Justice for All

European and US Law: Strict Liability

Apart from liability for negligence the Americans are familiar with the concept of strict liability. This means that a tortious act is presumed, or at least some of the elements of torts do not have to be proven. The fact that the plaintiff himself has been careless is not a defense. Strict liability applies to several types of activities. For the purpose of doing business these include activities related to explosions, chemical, toxic and radioactive materials, and ultra-hazardous activities with a risk of severe harm that can not be made safe. Additional conditions apply.

Another category concerns animals and includes trespass of cattle. To European ears this sounds funny: one would think of the occasional escaped calf rummaging through a tulip field. In the American West, however, roaming herds of a few hundred cows are not uncommon even in this day and age. The damage they can cause can be substantial.

In Europe businesses are mainly confronted with strict liability when dealing with employees or agents, ultra-hazardous activities, and specific acts that are described in national statutes. For instance, German tort law includes liability for breach of statutory or regulatory provisions that are designed to protect other persons, e.g. for product safety or medical devices. These can be classified as strict liability in that there is a breach of a statutory duty. Because they are based on specific statutes the outcome is not always the same. For instance the Drug Act slightly differs from the Product Liability Act, and therefore the liability outcome is different as well. More importantly, German legislation does not accept -as a matter of principle - any compensation for non-material damages without proof of negligence. Since strict liability does not require a showing of negligence these damages are not necessarily available.