B. "dangerous" Activities

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

B. "Dangerous" Activities

Liability for injury resulting from some types of risk has been imposed on those who are responsible for those risks even though due care may have been used.¹⁷⁶ For example, dynamite blasters are liable for injuries from blasting regardless of whether negligence is involved. For want of a better term, activities subjected to such "strict liability" are included in this section. Importantly, however, this term is somewhat arbitrary since liability for many other activities that are also dangerous is based on negligence, not strict liability. Many activities involve danger and risks of serious harm; strict liability in tort has only been extended to activities that are somehow identifiable as ultrahazardous or as unusually, especially, abnormally, or inherently dangerous.¹⁷⁷

1. Dynamite Blasting and Other "Abnormally Dangerous Activities"

In Wallace v. A.H. Guion & Co.,¹⁷⁸ the South Carolina Supreme Court held that a dynamite blaster was strictly liable for injury caused by concussion and vibration from explosives.¹⁷⁹ This decision is in accord with the majority rule¹⁸⁰ and with the First, Second, and Third Restatements.¹⁸¹

Wallace stresses that strict liability is appropriate for blasting because the storing and use of explosives is "a business conducted for profit and fraught with substantial risk and possibility of the gravest consequence."¹⁸² In addition, Wallace notes that the defendant is "the person who introduced the peril into the community."¹⁸³

South Carolina has little, if any, authority on those activities other than blasting that would be considered abnormally dangerous.¹⁸⁴ Potential candidates would be activities like the storage and use of unusually potent pesticides¹⁸⁵ or the storage of hazardous wastes.¹⁸⁶ Such activities could result in strict liability for pollution under a state environmental statute.¹⁸⁷ As a result of a South Carolina statute, owners of aircraft are strictly liable for injury to those on the ground.¹⁸⁸ South Carolina statutes also impose strict liability on railroads for certain harms.¹⁸⁹

2. Animals

A person who brings a wild animal like a tiger into a community also introduces a substantial peril into the community and has therefore been held strictly liable for injury from an escaping wild animal.¹⁹⁰ Traditionally, the owner of a domesticated animal was not strictly liable for injuries inflicted by the animal¹⁹¹ unless the owner knew that the animal was unusually dangerous¹⁹² or unless some statute provided for strict liability.¹⁹³ However, in Hossenlopp v. Cannon,¹⁹⁴ the South Carolina Supreme Court, rejected the "one free bite" rule¹⁹⁵ and, noting that it "is common knowledge that dogs have a tendency to bite," held that the owner of a dog is liable regardless of whether the owner is negligent. In response to Hossenlopp, the South Carolina legislature adopted a statute imposing strict liability for dog bites or attacks.¹⁹⁶ South Carolina's "dog bite" statute retained Hossenlopp's strict liability against the dog owner and also imposed liability on "other person[s] having the dog in its care or keeping." The South Carolina Supreme Court interpreted the statute to allow a plaintiff to sue either the owner or another person who has the dog in his care or keeping.¹⁹⁷

The statutory phrase "bites or otherwise attacks" encompasses strict liability for when the dog jumps or pounces on someone.¹⁹⁸

In Clea v. Odom,¹⁹⁹ the owner-landlord of the apartment building exercised control over a common area where a tenant had kept a dog on a chain attached to a tree continuously for nearly ten years. There, a factual dispute existed as to whether the landlord assumed responsibility for keeping the dog. However, the landlord knew the dog was continuously chained to the tree in the common area over which the landlord had control. Thus, the South Carolina Supreme Court found that the trial court erred in granting summary judgment for the landlord in a lawsuit brought by tenant's invitee whose child was attacked by the dog.

The dog-bite statute does not apply when, at the time the person is bitten or otherwise attacked, (1) the person attacked had provoked or harassed the dog and the provocation was the proximate cause of the attack; or (2) the dog was working in a law enforcement capacity with a governmental agency and in the performance of the dog's official duties, provided that certain factors are met.²⁰⁰

3. Basis and Scope of Liability

Cases like Wallace and Hossenlopp are based largely on a concern with a fair allocation of risks in society. In other words, the principle is that when a person receives a benefit from deliberately engaging in an activity with knowledge of its inherent risks to others, the person should bear those risks unless the activity is so common that it can fairly be said that virtually all of us are engaging in or benefitting from the activity.²⁰¹ Because of this principle, a defendant may be held liable for injury within the scope of such inherent risk even though the injury may result in an unexpected way.²⁰²

The same principle that supports strict liability also limits it. Thus, when ordinary, common risks are involved, the defendant engaging in an inherently dangerous activity is not strictly liable. For example, a person transporting dynamite in a truck would be strictly liable for an explosion of the dynamite but would not be liable for an ordinary collision unless he was negligent.²⁰³ Similarly, a dog owner is strictly liable for injury caused by a dog's biting or attacking but not strictly liable for injuries resulting from a dog's simply running across the street and thus causing a motorcycle to fall over.²⁰⁴

This same limit also underlies the general rule that a defendant is not strictly liable for injury from an abnormally dangerous activity if the harm was caused by the abnormally sensitive character of the plaintiff's activity.²⁰⁵ For example, a blaster is not strictly liable to an enterprise conducting extremely delicate experiments for damage to such abnormally sensitive experiments.²⁰⁶

Liability for an abnormally dangerous activity is also limited by rules concerning premises liability.²⁰⁷ For example, the owner of land is not strictly liable to a trespasser for injury resulting from an abnormally dangerous activity.²⁰⁸

4. Defenses

Except when statutes are involved,²⁰⁹ the general rule concerning defenses based on plaintiff's conduct to liability for abnormally dangerous activities is that:

(1) contributory negligence in the form of inadvertent carelessness is not a defense;²¹⁰

(2) contributory negligence in the form of conscious carelessness is a defense;²¹¹ and
(3) assumption of risk is a defense²¹² except where the plaintiff has a "right" to encounter the risk.²¹³

The reason for this approach is that the policy reasons for allocating the risk of the abnormally dangerous activity to the defendant²¹⁴ are not outweighed by the concern of denying recovery where inadvertent negligence on the part of the plaintiff is involved. However, these strict liability policy concerns do not justify imposing liability for a plaintiff's deliberate encountering of the risk.²¹⁵ Of course, contributory negligence and assumption of the risk are subsumed into comparative negligence and are, therefore, pertinent to the comparative analysis.

Another defense that may be relevant for an inherently dangerous activity is the existence of a privilege based on a public purpose or policy.²¹⁶ For example, there is authority to the effect that if defendant is required by a public duty to use or transport explosives, he is not strictly liable.²¹⁷ However, other authority narrowly construes this exception.²¹⁸ This narrower approach reflects either a general rejection of all sovereign immunity or an avoidance of broad limitations on...