Also known as: abnormally dangerous activities · ultrahazardous activity · ultrahazardous activities
Written by attorneys — see sources below.
An activity that creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and that is not one of common usage. The activity must involve risks that cannot be eliminated through precautions and that are not typical in the community where it occurs.
Argonaut Shipping stores large quantities of explosives near a residential area for its operations. A blast sends debris onto Andrew Avery's adjacent property despite posted warnings. Avery had ignored the warnings and stood nearby watching the activity. Argonaut remains strictly liable for the damage because contributory negligence does not defeat recovery for harm from an abnormally dangerous activity.
Aurora Biotech conducts experiments that release pressurized gas across property lines onto Abigail Alvarez's land. The gas damages her crops and equipment. Alvarez sues for the intrusion. Aurora faces liability because the release resulted from its abnormally dangerous activity even though the gas crossed the boundary unintentionally.
Arcadia Retail stores flammable chemicals on its property. A valve fails without fault and the chemicals flow onto Adam Anderson's neighboring lot causing damage. Anderson sues for trespass. Arcadia is liable because the chemicals escaped during an abnormally dangerous activity despite the lack of negligence in the valve failure.
Aether Technologies ships acrylonitrile by rail through a populated area. A leak occurs and forces cleanup costs on a switching line. The switching line claims strict liability. The court holds the transport is not an abnormally dangerous activity because the risk can be managed through ordinary care and the substance is commonly shipped.
American Cyanamid Company, a chemical manufacturer, loaded 20,000 gallons of liquid acrylonitrile into a leased railroad tank car at its plant in Louisiana on January 2, 1979. The following day, a Missouri Pacific Railroad train picked up the car for transport to a Cyanamid plant in New Jersey. The car arrived at the Blue Island railroad yard operated by Indiana Harbor Belt Railroad Company, a switching line in the Chicago metropolitan area, on the morning of January 9, 1979. Several hours after arrival, employees noticed fluid gushing from the bottom outlet of the car due to a broken lid. After two hours, the leak was stopped, but approximately 5,000 gallons of acrylonitrile had spilled. Local authorities evacuated nearby homes for a few hours. The Illinois Department of Environmental Protection ordered decontamination measures that cost the switching line $981,022.75. Indiana Harbor Belt Railroad filed a two-count complaint against American Cyanamid in federal district court. One count alleged negligence in maintaining the tank car. The other count alleged strict liability for engaging in an abnormally dangerous activity by shipping the chemical through a metropolitan area. The district court granted summary judgment to the plaintiff on the strict liability count for $981,022.75. The court later dismissed the negligence count with prejudice to permit an appeal. The case reached the United States Court of Appeals for the Seventh Circuit after an initial appeal was dismissed for lack of finality under Federal Rule of Civil Procedure 54(b). The district judge then dismissed the negligence claim to create a final judgment. The switching line cross-appealed the dismissal of the negligence count.
View caseConsolidated Rail Corp. stores chemicals near an airport. A fire forces evacuation and causes lost profits to People Express Airlines without physical damage to its property. The airline sues under strict liability. Recovery is denied because the claim rests on economic loss alone and does not satisfy the physical harm requirement tied to the abnormally dangerous activity.
