Reconceptualizing Strict Liability in Tort: An Overview

57 Pages Posted: 9 May 2009  

Martin A. Kotler

Widener University Delaware Law School

Date Written: January 1, 1997

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."

Keywords: torts, tort law, strict liability

JEL Classification: K13

Suggested Citation

Kotler, Martin A., Reconceptualizing Strict Liability in Tort: An Overview (January 1, 1997). Vanderbilt Law Review, Vol. 50, 1997. Available at SSRN: https://ssrn.com/abstract=1401505

Martin A. Kotler (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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