general source of liability

for all custodians. It was seen instead as an inert transitional
article introducing the liability of the particular custodians covered by the immediately following provisions. As late as 1969,
the supreme court reaffirmed the non-substantive role of the article and denied that it imposed strict liability upon the custodian.1 27 Indeed, before the mid-1970s, the supreme court
refused to read strict liability into companion articles, like those
governing parents and owners of animals.
Their liability had
1 28
fault.
of
principle
the
to
linked
been
Then in 1974-1975, three offending objects launched a new
interpretation of custodial liability. The obnoxious things in
question were a rambunctious dog named Candy,1 29 an infant on
a bicycle,1 30 and a diseased magnolia tree.1 3 1 Candy was a German shepherd who had not been known to bite anyone in the
past. On one occasion, however, she unkindly bit the arm of a
dog-lover who was out for a stroll with his poodle. In an opinion written by Justice Tate, the court held that Candy's owner
was strictly liable under article 232 1.132 The plaintiff did not
have to prove that Candy had a vicious propensity or that his
owner had knowledge of it. Evidence that Candy had not bitten
anyone on any prior occasion was irrelevant. The court overruled a long line of Louisiana cases requiring a showing of owner
fault as a precondition to responsibility.133 The court held that
the owner134 of an animal who has damaged another is presumed
127. Cartwright v. Firemen's Ins. Co., 223 So. 2d 822, 825 (La. 1969).
128. For instance, under the previous interpretation of Article 2318, a parent was
vicariously responsible for the damage caused by his child, but only if the child's own
conduct was culpable. If the conduct was not culpable, perhaps because the child was
below the age of discernment and therefore incapable of fault, then the father could not be
liable on a vicarious basis. See Johnson v. Butterworth, 180 La. 586, 591-92, 157 So. 121,
122 (1934), overruled, Turner v. Bucher, 308 So. 2d 270, 276 (La. 1975). An owner of a
domestic animal that had not previously bitten anyone was not liable since it was necessary
to show the owner's negligence or fault. See Martinez v. Bernhard, 106 La. 368, 369, 30
So. 901, 901 (1901); see also the complete study of the jurisprudence in Holland v. Buckley,
305 So. 2d 113, 115-17 (La. 1974).
129. Holland, 305 So. 2d at 115.
130. Turner, 308 So. 2d at 271.

131. Loescher v. Parr, 324 So. 2d 441, 443-44 (La. 1975).

132. Holland, 305 So. 2d at 119.
133. Ia
134. Although ownership and custody are often related concepts within particular
cases, article 2321 makes ownership alone the touchstone of responsibility. An owner of an
animal remains liable for whatever harm it causes although he has transferred physical
custody to a third person. Rozell v. Louisiana Animal Breeders Co-op., Inc., 434 So. 2d
404, 408 (La. 1983).

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to be at fault. 135 He may only exculpate himself by showing that

the damage was caused by the fault of the victim, by the fault of
a third person, or by a fortuitous event. 136 The rationale for this
liability reads like a page written by the French risk theorists,
Saleilles and Josserand: 137 "The underlying reason for the
owner's liability is that, as between him who created the risk of
harm and the innocent victim thereby injured, the risk-creator
should bear the loss. He maintains the animal for his own use or
pleasure."' 138 The court noted that the availability of three
defenses made the liability only strict, not absolute.139 Had
Candy been a wild animal, like a bear, lion, or deer, the liability
would have been absolute and there would have been no defenses
recognized under article 2321.14
The second case involved a six-year-old boy who rode his
bicycle into the back of an elderly lady as she walked along the
sidewalk. 4 1 The act would have been culpable if the child had
been a minor with powers of discernment, but he was only six
years old and was considered wholly incapable of fault. 142 Was
the boy's father liable under article 2318 despite his child's total
incapacity? 143 The court held that the Louisiana Civil Code provision imposes a sort of strict liability upon Louisiana parents.
It does not merely raise, as in France, a rebuttable presumption
that the parent was negligent or imprudent in the supervision of
the child. 144 The court identified this liability as the "legal fault"
of the parent, stating, "This legal fault is determined without
135. Holland, 305 So. 2d at 119 (emphasis added).

136. Id
137. L.

R.

JOSSERAND, LA RESPONSABILrrt DU FAIT DES CHOSES INANIMtES (1897);

SALEILLES, LES ACCIDENTS DU TRAVAIL ET LA RESPONSABILITt CIVILE (1897).

138. Holland, 305 So. 2d at 119.

139. Id. at 119 n.10.

140. Thus the act of a boy in provoking a bear did not affect the keeper's
responsibility. Vredenburg v. Behan, 33 La. Ann. 627, 634-35 (1881). The fact that a wild
animal escapes, no matterhow, and causes injuries is sufficient to impose liability. Briley v.
Mitchell, 238 La. 551, 557-60, 115 So. 2d 851, 854 (1959).
141. Turner v. Bucher, 308 So. 2d 270 (La. 1975).
142. Id
143. Article 2318 provided at the time of this case:
The father, or after his decease, the mother, are responsible for the damage
occasioned by their minor or unemancipated children, residing with them, or
placed by them under the care of other persons, reserving to them recourse
against those persons. The same responsibility attaches to the tutors of minors.
LA. CIV. CODE ANN. art. 2318 (West 1979). As amended in 1984, the article provides:
"The father and mother and, after the decease of either, the surviving parent, are responsible .... ." Id (West Supp. 1988) (emphasis supplied).
144. Turner, 308 So. 2d at 273.

