Strict liability and products liability - Claims arising fro...

Learning Outcomes

This article explains strict liability and products liability as they relate to abnormally dangerous activities on the MBE, including:

• How to identify when an activity qualifies as abnormally dangerous using Restatement-style factors and common exam hypotheticals.
• How strict liability for abnormally dangerous activities differs from negligence and intentional tort theories in issue-spotting and rule statements.
• How to connect the elements of strict liability—activity, causation, scope of liability, and damages—in a clear, step-by-step exam analysis.
• When strict products liability may be pleaded alongside or instead of abnormally dangerous activity claims, depending on the defendant’s role.
• How to evaluate whether the plaintiff’s harm falls within the characteristic risks of the activity for purposes of proximate cause.
• Which defenses—assumption of risk, contributory negligence, and comparative fault—are available in strict liability and how they affect recovery.
• How nondelegable duties make landowners and employers liable for independent contractors engaged in blasting and similarly hazardous work.
• How to approach multiple-choice questions involving explosives, toxic chemicals, stored gases, or fireworks using efficient exam-ready issue checklists.
• How to distinguish situations calling for negligence, strict products liability, or abnormally dangerous activity theories on tricky overlapping fact patterns.

MBE Syllabus

For the MBE, you are required to understand strict liability and products liability as they relate to abnormally dangerous activities, with a focus on the following syllabus points:

• The definition and elements of strict liability for abnormally dangerous activities.
• How abnormally dangerous activities are distinguished from merely dangerous or common activities.
• The relationship between strict products liability and abnormally dangerous activities.
• The scope of liability: foreseeability, type-of-harm limitations, and proximate cause.
• Defenses to strict liability, including assumption of risk, contributory negligence, and comparative fault.
• Liability of those who hire independent contractors to perform abnormally dangerous work.
• Application of these rules in multiple-choice fact patterns.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT required for strict liability to apply to an abnormally dangerous activity?
   1. The activity creates a foreseeable risk of serious harm even when reasonable care is exercised.
   2. The activity is common and widely carried out in the community.
   3. The activity is not a matter of common usage.
   4. The harm results from the type of risk that makes the activity dangerous.
2. A company uses explosives for demolition in a city. Despite all safety precautions, debris injures a bystander. The bystander sues under strict liability. What is the company's best defense?
   1. The company exercised reasonable care.
   2. The bystander assumed the risk by entering the area after being warned.
   3. The activity is not abnormally dangerous.
   4. The bystander was contributorily negligent.
3. In a strict liability claim for abnormally dangerous activity, which of the following is most likely to defeat the plaintiff’s claim?
   1. The harm was not caused by the dangerous aspect of the activity.
   2. The defendant did not intend the harm.
   3. The defendant had a permit for the activity.
   4. The plaintiff suffered only property damage.

Introduction

Strict liability is a form of tort liability where a defendant may be held responsible for harm without proof of negligence or intent. The doctrine is most commonly applied to abnormally dangerous activities—those that present a high risk of serious harm even when all reasonable precautions are taken. This article explains the requirements for strict liability in this context, how it interacts with products liability, and the main defenses and limits relevant for MBE questions.

Key Term: Strict Liability
Liability imposed without regard to fault, requiring only that the defendant engaged in certain conduct and that the plaintiff suffered harm as a result.

Under negligence, the focus is on whether the defendant’s conduct fell below a standard of care. Under strict liability for abnormally dangerous activities, the focus is on the nature of the activity itself. Once you conclude the activity is abnormally dangerous, duty and breach are effectively established; the analysis then shifts to causation, scope of liability, damages, and defenses.

Abnormally Dangerous Activities: The Rule

Strict liability applies to certain activities that the law deems so hazardous that those who engage in them must bear the cost of any resulting harm, regardless of the care exercised. Classic examples include blasting with explosives, storing large quantities of flammable or toxic chemicals, crop dusting, and fumigating with highly poisonous gases.

Key Term: Abnormally Dangerous Activity
An activity that creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and is not commonly carried out in the community.

