ultra-hazardous activity

B. W. Foster owned a mink ranch located in a rural area one and one-half miles east of North Bend in King County, Washington. The ranch occupied seven and one-half acres and included seven sheds housing mink in welded wire cages with wood roofs. The property sat about two blocks from U.S. Highway No. 10 and near Northern Pacific Railway tracks and Chicago, Milwaukee, St. Paul & Pacific Railroad tracks. Preston Mill Company engaged in logging operations in the adjacent area. Early in May 1951, the company began constructing a road approximately two and one-quarter miles southwest of the mink ranch and twenty-five hundred feet above it along Rattlesnake Ledge. To build the road, the company used explosives, setting off blasts twice daily at noon and the end of the workday, with charges usually limited to fifty pounds and occasionally reaching one hundred pounds. The whelping season for mink begins about May 1 and lasts about two and one-half weeks, during which mothers are highly excitable and may kill their kittens if disturbed by noises or vibrations. Roy A. Peterson, the ranch manager, observed that the blasting caused tremendous vibrations that rattled boxes on the cages, leading mother mink to run back and forth and kill their young. Before the season progressed far, thirty-five or forty kittens had been killed. Peterson informed the manager of Preston Mill Company about the losses. Although no request was made to stop the blasting, the company reduced the amount of explosives per shot from nineteen or twenty sticks to fourteen sticks. Officials of the company noted that halting road construction during the whelping period would have been impractical due to scheduling and expense concerns. Foster filed suit against Preston Mill Company seeking damages only for losses occurring after the company received notice of the effects on the mink. After a trial to the court without a jury on a second amended complaint alleging absolute liability and alternatively nuisance, the trial court entered judgment for Foster in the amount of $1,953.68 based on absolute liability for post-notice damages. The court found no public nuisance, and Foster conceded that the trial court had ruled in the company's favor on the nuisance claim. Preston Mill Company appealed the judgment.

Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at the home of the Tinchers in Downingtown, Pennsylvania. Investigators concluded that a lightning strike near the Tinchers’ home caused a small puncture in the corrugated stainless steel tubing transporting natural gas to a fireplace. The CSST was part of the TracPipe System manufactured and sold by Omega Flex. The resulting fire burned for over an hour and caused significant damage to the home and belongings. Following the fire, the Tinchers reported the incident to their insurer, United Services Automobile Association. USAA compensated the Tinchers for their loss up to the limit of their policy and received an assignment of liability claims. The Tinchers suffered an additional out-of-pocket loss because a portion of their claimed loss exceeded the limits of the USAA policy. In January 2008, the Tinchers filed a complaint against Omega Flex in the Chester County Court of Common Pleas. They asserted claims premised upon theories of strict liability, negligence, and breach of warranty, with the strict liability claim based on Section 402A of the Second Restatement. The case proceeded to a jury trial in October 2010 before Judge Ronald C. Nagle. The Tinchers offered expert testimony that the CSST walls were only one-hundredth of an inch thick and therefore inherently defective because lightning-generated currents were highly likely to perforate them. Omega Flex presented its own experts who testified that the TracPipe System met all applicable industry standards. They also stated that the lightning strike lacked sufficient energy to cause the puncture and that an attempted bonding clamp found disconnected after the fire may have prevented the incident if properly installed. After the close of evidence, the trial court denied Omega Flex’s motions for nonsuit and directed verdict. On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the strict liability claim. The jury awarded compensatory damages totaling $958,895.85 plus delay damages. The jury found for Omega Flex on the negligence claim. Omega Flex filed post-trial motions that the trial court denied, leading to entry of judgment. The Superior Court affirmed the judgment in September 2012. The Supreme Court granted Omega Flex’s petition for allowance of appeal limited to the question of whether to replace the strict liability analysis of the Second Restatement with that of the Third Restatement.

On July 22, 1981, a fire began in the Port Newark freight yard of defendant Consolidated Rail Corporation when ethylene oxide manufactured by defendant BASF Wyandotte Company escaped from a tank car owned by defendant Union Tank Car Company and leased to BASF. The tank car was punctured during a coupling operation with another rail car and ignited. The municipal authorities evacuated the area within a one-mile radius surrounding the fire, which included the North Terminal building of Newark International Airport where plaintiff People Express Airlines’ business operations are based. People Express employees were prohibited from using the North Terminal for twelve hours, although the feared explosion never occurred. The plaintiff contends that it suffered business-interruption losses as a result of the evacuation. These losses consisted of cancelled scheduled flights and lost reservations because employees were unable to answer the telephones to accept bookings. Fixed operating expenses allocable to the evacuation period were incurred and paid despite the offices being closed. No physical damage to airline property and no personal injury occurred. According to the original complaint, each defendant acted negligently and these acts proximately caused the plaintiff’s harm. An amended complaint alleged additional counts of nuisance and strict liability. Conrail moved for summary judgment. The trial court granted the motion on the ground that absent property damage or personal injury economic loss was not recoverable in tort. The trial court also granted summary judgment motions by BASF and Union Car on the same reasoning. The Appellate Division reversed the trial court’s order granting summary judgment and remanded the cause to the trial court. This Court granted defendant Union Car’s petition for certification, in which Conrail and BASF joined. Plaintiff asserted at oral argument that at least some of the defendants were aware from prior experiences that ethylene oxide is a highly volatile substance. Further, emergency response plans in case of an accident had been prepared. When the fire occurred that gave rise to this lawsuit, some of the defendants’ consultants helped determine how much of the surrounding area to evacuate.