*1 Caporale v. C. W. Blakeslee Michael et al. Inc.
Sons, Mubphy J., King, C. Js.1 Baldwin, Alcokn, Argued October 6 November decided Francis J. Moran, whom was Robert F. with Moran, for the appellant (defendant). 1By agreement argued of counsel the case was before and decided judges. four Robert N. Mack, with whom was
William M. *2 (named appellee plaintiff). for the Schmalz, plaintiffs, Caporale Michael C. The J. Baldwin, Flooring, brought Acme Tile this Ine., damage against action the defendant to recover Caporale property and Acme oc- to which owned by cupied. allegedly was vibra- The driving operations resulting con- from the tions by in the a subcontractor ducted the defendant as turnpike. The com- of the Connecticut construction alleging, originally plaint in in two counts, was in the and, first count, the substance, carrying on of an the count, second Capo- proximity dangerous operation in to close plaintiffs property. had rested After the rale’s to the the allowed amendment their court case, alleging, complaint the de- count, in a third a a nuisance. As conduct constituted fendant’s by defendant, the motions then made result of by judgment agreed plaintiffs the should was respect to Acme for the defendant with be rendered Caporale respect on with to all three counts and on alleged negligence. The case first count, Caporale’s the court as was then considered alleging right nuisance and on the counts to recover intrinsically dangerous opera- carrying of an tion. except finding, attacked as which is not
The may conclusions, hereinafter, to be discussed certain summary Caporale as follows: be stated buildings at 157-159 of two cement-block owner He has conducted in New Haven. Water Street buildings contracting in the continu- tile business prior ously to 1950 and, their construction since display keeps bathroom tile thereto, an incident least until From at with water. running aas trailers used trucks and Water Street was the move- two-way artery. Although traffic major within noticeable usually ment of such vehicles was no appreciable there Caporale buildings, In the construction early part vibration. called turnpike
of the the Connecticut portion on the way the Oak was under Street connector Street, opposite south of Water generally side construc- early stages Caporale buildings. ma- of heavy
tion entailed the use earth-moving activity none this drivers, but chinery and pile *3 on the buildings had observable effect any prior the were time, buildings to 1958. this October, At in a of without noticeable cracks state good repair, the were display in walls or also floors, ceilings, tile bathroom and another bathroom. the January, October, 1958,
Between and the 400 piles defendant drove approximately wall and a retaining foundations of concrete large of abutment on south side Water the bridge Street, buildings ap- across from the Caporale of fluted away. These were piles 75 feet proximately by in and were driven steel, 60 to 70 feet length, steam hammers capable delivering The hammers 15,000 energy. oper- foot-pounds day every ex- day ated six hours approximately four-month period. the whole Sundays during cept checked the defendant driving Prior the piles, in area some of the buildings condition any, if damage, that establish later what so it could it activities, but by had been caused its pile driving effort to check the condition the Cap- made no October, these buildings. Commencing orale while the driving shook and vibrated buildings on; cracks in the was numerous going opened ceilings; walls, floors and the tile bathrooms were damaged; pipes and water were broken. After the driving piles January, defendant ceased no appeared. further cracks There was no evidence of any activity, other than that of the defendant, damage. could have accounted for the The court damage proximately concluded that the by pile driving operations the defendant’s grounds the defendant was liable on the of nuisance intrinsically dangerous and that carried operation. assigns The defendant the above con- clusions as error.
We will consider first the
defendant’s claim
the facts found do not establish that
its conduct
proximate
Caporale’s damage.
awas
cause of
A
conclusion of causation cannot be
if the
disturbed
reasonably support
subordinate facts
it. Scranton
L.
DeFelice & Son, Inc.,
G.
Conn. 580, 583,
79 A.2d
and cases cited therein. That
resulted from the vibration caused
pile driving
amply sup-
defendant’s
activities is
ported
unchallenged
subordinate facts.
allowing Caporale
In
to recover on the count
*4
alleged
carrying
which
that the defendant was
on an
intrinsically dangerous operation,
the court relied
Corporation
on Whitman Hotel
Elliott
v.
& Wat-
Engineering Co.,
rous
137 Conn. 562,
83
injury,
danger
probable
son of another to
is
of
injury
though
liable if
all
such
he
results, even
uses
proper care.”
98
Dunn,
We cited Worth v.
Conn.
injuries
personal
A.
51, 59, 118
467,
involved
flying
of that
debris. We said that the rule
applied
only
prop
personal
ease
not
but to
erty damage
570)
(p.
logically
and that
no distinc
flying
tion could be made between
debris and vibra
up by
explosion
dynamite.
tions set
See
Co.,
Starkel v. Edward
142
336, 341,
Conn.
Balf
114
199;
A.2d
Antino zzi v.
Frione & Co.,
D. V.
137
577,
Conn.
580,
598;
Manzillo,
79 A.2d
Welz v.
113
Gaslight
Conn.
A.
674, 683,
841;
155
Norwalk
Co. v.
Norwalk,
Conn. 495, 527,
The defendant contends that a driver is not inherently dangerous instru mentality “appliance, and that an machine struc obviously dangerous, ture” which is not has been in daily years, uniformly proved use and has adequately may safe and convenient be continued in being guilty culpable use negli without the user’s gence. argues The defendant further if no proven, recovery. is there can no be Under some circumstances, it must be conceded that Greeley Cunningham, is true. See 116 Conn. Godfrey A. 678; Co., Connecticut 446;
Conn. 63, 68, 118 A.
