General principles - Strict liability

Learning Outcomes

This article explains strict liability in tort law, including:

• How to distinguish strict liability from negligence and intentional torts and select the correct theory on MBE questions.
• How to recognize fact patterns that trigger strict liability for abnormally dangerous activities, with emphasis on classic exam scenarios such as blasting, toxic chemicals, and large-scale fumigation.
• How to analyze liability for wild animals, domestic animals with known dangerous propensities, and trespassing livestock, and how plaintiff status (invitee, licensee, trespasser) affects recovery.
• How the scope-of-risk doctrine, foreseeability, and proximate cause limit strict liability so that defendants are liable only for harms resulting from the activity’s or animal’s dangerous propensities.
• How nondelegable duties operate when landowners, developers, or businesses hire independent contractors to conduct abnormally dangerous activities, and why both can be liable on the exam.
• How key defenses—assumption of risk, contributory negligence, and comparative negligence—can bar or reduce recovery in strict liability actions, and how these doctrines interact in different jurisdictions.
• How to apply strict liability principles in a structured IRAC-style analysis, avoid overextending strict liability to merely dangerous activities, and use these rules to eliminate distractor answer choices under timed conditions.

MBE Syllabus

For the MBE, you are required to understand strict liability in tort law with a focus on the following syllabus points:

• Distinguishing strict liability from negligence and intentional torts.
• Identifying abnormally dangerous activities and their requirements.
• Recognizing strict liability for wild and domestic animals, including trespassing animals.
• Understanding the scope of liability, proximate cause, and foreseeable plaintiffs.
• Knowing how nondelegable duties apply to abnormally dangerous activities.
• Applying available defenses (assumption of risk, contributory and comparative negligence) in strict liability questions.
• Applying strict liability principles to MBE-style fact patterns.
• Recognizing when strict products liability (defective products) is the relevant strict liability theory.

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 most likely to result in strict liability?
   1. A driver negligently causes a car accident.
   2. A homeowner’s dog bites a trespasser, and the dog has never shown vicious tendencies.
   3. A demolition company uses explosives and causes debris to damage a neighbor’s property.
   4. A store owner fails to warn customers about a wet floor.
2. Which defense is generally NOT available in a strict liability action?
   1. Assumption of risk
   2. Contributory negligence (where plaintiff failed to appreciate a known danger)
   3. Comparative negligence (where plaintiff’s unreasonable conduct caused the harm)
   4. That the activity was carried out with reasonable care
3. A person is injured by a neighbor’s escaped tiger, kept as a pet. Which statement is correct?
   1. The neighbor is strictly liable, even if all precautions were taken.
   2. The neighbor is liable only if negligent.
   3. The neighbor is liable only if the tiger had previously attacked someone.
   4. The neighbor is not liable if the tiger escaped due to an unforeseeable event.

Introduction

Strict liability is a tort principle where a defendant is held liable for harm caused by certain activities, regardless of the level of care exercised. Unlike negligence, strict liability does not require proof that the defendant failed to act reasonably. Instead, liability attaches because the law treats some activities or conditions as so hazardous that the losses they create should be borne by those who choose to engage in them or keep them.

Key Term: Strict Liability
Liability imposed for certain activities or conditions regardless of fault or intent; the plaintiff does not need to prove negligence or intent to harm, only that the strict-liability activity (or animal) caused the harm.

On the MBE, strict liability appears in a narrow set of recurring patterns. Most tort questions are about negligence. When strict liability appears, it is usually tied to one of three sources:

• Abnormally dangerous (ultrahazardous) activities.
• Animals (wild animals and certain domestic animals).
• Defective products (strict products liability, tested separately).

Some questions may also build strict liability into a statute given in the fact pattern, but unless a statute expressly creates strict liability, assume the three sources above.

Even in strict liability cases, the plaintiff must still prove:

• An absolute duty (created by the abnormally dangerous activity, animal ownership, or product defect).
• Causation (actual cause and proximate cause).
• Damages to person or property.

The main difference from negligence is that the duty is absolute; the defendant cannot escape liability by showing they used reasonable care.

Key Term: Scope of Strict Liability
The requirement that strict liability extends only to harm resulting from the particular risks that make the activity abnormally dangerous or the animal dangerous, and only to plaintiffs who are foreseeably within that risk.

