Abstract

Courts generally insist that two criteria be met before imposing strict liability. The first––that the injurer’s activity must be dangerous––is sensible because strict liability possesses general advantages in controlling risk. But the second––that the activity must be uncommon––is ill-advised because it exempts all common activities from strict liability, no matter how dangerous. Thus, the harm generated by the large swath of common dangerous activities––from hunting, to construction, to the operation of railroads––tends to be socially excessive. After developing this theme, the Article addresses the question of how the uncommon activity requirement could have arisen and finds that its legal pedigree is problematic: it was invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.