Typical Common Law Claims: Strict Liability for Ultra-hazardous or Abnormally Dangerous Activities

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

In Jones v. Texaco, Inc., the plaintiffs alleged that Texaco’s use of its own property as a facility for the disposal of hazardous substances and wastes constituted an abnormally dangerous activity which created and continues to create an unreasonable risk of injury to them.[1]  The doctrine of strict liability for the operation of abnormally dangerous activities was first enunciated in the English case of Rylands v. Fletcher.[2] The rule of law that emerged from the Rylands case is that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”[3] This theory of liability was later incorporated into Section 519 of the Restatement (Second) of Torts which states that 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. [4]  This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.[5]

Great minds discuss ideas; average minds discuss events; small minds discuss people.” Eleanor Roosevelt

Section 520 states that in determining whether an activity is abnormally dangerous, a court should consider the:

  • Existence of a high degree of risk of some harm to the person, land or chattels of others;
  • Likelihood that the harm that results from it will be great;
  • Inability to eliminate the risk by the exercise of reasonable care;
  • Extent to which the activity is not a matter of common usage;
  • Inappropriateness of the activity to the place where it is carried on; and
  • Extent to which its value to the community is outweighed by its dangerous attributes.[6]

However, Texas courts have repeatedly repudiated the general rule announced in Rylands.[7] As the Texas Supreme Court observed, “By making the liability absolute, the rule in Fletcher v. Rylands, taken literally, imposes an unqualified restriction upon the right of an owner of land to put it to a use lawful in itself.”[8] Texas, likewise, has not adopted Sections 519 and 520.[9] In fact, Texas courts, when confronted with the opportunity to apply strict liability for ultra-hazardous activities, have declined to do so and have consistently required some other showing, such as negligence or trespass, for recovery.[10] Recognizing that Texas courts have rejected the doctrine of abnormally dangerous activities as a basis for strict liability in the context of hazardous wastes, the court in Barras v. Monsanto Co. noted, “Mere knowledge of a dangerous situation imposes only a moral duty to warn or render aid, not a legal duty.”[11]

Nonetheless, Plaintiffs have successfully asserted this claim in other jurisdictions.[12] For instance, in Tucker v. Southwestern Energy Co., the Arkansas court determined that the record lacked sufficient information for it to determine whether the defendant’s drilling operation was an ultra-hazardous activity.[13] The court then followed two Pennsylvania cases, Fiorentino v. Cabot Oil & Gas Corp.[14] and Berish v. Southwestern Energy Production Co.,[15] and withheld such determination until a full record had been established at the summary-judgment stage.[16] 

Key Points

  • The theory of strict liability for ultra-hazardous or abnormally dangerous activities has been incorporated into Sections 519 and 520 of the Restatement (Second) of Torts.
  • Section 519 states that: (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; and (2) this strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
  • Section 520 states that in determining whether an activity is abnormally dangerous, a court should consider the: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
  • Texas has not adopted either Sections 519 or 520. 
  • Instead, when confronted with the opportunity to apply strict liability for ultra-hazardous activities, Texas courts have consistently required some other showing, such as negligence or trespass, for recovery.
  • However, plaintiffs have successfully asserted this claim in other jurisdictions. 

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[1] Jones v. Texaco, Inc., 945 F.Supp. 1037, 1050 (S.D. Tex. 1996).

[2] Id.

[3] Id.

[4] Id. (citing Restatement (Second) of Torts § 519).

[5] Id.

[6] Id. (citing Restatement (Second) of Torts § 520).

[7] Id. (citing Turner v. Big Lake Oil Co., 96 S.W.2d 221, 222, 226 (Tex.1936)).

[8] Id. (citing Turner, 96 S.W.2d at 223).

[9] Id.

[10] Id. (citing Robertson v. Grogan Inv. Co., 710 S.W.2d 678, 679–80 (Tex. Civ. App.—Dallas 1986, no writ); see Turner, 96 S.W.2d at 222, 226; Day & Zimmermann, Inc. v. Strickland, 483 S.W.2d 541, 548 (Tex. Civ. App.—Texarkana 1972, writ ref’d n.r.e.); Roskey v. Gulf Oil Corp., 387 S.W.2d 915, 919 (Tex. Civ. App.—Houston 1965, writ ref’d n.r.e.); Klostermann v. Houston Geophysical Co., 315 S.W.2d 664, 665 (Tex. Civ. App.—San Antonio 1958, writ ref’d); Dellinger v. Skelly Oil Co., 236 S.W.2d 675, 677 (Tex. Civ. App.—Eastland 1951, writ ref’d n.r.e.); Stanolind Oil & Gas Co. v. Lambert, 222 S.W.2d 125, 126 (Tex. Civ. App.—San Antonio 1949, no writ).

[11] Id. (citing 831 S.W.2d 859, 865 (Tex. App.—Houston [14th Dist.] 1992, writ denied); Ford Motor Co. v. Dallas Power & Light Co., 499 F.2d 400, 412 n. 20 (5th Cir.1974); Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex.1942)).

[12] See e.g., Tucker v. Southwestern Energy Co., 11-CV-0044 (E.D. Ark, filed May 17, 2011) (Doc. 1, pages 10-11); Fiorentino v. Cabot Oil and Gas Corp., No. 3:09-cv-02284 (M.D. Pa., Nov. 19, 2009) (Doc. 19, page 25).

[13] 2012 WL 528253 (E.D. Ark. Feb. 17, 2012).

[14] 750 F.Supp.2d 506, 511–12 (M.D.Pa.2010).

[15] 763 F.Supp.2d 702, 705 (M.D.Pa.2011).

[16] 2012 WL 528253 (E.D. Ark. Feb. 17, 2012).

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