Strict liability is therefore not “automatic liability for anything bad that happens.” The analysis always has two key steps:

• Does strict liability apply at all (i.e., are we in one of the narrowly defined categories)?
• If so, did the harm result from the very danger that triggers strict liability and to a foreseeable plaintiff?

Key Term: Foreseeable Plaintiff
A person to whom a reasonable person in the defendant’s position would have foreseen a risk of harm from the activity or animal; strict liability typically extends only to such plaintiffs.

A useful way to remember the core sources of strict liability for MBE purposes is to think in terms of “PAW”:

• P – Defective products (strict products liability).
• A – Abnormally dangerous activities.
• W – Wild animals (and some domestic animals with known dangerous tendencies).

If a fact pattern does not involve one of these, strict liability is usually not the correct theory.

When Does Strict Liability Apply

Strict liability in tort is limited to specific situations. The main categories for MBE purposes are:

• Abnormally dangerous activities.
• Liability for animals.
• Defective products (covered separately in product liability materials).

The question is always whether the activity or condition is one for which the law imposes an absolute duty, regardless of the care used.

Abnormally Dangerous Activities

Strict liability applies to certain activities that create a high risk of serious harm even when reasonable care is taken. These are called abnormally dangerous or ultrahazardous activities.

Key Term: Abnormally Dangerous Activity
An activity that (1) creates a foreseeable and highly significant risk of serious harm even when reasonable care is exercised, and (2) is not a matter of common usage in the community.

Courts draw heavily from the Restatement factors to decide whether an activity is abnormally dangerous. No single factor is decisive; they are weighed together.

Commonly listed factors:

• The activity involves a high degree of risk of harm.
• The likelihood that the harm will be great if it occurs.
• The risk cannot be eliminated by the exercise of reasonable care.
• The activity is not common in the community (not a matter of common usage).
• The location may be inappropriate for the activity (e.g., blasting in a dense residential neighborhood).
• The value to the community is outweighed by its dangerousness.

Different formulations exist, but for the MBE:

• Many jurisdictions effectively use a two-part test:
  • Foreseeable risk of serious harm even if due care is used, and
  • Activity is not a matter of common usage.

If those two elements are clearly satisfied, you are usually dealing with an abnormally dangerous activity.

Typical abnormally dangerous activities on the MBE:

• Blasting or demolition using explosives.
• Manufacturing, storing, or transporting large quantities of explosives.
• Storing or transporting large quantities of highly toxic or hazardous chemicals.
• Large-scale crop dusting or fumigation with dangerous chemicals.
• Certain nuclear or radioactive activities.

Activities that are merely “dangerous” but whose risk can be effectively managed through reasonable care are not abnormally dangerous:

• Ordinary driving, even of a gasoline truck.
• Most construction work, excavation without blasting.
• Operating an airplane or helicopter.
• Ordinary transmission of electricity into homes and businesses.

The fact that an activity is heavily regulated does not by itself make it abnormally dangerous. The key is whether the risk remains substantial even when everyone is careful, and whether the activity is unusual for the area.

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

If an activity is abnormally dangerous, those who engage in it owe an absolute, nondelegable duty to prevent the characteristic harms of that activity. Hiring an independent contractor does not shield them from strict liability.

Scope of Liability for Abnormally Dangerous Activities

Strict liability does not make the defendant an insurer against all harms that happen to occur while the activity is underway. Two limitations matter:

• The plaintiff must be a foreseeable plaintiff.
• The harm must result from the particular danger that makes the activity abnormally dangerous.

If the harm comes from some other, ordinary risk, liability (if any) will rest on negligence, not strict liability.

Examples:

• A truck loaded with explosives crashes and explodes, injuring people nearby. Strict liability applies to those injuries, because an explosion is the risk that makes the transport of explosives abnormally dangerous.
• If the same truck merely runs a stop sign and hits a pedestrian, without exploding, strict liability does not apply. The harm is from negligent driving, not from the dangerous propensity of the explosives.

Causation analysis in strict liability uses the same actual and proximate cause concepts as negligence. Unforeseeable, intervening criminal acts or bizarre accidents can cut off strict liability if they are outside the scope of the risk that made the activity abnormally dangerous. Courts sometimes treat intervening causes as more likely superseding in strict liability than in negligence.