Barber v. Manchester, Conn.
Ry.
45 A.
McAdam Central
&
Electric
67 Conn.
Cases analyses of strict in their The theories results. liability, applied. negligence and nuisance have been liability imposed for Two in Louisiana recent cases regard pile driving concussion caused negligence, provision in the less on the basis of embody code of that state which said civil laedas.” maxim utere tuo ut alienum non “Sic App.); (La. 2d Brunet, Hauck v. So. 2d 239 La. 117 So. Sanderson, v. Jeanfreau English driving case, 907. Dean Prosser cites McAlpine, [1923] 1 & Ch. Hoare Co. liability principles on the of absolute he states rests Rylands & Fletcher, 3 Hurl. Colt. laid down appeal, 1 Ex. L.R. 3 265, aff’d, L.R. 774, rev’d Prosser, Fault,” H.L. “Nuisance Without 330; see In li New strict York, 20 ability L. Rev. 405. Texas involving blasting imposed in where cases is liability flying injury debris, but results injury imposed results from vibra not where the is negligence. blasting unless caused there tions By imposed analogy, re is not by pile driving, sulting un from vibrations Fagan negligence. Industries, Pathe less there is
85 App. 859; Petillo Inc., Div. 86 N.Y.S.2d 274 Kennedy App. 31 Smith, 821, v. 263 Inc., & Div. Rome, Booth 481;
N.Y.S.2d see W. & O.T.R. House 592; 140 N.Y. 35 Holland Co. 267, 278, N.E. Schlansky 169 N.E. Baird, 136, 149; N.Y. 62 Augustus Riegel, N.Y.2d Inc., V. N.E.2d 730. impose
To factors without certain fault, present: instrumentality capable must be of producing harm; circumstances and conditions irrespective purpose its use which, of a lawful probable injury due care, a risk of to involve such degree fairly activity that the can to be said be intrinsically dangerous person property activity others; and a causal relation between the damages and the for which are claimed. The defendant actor, when care, even he uses due takes a calculated risk which injured party, he, not the innocent regarded
should bear. “isHe not engaging blameworthy creating conduct. He is they ordinary, hazards to be others, but sure, are and reasonable risks incident to desirable social and activity. economic But common notions of fairness require good any the defendant make harm though that results even his conduct free from Corporation fault.” Whitman Hotel v. Elliott & Engineering Watrous Co., 137 Conn. 562, 567, 79 quoting Harper, A.2d p. Torts, see Harper pile § & James, 14.7. Torts, driver clearly used in the ease at bar was an instrumental ity capable producing purpose harm. The being which it public used, the construction aof highway, purpose, socially was a lawful and eco nomically Caporale desirable. concedes that there was no in the use of the driver. The heavy driving piles powerful steel with this in- period months of four within
strument over buildings, seventy-five concrete-block feet his *7 spells out circum- used, care was even when due the risk which conditions involve stances and actually injury, in probable was which, fact, risk inspected anticipated when it the defendant opera- nearby began work. The premises it before correctly an intrin- found, the court tion was, sically dangerous court’s conclusion one, the liability proper. was absolute inherently danger true that It is loosely labeled nuisances. have been activities ous Dairy 122 Haven, New Conn. v.Co. See Brock-Hall Dunn, cite 182, wherein we Worth A. 326, 189 321, involving a A. as a case 62, 467, 51, 98 Conn. 142 Conn. v. Edward nuisance; Starkel Balf “Nuisance Without 199; Prosser, A.2d 341, But label adds Rev. 399. the 20 Texas L. Fault,” nothing. ulti to confuse because, rather tends It mately, we in a case such as be determined it must complained why constitutes the conduct here have right then con we are back the nuisance, impose elements which absolute of the sideration radically liability. from elements These differ majority nui of cases constitute the vast which it unneces we have taken makes view sance. sary complaint further count to discuss alleges and the court’s conclusions a nuisance thereon.
There is no error. Kiug opinion and Alcorw, Js., concurred. In this (concurring). opinion Had sus- J. Murphy, alleging judgment nuisance, on the count tained the my agree, mind I there no doubt in could since damage Caporale’s buildings that the pile driving operations. I the defendant’s am willing to hair concede, however, that a rather splitting required distinction would be to sustain judgment plain on the nuisance since the count, judgment tiffs consented to for the defendant alleging negligence the count elim and have thus theory arising inated on the of nuisance negligence. may Although from it be difficult to spell distinguished out an absolute nuisance, as arising negligence, from one I feel that under the rule of Beckwith 129 Conn. Stratford, A.2d and cases cited an ab therein, Parenthetically, solute nuisance could be found.
may be noted that if the count had re *8 ipsa loquitur mained, doctrine res would have applied. Briganti v. Connecticut Co., Conn. Merberg 679; 175 A. see Bonczkiewicz v.
Wrecking Corporation,
In
State, Misc. 920, 107 N.Y.S.2d Utility v. Phoenix Co., 198 N.C. 204, 206, 151 S.E. majority opinion
241. impose The effect of the is to liability, absolute is, without fault, pile whenever a driver is used. See Whitman Hotel Engineering
Corporation Elliott & Watrous A.2d 591 (concurring 137 Conn. in- I that a driver not feel do opinion). trinsically dangerous. Inc.
Spear-Newman, Modern Floors Corporation al. et J., King, Murphy, Shea Js. Alcorn, C. Baldwin, *9 21, 1961 November decided Argued October 10