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regard to whether the parent could or could not have prevented

the parent's neglithe act of the child, i.e., without regard to145
gence. It is legally imposed strict liability."
It was, however, the tremor from a falling magnolia tree
that finally awakened the principle of article 2317. In Loescher
v. Parr,146 the tree was located on the defendant's property and
to all outward appearances it was healthy and not dangerous.
Yet one day it toppled over onto the plaintiff's Cadillac, parked
on the adjacent property. The reason for the fall could not be
attributed to high wind, storm conditions, or vis major. The
winds were slight and no other tree in town had fallen down on
the same day. It was subsequently discovered that the tree was
ninety percent rotten on the inside, but that this condition was
not discoverable from a simple exterior inspection. 147 The trial
court found that there was no negligence in failing to detect the
tree's defective condition. 148 Nevertheless, the supreme court
stated that article 2317 applied to the custody of things in general, trees included, and the concept of "legal fault" under articles 2318 through 2322 should find similar application under
article 2317. The substantive rule advanced under article 2317
meant that the subject matter in articles 2318 through 2322 was
no longer to be viewed as an exhaustive list of situations invoking strict liability-the list was only illustrative of a master principle applicable to all kinds of "things" held in custody.
With the Loescher decision, the prospect of a sudden expansion of strict liability presented itself, but the court-proceeding
like ancient Parthian generals-matched its raid on the Code
with a strategic escape. The court declined to invigorate the text
as the legislature had written it. The court imposed a limiting
gloss that the legislature had assuredly not written. According
to this gloss, the principle of legal fault embodied in article 2317
and the companion articles consists of a legal relationship to a
person or thing whose conduct or defect creates an unreasonable
risk of injuries to others. 149 The custodian is not liable for damages caused by a thing that posed only a reasonable risk. The
145. Id at 277.
146. 324 So. 2d 441 (La. 1975).
147. Id at 444.
148. Id
149. "The fault of the person thus liable is based upon his failure to prevent the
person or thing for whom he is responsible from causing such unreasonable risk of injury to
others." Id at 446 (emphasis in original).

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custodian is liable under the article for defective things (i.e.,

things that present the vice of unreasonable risk to others).
The court's opinion did not offer any source for this "unreasonable risk" standard. The court misleadingly stated that a
similar interpretation had been given to the parallel articles of
the French, Belgian, and Quebec codes. 150 The jurisprudence of
those countries, however, will not serve as the source of the Loescher gloss. In France and Quebec, the relevant code articles
received a literal interpretation resulting in a more stringent
form of liability for the custodian. The guardian in France is
held responsible for the act of anything, defective or not, that lies
under his garde, that is, under his direction, use or control. 151
Outside of determining who the guardian is, the central issue is
that of causation (the thing must play an active role in causing
damage) and not of distinguishing between dangerous and nondangerous things. Basically, the same position has been reached
in Quebec. 152 In the early 1920s, there was an attempt in France
to limit the scope of article 1384 to things affected with a "vice"
or "defect." This interpretation was put to rest in 1920 by the
Cour de cassation, which stated succinctly that "it is not necessary that the thing have a vice inherent in its nature, ... article
1384 attaches responsibility15to3 the custody [garde] of the thing
and not to the thing itself."
Belgian law comes closest to providing a model for the Louisiana interpretation. The Belgian courts require a vice in the
thing as a precondition of custodial liability. In this sense their
interpretation is narrower than Louisiana's. The Cour de cassation has insisted that the vice must be internal, even though the
thing's dangerousness may derive solely from an exterior circumstance. Thus, no liability ensued where a motorist collided
with a tree trunk that encroached twenty centimeters onto the
roadway. The court decided that "from the sole circumstance
150. Id. at 448.
151. 4 G. ViNEY, supranote 29, 661, at 775. Once custody and causal relation have
been established, the custodian is subject to a "presumption of responsibility" that cannot
be overcome by demonstrating his innocence of any fault. The presumption is only
overcome by proof of force majeure, act of a third party, or act of the victim. 2 H.
MAZEAUD, L. MAZEAUD, & A. TUNC, supra note 29, no. 1297, at 405-08.
152. J. BAUDOUIN, LA RESPONSABILrrA CIVILE DELICTUELLE 265-83 (1973).

153. Judgment of November 16, 1920, Cass. civ. Ire, Fr., 1920 D.P.I. 169 note R.
Savatier; Judgment of November 16, 1920, Cass. civ. Ire, Fr., 1922 Recueil-Sirey,
Jurisprudence [S. Jur.] 97 note L. Hugueney Judgment of January 21, 1919, Cass. civ.
26me, Fr., 1920 Gazette du Palais [G.P.] 586 note R. Savatier.

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STRICT LIABILITY INNER STRUCTURE

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that a tree trunk, in itself non-defective, ... occupied, through the

fault of a third person, a dangerous place in relation to the traffic, the judgment below
cannot legally deduce the existence of a
154
vice in the thing."
The actual, but uncited, provenance of Louisiana's unreasonable risk gloss is the American Restatement of Torts (Second) 402A. 1 5 Justice Dennis has properly noted,
The unreasonable risk of injury phrase is strikingly similar to
language employed by many American courts, scholars, and
law reform bodies in dealing with ordinary negligence and
products liability law.... The history of strict products liability in Louisiana indicates that the requirement that a defective
product must be "unreasonably dangerous" came into our
jurisprudence due to the pervasive influence of section 402A of
the Restatement of Torts after its publication in 1965.156
This "unreasonable risk" gloss, together with proof of custody and causation, have become the three basic elements for
establishing a prima facie case under article 2317. The plaintiff
must show that: (1) a defective thing; (2) in the defendant's custody; 157 (3) caused his damages. French jurisprudence has long
recognized three defenses to custodial liability, and the Louisiana Supreme Court followed this lead, adopting the succinct
French method of formulating the admissible defenses. It now
recognizes that liability is avoided if the defendant proves that
the damage was caused by the fault of the victim, by the fault of
a third person, or by an irresistible force. In summary, after the
judicial interpretation of article 2317 in 1975,58 there emerged a
Louisiana version of custodial liability, a unique synthesis
embodying three basic ideas-the command of article 2317
purged of its transitional overtones, the American Restatement
15 9
concept of defectiveness, and the three French defenses.
In Loescher, the supreme court proclaimed that it had cre154. Judgment of November 27, 1969, Cass. civ., Belg. For further examples and
critical remarks, see generally, J.-L. FAGNART, EXAMEN DE LA JURISPRUDENCE
CONCERNANT LA RESPONSABILITP CIVILE

155.

(1968-1975) 88-92 (1976).

RESTATEMENT (SECOND) OF TORTS 402A.