Courts look at several factors (from the Restatement) to decide whether an activity is abnormally dangerous, including:

• The high degree of risk of harm.
• The likelihood that harm will be great.
• The inability to eliminate the risk by using reasonable care.
• Whether the activity is a matter of common usage.
• The appropriateness of the activity to its location.
• The value of the activity to the community compared with its dangerous attributes.

For MBE purposes, focus on the two core requirements emphasized below.

Requirements for Strict Liability

To establish strict liability for abnormally dangerous activities, the plaintiff must show:

1. The defendant carried out an abnormally dangerous activity.
2. The activity created a foreseeable risk of serious harm even when reasonable care was used.
3. The activity is not a matter of common usage in the community (it is unusual or uncommon).
4. The harm resulted from the type of risk that made the activity abnormally dangerous.
5. The plaintiff is a foreseeable plaintiff.
6. The plaintiff suffered damage to person or property.

Key Term: Scope of Liability (Strict Liability)
Strict liability covers only harm that results from the type of risk that makes the activity abnormally dangerous.

Notice that actual and proximate cause are still required. Strict liability does not dispense with causation or damages—it replaces only the negligence inquiry (duty and breach).

Abnormally Dangerous vs. Merely Dangerous

Not every risky activity is “abnormally dangerous” for strict liability purposes. On the MBE:

• Driving automobiles, operating commercial airplanes, and routine construction without blasting are generally matters of common usage and are analyzed under negligence, not strict liability.
• Activities such as blasting in a crowded urban area, transporting large quantities of highly toxic chemicals, or operating a nuclear facility are strong candidates for abnormally dangerous classification.

If the activity is widespread and socially common (e.g., gasoline stations, ordinary trucking), the examiners usually expect a negligence analysis, not strict liability.

Who Is Liable for Abnormally Dangerous Activities

Strict liability is imposed on those who engage in the abnormally dangerous activity or who are responsible for having it carried out, even if they hire others to do it.

Key Term: Nondelegable Duty
A duty that remains with a party even if that party hires an independent contractor to perform the work; the party cannot avoid liability by delegating the task.

Key points:

• A landowner or business that arranges blasting, fumigation, or similar inherently dangerous work can be strictly liable even if the work is performed by an independent contractor.
• This is an important MBE trap: the general rule is no vicarious liability for torts of independent contractors, but abnormally dangerous activities are a recognized exception through nondelegable duty.

Products Liability and Abnormally Dangerous Activities

Products liability is a related but distinct doctrine. It imposes strict liability on commercial sellers for injuries caused by defective products, regardless of fault.

Key Term: Products Liability (Strict)
Liability imposed on commercial sellers for injuries caused by defective products, regardless of negligence or intent.

Key Term: Commercial Supplier
A person or entity that regularly sells, distributes, manufactures, or otherwise places products into the stream of commerce.

Strict products liability requires:

• A commercial supplier (manufacturer, wholesaler, retailer, component manufacturer).
• A defective product (manufacturing, design, or warning defect).
• Actual and proximate cause.
• Damage to person or property.

These rules may intersect with abnormally dangerous activities in several ways:

• A demolition company uses non-defective explosives in an urban area. A nearby building is damaged by vibrations. The company can be strictly liable under abnormally dangerous activity rules even though the explosives were not defective.
• A manufacturer sells defective blasting caps that explode unexpectedly, injuring a worker. The manufacturer can be strictly liable under strict products liability, even if blasting itself is not abnormally dangerous in that specific setting.
• Sometimes both doctrines apply. If a defective explosive is used in blasting that harms a neighbor, the plaintiff might have:
  • A strict products liability claim against the manufacturer/seller, and
  • A strict liability claim for abnormally dangerous activity against the blaster or landowner.

On the MBE, make sure you identify which defendant is being sued and which strict liability theory fits that defendant.

Defenses to Strict Liability

Strict liability is not absolute. The main defenses focus on the plaintiff’s conduct.

Key Term: Assumption of Risk
A defense where the plaintiff knew of and voluntarily accepted a specific risk, potentially barring or reducing recovery.

Key Term: Contributory Negligence
A doctrine under which any negligence by the plaintiff that proximately contributes to the injury completely bars recovery.

Key Term: Comparative Fault
A system under which the plaintiff’s damages are reduced in proportion to the plaintiff’s share of fault.

