Would Rylands v. Fletcher Be Decided the Same Way Today?

The House of Lords upheld a rule of strict liability for damage caused by the escape of something brought onto land that constitutes a 'non-natural use' of the land. The defendants built a reservoir on their land, and water escaped through abandoned mine shafts into the plaintiff's adjoining coal mine. The court held that a person who brings something onto their land which is likely to do mischief if it escapes is strictly liable for all damage which is the natural consequence of its escape, regardless of whether the defendant was negligent.

Rylands v. Fletcher occupies an unusual position in American tort law. While the decision is a foundational principle of English tort law and has been influential internationally, its reception in the United States has been mixed. Some American jurisdictions have adopted the Rylands principle as part of their common law, while others have rejected it, and still others have absorbed it into the broader framework of abnormally dangerous activities liability under the Restatement of Torts.

The Restatement (Second) of Torts Sections 519-520 codified a version of the Rylands principle through the doctrine of abnormally dangerous activities, imposing strict liability for activities that create a high degree of risk, are not common, and are inappropriate for the location. The Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) refined this doctrine, maintaining strict liability for abnormally dangerous activities but updating the criteria for determining which activities qualify.

Modern applications of the Rylands principle arise in the context of industrial operations, fracking, chemical storage, nuclear energy, and other activities that create risks of catastrophic harm. Environmental law has also absorbed aspects of Rylands through statutory strict liability provisions, including CERCLA (the Superfund law), which imposes liability on parties responsible for hazardous substance releases regardless of fault. The underlying policy question—whether certain activities should bear strict liability for harms they cause—remains highly relevant.

The survival of Rylands v. Fletcher in a modern American context is uncertain because American courts have never uniformly adopted the decision, and there is ongoing disagreement about whether strict liability for land use is appropriate. The case's reception has varied by jurisdiction, and the trend in some states has been toward negligence-based analysis rather than strict liability for escapes from land.

The strongest argument for Rylands's continued vitality is that its underlying principle—that those who engage in activities creating extraordinary risks should bear liability for resulting harms regardless of fault—is sound policy and has been recognized in American law through the abnormally dangerous activities doctrine. The economic analysis of tort law supports this approach, as strict liability encourages optimal activity levels and location choices by forcing risk creators to internalize the full costs of their activities.

However, several factors weigh against Rylands's survival in its original form. American law has traditionally been more sympathetic to development and economic activity than English law, and the 'non-natural use' standard has been criticized as vague and unpredictable. Some jurisdictions have concluded that negligence provides a more flexible and workable framework for addressing land use harms. The Restatement (Third)'s continued recognition of strict liability for abnormally dangerous activities suggests that the principle survives, but in a reformulated and narrowed form.

The outcome would likely depend on the specific jurisdiction and the nature of the activity involved. Activities like fracking, chemical storage near residential areas, or dam construction would be strong candidates for strict liability under modern standards. But the broad principle that any non-natural use of land triggering an escape creates strict liability might be rejected as overbroad in an American legal context that values economic development and industrial activity.

The scholarly debate about Rylands focuses on the appropriate role of strict liability in modern tort law. Richard Posner has argued from an economic perspective that strict liability is efficient for abnormally dangerous activities because it forces risk creators to internalize costs they might otherwise externalize, promoting optimal decisions about activity levels, precautions, and location. Under this view, Rylands identified the correct principle even if its specific formulation was imperfect.

Critics of strict liability, including Richard Epstein (in a different context from his generally pro-property-rights scholarship), have argued that the negligence standard provides adequate deterrence while avoiding the overdeterrence of beneficial activities that strict liability can produce. George Priest has similarly contended that strict liability has not produced demonstrable safety improvements compared to negligence in most contexts. The debate is complicated by the difficulty of measuring the empirical effects of different liability rules, particularly for rare but catastrophic events like those at issue in Rylands.

• Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (1990)
• Siegler v. Kuhlman (1972)
• Branch v. Western Petroleum, Inc. (1982)
• Burlington Northern & Santa Fe Railway Co. v. United States (2009)
• New Jersey Department of Environmental Protection v. Exxon Mobil Corp. (2015)