76. In an action for damages by the driver against the manufacturer based on strict liability, is the driver likely to prevail?

Strict liability requires proof of the following elements: (i) the nature of the defendant's activity imposes an absolute duty to make safe; (ii) the dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and (iii) the plaintiff suffered damage to person or property.

An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even when reasonable care is exercised. For an activity to be considered abnormally dangerous, two requirements must be met: (i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity must not be a matter of common usage in the community. In most states, the defendant is liable only to foreseeable plaintiffs, meaning persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the «normally dangerous propensity» of the condition or thing involved.

B is correct. Strict liability in this situation would be based on the abnormally dangerous nature of the toxic materials. But a successful strict liability action requires that the risk that materializes be the same risk that led courts to label the activity «abnormally dangerous» in the first place. Here, the toxicity of the materials did not contribute to the driver's injury. The injury was based on the spill, regardless of the type of liquid involved. The liquid could have also been non-toxic and caused the same result. As such, the driver's only cause of action here would be negligence, not strict liability.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. The driver will not recover because strict liability does not apply, as stated above. For this to be a relevant determination, the driver would need to bring a negligence action. In negligence, there would be a duty on the manufacturer to have acted reasonably, and then the analysis would proceed to proximate cause and whether the driver's loss of control was an intervening cause. Note: The driver's loss of control was not intentional, nor was it unforeseeable or unusual. For that reason, there would not be a proximate cause problem anyway.

C is incorrect. To apply strict liability based on the handling of toxic chemicals as an abnormally dangerous activity, the harm caused must flow from the propensity of the abnormally dangerous activity. The accident here did not flow from the toxic nature of the liquid. Any liquid could have caused the driver to lose control.

D is incorrect. If strict liability were to apply, the manufacturer would be liable for injuries caused by its toxic materials regardless of where the leak occurred, so long as the manufacturer could be said to be responsible for the leak. However, in this situation, strict liability does not apply because the toxicity of the materials did not contribute to the driver's injury, so his only cause of action would be in negligence.