44 Wash. 2d 440, 268 P.2d 645
B. W. Foster owned a mink ranch located in a rural area one and one-half miles east of North Bend in King County, Washington.1 The ranch occupied seven and one-half acres and included seven sheds housing mink in welded wire cages with wood roofs.2 The property sat about two blocks from U.S. Highway No. 10 and near Northern Pacific Railway tracks and Chicago, Milwaukee, St. Paul & Pacific Railroad tracks.3
Preston Mill Company engaged in logging operations in the adjacent area.4 Early in May 1951, the company began constructing a road approximately two and one-quarter miles southwest of the mink ranch and twenty-five hundred feet above it along Rattlesnake Ledge.5 To build the road, the company used explosives, setting off blasts twice daily at noon and the end of the workday, with charges usually limited to fifty pounds and occasionally reaching one hundred pounds.6
The whelping season for mink begins about May 1 and lasts about two and one-half weeks, during which mothers are highly excitable and may kill their kittens if disturbed by noises or vibrations.7 Roy A. Peterson, the ranch manager, observed that the blasting caused tremendous vibrations that rattled boxes on the cages, leading mother mink to run back and forth and kill their young.8 Before the season progressed far, thirty-five or forty kittens had been killed.9
Peterson informed the manager of Preston Mill Company about the losses.10 Although no request was made to stop the blasting, the company reduced the amount of explosives per shot from nineteen or twenty sticks to fourteen sticks.11 Officials of the company noted that halting road construction during the whelping period would have been impractical due to scheduling and expense concerns.12
Foster filed suit against Preston Mill Company seeking damages only for losses occurring after the company received notice of the effects on the mink.13 After a trial to the court without a jury on a second amended complaint alleging absolute liability and alternatively nuisance, the trial court entered judgment for Foster in the amount of $1,953.68 based on absolute liability for post-notice damages.14 The court found no public nuisance, and Foster conceded that the trial court had ruled in the company's favor on the nuisance claim.15 Preston Mill Company appealed the judgment.16
Whether the judgment against the blasting company is sustainable on the theory of absolute liability for post-notice damages to a commercial mink ranch caused by vibrations and noise from road-construction blasting conducted two and one-quarter miles away?17
The doctrine of absolute liability for ultra-hazardous activities is confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility.18
No. The relatively moderate vibration and noise from the blasting at a distance of two and one-quarter miles was no more than a usual incident of the ordinary life of the community. The trial court specifically found that the blasting did not unreasonably interfere with the enjoyment of their property by nearby landowners, except in the case of respondent’s mink ranch.19 The risk that such vibration or noise may cause mother mink to kill their young is not one of the things which make the activity of blasting ultra-hazardous.20 The decided cases, as well as common experience, indicate that the thing which makes blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air.21
It is the exceedingly nervous disposition of mink, rather than the normal risks inherent in blasting operations, which therefore must, as a matter of sound policy, bear the responsibility for the loss here sustained.22
The judgment against the blasting company is not sustainable on the theory of absolute liability.23