Ultrahazardous Activities

• Author: Chris Moore and Brady R. Thomas.

Ultrahazardous Activities\x97 What Qualifies and Who Decides?

Vol. 26 Issue 1 Pg. 30

South Carolina Bar Journal

July, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Strict Liability for Ultrahazardous Activities in South Carolina

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Chris Moore and Brady R. Thomas.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0South Carolina imposes strict liability against those who cause harm to another by engaging in ultrahazardous activities.^[1] Yet there is little case law setting forth what activities are deemed ultrahazardous and, specifically, what roles the judge or jury should play in such determinations. Two recent cases in our federal district courts dealt with this issue and decided that the question of whether an activity is ultrahazardous is a question of fact for the jury. This article examines the historical development of this tort in South Carolina including those recent decisions and discusses their impact on litigating such claims today.²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Frost v. Berkeley Phosphate Co.³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One of the first reported decisions involving strict liability for ultrahazardous activities is Frost, a case from 1894, where plaintiff Frost complained that the Berkeley Phosphate Company injured Frost's neighboring land by the emission of noxious gases from manufacturing sulfuric acid.⁴ While Frost focused on nuisance law, the Supreme Court reversed the trial court for charging the jury that so long as the business operator used reasonable care it could not be liable. The Court held that "if one uses his own land for the prosecution of some business from which injury to his neighbor would either necessarily or probably ensue, he is liable if such injury does result, even though he may have used reasonable care in the prosecution of such business."⁵ As we will see, this is one of the factors employed by our courts today—whether in the form of a jury charge or determination by the court—to determine whether an activity is ultrahazardous.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Wallace v. A.H. Guion & Co.⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 1961 the S.C. Supreme Court applied the reasoning of Frost to the act of blasting dynamite for excavation to lay sewer lines.^[7]In Wallace the question before the Court was clear: "[i]s it necessary for the plaintiff to allege negligence ... in an action brought against a contractor ... for damage to improvements on the plaintiff's [land] allegedly caused by concussion and vibration from dynamite"?⁸ The Court discussed whether the law allows a landowner to do whatever she wants with her property with no regard for neighboring land, or if property rights are subject to the condition that one cannot use her land such that it injures her neighbor's person or property. If the latter were true, the Court reasoned, "then there would be liability, irrespective of negligence."^[9]Following the majority trend to impose liability for dynamite blasting without proof of negligence, the Court adopted strict liability for the abnormally dangerous activity of blasting. In support the Court favorably cited the Restatement (First) Torts § 520, the precursor to what our courts are now using to determine whether an activity is abnormally dangerous.¹⁰ While not discussed in Wallace, comment h of Restatement (First) Torts § 520 states "[w]hat facts are necessary to make an activity ultrahazardous under the rule stated in [§ 520] is a matter for the judgment of the court."¹¹ The question of what constitutes an ultrahazardous activity was not addressed in depth by our courts again for more than 30 years.¹²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Snow v. City of Columbia¹³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 1991, the Court of Appeals reversed a directed verdict for the plaintiffs on their strict liability claim. The plaintiff landowners sued the City of Columbia after their residence was damaged by water discharged by a water main improperly maintained by the city. They sued for negligence, trespass and strict liability, but not nuisance. In a colorful opinion by Judge Bell, the court found that South Carolina adheres to the principle of fault-based liability with very few exceptions:

To summarize, the initial inclination of the common law is to leave losses where they fall. This approach favors such values as personal autonomy and liberty of human action. If, however, a loss is caused by conduct which is wrongful, the common law will apply the fault principle to place the loss on the at fault party. If fault is not involved, the common law ordinarily leaves the shifting of risk to private agreement or statute. This makes sense because the imposition of no fault liability involves issues of utility better resolved by individuals, the free market, or the legislature than by courts, which are ill placed to make judgments about individual and social utility and are not accountable to the discipline of the market or the political process.¹⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The opinion noted that South Carolina recognized several exceptions to the general rule including "cattle trespass, public callings, certain kinds of nuisance, and so-called ultrahazardous activities."¹⁵ This is significant as the Snow court affirmed South Carolina's rejection of the rule of Rylands v. Fletcher,¹⁶ the English case that laid the foundation for strict liability for ultrahazardous activities. In Rylands, the House of Lords found that the builder of a reservoir was strictly liable when his reservoir burst and flooded Fletcher's neighboring mine. "[A] person who for his own purposes brings on his lands and collects or keeps there anything likely to do mischief if it escapes must keep it at his peril, and if it escapes he is liable for damage caused to another which is the natural consequence of its escape."¹⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Despite its rejection of the rule of Rylands v. Fletcher, the Snow decision went on to affirm the tort's viability and is often cited as grounds for our courts' recognition of the tort. Of note, the trial court had directed a verdict in favor of plaintiffs on the strict liability claim and in favor of the City on the negligence claim. The Court of Appeals reversed both directed verdicts and remanded for a trial on the negligence claim, thus dismissing plaintiffs' strict liability claim as a matter of law¹⁸

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Ultimately, despite the over-analysis of strict liability in general, Snow's legacy appears simply to be that South Carolina does not deem a municipality's provision or discharge of water an ultrahazardous activity— a result that stands to reason if one analyzes the act of providing city water under the Restatement (Second) Torts § 520 factors.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Shockley v. Hoechst Celanese Corp.^{19 20}

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Six months after Snow, ...