156. Kent v. Gulf States Util. Co., 418 So. 2d 493, 501 (La. 1982) (Dennis, J.,
concurring) (citations omitted).
157. The Louisiana Supreme Court distinguishes between the custodian of the
"structure" and the custodian of the behavior or "conduct" of the thing. Ross v. La Coste
de Monterville, 502 So. 2d 1026 (La. 1987). See Note, Ross v. La Coste de Monterville: The
Extension of Loescher v. Parr, 62 TUL. L. REV. 276 (1987).
158. Loescher v. Parr, 324 So. 2d 441 (La. 1975).
159. Note that no reproach is being directed against the court's interpretation or its

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ated strict liability. 16 But does Louisiana really have strict liability under article 2317 and its companion articles? This
question, posed in 1979,161 is still important and remains unanswered. The signals from the supreme court have been confusing. In many ways, the court has difficulty in drawing a
convincing distinction between the concepts of strict liability and
traditional negligence. In Entrevia v. Hood 162 the court declared
that "[t]he judicial process [under article 2317] ... is similar to

that employed in determining whether a risk is unreasonable in a

traditional negligence problem.., and in deciding the scope of
duty or legal cause under the duty risk analysis.

' 163

In 1982, the

close liason with negligence was emphasized again in Kent v.

Gulf States Utilities Co. decision: "[T]he standardfor determining liability is to presume the owner's knowledge of the risk
presented by the thing under his control and then to determine
the reasonableness (according to traditional notions of blameworthiness) of the owner's conduct, in the light of that presumed
activism. The author does not agree with the criticisms stated by Malone, supra note 71, at
988, for the following reasons.
Once the decision was made to create a generalized custodial liability it was not
unreasonable to try to place some limits upon it. It must be recognized that the blank
reference to "things" in article 2317 would conceivably encompass everything from
automobiles to ziggurats. Since few accidents arise without the intervention of something
or other, vitalizing the text literally would have absorbed nearly all accident law into article
2317. Would the court's risk rationale have justified such an expansion of strict liability?
The strict liability attached to the particularized custodians, as originally conceived under
the Code, was justified by the increased risks that the pre-industrialized world experienced
in regard to the actions of animals, unsupervised children, and ruinous buildings. It has
been estimated that until the debut of the industrial era in France, animals were, far more
than machines or other inanimate things, the occasion for accidents. In the first half of the
nineteenth century almost all transportation accidents were due to the acts of animals.
Code civil article 1385 then regulated those things which, at the time, were the most
dangerous. 4 G. VINEY, supra note 29, no. 629, at 75 1. In the age of the automobile and
advanced technology, the Code's "closed list" approach had become anachronistic and
arguably needed to be opened. The pragmatic question was how far. Clearly all things are
not by nature of equal danger nor of equal profit and only particular circumstances could
make them so. Yet strict liability, which looks to results and is blind to such
circumstances, seemed too blunt an instrument. The "unreasonable risk" gloss was the
court's compromise with this reality.
The question being addressed above, however, is not the wisdom of this gloss, but
whether the resulting doctrine is consistent with the claims of strict liability or is just
another form of negligence law.
160. Loescher, 324 So. 2d at 447.
161. Comment, Does LouisianaReally Have Strict Liability Under Civil Code Articles
2317, 2318 and 2321?, 40 LA. L. REV. 207 (1979).
162. 427 So. 2d 1146 (La. 1983).
163. Id. at 1149 (citations omitted).

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knowledge."' 164 Ultimately liability will not attach unless the

risks presented are unreasonablerisks, as determined by the negligence calculus. Therefore, the only difference between strict liability under the custody principle and ordinary negligence
actions under article 2315 pertains to the knowledge of the condition creating the unreasonable risk of injury. 165 The assumption is that the knowledge of risk constitutes a prerequisite of
fault, and strict liability results when such knowledge is legally
unnecessary.
The question is whether this irrebuttable presumption of
knowledge is a sufficient basis to differentiate the two liabilities.
Negligence in modem law has shed its moral concern with the
subjective character flaws of the defendant and has become an
objective determination of what sorts of risks are reasonable and
acceptable in society. It has virtually eliminated the gap that
once separated risk theorists like Josserand and Saleilles 166 from
those who insisted on basing liability fault.1 67 The conventional
view under modern law is that negligence is not a state of mind
based upon knowledge, actual or constructive. Rather it is conduct objectively assessed to see whether it violates a standard of
behavior imposed for the protection of others against unreasonable risks. 168 The distinction based on knowledge makes an evidentiary difference to the litigants, yet so do other doctrines, like
res ipsa loquitur and negligence per se, which have modified the
traditional negligence scheme, but which have not been considered essential criteria in identifying strict liability. With or without the knowledge distinction, the essentials of negligence lawjudicial balancing, proximate cause, and expanded defenses-are
unchanged.
Therefore, the question whether custodial liability is really
strict liability does not depend upon the single factor of knowl164. Kent v. Gulf States Util. Co., 418 So. 2d 493, 497-98 (La. 1982) (original
emphasis

deleted

and

emphasis

added)

(citing Wade, Strict Tort Liability for

Manufacturers, 19 Sw. L.J. 5, 15 (1965)). See also the court's answer to the question
certified by the United States Fifth Circuit Court of Appeals in Halphen v. Johns-Manville
Sales Corp., 484 So. 2d 110, 115 (La. 1986).
165. "Under strict liability concepts, the mere fact of the owner's relationship with

and responsibility for the damage-causing thing gives rise to an absolute duty to discover
the risks presented by the thing in custody." Kent, 418 So. 2d at 497 (emphasis omitted);
Lang v. Prince, 447 So. 2d 1112, 1117 (La. Ct. App. 1st Cir.), writs denied,450 So. 2d 1309,
1311 (La. 1984).
166. See supra note 28.
167. Mazeaud, supra note 6, at 13.
168. W. PROSSER, supra note 8, at 43. See generally Terry, supra note 54.

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edge. The question cannot be answered without applying a

wider lens, and in the following sections it will be examined with
three criteria in mind: (1) Does custodial liability proceed from
an inelastic concept of unlawful harm? (2) Does it follow a factual test of causation focusing on affirmative conduct? (3) Are
the allowable defenses reduced in scope and number?
A.

