§ 519 GENERAL PRINCIPLE

 (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
 
 

COMMENTS & ILLUSTRATIONS:  Comment:

a.  The general rule stated in this Section is subject to exceptions and qualifications, too numerous to be included within a single Section. It should therefore be read together with §§ 520 to 524A, by which it is limited.

b.  As to the factors to be considered in determining whether an activity is abnormally dangerous, see § 520.

c.  The word "care" includes care in preparation, care in operation and skill both in operation and preparation.

d.  The liability stated in this Section is not based upon any intent of the defendant to do harm to the plaintiff or to affect his interests, nor is it based upon any negligence, either in attempting to carry on the activity itself in the first instance, or in the manner in which it is carried on. The defendant is held liable although he has exercised the utmost care to prevent the harm to the plaintiff that has ensued. The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity. It is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant's enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.

Comment on Subsection (2):

e.  Extent of protection.  The rule of strict liability stated in Subsection (1) applies only to harm that is within the scope of the abnormal risk that is the basis of the liability. One who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on. For example, the thing that makes the storage of dynamite in a city abnormally dangerous is the risk of harm to those in the vicinity if it should explode. If an explosion occurs and does harm to persons, land or chattels in the vicinity, the rule stated in Subsection (1) applies. If, however, there is no explosion and for some unexpected reason a part of the wall of the magazine in which the dynamite is stored falls upon a pedestrian on the highway upon which the magazine abuts, the rule stated in Subsection (1) has no application. In this case the liability, if any, will be dependent upon proof of negligence in the construction or maintenance of the wall. So also, the transportation of dynamite or other high explosives by truck through the streets of a city is abnormally dangerous for the same reason as that which makes the storage of the explosives abnormally dangerous. If the dynamite explodes in the course of the transportation, a private person transporting it is subject to liability under the rule stated in Subsection (1), although he has exercised the utmost care. On the other hand, if the vehicle containing the explosives runs over a pedestrian, he cannot recover unless the vehicle was driven negligently.

Illustration:

1. A, with reasonable care, carries on blasting operations in a closely settled rural district. A has no reason to know of the presence of B's mink ranch nearby. The noise of the blasting frightens the mink and the fright causes them to kill their young. A is not subject to strict liability to B for the loss of the mink.
 
 

REPORTERS NOTES:  This Section has been changed by the substitution of "abnormally dangerous" for "ultrahazardous," and by the addition of Subsection (2).

Typical abnormally dangerous activities, under the rule stated in this Section, include:

Water collected in quantity in unsuitable or dangerous place: Rylands v. Fletcher, L.R. 3 H.L. 330 (1868); Baltimore Breweries Co. v. Ranstead, 78 Md. 501, 28 A. 273 (1894); Wilson v. City of New Bedford, 108 Mass. 261 (1871); Smith v. Chippewa County Road Comm'rs, 5 Mich. App. 370, 146 N.W.2d 702 (1966); Bridgeman-Russell Co. v. City of Duluth, 158 Minn. 509, 197 N.W. 971 (1924); Filtrol Corp. v. Hughes, 199 Miss. 10, 23 So.2d 891 (1945); Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N.E. 238 (1896); cf. Kennecott Copper Corp. v. McDowell, 100 Ariz. 276, 413 P.2d 749 (1966) (stream diverted against bridge); Green Reservoir Flood Control Dist. v. Willmoth, 15 Ariz.App. 406, 489 P.2d 69 (1971) (break in canal).

Explosives in quantity in a dangerous place: Exner v. Sherman Power Constr. Co., 54 F.2d 510 (2 Cir. 1931); French v. Center Creek Powder Mfg. Co., 173 Mo.App. 220, 158 S.W. 723 (1913); Bradford Glycerine Co. v. St. Mary Woolen Mfg. Co, 60 Ohio St. 560, 54 N.E. 528 (1899); cf. Koster & Wythe v. Massey, 293 F.2d 922 (9 Cir. 1961) (incendiary bomb); Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133 (1971) (poisonous gas).

Inflammable liquids in quantity in the midst of a city: Brennan Constr. Co. v. Cumberland, 29 App.D.C. 554 (1907); MacKenzie v. Fitchburg Paper Co., 351 Mass. 292, 218 N.E.2d 579 (1966); Berger v. Minneapolis Gaslight Co., 60 Minn. 296, 62 N.W. 336 (1895); cf. Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969).

Blasting, in the midst of a city: Colton v. Onderdonk, 69 Cal. 155, 10 P. 395 (1886); Catholic Welfare Guild, Inc. v. Brodney Corp., 58 Del. (8 Storey) 246, 208 A.2d 301 (1964); Central Exploration Co. v. Gray, 219 Miss. 757, 70 So.2d 33 (1954); Britton v. Harrison Constr. Co., 87 F.Supp. 405 (S.D.W.Va. 1948); Brown v. L. S. Lunder Constr. Co., 240 Wis. 122, 2 N.W. 2d 859 (1942).