Worked Example 1.1

A demolition company uses explosives to bring down an old building in a downtown area. Despite all safety measures, the blast sends debris onto a neighboring property, damaging the neighbor’s car and windows. The neighbor sues the demolition company for damages.

Answer:
The demolition company is strictly liable for the property damage. Use of explosives for blasting is a classic abnormally dangerous activity. Strict liability applies even if the company exercised utmost care. The harm (damage from flying debris caused by the explosion) results from the very risk that makes blasting ultrahazardous, and the neighbor is a foreseeable plaintiff.

Worked Example 1.2

A chemical manufacturer ships a tanker of highly toxic chemicals through a city. During transport, a valve fails, causing a leak. The leaked chemical splashes onto a pedestrian’s legs, causing serious chemical burns.

Answer:
The manufacturer is strictly liable. Transporting large quantities of highly toxic chemicals is an abnormally dangerous activity: it creates a high risk of serious harm that cannot be eliminated by reasonable care and is not common in the community. The injury (chemical burns) is precisely the type of harm that makes transporting such chemicals abnormally dangerous.

Worked Example 1.3

The same manufacturer ships the same toxic chemical. A minor leak drips onto the roadway, leaving a thin, slick spot that quickly evaporates and leaves no toxic residue. A driver’s tires skid on the slick patch; the car hits a pole. The driver suffers only impact injuries (no chemical exposure). The driver sues the manufacturer on a strict liability theory.

Answer:
The manufacturer is likely not strictly liable. The harm (skidding on a slippery surface and crashing) did not result from the chemical’s toxic or corrosive properties—the risk that makes the activity abnormally dangerous. It resulted from an ordinary road hazard. Strict liability is limited to harm resulting from the normally dangerous propensity of the activity, which in this case is the toxic nature of the chemical. The driver must proceed under negligence.

This illustrates the exam-tested scope-of-risk limitation: always ask whether the injury flows from the specific danger that makes the activity abnormally dangerous.

Liability for Animals

Strict liability also arises from harm caused by certain animals. On the MBE, three main subtopics appear:

• Trespassing animals (especially livestock).
• Wild animals.
• Domestic animals with known dangerous propensities.

The analysis turns on both the type of animal and the owner’s knowledge (for domestic animals).

Trespassing Animals

At common law, the owner of animals (other than household pets) is strictly liable for reasonably foreseeable damage they cause when they stray onto another’s property.

Key Term: Trespassing Animals
Animals, typically livestock (e.g., cattle, horses, sheep, pigs), that wander onto another’s land and cause damage; their owners are strictly liable for reasonably foreseeable property damage resulting from the trespass.

Key points:

• Typical examples: cattle, horses, sheep, pigs, goats.
• Strict liability usually covers property damage to land or crops (e.g., trampled gardens, destroyed fences).
• Most jurisdictions do not impose strict liability for trespassing household pets (like dogs and cats); negligence is required unless a statute (e.g., a leash law) provides otherwise.
• Reasonable precautions (e.g., good fences) are not a defense; the duty is absolute.

However, strict liability for trespassing animals is usually confined to property damage. If a trespassing cow merely walks onto a neighbor’s driveway and startles someone in a minor way, strict liability may not apply unless there is actual damage to property or person.

Worked Example 1.4

A farmer’s cow escapes and wanders into a neighbor’s yard, trampling the neighbor’s vegetable garden and ornamental shrubs. The farmer shows that the fence enclosing the field was well maintained and had never failed before.

Answer:
The farmer is strictly liable for the damage. Owners of livestock are strictly liable for reasonably foreseeable property damage caused by trespassing animals, regardless of the care taken to confine them. The condition of the fence is irrelevant to strict liability, though it might matter in a negligence action.

Wild Animals

Owners of wild animals are strictly liable for harm caused by those animals, regardless of the precautions taken.

Key Term: Wild Animal
An animal that, as a species, is not customarily domesticated and is not generally kept in the service of humankind (e.g., lions, tigers, bears, wolves, chimpanzees, large poisonous snakes).