On July 22, 1981, a fire began in the Port Newark freight yard of defendant Consolidated Rail Corporation when ethylene oxide manufactured by defendant BASF Wyandotte Company escaped from a tank car owned by defendant Union Tank Car Company and leased to BASF. The tank car was punctured during a coupling operation with another rail car and ignited. The municipal authorities evacuated the area within a one-mile radius surrounding the fire, which included the North Terminal building of Newark International Airport where plaintiff People Express Airlines’ business operations are based. People Express employees were prohibited from using the North Terminal for twelve hours, although the feared explosion never occurred. The plaintiff contends that it suffered business-interruption losses as a result of the evacuation. These losses consisted of cancelled scheduled flights and lost reservations because employees were unable to answer the telephones to accept bookings. Fixed operating expenses allocable to the evacuation period were incurred and paid despite the offices being closed. No physical damage to airline property and no personal injury occurred. According to the original complaint, each defendant acted negligently and these acts proximately caused the plaintiff’s harm. An amended complaint alleged additional counts of nuisance and strict liability. Conrail moved for summary judgment. The trial court granted the motion on the ground that absent property damage or personal injury economic loss was not recoverable in tort. The trial court also granted summary judgment motions by BASF and Union Car on the same reasoning. The Appellate Division reversed the trial court’s order granting summary judgment and remanded the cause to the trial court. This Court granted defendant Union Car’s petition for certification, in which Conrail and BASF joined. Plaintiff asserted at oral argument that at least some of the defendants were aware from prior experiences that ethylene oxide is a highly volatile substance. Further, emergency response plans in case of an accident had been prepared. When the fire occurred that gave rise to this lawsuit, some of the defendants’ consultants helped determine how much of the surrounding area to evacuate.
View caseOmega Flex manufactures flexible gas piping sold to contractors. A pipe fails in a home causing an explosion. The homeowner sues under strict products liability. The court treats the claim as a products case rather than one involving an abnormally dangerous activity because the risk arises from a defect in the product after it leaves the seller's control.
Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at the home of the Tinchers in Downingtown, Pennsylvania. Investigators concluded that a lightning strike near the Tinchers’ home caused a small puncture in the corrugated stainless steel tubing transporting natural gas to a fireplace. The CSST was part of the TracPipe System manufactured and sold by Omega Flex. The resulting fire burned for over an hour and caused significant damage to the home and belongings. Following the fire, the Tinchers reported the incident to their insurer, United Services Automobile Association. USAA compensated the Tinchers for their loss up to the limit of their policy and received an assignment of liability claims. The Tinchers suffered an additional out-of-pocket loss because a portion of their claimed loss exceeded the limits of the USAA policy. In January 2008, the Tinchers filed a complaint against Omega Flex in the Chester County Court of Common Pleas. They asserted claims premised upon theories of strict liability, negligence, and breach of warranty, with the strict liability claim based on Section 402A of the Second Restatement. The case proceeded to a jury trial in October 2010 before Judge Ronald C. Nagle. The Tinchers offered expert testimony that the CSST walls were only one-hundredth of an inch thick and therefore inherently defective because lightning-generated currents were highly likely to perforate them. Omega Flex presented its own experts who testified that the TracPipe System met all applicable industry standards. They also stated that the lightning strike lacked sufficient energy to cause the puncture and that an attempted bonding clamp found disconnected after the fire may have prevented the incident if properly installed. After the close of evidence, the trial court denied Omega Flex’s motions for nonsuit and directed verdict. On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the strict liability claim. The jury awarded compensatory damages totaling $958,895.85 plus delay damages. The jury found for Omega Flex on the negligence claim. Omega Flex filed post-trial motions that the trial court denied, leading to entry of judgment. The Superior Court affirmed the judgment in September 2012. The Supreme Court granted Omega Flex’s petition for allowance of appeal limited to the question of whether to replace the strict liability analysis of the Second Restatement with that of the Third Restatement.
View caseContributory negligence does not bar recovery. The rule places the loss on the party carrying on the activity rather than on the victim.
Courts weigh whether the activity creates a high degree of risk of serious harm that cannot be eliminated by reasonable care, whether it is uncommon in the community, and whether its value is outweighed by its dangers. Blasting and crop dusting typically meet these criteria while ordinary manufacturing does not.
Recovery for pure economic loss is generally unavailable. The doctrine requires physical harm to land, persons, or protected interests. Lost profits alone do not trigger strict liability even when the activity is abnormally dangerous.
Yes. A plaintiff who knowingly and voluntarily assumes the risk of harm from the activity is barred from recovery. This defense applies even though contributory negligence ordinarily does not.
…for example, upon keepers of wild animals, or those who handled explosives or other dangerous substances, or who engaged in ultrahazardous activities. Simultaneously, and more particularly, those who were injured in the use of personal property were permitted recovery on a contract theory if they were the purchasers of the chattel or…