Unlawfulness

Historically, all comparisons of strict liability with traditional negligence analysis came in the later jurisprudence. 1It
69
received neither emphasis nor mention in Loescher v. Parr
The comparison to negligence resulted from experience. The
Loescher court did not stop to weigh whether a 90 percent rotten
tree posed an unreasonable risk. Parallels to negligence law
were not yet evident or necessary. The court seemed to know
with certainty that the tree was dangerously defective. Nature
provides its own set of blueprints for a magnolia in proper condition. Rotten magnolias fall of their own accord within the purview of article 2317.170 Experience soon proved, however, that
the court's gloss results in what I shall call a two track liability
system: one track illustrated by Loescher,17 1 where defectiveness
is evident without judicial weighing (Track I); the other track
illustrated by Entrevia v. Hood,1 72 where the determination
involves a difficult and delicate task of risk/utility balancing
(Track II).
On Track I the "thing" is defective because its condition or
performance deviates clearly from its intended design, function,
or normal behavior. Furthermore, the defective thing is not passively involved in the accident. Its defectiveness actively occasions the occurrence. Thus, a chair in a veterinarian's office
collapses under normal weight. 173 The axle of a truck breaks,
during ordinary driving, and the vehicle overturns.1 7 A water
puddle forms on the floor of a roller skating rink, due to a leak169. 324 So. 2d 441 (La. 1975); see supra notes 131, 146-50.
170. Professor Malone noted that "in Loescher there was no need to ponder the
problem as to what should be regarded as a defect. The almost entirely rotten state of the
tree afforded its convincing and dramatic illustration." Malone, supra note 71, at 994.
171. 324 So. 2d 441 (La. 1975).
172. 427 So. 2d 1146 (La. 1983).

173. Ferguson v. State Farm Fire & Casualty Co., 398 So. 2d 72, 73-74 (La. Ct. App.
4th Cir. 1981).
174. Myers v. Ford Motor Co., 486 So. 2d 1030, 1032 (La. Ct. App. 2d Cir. 1986).

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ing roof, causing a skater to fall. 175 A broken door lock mechanism on a washing machine permits it to be opened while
spinning, breaking the arm of an infant. 76 In each of these
cases, defectiveness has a firm baseline (a predetermined objective predicate), and the custodian is liable without any weighing
process. The plaintiff's burden of proof and persuasion in
regard to defect and causation is easily satisfied. Such cases
clearly fulfill the abstract criterion of strict liability-the unlawfulness of the damage is predetermined.
Track II involves cases in which the court proceeds with a
case-by-case weighing of the unreasonable risk equation. The
court has no hard baseline. The track is built on soft terrainthe spongy process of inclusion and exclusion. Here, even as the
court proclaims that it administers a strict liability standard, it
quickly adds that the judicial task is similar to the process of
deciding negligence and duty/risk cases. The case of Entrevia v.
Hood 177 illustrates the qualitative differences inherent in this
approach.
In Entrevia the plaintiff trespassed upon a piece of rural
property surrounded by a fence posted with "no trespassing"
signs. For reasons that remain unclear, she entered the premises
and peered through the windows of a vacant farm house located
on the property. As she descended the dilapidated porch steps,
they collapsed, and she was seriously injured. 7 The plaintiff's
action against the owner of the property was grounded on articles 2317 and 2322 (ruinous buildings). The court of appeal
allowed recovery because the steps were defective-i.e., the
defect had caused plaintiff's injuries, and no defense had been
proven. 79 The supreme court reversed, holding that in light of
all relevant moral, social, and economic considerations, the steps
were not in fact defective because
they did not pose an unreason80
able risk of harm to others.
In weighing' 8 1 various moral and socioeconomic factors,
175. Dorry v. Lafleur, 399 So. 2d 559, 560 (La. 1981).
176. Hughes v. Buccaneer Wash & Dry Cleaning Center, 423 So. 2d 1282, 1283 (La.
Ct. App. 4th Cir. 1982), writ denied, 429 So. 2d 158 (La. 1983).
177. 427 So. 2d 1146 (La. 1983).

178. IaMat 1147.

179. Id See Entrevia v. Hood, 413 So. 2d 954 (La. Ct. App. 1st Cir. 1982), rev'd, 427
So. 2d 1146 (La. 1983).
180. Entrevia, 427 So. 2d at 1150.
181. The court said that the judge must adopt the same viewpoint as a legislator
would adopt in weighing the matter: "[Tihe activities of man for which he may be liable

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the court made the following points. First, trespassing is

"legally and morally reprehensible conduct," and an owner has
valid economic and privacy interests which the law seeks to protect. 182 Second, the defective steps were characteristic of
remotely located realty on a country road, and the risk were typical for a rundown old farm house. The building was an isolated, unproductive rural property and owners of such property
can rarely absorb the costs of risks from their premises. Such
owners cannot distribute these costs amongst the community.
Third, a liability ruling that would force the owner either to
destroy or restore his property would not be economically or
socially desirable. Finally, the court concluded that "[t]hese
facts indicate that the magnitude of the risk posed and the gravity of the harm threatened were small in comparison
with that of
'8 3
other risks presented by things in our society."'
Why the court chose to engage in Track II weighing analysis is unclear. 8 4 An approach more consistent with strict liability appealed to Justice Watson who wrote a concurring opinion.
He felt that a Track I analysis was appropriatee to the case.
According to his reasoning, the building was a dangerous ruin
and the steps were defective. The plaintiff had, therefore, established a prima facie case. Yet the custodian-owner's prima facie
liability was overcome by the victim's fault. She assumed the
risk of injury by entering an8 5 obviously unsafe structure and
walking on dilapidated steps.
The balancing process conducted in Entrevia has become
familiar in cases in which the design of the thing, as opposed to a
manufacturing flaw, has been impeached. In these cases, a
plaintiff's showing of unreasonable risk may or may not be successful. For example, a child riding an escalator is injured when
without acting negligently are to be determined after a study of the law and customs, a
balancing of claims and interests, a weighing of the risk and the gravity of harm, and a

consideration of individual and societal rights and obligations." Id at 1149 (citation

omitted).
182. Id. at 1150.
183. Id
184. Id Although it cannot be adequately treated here, this is one of the most
intriguing issues surrounding the subject. The court's decision to balance under Track II
must partly originate in the fact that custodial liability applies to all "things" (see supra
note 159), but the court is not reconciled to such a wide application and cannot commit
itself in advance to automatic results because of the countervailing values, rights, and
utilities represented by the defendant's conduct. Entrevia illustrates how complex these
countervailing factors are.
185. Entrevia, 427 So. 2d at 1151 (Watson, J., concurring).

