Creating Harm without Doing Wrong

In three studies, participants assigned civil liability at moderate to high rates to injurers whose conduct was not negligent, holding them to a strict liability standard. The law would generally not assign liability in these cases, instead only imposing it when the actor was negligent or when the activities were “abnormally dangerous.” Participants are more likely to assign liability in the absence of negligence when the injurious activity takes place in an inappropriate location (study 1) or when it is abnormally dangerous in a lay sense (study 2). It also matters whether the injurer is engaged in a business activity and if the injured party poses a reciprocal risk to the injurer (study 3). But, even absent all of these special circumstances and even when both the injurer and injured parties were engaging in identical highly mundane behaviors, many respondents still believe that some liability should be assigned for non-negligent conduct. In study 3, participants report explanations consistent with a strict liability perspective. We compare the intuitions of our participants to both the doctrine and proposed theoretical foundations of current tort law.