Reconceptualizing Strict Liability in Tort: An Overview

Martin A. Kotler, Widener University School of Law

Abstract

Commonly, strict liability in tort is understood as doctrine that serves to impose liability based on the fact that the defendant caused the plaintiff’s harm, regardless of the culpability of the defendant’s conduct. This Article takes issue with that view and seeks to reconceptualize strict liability as doctrine which, like negligence, assesses the culpability of the defendant’s conduct. Negligence, however, judges the defendant’s conduct by comparing it the norms of behavior of the social group of which the defendant is a member. In contrast, strict liability assesses the defendant’s conduct by comparing it to the norms of behavior of that social group of which the plaintiff is a member.

Thus, in informed consent cases when the physician’s conduct is judged under a reasonable patient standard or in products liability cases when a manufacturer is judged under a reasonable consumer standard, we are dealing with what this Article labels “behavioral strict liability.”