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his tennis shoe is caught between the moving step and the side
panel. The court concludes that the utility of the escalator is
outweighed by its hazard to small children. The custodian is
liable. 186 An aquarium at the babysistter's house topples on an
eighteen-month-old child who was climbing on the aquarium
stand. This time the custodian is not liable. The court regards
the evidence of a design defect in the stand to be insufficient, and
it refuses to infer its defectiveness merely from the occurence of
the accident. 18 7 A highway workman is electrocuted when a

rake with a long metal handle comes in contact with uninsulated

power lines twenty-five feet above ground. The custodian is not
liable. The power lines were, in a design sense, insulated by isolation and were not unreasonably dangerous. It required "[a]
combination of unusual factors" to cause the accident. 188 In
these cases and others of their type, the court claims to be
administering a strict liability standard; given that the unlawfulness criterion expands and contracts like an accordion, the assertion is unconvincing. The criterion of an inelastic concept of
unlawfulness operates successfully only in the Track I cases.
B.

Causation

In treating the subject of causation, the jurisprudence has

applied the causal tests associated with negligence rather than
those associated with strict liability. Indeed it has been frequently said that under article 2317, courts will follow the rule
of causation announced in Dixie Drive It Yourself System v.
American Beverage Co. 189 and Sinitiere v. Lavergne.190 The rule
of the latter case states: "Negligence is only actionable where it
is both a cause in fact of the injury and a legal cause of the
injury. Legal cause requires a proximate relation between the
actions of a defendant and the harm which occurs and such relation must be substantial in character." 191 This requirement
seems to be the orthodox negligence test of causation discussed
in Part II of this article. Thus its repeated application 192 in the
186. Hunt v. City Stores, Inc., 387 So. 2d 585 (La. 1980); see also Marquez v. City

Stores Co., 371 So. 2d 810 (La. 1979).

187. Broussard v. Pennsylvania Millers Mut. Ins. Co., 406 So. 2d 574 (La. 1981).
188. Kent v. Gulf States Util. Co., 418 So. 2d 493, 499 (La. 1982).
189. 242 La. 471, 137 So. 2d 298 (1962).
190. 391 So. 2d 821 (La. 1980).
191. Id.at 825 (citation omitted).
192. See Thomas v. Missouri Pac. R. Co., 466 So. 2d 1280 (La. 1985); Fowler v. State
Farm Fire & Casualty Ins. Co., 485 So. 2d 168 (La. Ct. App. 2d Cir.), writ denied, 487 So.

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custodial liability cases casts a second shadow on the nature of

the "strict liability" proclaimed by the court.
The anomaly is that proximate cause ideas have penetrated
into what is, or what should be, a factual determination. Louisiana courts have long been accustomed to mixing together, at the
causal level, issues of proximate cause and victim fault. Louisiana courts have freely confused defensive doctrines with affirmative defenses. 193 The same intermingling at the causal level
continues in the article 2317 jurisprudence despite the differences which strict liability entails. It has not been understood
that in a strict liability regime factual causation plays the role of
funnelling these normative "causal" issues (proximate cause,
superseding cause, vis major, third-party fault, victim fault, etc.)
into the realm of the affirmative defenses. Causal liability
acquires its force from a structured relationship between the
prima facie liability and the nature of the affirmative defenses.
The courts, however, have employed negligence ideas in ways
that avoid the reasoning and the results to which strict causal
responsibility would normally lead. Three classes of cases confirm this criticism.
In the first class of cases, the thing in custody is factually
implicated in an accident and seems defective, but the plaintiff's
own fault is also implicated in the accident. In these cases the
plaintiff's own negligence is regarded as the sole cause of the
accident, although the defendant's custody was a cause in fact.
The opinions employ proximate cause reasoning that denies the
plaintiff all recovery. The result is that proximate cause usurps
the place of the comparative fault defense and precludes rather
than reduces the plaintiff's recovery.1 94 This type of reasoning is
illustrated by the case of Broussard v. Yellow Freight Lines,
2d 441 (La. 1986); Ledbetter v. State, 482 So. 2d 1035 (La. Ct. App. 3d Cir. 1986), aff'd,
502 So. 2d 1383 (La. 1987); Guidry v. Whitmore, 477 So. 2d 1298 (La. Ct. App. 3d Cir.

1985) writ denied, 480 So. 2d 742 (La. 1986); South Cent. Bell Tel. Co. v. Hartford
Accident & Indem. Co., 385 So. 2d 830 (La. Ct. App. 1st Cir.) writ denied, 386 So. 2d 356
(La. 1980).
.193. Robertson, Ruminations on ComparativeFault, Duty-Risk Analysis, Affirmative
Defenses, and Defensive Doctrines in Negligence and Strict LiabilityLitigation in Louisiana,

44 LA. L. REV. 1341, 1374-82 (1984).

194. Armand v. Louisiana Power & Light Co., 482 So. 2d 802 (La. Ct. App. 4th
Cir.), writ denied, 484 So. 2d 669 (La. 1986); Hart v. Louisiana Power & Light Co., 486 So.
2d 936 (La. Ct. App. 1st Cir.), writ denied, 488 So. 2d 1024 (La. 1986); Broussard v. Yellow

Freight Lines, Inc., 464 So. 2d 987 (La. Ct. App. 1st Cir. 1985); cf Godwin v. Government
Employees Ins. Co., 394 So. 2d 751 (La. Ct. App. 3d Cir. 1981) (the causal approach).

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Inc.195 Here, the parents of a deceased son sued the Department

of Transportation after he was killed on the highway. His
motorcycle struck potholes 196 on the shoulder of the highway,
and he was thrown under a passing truck. The plaintiffs alleged
that the road shoulder was defectively dangerous, that the
Department was in custody of the roadway, and that the defect
was a cause in fact of his death. The evidence also showed, however, that the deceased was intoxicated, that he was driving too
fast, and that he had some familiarity with the road's condition.
The court held that it was unnecessary to determine whether the
potholes created an unreasonable risk of harm to others within
the contemplation of article 2317.197 "Clearly, the accident was
not caused by the condition198of the gravel shoulder, but was due
'
to the fault of Broussard."
This reasoning is inconsistent with the principles of causation governing a true regime of strict liability. In a true regime
of strict liability the injured party need not prove that any particular act or omission at the time of the accident led to his injuries. He must only prove that the defendant's general conduct
(i.e., its custody and control of the roadway) was causally related
to his damage. The court's defectiveness standard conflicts in a
structural way with such reasoning: given the defectiveness standard the causal question is whether the defect, rather than some
general activity, was the cause of the damage. Therefore, it must
be decided whether the accident would have occurred had the
thing been nondefective, and this is not a factual question. Furthermore, strict liability reasoning requires that once factual
causation has been proven by the plaintiff the defendant can only
escape or diminish his liability by establishing a defense-by
showing that the harm was caused by the fault of the victim, by
the fault of a third person or by an irresistible force. 199 The
Broussard court's proximate cause analysis short-circuits the
above reasoning in several ways: it substitutes proximate cause
for a factual test of causation, treats the causal significance of
victim fault not as an affirmative defense but as a rebuttal which
195. Broussard,464 So. 2d at 987.
196. The holes measured three feet in diameter and were five to ten inches deep. Id.
at 989 n.4.
197. Id. at 990.
198. IA
199. Godwin v. Government Employees Ins. Co., 394 So. 2d 751, 758 (La. Ct. App.
3d Cir. 1981).

