In this Article, we report four studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents between strangers. Depending on the situation, a substantial percentage of individuals assign liability to actors who are not negligent. We relate these findings to the current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.
In brief, we found that many of the factors considered relevant by courts and legal scholars (e.g., whether the activity was unusual, whether it was being conducted in a seemingly inappropriate locale, whether the actors imposed reciprocal risks on each other) affected the extent to which participants imposed liability absent negligent conduct. Other factors, however, such as whether the defendant was acting for business or for pleasure, also played a role. This relative preference for strict liability held both when our participants were university students and when they were members of the general public.
Perhaps most significantly, we further found a boundary condition for the imposition of strict liability. When we degraded the conditions for strict liability as far as we could—using an activity that was conducted in its proper place, by a noncorporate actor, and that posed only a normal and reciprocal risk—most participants imposed no liability, and most of the remainder imposed only partial liability. This suggests that participants may be willing to divide the risk of reciprocal harms but, absent special circumstances, are generally not willing to assign full liability based on mere causation. When asked to put themselves in the role of jurors and instructed on the negligence standard, participants routinely applied that standard in many instances but did not do so when injury occurred by virtue of an innocent accident involving a chemical spill.
