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Abnormally Dangerous Activities

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Abnormally Dangerous Activity:
An undertaking that cannot be performed safely even if reasonable care is used while performing it and for which the actor may face strict liability for any harm caused. The courts currently use a list of standards to determine whether or not an abnormally dangerous activity has been undertaken so that strict liability applies.

Ultra Hazardous Activity:
The definition is the same as that for abnormally dangerous activities. However, this is the old standard that the court used to determine strict liability.

The general rule is that if someone maintains an abnormally dangerous condition on his property or engages in an action that poses an unavoidable risk of harm to other people or property, that person may be liable for the harm caused under the theory of Strict Liability, even if he used reasonable care to prevent the harm.

Examples of this include making and using explosives, storing dangerous chemicals or fuel and other such things that have the potential to cause extensive damage if mishandled.

The question that different courts confront in cases like this is determining what an abnormally dangerous condition or activity is.

Under the original Common Law, strict liability was applied if an action was “ultra-hazardous” An activity was deemed “ultra-hazardous” if it necessarily involved a risk of serious harm to the person, land or property of another person that could not be eliminated by the exercise of even the utmost care. See Rylands v. Fletcher, L.R., 3 H.L. 330 (1868).

Today, the courts have eliminated the “ultra-hazardous” determination in favor of the presently used method of determining what an “abnormally dangerous activity” is. This involves looking at specific activities and analyzing them based on six factors in order to determine whether or not the activity is abnormally dangerous. Those six factors are:

  1. whether the activity involves a high degree of risk or harm;
  2. the gravity of that risk;
  3. whether the risk can be eliminated by the exercise of reasonable care;
  4. whether the activity is a matter of common usage;
  5. whether the activity is appropriate to the place where it is carried out on and
  6. the value of the activity to the community.

By including these six factors into its analysis, courts no longer look to an activity’s inherent danger alone to determine whether or not strict liability attaches. Rather, context is considered as well. See Langan v. Valicopters, Inc., 567 P.2d 218.

We'll use this example to contrast the Common Law view with the modern view:

For reasons unclear to an investigator, a storage tank at the local gas station explodes. Before the six factors were used in analyzing strict liability, such an explosion might garner strict liability simply because storing gasoline was considered an ultra hazardous activity. However, by virtue of the six factors used in considering whether or not activities are abnormally dangerous, strict liability may not apply here. It is clear that the storage of gasoline involves a high degree of risk, and that the gravity of that risk is high as well. It can also be argued that, given that this was a gas station, and thus owned by professional sellers of fuel, they knew how to exercise reasonable care to eliminate or minimize the risks. Further, it could be argued that the storage of the gasoline was a matter of common usage since hundreds of gas stations store gasoline and thousands of customers come and buy gasoline every day. It could also be argued that a gas station is an appropriate place to store gasoline and that the value to the community of gasoline storage is quite high. That being the case, storing the gasoline might not be considered an abnormally dangerous activity and strict liability might not attach in such an accident.

Extent of Strict Liability

Once again, strict liability is imposed for the injuries suffered by the plaintiff himself or by his property, even if no one was at fault for the injuries. However, the duty to avoid causing harm is only owed to foreseeable plaintiffs. Further, the harm that the plaintiff suffers must come from a danger or risk that is foreseeable from the abnormally dangerous condition, activity or animal propensity.

In order for strict liability to attach, the defendant’s activity must also be the actual and proximate cause of plaintiff’s injuries. Both actual cause and proximate cause in strict liability cases are determined using the same rules of actual and proximate cause in negligence cases.

Defenses to Strict Liability

Usually, contributory negligence is not a defense to strict liability unless the plaintiff knew of the risks and his own actions were the very cause of his injuries. For example:

Leon lights a cigarette inside Jay Paul’s oil refinery causing an explosion. Ordinarily Leon’s lighting of the cigarette would not supply Jay Paul with a defense to strict liability. However, if Leon knew of the danger of lighting up the cigarette in an oil refinery, contributory negligence would be a defense because Leon knew of the danger and because Leon’s own actions were the very cause of his injuries.

Courts that apply comparative negligence as a defense have reduced plaintiff’s recovery in strict liability cases where plaintiff’s own careless actions were partially to blame for his injuries.

Finally, assumption of risk is a valid defense to a strict liability case. Thus, the plaintiff may be barred from recovering under strict liability theory if he voluntarily undertakes an activity whose risks are known to him.

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