Wednesday, January 04, 2006

Something strange about unavoidable risk.

An activity can go from being judged under a negligence standard to a strict liability standard if it is unavoidably risky--that's one of the prongs pushing something into the category of ultrahazardous activities: there's no way to remove a substantial amount of risk.

On the other hand, under products liability, if a product is "unavoidably unsafe," it actually gets taken out of strict liability--it gets plopped back into negligence, and the manufacturer gets a pass as long as he warns and acts reasonably in its distribution, etc. The classic example of this is a vaccine like the Pasteur cure for rabies. It occasionally results in Bad Things, and there's no test to prevent this.

So sometimes unavoidably unsafe things get bumped up from negligence to strict-liability, and sometimes they get bumped down. I suppose it's something to do with society's judgments about TNT blasting (dangerous but fun) compared with vaccine policy (dangerous but essential). Interesting.

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