The Death of Strict Liability

The concept of strict liability has important theoretical significance but almost no analytical or doctrinal traction. In fact, at least in the realm of abnormally dangerous activities, the function of "strict liability" should be, and is being, replaced by an analysis that examines the reasonableness of the an actor's choice of where, when, how and how often to do an activity - that is, an activity level reasonableness analysis. The cases that have been thought to be "strict liability" cases in fact can be understood as activity level reasonableness cases and courts are increasingly using reasonableness analysis to determine whether an activity is abnormally dangerous. This movement away from a doctrinally empty concept of strict liability is an important movement toward a more unified, coherent, and analytically sound concept of the reasonable person.