Also known as: matters of common usage · common usage
Written by attorneys · grounded in primary & secondary sources — see below
A factor used to determine whether an activity qualifies as abnormally dangerous for purposes of strict liability. The factor examines whether the activity is one that only a comparatively small number of persons engage in rather than one routinely undertaken by members of the public at large.
Matrix Technologies contracted with a trucking firm to transport large quantities of gasoline along interstate highways near populated areas. When a spill occurred and injured nearby residents, the court considered whether the transport activity met the common-usage factor. Because many members of the public routinely haul and purchase gasoline, the activity failed to satisfy the not-a-matter-of-common-usage element and therefore did not trigger strict liability.
American Cyanamid arranged for rail shipment of a large quantity of flammable liquid through a densely populated corridor. After a derailment released the chemical and caused harm, the court evaluated the common-usage factor. Because only a limited number of specialized firms ship such chemicals by rail, the activity satisfied the not-a-matter-of-common-usage element and supported analysis of strict liability.
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Field Wealth installed large pressurized coolant tanks on the roof of its urban office building to support an experimental backup power system. When a tank ruptured and injured a visitor, the court examined the common-usage factor. Because few entities maintain such experimental pressurized systems in populated office settings, the activity satisfied the not-a-matter-of-common-usage element.
Star Grain dispatched a pilot to spray insecticide over conventional fields adjacent to an organic vineyard. When wind carried the mist onto the neighboring property and destroyed the organic certification, the court assessed the common-usage factor. Because local farmers routinely employ the same aerial method without special permits, the activity failed to satisfy the not-a-matter-of-common-usage element.
The common-usage factor is considered together with the degree of risk, gravity of harm, inability to eliminate risk by reasonable care, appropriateness of location, and community value. An activity may still be abnormally dangerous even if it is common when the other factors strongly indicate unavoidable risk of serious harm.
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No. The factor focuses on the number of persons who actually engage in the activity rather than how often the public sees it. Explosives are frequently visible yet remain uncommon because only a small number of operators perform the work.
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Yes. The same activity may qualify as common in rural agricultural areas where many farmers perform it yet uncommon in dense urban settings where few entities undertake it.
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No. The absence of a statute labeling the activity abnormally dangerous and the fact that local operators routinely use the method do not prevent a court from determining that the activity is uncommon for strict-liability purposes.
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…to be a claim for injury or harm occurring in a foreign country. 28 U. S. C. § 2680(k). This sense of "arising in" was the common usage in state borrowing statutes contemporary with the Act, which operated to determine which State's statute of limitations should apply in cases involving transjurisdictional facts. When the…