Also known as: matters of common usage · common usage
Written by attorneys — see sources 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.
American Cyanamid Company, a chemical manufacturer, loaded 20,000 gallons of liquid acrylonitrile into a leased railroad tank car at its plant in Louisiana on January 2, 1979. The following day, a Missouri Pacific Railroad train picked up the car for transport to a Cyanamid plant in New Jersey. The car arrived at the Blue Island railroad yard operated by Indiana Harbor Belt Railroad Company, a switching line in the Chicago metropolitan area, on the morning of January 9, 1979. Several hours after arrival, employees noticed fluid gushing from the bottom outlet of the car due to a broken lid. After two hours, the leak was stopped, but approximately 5,000 gallons of acrylonitrile had spilled. Local authorities evacuated nearby homes for a few hours. The Illinois Department of Environmental Protection ordered decontamination measures that cost the switching line $981,022.75. Indiana Harbor Belt Railroad filed a two-count complaint against American Cyanamid in federal district court. One count alleged negligence in maintaining the tank car. The other count alleged strict liability for engaging in an abnormally dangerous activity by shipping the chemical through a metropolitan area. The district court granted summary judgment to the plaintiff on the strict liability count for $981,022.75. The court later dismissed the negligence count with prejudice to permit an appeal. The case reached the United States Court of Appeals for the Seventh Circuit after an initial appeal was dismissed for lack of finality under Federal Rule of Civil Procedure 54(b). The district judge then dismissed the negligence claim to create a final judgment. The switching line cross-appealed the dismissal of the negligence count.
View caseField 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.
Supporting sources
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.
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.
Supporting sources
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.
Supporting sources