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defeats plaintiff's prima facie case, and finally ousts the apportionment principle from a sphere in which it should operate.
A second class of cases involves the same factors except
that the court regards the fault of a third person as the sole cause
of the plaintiff's damage. Once again, the plaintiff's prima facie
case is defeated by proximate cause reasoning, although the
plaintiff has demonstrated a factual link between the defendant's
custody and his damage. The court's resort to the logic of intervening cause spares the defendant the need to plead and prove
the fault of a third person as a defense. 2 Instead of determining
factual causation, the court makes a proximate cause or superseding cause evaluation. This evaluation dilutes the criteria of
strict liability causation. At the same time court avoids the
demanding requirement of the strict liability defenses. The only
third-party fault that totally exonerates the defendant is that
which is the sole cause of the damage. It must also have the
quality of an irresistible and unforeseeable occurence.2 1 In the
class of cases under discussion, however, the important questions are not asked. Was all the damage caused by the negligent
act of the third person? Was his conduct unforeseeable? Was it
also irresistible or unavoidable? The defendant's burden of proving a total exoneration is heavy and, if the burden is not met, he
and the third person are liable in solido.
A third set of cases exemplifies the difficulties noted above
in Track I and Track II cases. 20 2 This third set of cases reveals
that the ease or difficulty with which the court handles the defectiveness issue does not end there. It carries over into the treatment of causation. If the defectiveness issue is not problematic
(Track I), the causal issue is freed from normative causation and
functions in a factual manner. Evidently in such cases a simple
"but for" standard is sufficient without discussion of "legal
cause" or "proximate cause," and without a two-tier analysis of
the causation. So when the defendant's gasoline line leaked and
damaged the plaintiff telephone company's underground conduit, the vice or defect (leaking line) was apparent. The court
200. See, eg., Kennison v. State Dept. of Transp., 486 So. 2d 267 (La. Ct. App. 3d
Cir.), writ denied, 489 So. 2d 917 (La. 1986); Edwards v. City of Leesville, 465 So. 2d 263
(La. Ct. App. 3d Cir.), writ denied, 467 So. 2d 539 (La. 1985); Guidry v. Whitmore, 477 So.
2d 1298 (La. Ct. App. 3d Cir. 1985), writ denied, 480 So. 2d 742 (La. 1986).

201. See Olsen v. Shell Oil Co., 365 So. 2d 1285, 1293 (La. 1978); Ruffo v.
Schwegmann Bros. Giant Supermarkets, Inc., 424 So. 2d 470, 474 (La. Ct. App. 5th Cir.

1982).
202. See supra notes 72-77 and accompanying text.

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stated that the plaintiff only had the burden of proving that it
was "a cause in fact" of the damage.2 "3 Similarly, when a traffic
light malfunctioned at an intersection and simultaneously
showed green to drivers in crossing directions, the court concluded, without balancing, that the traffic light posed an unreasonable risk. Whether this defect was a cause or the cause of the
plaintiff's injuries when her car was struck while proceeding
through the intersection was not discussed. 2 Conversely, in
Track II cases in which the defectiveness issue demands a risk/
utility weighing (e.g., an alleged design defect) the court may
interpose proximate cause analysis to sidestep the weighing process altogether.205
For example, in Fowler v. State FarmFire & Casualty Insurance Co.,206 the plaintiff visited the defendant's home and went
out onto the balcony, closing a self-locking door behind him.
Finding himself stranded on the balcony and unable to obtain
assistance, he jumped ten feet to the ground below and broke his
leg. The court did not decide the question whether a balcony
with a self-locking door posed an unreasonable risk. The
defendant's custody would have satisfied a but-for test of causal
relation to the plaintiff's injury. Instead the court reasoned that
the door, even if defective, could not have been the legal cause of
the accident. The plaintiff's decision to jump, not the self-locking mechanism, was the proximate cause of the injury.20 7 Clearly
this use of "legal" causation, instead of factual causation, is a
means of avoiding the determination of whether the door was
defectively designed (Track II). The reasoning distorts the
causal criteria of strict liability.
In sum the cases show that the causal criteria of strict liability are either misunderstood or ignored. Courts have not
adopted a factual test related to the conduct in general. They
203. South Cent. Bell Tel. Co. v. Hartford Accident & Indem. Co., 385 So. 2d 830,
832 (La. Ct. App. 1st Cir.), writ denied, 386 So. 2d 356 (La. 1980); see also Joseph v. Bohn
Ford, Inc., 483 So. 2d 934 (La. 1986); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.
2d 26,29 (La. 1981) (legislatively overruled by LA. REv. STAT. ANN. 9:2797 (West Supp.
1988) and LA. CIv. CODE ANN. art. 2322.1 (West Supp. 1988)); Payne v. Louisiana Dept.
of Transp. & Dev., 424 So. 2d 324, 327 (La. Ct. App. 1st Cir. 1982).
204. Jones v. Winston, 437 So. 2d 889 (La. Ct. App. 2d Cir. 1983).
205. See Fowler v. State Farm Fire & Casualty Ins. Co., 485 So. 2d 168 (La. Ct. App.
2d Cir.), writ denied, 487 So. 2d 441 (La. 1986); Hart v. Louisiana Power & Light Co., 486
So. 2d 936 (La. Ct. App. 1st Cir.), writ denied, 488 So. 2d 1024 (La. 1986); Broussard v.

Yellow Freight Lines, Inc., 464 So. 2d 987 (La. Ct. App. Ist Cir. 1985).
206. 485 So. 2d 168.
207. Id. at 170.

