Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

Exercise 21

FACTS Pyrodyne Corporation contracted to display the fireworks at the Western Washington State Fairgrounds in Puyallup, Washington, on July 4, 1987. During the fireworks display, one of the five-inch mortars was knocked into a horizontal position. A shell inside ignited and discharged, flying five hundred feet parallel to the earth and exploding near the crowd of onlookers. Danny and Marion Klein were injured by the explosion. Mr. Klein suffered facial burns and serious injuries to his eyes. The parties provided conflicting explanations for the improper discharge, and because all the evidence had exploded, there was no means of proving the cause of the misfire. The Kleins brought suit against Pyrodyne under the theory of strict liability for participating in an abnormally dangerous activity.
DECISION Judgment for the Kleins.
OPINION Guy, J. The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, [citation], in which the defendant's reservoir flooded mine shafts on the plaintiff's adjoining land. Rylands v. Fletcher has come to stand for the rule that ''the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.'' [Citation.]
The basic principle of Rylands v. Fletcher has been accepted by the Restatement (Second) of Torts (1977). [Citation.] Section 519 of the Restatement provides that any party carrying on an ''abnormally dangerous activity'' is strictly liable for ensuing damages. The test for what constitutes such an activity is stated in section 520 of the Restatement. Both Restatement sections have been adopted by this court, and determination of whether an activity is an ''abnormally dangerous activity'' is a question of law. [Citations.]
Section 520 of the Restatement lists six factors that are to be considered in determining whether an activity is ''abnormally dangerous.'' The factors are as follows: (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. Restatement (Second) of Torts § 520 (1977). As we previously recognized in [citation], the comments to section 520 explain how these factors should be evaluated: Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. Restatement (Second) of Torts § 520, comment f (1977). Examination of these factors persuades us that fireworks displays are abnormally dangerous activities justifying the imposition of strict liability.
We find that the factors stated in clauses (a), (b), and (c) are all present in the case of fireworks displays. Any time a person ignites aerial shells or rockets with the intention of sending them aloft to explode in the presence of large crowds of people, a high risk of serious personal injury or property damage is created. That risk arises because of the possibility that a shell or rocket will malfunction or be misdirected. Furthermore, no matter how much care pyrotechnicians exercise, they cannot entirely eliminate the high risk inherent in setting off powerful explosives such as fireworks near crowds.
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The factor expressed in clause (d) concerns the extent to which the activity is not a matter ''of common usage.'' The Restatement explains that ''[a]n activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community.'' Restatement (Second) of Torts § 520, comment i (1977). As examples of activities that are not matters of common usage, the Restatement comments offer driving a tank, blasting, the manufacture, storage, transportation, and use of high explosives, and drilling for oil. The deciding characteristic is that few persons engage in these activities. Likewise, relatively few persons conduct public fireworks displays. Therefore, presenting public fireworks displays is not a matter of common usage.
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The factor stated in clause (e) requires analysis of the appropriateness of the activity to the place where it was carried on. In this case, the fireworks display was conducted at the Puyallup Fairgrounds. Although some locations- such as over water-may be safer, the Puyallup Fairgrounds is an appropriate place for a fireworks show because the audience can be seated at a reasonable distance from the display. Therefore, the clause (e) factor is not present in this case.
The factor stated in clause (f) requires analysis of the extent to which the value of fireworks to the community outweighs its dangerous attributes. We do not find that this factor is present here. This country has a longstanding tradition of fireworks on the 4th of July. That tradition suggests that we as a society have decided that the value of fireworks on the day celebrating our national independence and unity outweighs the risks of injuries and damage.
In sum, we find that setting off public fireworks displays satisfies four of the six conditions under the Restatement test; that is, it is an activity that is not ''of common usage'' and that presents an ineliminably high risk of serious bodily injury or property damage. We therefore hold that conducting public fireworks displays is an abnormally dangerous activity justifying the imposition of strict liability.
INTERPRETATION The courts impose strict liability for harm resulting from an abnormally dangerous activity, as determined in light of the place, time, and manner in which the activity was conducted.
CRITICAL THINKING QUESTION If an activity is abnormally dangerous, should the law abolish it? Explain.