Hazardous Enterprises and Risk Bearing Capacity

Abstract

THIS little article deals with what the pedants call "liability for an escaping inanimate destructive force."It is divided into two parts: a sketch of the doctrinal history, and a critical glance at policies underlying present doctrines in the light of some observations on risk bearing capacity. Doctrinal DevelopmentIn the early English common law there was much support for the proposition that an actor was responsible, without proof of fault, for harm done by his activity.'By the Eighteenth Century, however, English law had changed for most injuries other than defamation and some kinds of damage to real property.Fault had become a prerequisite to liability for personal injury and for damage to personal property.In mid-Nineteenth Century the important case of Rylands v. Flctcher' - was decided.A mill owner ordered construction of a dam to get water power.The resulting reservoir lay over ancient abandoned coal mines.The mill owner had no reason to suspect that these old diggings led into an operating colliery,, but they did.When the dam was closed, water ran down the old shafts, seeping into and flooding the colliery.The case had an extended history and many opinions were written as it went through the English courts.Ultimately the mill owner was held liable.Two of the opinions are more frequently quoted than the others:In the Court of Exchequer Chamber Mr. Justice Blackburn said, "[T]he true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril. . .."3This view of strict liability was not surprising in a jurisdiction in which courts were committed to the proposition that

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