Strict liability for wild animals:

• Applies to injuries caused by the animal’s dangerous propensities, including:
  • Biting, clawing, or attacking.
  • Lunging or chasing that causes people to flee and injure themselves.
  • Fear-induced injuries (e.g., someone runs from a tiger and falls).
• Applies even if:
  • The particular animal has never shown aggression.
  • The owner used extensive precautions (strong cages, secure enclosures, warning signs).
  • The animal escapes due to natural forces (storms, earthquakes, floods).

Strict liability usually protects:

• People lawfully on the land (invitees and licensees), and
• Persons off the land but within range of the animal’s dangerous propensities (e.g., neighbors, passersby).

Trespassers generally must prove negligence, not strict liability, unless the landowner intentionally uses an animal (such as a vicious guard dog) in a manner analogous to a deadly trap.

Key Term: Public Duty Exception
An exception under which a public entity required by law to keep wild animals (e.g., a public zoo) is generally liable only for negligence, not strict liability, for injuries caused by those animals.

Under the public duty exception, a public zoo or government agency that must keep wild animals to carry out its public role is often subject to negligence rather than strict liability. Unless a question states otherwise, assume a zoo is held to a negligence standard.

Worked Example 1.5

A homeowner keeps a pet wolf in a large, secure cage behind the house. One day, a tree limb falls during a storm, damaging the cage. The wolf escapes and attacks a passerby on the sidewalk, causing serious injuries. The homeowner argues that the wolf had never shown aggression and was kept securely.

Answer:
The homeowner is strictly liable for the injuries. Wolves are wild animals, and strict liability applies regardless of the animal’s history or the owner’s precautions. The attack is within the wolf’s dangerous propensities, and the passerby is a foreseeable plaintiff.

Domestic Animals

Owners of domestic animals (e.g., dogs, cats, horses, cattle) are not automatically strictly liable for personal injuries. Strict liability applies only if the owner knows or has reason to know of this particular animal’s dangerous propensities.

Key Term: Domestic Animal
An animal customarily kept in the service of humankind (such as dogs, cats, horses, cattle); strict liability for personal injury generally requires that the owner knows or has reason to know of that particular animal’s dangerous tendency.

Key Term: Dangerous Propensity
A tendency of an animal to do something that may cause harm (e.g., biting, charging, chasing cars, knocking people over), which the owner knows or should know about.

Key rules:

• If a dog has previously bitten someone or aggressively lunged at people, and the owner is aware of this, the owner is strictly liable for later injuries caused by that dangerous propensity.
• The dangerous propensity must be of the type that caused the harm:
  • If a dog is known to chase cars and again chases a car causing a crash, strict liability applies.
  • If a dog is known to knock over children while playing, and it knocks over a guest, strict liability can apply for that kind of harm.
• The law does not require an actual prior injury; credible evidence of aggressive or dangerous behavior is enough to put the owner on notice.

Key Term: One-Bite Rule
A shorthand label for the common-law principle that a domestic animal’s first injurious or clearly dangerous act can put the owner on notice of its dangerous propensity, after which strict liability may attach for similar harm.

Many states have dog-bite statutes that impose strict liability for dog bites even without prior knowledge of dangerousness, sometimes subject to defenses like trespassing or provocation. Unless the question mentions such a statute, assume the common-law “one-bite rule” applies: knowledge of dangerous propensity is required for strict liability.

Worked Example 1.6

A dog is known to chase cars whenever it escapes its yard. The owner has been warned several times by neighbors about the dog’s behavior. One day the dog escapes, runs into the street, and chases a passing car. The driver swerves to avoid the dog, hits a tree, and is injured.

Answer:
The owner is strictly liable. The dog has a known dangerous propensity (chasing cars), and the harm (a crash caused by swerving to avoid the dog) results from that propensity. The prior incidents put the owner on notice; this is exactly what the one-bite rule contemplates.

Worked Example 1.7

A friendly dog has never bitten anyone or shown aggression. During a social gathering, the dog runs playfully through the living room, accidentally colliding with a guest and knocking her down. The guest suffers a broken arm. There is no dog-bite statute in the jurisdiction.

Answer:
The owner is not strictly liable because the dog had no known dangerous propensity to knock people down or otherwise cause harm. Strict liability for domestic animals requires knowledge of a specific dangerous tendency. Liability, if any, would be based on negligence (for example, failing to control an overly exuberant dog around guests).