Pile driving, with abnormal risk to surroundings: Caporale v. C. W. Blakeslee & Sons, Inc., 149 Conn. 79, 175 A.2d 561 (1961); D'Albora v. Tulane Univ., 274 So.2d 825 (La.App.1973), writ denied, 278 So.2d 504, and 278 So. 2d 505; Lowry Hill Properties, Inc. v. Ashbach Constr. Co., 291 Minn. 429, 194 N.W.2d 767 (1971).

Release into air of poisonous gas or dust: Luthringer v. Moore, 31 Cal.2d 489, 190 P.2d 1 (1948) (fumigation with cyanide gas); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957), appeal transferred, 80 So.2d 578 (crop dusting); Dutton v. Rocky Mt. Phosphates, 151 Mont. 54, 438 P. 2d 674 (1968) (fluorine); Young v. Darter, 363 P.2d 829 (Okla. 1961) (herbicide spray); Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961) (crop dusting).

Drilling oil wells or operating refineries in thickly settled communities: Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952 (1928); Niagara Oil Co. v. Jackson, 48 Ind.App. 238, 91 N.E. 825 (1910); Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934), rehearing denied, 141 Kan. 6, 40 P.2d 359 (1935).

On strict liability for production of atomic energy, see Carolina Environmental Study Group, Inc. v. United States Atomic Energy Comm'n, 431 F.Supp. 203 (W.D.N.C.1977), reversed, sub nom. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L. Ed.2d 595 (1978) (upholding constitutionality of Price-Anderson Act in limiting amount of liability).

Typical activities not ordinarily held subject to strict liability: Suchomajcz v. Hammel Chem. Co., 524 F.2d 19 (3 Cir. 1975) (use of firecrackers); North Little Rock Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967) (lawn sprinkler); Beck v. Bel Air Properties, Inc., 134 Cal.App.2d 834, 286 P.2d 503 (1955) (bulldozing and grading); Jackson v. Hearn Bros., Inc., 59 Del. (9 Storey) 7, 212 A.2d 726 (1965) (operation of grocery cart); Brown v. Gessler, 191 Or. 503, 230 P.2d 541 (1951) (water escaping from temporary excavation); Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160 (1960) (fireworks); McLoone Metal Graphics, Inc. v. Robers Dredge, Inc., 58 Wis.2d 704, 207 N.W.2d 616 (1973) (dredging and land-filling).

Subsection (2):  The rule of strict liability has been held not to apply when the harm occurring is not the kind that makes the activity abnormally dangerous.

Dangerous electric current causes electrical interference with telegraph communications: Postal Telegraph-Cable Co. v. Pacific Gas & Elec. Co., 202 Cal. 382, 260 P. 1101 (1927); Lake Shore & M.S. Ry. v. Chicago, L.S. & S.B. Ry., 48 Ind.App. 584, 92 N.E. 989 (1911), rehearing denied, 48 Ind. App. 584, 95 N.E. 596; Eastern & South African Tel. Co. v. Cape Town Tramways Co., [1902] A.C. 381 (P.C.) (S. Africa); cf. Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847 (1948).

Heat from mill damages delicate type of paper by infra-red radiation: Robinson v. Kilvert, 41 Ch.D. 88 (1889).

Blasting hurls rock to distance of which no experience would have recognized the danger: Klepsch v. Donald, 4 Wash. 436, 30 P. 991 (1892).

Blasting frightens mink, which kill their young: Gronn v. Rogers Constr. Inc., 221 Or. 226, 350 P. 2d 1086 (1960); Madsen v. East Jordan Irr. Co., 101 Utah 552, 125 P.2d 794 (1942); Foster v. Preston Mill Co., 44 Wash.2d 440, 268 P.2d 645 (1954); cf. Heid v. Red Malcuit, Inc., 12 Ohio Misc. 158, 231 N.E.2d 356 (1967) (pheasants); Thompson v. Green Mountain Power Corp., 120 Vt. 478, 144 A.2d 786 (1958) (poultry).

Demolition of wall releases swarm of bees: Holland v. Keaveney, 306 So.2d 838 (La.App. 1975), writ refused, 310 So.2d 843.

See, generally, Bohlen, The Rule in Rylands v. Fletcher, 59 U.Pa.L.Rev. 298 (1911); Thayer, Liability Without Fault, 29 Harv.L.Rev. 801 (1916); Smith, Tort and Absolute Liability, 30 Harv.L.Rev. 241, 319 & 409 (1917); Stallybrass, Dangerous Things and the Non-Natural Use of Land, 3 Camb.L.J. 376 (1929); Carpenter, The Doctrine of Green v. General Petroleum Corp., 5 So. Cal.L.Rev. 263 (1932); Mulloy, Fletcher v. Rylands: A Re-examination of Juristic Origins, 9 U. Chi.L.Rev. 266 (1942); Morris, Hazardous Enterprises and Risk-Bearing Capacity, 61 Yale L.J. 1172 (1952); Baker, An Eclipse of Fault Liability, 40 Va.L.Rev. 273 (1954); Prosser, The Principle of Rylands v. Fletcher, in W. Prosser, Selected Topics on the Law of Torts 135 (1954); Newark, Non-Natural Use and Rylands v. Fletcher, 24 Mod.L.Rev. 447 (1961); Note, Absolute Liability for Dangerous Things, 61 Harv.L.Rev. 515 (1948).