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have focused on the accident itself as in any negligence case and

have applied proximate cause analysis. Negligence standards
have been openly assimilated and applied. Lawson and
Markesinis have written that "[t]he more factual a theory, the
more causal it is; the more normative, the less causal. ' 208 Their
maxim helps in understanding the article 2317 jurisprudence:
the normative rules applied by the courts are producing a close
rapprochment with the negligence system. The second criterion
of strict liability remains substantially unfulfilled.
C. Defenses
It was stated in Loescher v. Parr20 9 that once damage is
shown to have resulted from a vice in the thing, the custodian
can only escape liability (or diminish it) by proving that the
damage was caused by the fault of a third person, by the fault of
the victim, or by an irresistible force. 210 The actual scope of
these defenses has since been clarified and narrowed. The trend
seems in keeping with the criterion that strict liability defenses
are reduced in number and scope. Their very strictness, however, may be responsible for the tendency to outflank the
defenses through the use of proximate cause analysis.
1. Irresistible Force (Act of God, Force Majeure)
The defense of irresistible force has been defined as "an
event which happens from an irresistible cause or force not foreseeable, usually vis major or act occasioned exclusively by the
violence of nature without the contribution by legal fault of any
human. ' 211 The defense completely exonerates the defendant
from liability. It is upheld on the causal ground that an irresistible and unforeseeable force absorbs all the causal connection
between the defendant's conduct and the plaintiff's harm.212
The cumulative nature of the requirement (the force must be
irresistible and unforeseeable) means that the event must be
regarded as abnormal in the surrounding circumstances. The
defense was accordingly rejected in Loescher because "[t]he wind
was not, for instance, of hurricane force, so as to permit its being
classified as a reasonably unforeseeable violent manifestation of
208. F. LAWSON & B. MARKESINIS, supra note 29, at 123.

209.
210.
211.
212.

324 So. 2d 441, 447 (La. 1975).

Id. at 449.
Id.
4 G. VINEY, supra note 29, nos. 402-405, at 474-80.

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nature causing the damage independent of any defect of the tree

"213

2.

Fault of a Third Person

The third-party fault defense is understood in three narrow

senses. First, instead of the more broadly styled defense found
in France-act of a third person (fait d'un tiers)-the Louisiana
Supreme Court requires proof that the third person's act constituted a fault. Hence certain innocent or rightful intervening acts
of third persons may not serve to exonerate the defendant under
this defense. Second, the jurisprudence has clarified the idea
that the fault of a third person, if it is totally to exonerate the
custodian/owner of liability, must present the same characteristics as the defense of force majeure or vis major.214 Consequently, the third person's fault must be viewed as the sole cause
of the plaintiff's damage and must be of the nature of an irresistible and unforeseeable occurrence that deprives the defective
thing in custody of all causal significance.2 15 Third, the class of
"third persons" is restrictively interpreted to assure that the sole
cause emanates from an external source. The third person at
fault must be a stranger rather than someone acting in concert
with or with the consent of the custodian. For instance, he must
not be a workman or contractor hired by the custodian, nor a
borrower who has permission to use the thing.2 1 6 If the third
person's fault is not viewed as the sole cause, it may be a concurrent cause and both the custodian and the third person may be
liable in solido.217
213. Loescher, 324 So. 2d at 449; cf Godwin v. Government Employees Ins. Co., 394
So. 2d 751 (La. Ct. App. 3rd Cir. 1981).
214. Olsen v. Shell Oil Co., 365 So. 2d 1285 (La. 1978).
215. 4 G.

VINEY,

supra note 29, at 463; Olsen, 365 So. 2d at 1293; Robertson v.

Parish of East Baton Rouge, 415 So. 2d 365 (La. Ct. App. 1st Cir. 1982). In multiple
tortfeasor cases this defense should absorb to itself the issues of intervening negligence and
proximate cause. See generally Robertson, Intervening Negligence-Proximate Cause, in
STUDIES IN LOUISIANA TORTS LAW 164-72 (W. Malone & L. Guerry eds. 1970). In Olsen,
the supreme court, although it was directly concerned only with this defense in relation to
ruinous buildings under article 2322, spoke of its relation to custodial liability generally.
Subsequently, the Olsen interpretation has been consistently extended to article 2317. See
Dotson v. Matthews, 480 So. 2d 860 (La. Ct. App. 2d Cir. 1985), writ denied, 481 So. 2d
1336 (La. 1986); Lang v. Prince, 447 So. 2d 1112 (La. Ct. App. 1st Cir.), writs denied, 450
So. 2d 1309, 1311 (La.1984).
216. Olsen, 365 So. 2d at 1293; Robertson, 415 So. 2d at 367-68.
217. Ruffo v.Schwegmann Bros. Giant Supermarkets,Inc., 424 So. 2d 470, 474 (La.
Ct. App. 5th Cir. 1982).

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3. Fault of the Victim

The concepts of "contributory negligence" and "assumption of risk" are the two leading aspects of victim fault recognized in the jurisprudence. 218 Recently, in light of the
introduction (some would say reintroduction) of comparative
fault principles in Louisiana,219 these two defenses have undergone changes producing effects not confined to strict liability.
Their evolution is incomplete, but the following propositions
seem tolerably clear.
(1) The defense of victim fault is not governed by the criteria of force majeure. The defense will lie even though the victim's fault was not the sole cause of his damage. It is sufficient if
his fault is a "substantial factor" in causing the harm.
(2) The principle of comparative fault embraces both contributory negligence and assumption of risk. Neither type of victim fault will operate as a total exoneration from liability or a
total bar to recovery. 220 At most, application of these defenses
may reduce the plaintiff's recovery. "Thus," declared the
supreme court in Bell v. Jet Wheel Blast,221 "the net effect of
article 2323 . . . is to prevent the courts from applying any
defense more injurious to a damage claim than comparative
negligence."
(3) Conversely, the victim's fault will no longer be "forgiven" under special precomparative fault rules or doctrines, as
in motorist/pedestrian cases formerly governed by the Baum218. Id. at 473.

219. Civil Code article 2323 was amended in 1979 to introduce comparative
negligence. LA. CIV. CobE ANN. art. 2323 (West Supp. 1988).
220. On the merger of assumption of risk and contributory negligence, see Harper v.
State Farm Mut. Auto. Ins. Co., 484 So. 2d 737 (La. Ct. App. 1st Cir.) (defenses of
contributory negligence and assumption of risk applied-plaintiff's recovery reduced), writ
denied,489 So. 2d 246 (La. 1986); LaJaunie v. Metro. Property & Liab. Ins. Co., 481 So. 2d
1357, 1362-63, 1365 (La. Ct. App. Ist Cir. 1985) (same); Aguillard v. Langlois, 471 So. 2d
1011, 1015-16 (La. Ct. App. 1st Cir.) (defense of assumption of risk applied-plaintiff's
recovery reduced), writ denied, 476 So. 2d 356 (La. 1985). Earlier cases held that these
defenses operated as a total bar even when the fault of the victim was not the sole cause of
the damage. See Gordon v. City of New Orleans, 430 So. 2d 234 (La. Ct. App. 4th Cir.