Key rules:

• Assumption of risk is generally a complete defense. If the plaintiff:

  • Actually knew of the specific risk, and
  • Voluntarily confronted that risk,
    recovery can be barred even in strict liability.

• Contributory negligence (in the few jurisdictions retaining it) is:

  • Not a defense when the plaintiff merely failed to detect or guard against the danger (e.g., did not realize explosives were stored nearby).
  • A defense when the plaintiff knowingly and unreasonably confronted the risk (which overlaps with assumption of risk).

• Comparative fault (the majority approach) often reduces, rather than bars, recovery in strict liability cases. Many jurisdictions apply their general comparative negligence statute to strict liability, apportioning damages between the parties based on relative fault or responsibility.

A permit, compliance with safety regulations, or the exercise of reasonable care do not defeat strict liability. Those facts may be relevant to whether the activity is abnormally dangerous in the first place, but once that classification is made, due care is no defense.

Scope and Limits of Strict Liability

Strict liability does not apply to all harms associated with an abnormally dangerous enterprise. Two important limitations for the exam:

1. Harm must result from the dangerous aspect of the activity.

   If the injury is unrelated to the risk that makes the activity abnormally dangerous, strict liability does not apply.

   • A factory storing toxic gas is strictly liable if gas escapes and injures neighbors.
   • But if high winds blow part of the roof (unrelated to the gas) onto a passing car, strict liability is generally not imposed for the falling debris.

2. Liability is usually limited to foreseeable plaintiffs and foreseeable types of harm.

   It is not enough that the activity is abnormally dangerous and the defendant’s conduct is a cause-in-fact of the harm. Proximate cause still operates as a limit.

   • A blaster may not be strictly liable to a person miles away, where no reasonable person would have anticipated any risk at that distance, though some courts take a broader view in blasting cases.

Key Term: Foreseeable Plaintiff
A person to whom a reasonable person in the defendant’s position would have foreseen a risk of harm under the circumstances.

Courts also apply the usual rules of intervening and superseding causes. Highly unusual, unforeseeable intervening forces may cut off strict liability if they break the chain of proximate cause.

Worked Example 1.1

A demolition company uses explosives to bring down an old building in a dense downtown area. Despite following all safety protocols, a shockwave from the blast breaks windows in a nearby home. The homeowner sues for damages under strict liability. Is the company liable?

Answer:
Yes. Blasting in a populated area is a textbook abnormally dangerous activity: it creates a high risk of serious harm even with reasonable care and is not a matter of common usage. The harm (broken windows) resulted from the dangerous aspect of blasting—vibration and shockwaves. The homeowner is a foreseeable plaintiff. The company is strictly liable even though it exercised reasonable care and complied with all regulations.

Worked Example 1.2

A chemical plant stores large quantities of toxic gas. A freak lightning strike causes a fire, releasing the gas and causing injuries to nearby residents. The plant argues the fire was an unforeseeable act of nature. Are they strictly liable?

Answer:
Generally yes. The dangerous aspect of the activity is the storage of toxic gas that can escape and harm neighbors. The specific mechanism (a lightning strike causing a fire) is less important than the fact that the harm resulted from the characteristic risk of the activity—the escape of toxic gas. Only if the lightning strike were so extraordinarily unforeseeable that it constituted a superseding cause would strict liability be cut off. On exam facts like this, assume strict liability applies.

Worked Example 1.3

A trucking company transports sealed barrels of highly toxic chemicals on a highway. A driver negligently runs a red light and collides with the truck. The collision injures the driver, but none of the barrels leak and no chemicals escape. The driver sues the trucking company under strict liability for abnormally dangerous activity. Result?

Answer:
The trucking company is not strictly liable. Although transporting large quantities of highly toxic chemicals can be an abnormally dangerous activity, the harm here (impact injuries from the collision) did not result from the dangerous aspect of the activity (the risk of toxic release). Because the chemicals did not escape, the driver’s harm is outside the scope of strict liability, though the truck driver may be liable in negligence if he was at fault.

