My theory as to why Michael Brown's body lay in the street for at least 5 hours

[Ms. Toad]

240. Again - you are misstating the concept of strict liability.

If you can escape liability by being careful enough, it is not strict liability.

The person using such a weapon is bound to a high degree of care to prevent injuries to others. All the cases hold a strict rule of accountability for the want of extraordinary care in the use of firearms.

In other words, if you use a firearm with extraordinary care and something bad happens, you are not liable. No strict liabiilty.

"Shooting at mark is lawful but not necessary and may be dangerous and the law requires extraordinary care to prevent injury to others; and if the act is done where there are objects from which the balls may glance the act is wanton, without due care and grossly negligent." In the same case it was held that it is immaterial that the injury was unintentional and that the ball glanced from the intended object.

In other words, if you use a firearm with extraordinary care (or with due care and not in a wanton or grossly negligent manner) and something bad happens you are not liable, because whether you are liable depends on whether you were careful enough. Intent as to consequences has nothing to do with (is immaterial to) whether you were careful enough. Again, no strict liability.

The injury was unintentional, but the shooting, at the time and place, was grossly negligent and careless.

Again, if you are not grossly negligent and careless, and something bad happens, you are not liable. No strict liability.

It is not a matter of word choice - it is a matter of two distinct concepts: whether how careful you are matters (negligence) or not (strict liability). In strict liability cases, you can take the utmost precautions in the world - better precautions than anyone else has ever done before - but if something bad happens you are still liable. That what strict liability means. In negligence cases, on the other hand, if you are careful enough - no matter how horrendous the disaster you cause is - you are not liable. In every single tort case you have cited there is a description of how careful you have to be - which means it is negligence, not strict liability. What is "careful enough" depends on who you are, what you are doing, and issues of land possession which aren't relevant here. What the cases you are citing say - essentially - is that if you are using a gun you have to be extraordinarily careful.

All the legal history in the world is not going to change the basic conceptual distinction between strict liability and negligence. What activities fall in which category may change. For example, aviation used to be a strict liability act. Over time, as flying became more routine, it was dropped from the list of acts which are so dangerous that we impose liability merely for engaging in them. Generally, the law doesn't like strict liability and is moving activities out of that category, rather than in - because, making someone liable no matter what is often unfair and - eventually - the category you are trying to put firing a gun in may be eliminated entirely. That's where the law review article suggests -eliminating strict liability entirely and replacing it with a negligence. I'm surprised you would cite that, though, because it is the opposite of what you are arguing - which is that an expanded category of acts that create strict liability category including firing a gun.