1983); Summer v. Foremost Ins. Co., 417 So. 2d 1327 (La. Ct. App. 3d Cir. 1982); Stewart
v. Sam Wallace Indus. Co., 409 So. 2d 335 (La. Ct. App. 1st Cir. 1981), writ denied, 413 So.
2d 497 (La. 1982); Canty v. Terrebonne Parish Policy Jury, 397 So. 2d 1370 (La. Ct. App.
1st Cir.), writ denied, 401 So. 2d 988 (La. 1981).
221. 462 So. 2d 166, 170 (La. 1985); see Wright v. Ramada Inns, Inc., 521 So. 2d
1123 (La. 1988) ("assumption of risk should not survive as a distinct legal concept for any

purpose, and certainly can no longer be utilized as a complete bar to the plaintiff's
recovery.").

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gartnerv. State Farm Mutual Automobile Ins. Co. 222 doctrine. 223

(4) There are certain categories of cases, to be identified

by the courts on a case-by-case basis, in which comparative principles should not be used to reduce recovery despite the victim's
fault. So far this category comprises cases involving
"ultrahazardous" activities 224 and products liability cases where
partial exoneration of the manufacturer might "drastically
reduce" its safety incentive.225
D.

Summary of CustodialLiability

I submit that the application of these criteria to a new and

controversial form of strict liability-custodial liability in Louisiana-shows the usefulness of this theory. The question,
whether custodial liability is really strict liability, requires and
receives a more discriminating reply than a categorical yes or no.
As we have seen, the final answer has three aspects. First, due to
the judicial balancing often required by the "defectiveness"
notion, the criterion of an inelastic concept of unlawfulness is
only partially fulfilled. The qualitative difference between the
definite predicate in the Track I cases and the balancing in the
Track II cases calls for a qualified classification under the first
criterion. Second, a normative rather than a factual test of causation is typically employed. Although there are occasional
exceptions, the jurisprudence is quite close to the orthodox twostep analysis found in the negligence literature. Thus, from a
causal standpoint, there is little or no basis for a strict liability
classification. Third, the treatment of defenses satisfies the criteria of strict liability and seems to be the clearest area in which
the claim of the courts has been sustained. On the other hand,
to the extent that these defenses are preempted or short-circuited
by proximate cause analysis, the claim is undercut. Therefore,
222. 356 So. 2d 400 (La. 1978).
223. Turner v. New Orleans Public Serv. Inc., 471 So. 2d 709, 714 (La. 1985) (also
reported at 476 So. 2d 800) (declaring that article 2323 supersedes Baumgartner);Motton
v. Travelers Ins. Co., 484 So. 2d 816 (La. Ct. App. 1st Cir. 1986) (refusing to apply
doctrine of Rue v. State Dept. of Highways, 372 So. 2d 1197 (La. 1979)).
224. See the discussion in Dorry v. Lafleur, 399 So. 2d 559, 560 (La. 1981), regarding
Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So. 2d 133 (1971).
225. Bell v. Jet Wheel Blast, 462 So. 2d 166, 172 (La. 1985); Lanclos v. Rockwell Int'l
Corp., 470 So. 2d 924, 933 (La. Ct. App. 3d Cir.), writ denied,477 So. 2d 87 (La. 1985); cf
McCaskill v. Welch, 463 So. 2d 942 (La. Ct. App. 3d Cir.), writ denied, 466 So. 2d 469 (La.
1985).

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custodial liability only functions in certain respects as a strict

liability concept. In many important respects it does not.
IV.

GENERAL CONCLUSION

Guided only by intuition, strict liability has been a concept

without a rudder, sailing a boundless sea. In court decisions,
philosophical debates, legislative reform and historical studies,
the greatest uncertainty surrounds its meaning. The need to
understand the nature of this nebulous notion is not simply a
matter of intellectual curiosity. Our inability to define strict liability or to state its affirmative criteria undermines the foundations of the subject and renders suspect every assertion about it.
Whether the statement is that the "nature" of strict liability logically determines the type of defenses available against it,226 or
that the recent expansion of strict liability has provoked a liability crisis involving excessive costs and uninsurable risks,227 or
that a particular species of liability has been incorrectly conceived and classified as strict liability, 22 8 such assertions rest on a
slender premise-the speaker's private conception of strict
liability.
This Article attempts to state a general theory of strict liability and to present the inner structure of the concept. The
structure presented is consistent with the slogan "liability without fault" and consistent with our intuition of a more rigorous
form of liability. Its advantage is that it is neither a slogan nor
an intuition. It is an extrapolation of basic criteria drawn from
the archives of comparative law that tell us affirmatively what
strict liability is and wherein it differs from negligence.
In the past, tort scholars have attempted to identify strict
liability from the narrow perspective of the duty question. They
have placed all their faith in the misleading phrase "liability
without fault," but the negative form of this phrase as well as its
ambiguous reference to either subjective or objective fault,
makes it unenlightening and misleading. A more fruitful contrast between strict liability and the modem negligence notion
relates not to fault, but to judicial balancing-to the flexible
calculus of negligence versus the inelastic standard of strict liability. Yet this is only the first of several intelligible contrasts.
226. See supra note 116 and accompanying text.
227. See supra note 25 and accompanying text.
228. See supra notes 5 & 7 and accompanying text.

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This study has brought to light the existence of two further criteria of cardinal importance. Causal nexus in strict liability is
ruled by a factual test in which normative and hypothetical fact
questions are disregarded; furthermore, the available defenses to
strict liability are reduced in scope and number and are conceived as breaks in the chain of causation. Viewed cumulatively,
these criteria present a more complex, three-dimensional concept. The application of these criteria permits us to probe
behind the labels of "fault" and "liability without fault." It
allows us to appreciate the relativity of strict liability; that is, the
extent to which alleged examples in any legal system should be
viewed as pure, hybrid, or mixed species of the overall genus.