Worked Example 1.4

A developer hires an independent contractor to conduct blasting to excavate for a swimming pool in a residential neighborhood. The contractor’s blast cracks a neighbor’s structural base. The neighbor sues the developer (but not the contractor) under strict liability. The developer argues that any fault lies with the independent contractor. Is the developer liable?

Answer:
Yes. Blasting is an abnormally dangerous activity. A landowner who has blasting done on his land has a nondelegable duty with respect to the risks created by that activity. The developer cannot escape strict liability by hiring an independent contractor. Because the harm (structural damage from vibrations) arises from the dangerous aspect of blasting, the developer is strictly liable to the neighbor.

Worked Example 1.5

A state safety inspector visits a mine that uses stored explosives. Signs clearly warn that blasting may occur at any time and that visitors must remain behind protective barriers. The inspector ignores the warnings, walks into the blasting area to get a closer look, and is injured when a scheduled blast occurs. The inspector sues the mine under strict liability. What is the likely result?

Answer:
The mine will likely assert a successful assumption-of-risk defense. The inspector was fully aware of the specific risk (active blasting) and voluntarily left a safe area to enter the zone of danger. In most jurisdictions, this knowing and voluntary encounter with a known abnormally dangerous risk either bars recovery (traditional assumption of risk or contributory negligence) or reduces it under comparative fault principles.

Worked Example 1.6

A fireworks manufacturer sells a batch of rockets to a licensed display company. Due to a manufacturing defect, some rockets explode at ground level, injuring spectators. The spectators sue both the manufacturer and the display company. Which strict liability theories are available?

Answer:
The manufacturer is a commercial supplier of products and can be strictly liable under strict products liability for a defective product that made the rockets unreasonably dangerous. The display company was engaged in an activity—launching large fireworks in a populated area—that may be classified as abnormally dangerous. Provided the jurisdiction treats large public fireworks displays as abnormally dangerous, the spectators may also sue the display company under strict liability for abnormally dangerous activity. Different strict liability theories apply to different defendants.

Exam Warning

On the MBE, strict liability for abnormally dangerous activities applies only if the harm results from the dangerous aspect of the activity. If the injury is unrelated (e.g., a bystander is injured by a delivery truck’s ordinary driving, not by the hazardous material it carries), strict liability does not apply. In those cases, analyze negligence instead.

Revision Tip

Focus on the difference between strict liability and negligence: strict liability does not require proof of fault, but it applies only to certain activities and only for harms within the scope of the danger. Always ask:

• Is the activity abnormally dangerous (high risk even with reasonable care, and not common)?
• Did the harm result from the very risk that makes the activity abnormally dangerous?
• Is there any assumption-of-risk or comparative fault issue?

Key Point Checklist

This article has covered the following key knowledge points:

• Strict liability applies to abnormally dangerous activities regardless of the care exercised.
• An abnormally dangerous activity creates a high, foreseeable risk of serious harm even when reasonable care is used and is not a matter of common usage in the community.
• Courts still require actual cause, proximate cause, and damages; strict liability replaces only the fault analysis, not causation.
• Harm must result from the dangerous aspect of the activity; if the injury is unrelated to that risk, strict liability does not apply.
• Liability is generally limited to foreseeable plaintiffs and foreseeable types of harm.
• Those who hire independent contractors to perform abnormally dangerous work may still be strictly liable under a nondelegable duty.
• Strict products liability applies to commercial suppliers for defective products and may overlap with abnormally dangerous activity liability in explosives and toxic chemical cases.
• Assumption of risk is a strong defense to strict liability; comparative fault often reduces recovery, while mere failure to detect the danger usually does not bar recovery.
• Permits, regulatory compliance, and the exercise of due care do not defeat strict liability once an activity is classified as abnormally dangerous.
• On the MBE, careful attention to who is being sued, what activity is involved, and how the harm occurred is critical to choosing between negligence, strict products liability, and abnormally dangerous activity liability.

Key Terms and Concepts

• Strict Liability
• Abnormally Dangerous Activity
• Scope of Liability (Strict Liability)
• Products Liability (Strict)
• Commercial Supplier
• Nondelegable Duty
• Assumption of Risk
• Contributory Negligence
• Comparative Fault
• Foreseeable Plaintiff