Persons Protected and Trespassers

For animal cases, the status of the plaintiff matters:

• Invitees and licensees (people lawfully on the land) can usually recover under strict liability for injuries caused by:

  • Wild animals, or
  • Domestic animals with known dangerous propensities.

• Trespassers usually must prove negligence, not strict liability, for animal injuries. A landowner who knows trespassers are likely to be present and maintains an animal in a way that poses an unreasonable risk (e.g., a dog known to attack people near a commonly used shortcut) may be liable in negligence.

There is a narrow intentional-tort exception:

• If a landowner deliberately uses a vicious animal as a security device in circumstances that are functionally equivalent to setting a deadly trap (e.g., a vicious guard dog trained to attack intruders and placed where it will likely cause serious bodily harm), liability to trespassers may be based on intentional tort principles. Landowners may not do indirectly with animals what they could not lawfully do themselves.

Scope of Liability with Animals

The scope-of-risk limitation also applies to animals. Strict liability requires that:

• The harm results from the dangerous propensity of the wild or domestic animal, and
• The plaintiff is within the class of persons foreseeably exposed to that risk.

Examples:

• A poisonous snake escapes and slithers toward a cleanup worker. The worker, frightened, runs away, trips, and breaks an arm. Strict liability applies; fear and flight are normal reactions to a dangerous snake.
• A lame, blind bear lies motionless on a sidewalk. A passerby, unaware of the bear, trips over it and is injured. Strict liability may not apply because the injury did not stem from the bear’s dangerous nature but from it being a simple obstacle on the sidewalk.

Scope of Liability and Proximate Cause

Strict liability is limited not only by the category (abnormally dangerous activity or animals) but also by proximate cause and foreseeability.

The defendant is strictly liable only if:

• The plaintiff is a foreseeable plaintiff, and
• The harm flows from the normally dangerous propensity of the activity or animal.

If an injury is so remote or unusual that it falls outside the increased risk created by the activity, strict liability does not apply.

• For abnormally dangerous activities: the harm must flow from the abnormal danger of the activity (explosion, toxic contamination, radiation), not from unrelated risks such as slippery floors, ordinary traffic accidents, or structural defects.
• For animals: the harm must result from the animal’s dangerous propensities (attack, chase, or fear-induced flight), not from unrelated circumstances.

Proximate cause analysis in strict liability parallels negligence:

• Foreseeable intervening forces (e.g., rescue efforts, medical malpractice) usually do not cut off liability.
• Unforeseeable intervening intentional torts or crimes by third parties often do cut off liability, unless such acts are themselves a foreseeable result of the dangerous activity.

Always ask:

• Is this the kind of injury that makes the activity or animal legally “dangerous”?
• Is this plaintiff within the foreseeable zone of danger created by that risk?

Defenses to Strict Liability

Strict liability does not mean “no defenses.” Certain defenses can bar or reduce recovery even when strict liability applies.

Key Term: Assumption of Risk
A defense where the plaintiff, with full knowledge and appreciation of a specific risk, voluntarily and unreasonably exposes themselves to that risk; may bar or reduce recovery.

Key Term: Contributory Negligence
A doctrine (now a minority rule) under which any negligence by the plaintiff that proximately contributes to the harm completely bars recovery.

Key Term: Comparative Negligence
A doctrine (the majority and MBE default) under which the plaintiff’s recovery is reduced in proportion to the plaintiff’s share of fault.

The interaction between these doctrines and strict liability is frequently tested.

Assumption of Risk

Assumption of risk is the most important defense in strict liability.

Core elements:

• The plaintiff knew of the specific risk.
• The plaintiff understood the risk (appreciated its nature).
• The plaintiff voluntarily chose to encounter the risk anyway.

In many jurisdictions, especially ones that still recognize contributory negligence, knowing and voluntary exposure to a strict-liability risk is treated as assumption of risk and can completely bar recovery.

Examples:

• A person voluntarily enters an explosives storage bunker after receiving clear warnings about the danger and then is injured by an explosion.
• A person insists on petting a chained tiger at a private home despite repeated warnings and obvious danger.

In comparative negligence jurisdictions, assumption of risk is sometimes treated as:

• A complete defense for express waivers (e.g., a clearly worded, enforceable exculpatory clause), but
• A form of comparative fault when the assumption of risk is implied by conduct (e.g., standing dangerously close to a blast site).

