1.4: Distinguishing Strict Liability from Negligence (Socratic Script)

Check Your Understanding (1-6)

Question 1. Parties may choose to litigate the issue of whether strict liability can apply because:

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This next question involves policy-oriented analysis and you may not have done very much of this yet in law school. Do your best to work through it and know that you will gain high competency in this style of analysis by the end of the term, even if it’s a little unfamiliar to you at the moment.

Reflect On Your Understanding – Essay: Toms v. Calvary

Essay: Do you think this case is rightly or wrongly decided? Why? Your answer should include descriptive analysis (address the law as you understand it to be so far, what the law is) as well as prescriptive or normative analysis (what you think the law should be, based on a policy rationale). (Recommended maximum, 200 words)

Distinguish your intuitive response (if you feel the outcome seems unfair, or you hate fireworks… or you loathe cows) from your descriptive reading of the case law (cases assigned in the readings and cases cited in Toms).

As a policy matter, what do you think the court should donormatively, that is, based on policy reasons? You can raise any kind of policy argument that makes sense to you here, for example:

a) an institutional competence argument about the court versus the legislature deciding this issue;

b) an argument based in doctrine, on the likely impact of expanding strict liability on these facts, or choosing not to do so;

c) an argument rooted in socioeconomic and cultural values (weighing the competing priorities of fireworks fans, churchgoers and farmers or other property owners, for instance);

d) an economic or utilitarian argument oriented towards efficiency;

e) an argument from policy in some other form.

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1. Toms’ relatives and landlord were also contacted by Calvary, but all declined permission to allow Calvary to host the event on their property. ↵
2. Firework shooters must be certified in the State of Maryland. Applicants must submit a “Firework Shooter Testing and Permit Application” to the Office of the State Fire Marshal in order to “to possess, sell or use explosives of any kind in the State of Maryland.” ↵
3. “Dean Thayer pointed out the error in the popular assumption that the rule of Rylands v. Fletcher makes the defendant liable for all consequences in fact resulting from his conduct. This is precisely what the rule of the case does not do; it makes [the] defendant liable ... only for proximate consequences, not for remote consequences.” Fowler v. Harper, Liability Without Fault and Proximate Cause, 30 MICH. L.REV. 1001, 1005 (1932) (emphasis in original). ↵
4. Under certain circumstances, causes of action may exist in cases involving fireworks liability under the theories of negligence or nuisance. See Crowley v. Rochester Fireworks Co., 183 N.Y. 353 (1906) (“[T]here may be negligence in the character of the fireworks used on a particular occasion as well as in the method of their discharge.”); Little v. Union Trust Co. of Maryland, 45 Md.App. 178, 183 (1980) (discussing possible nuisance liability for shooting fireworks in the street). ↵
5. In the petition for writ of certiorari, Toms states “This Court ... can expand the factual application of this tort to instances where the sudden, abnormal noise of a fireworks display, adjacent to livestock, can create strict liability.” ↵
6. Letter from John Adams to Abigail Adams, 3 July 1776, MASS. HIST. SOC'Y, http://www.masshist.org/digitaladams/archive/doc?id=L17760703 jasecond [https://perma.cc/P22L-DMRX]. ↵