Private Law Theory

ABSTRACT
When torts result from the defendant’s engagement in an abnormally dangerous activity, the Restatement (Second) of Torts provides that strict liability doctrine should be used in adjudications. However, the corresponding sections of the Restatement have been subject to controversy ever since their introduction in the Restatement (First) of Torts. The controversy stems from the motivation and rationale for using strict liability instead of negligence theory, as well as from the formulation used to decide whether a given activity is abnormally dangerous. This Article reviews the doctrine, its implementation in the first two Restatements, and its application by the courts. It concludes by applying the Restatement test for abnormally dangerous activities to a particularly challenging problem – the breach failure of water supply dams and tailings dams – to conclude whether courts should use the strict liability framework or the negligence framework for cases involving dam failures.

Salgado, Rodrigo, Risk Runs Through It: The Legal Framework For Dam Breach Failures (2 December 2022), University of Louisville Law Review, volume 61, no 1, 2022.