Contributory Negligence

In traditional contributory negligence jurisdictions:

• Unknowing contributory negligence—failing to perceive or guard against a danger created by an abnormally dangerous activity or animal—is not a defense to strict liability. For example, failing to notice a warning sign about blasting does not defeat strict liability.
• Knowing and unreasonable conduct that exposes the plaintiff to the danger created by the activity or animal is treated as assumption of risk and bars recovery. For exam purposes, this is often described as “knowing contributory negligence.”

So in contributory negligence states:

• A plaintiff’s failure to inspect a product or property, or to anticipate hidden dangers, does not bar strict liability.
• A plaintiff’s deliberate choice to confront a known, specific strict-liability risk can bar recovery.

Comparative Negligence

In comparative negligence jurisdictions (the MBE default):

• The plaintiff’s fault generally reduces recovery in strict liability actions, including:
  • Strict liability for abnormally dangerous activities, and
  • Strict products liability.
• Courts frequently treat a plaintiff’s unreasonable conduct as a share of fault to be assigned a percentage.

However, some jurisdictions still treat fully informed, voluntary assumption of risk as a complete bar even in a comparative negligence framework. Unless the question tells you otherwise, expect that:

• Ordinary unreasonably risky behavior by the plaintiff (e.g., standing in an open window during a blast despite a general warning) will lead to reduced recovery (comparative fault).
• Extreme, clearly voluntary confrontation of a specific known risk may lead the fact pattern or answer choice to describe the result as a complete bar (assumption of risk).

Worked Example 1.8

A mining company stores dynamite in a secure shed. A state safety inspector, fully aware of the risks, directs the company to conduct a test blast. The company establishes a clearly marked safe zone at a distance from the shed. The inspector insists on standing directly adjacent to the shed during the blast “to get better data,” despite repeated warnings. An unexpected misfire causes an explosion that injures the inspector.

Answer:
The mining company’s storage and use of dynamite is an abnormally dangerous activity, so strict liability would ordinarily apply. However, the inspector knowingly and voluntarily encountered a specific, obvious risk by standing dangerously close to the blast area after clear warnings. In many jurisdictions, this conduct constitutes assumption of risk. In a contributory negligence jurisdiction, recovery would likely be barred. In a comparative negligence jurisdiction, the inspector’s damages would be substantially reduced and might be completely barred if the jurisdiction treats this as complete assumption of risk.

Worked Example 1.9

A construction company conducts lawful blasting in a residential area after obtaining permits and taking reasonable precautions. Neighbors receive written notice that blasting will occur at specific times and are advised to stay away from windows. One neighbor, curious to watch, opens her windows and stands directly in front of them despite the warning. A blast shatters the glass, and shards injure her face and eyes.

Answer:
The construction company is strictly liable because blasting is abnormally dangerous and the harm (injury from flying glass due to the blast) is within the scope of risk. The neighbor is a foreseeable plaintiff. However, her decision to disregard specific warnings and stand at an open window may constitute comparative negligence or implied assumption of risk. In a comparative negligence jurisdiction, her damages will be reduced in proportion to her share of fault.

Nondelegable Duties and Strict Liability

A frequent MBE twist involves a landowner, developer, or other party hiring an independent contractor to carry out blasting or similarly dangerous work.

In negligence law:

• A party who hires a competent independent contractor is often not vicariously liable for the contractor’s negligence.

By contrast, for abnormally dangerous activities:

• The duty to protect others from harms within the activity’s characteristic risks is nondelegable.
• Anyone who engages in, or has work done that qualifies as, an abnormally dangerous activity remains strictly liable for harms within the scope of that risk, even if the activity is actually carried out by an independent contractor.

This is an important distinction: the party is not being held vicariously liable for the contractor’s negligence. Instead, the law imposes a direct, absolute duty not to create that risk, and that duty cannot be shifted.

Worked Example 1.10

A developer hires an independent contractor to use explosives to excavate a site for an in-ground swimming pool in a residential neighborhood. During blasting, vibrations crack the structural base and walls of a neighbor’s house. The contractor was licensed and followed industry standards. The developer argues that only the contractor is liable because the contractor actually performed the blasting.

Answer:
Excavation using explosives in a residential area is an abnormally dangerous activity. The developer has a nondelegable duty regarding that activity and is strictly liable for the neighbor’s property damage, even though an independent contractor performed the blasting with reasonable care. The contractor may also be liable, but the developer cannot escape strict liability by delegation.

Exam Strategy and Common Pitfalls

The MBE often tests strict liability by blending it with negligence and asking which theory best explains liability. Keeping some key points in mind will help:

• Check for the sources of strict liability. Before picking “strict liability,” ask if the facts involve:

  • A wild animal or domestic animal with a known dangerous propensity.
  • An abnormally dangerous activity (blasting, highly toxic chemicals, large-scale fumigation).
  • A defective product sold by a commercial supplier. If not, strict liability is likely not the correct basis of liability.

• Do not ignore causation. Many questions focus on whether the harm resulted from the activity’s or animal’s dangerous propensity:

  • Toxic chemicals causing skid rather than burns: no strict liability.
  • Explosives causing a crash from a tire blowout, but no explosion: no strict liability.

• Do not overextend strict liability. Strict liability does not:

  • Apply simply because an activity is dangerous (e.g., driving, flying).
  • Automatically make defendants liable for all harms nearby.

• Remember defenses. The presence of clear warnings, safety zones, or unusual plaintiff conduct often signals:

  • Comparative negligence reducing damages, or
  • Assumption of risk potentially barring recovery.

• Nondelegable duties are not vicarious liability. When an independent contractor conducts blasting, the landowner is still directly strictly liable because the duty is nondelegable.

Key Point Checklist

This article has covered the following key knowledge points:

• Strict liability imposes liability without proof of fault for certain activities or animals, but the plaintiff must still prove causation and damages.
• The three main sources of strict liability for MBE purposes are abnormally dangerous activities, certain animals (wild and some domestic), and defective products.
• Abnormally dangerous activities (e.g., blasting, storing or transporting toxic chemicals, large-scale fumigation) trigger strict liability when:
  • They create a high risk of serious harm that cannot be eliminated by reasonable care, and
  • They are not a matter of common usage in the community.
• Strict liability for abnormally dangerous activities is limited to harm that results from the normally dangerous propensity of the activity (explosion, toxic exposure), and only to foreseeable plaintiffs.
• Owners of trespassing livestock (e.g., cattle, horses, sheep, pigs) are strictly liable for reasonably foreseeable property damage caused on another’s land.
• Owners of wild animals are strictly liable for harm caused by the animals’ dangerous propensities, including fear-induced injuries, regardless of precautions, generally in favor of invitees, licensees, and persons off the land.
• Under the public duty exception, public entities required by law to keep wild animals (e.g., a public zoo) are usually judged under a negligence standard, not strict liability.
• Owners of domestic animals are strictly liable for personal injuries only if they know or should know of that animal’s dangerous propensities (the one-bite rule); otherwise, liability is based on negligence unless a statute creates stricter rules.
• Trespassers injured by animals usually must prove negligence, not strict liability, subject to limited exceptions (such as intentional use of a vicious guard dog as a deadly trap).
• Strict liability for animals and abnormally dangerous activities is limited by scope of risk and proximate cause; the harm must flow from the danger that makes the animal or activity legally dangerous.
• For abnormally dangerous activities, duties are often nondelegable. A party cannot escape strict liability by hiring an independent contractor to conduct blasting or similar work.
• Defenses in strict liability include:
  • Assumption of risk, especially when the plaintiff knowingly encounters a specific danger.
  • In contributory negligence jurisdictions, unknowing contributory negligence is generally not a defense, but knowing and unreasonable conduct (treated as assumption of risk) can bar recovery.
  • In comparative negligence jurisdictions, the plaintiff’s fault usually reduces recovery in strict liability actions, including product cases and abnormally dangerous activities.
• Strict liability does not eliminate the need to analyze actual and proximate cause. Intervening causes can still cut off liability when the resulting harm is outside the scope of the risk.

Key Terms and Concepts

• Strict Liability
• Scope of Strict Liability
• Abnormally Dangerous Activity
• Nondelegable Duty
• Trespassing Animals
• Wild Animal
• Domestic Animal
• Dangerous Propensity
• Foreseeable Plaintiff
• One-Bite Rule
• Public Duty Exception
• Assumption of Risk
• Contributory Negligence
• Comparative Negligence