Specially Assigned.
We are asked in this case to extend the doctrine of strict liability for abnormally dangerous activities, currently expressed in the Restatement (Second) of Torts §§ 519 and 520 (1977), to pile driving operations conducted at the Baltimore Inner Harbor that resulted in property damage to Gallagher’s residence, located 325 feet from the construction site. We also are asked to declare that pile driving, in the factual circumstances presented in this case, constitutes both a public and a private nuisance. We shall decline all of those requests and, consequently, affirm the well-reasoned decision of the circuit court.
The plaintiff in this case, Michela Gallagher, appeals from the decision of the Circuit Court for Baltimore City, which granted the motion of the defendants, HV Pierhomes, LLC and HV Development & Contracting Co., for judgment notwithstanding the jury’s verdict. The jury returned a verdict of $55,189.14 in Gallagher’s favor for damage to her home which, the jury found, was caused by the defendants’ pile driving activities in connection with the construction of waterfront townhomes at the Baltimore Inner Harbor. After a hearing, the circuit court granted the defendants’ motion under Rule 2-532. The plaintiff timely noted an appeal and raised the following questions for review, 1 which we have slightly rephrased:
*98 1. Did the trial court err in concluding that pile driving is not an abnormally dangerous activity?
2. Did the trial court err in concluding that the plaintiff had not proven a claim for private nuisance?
3. Did the trial court err in concluding that the plaintiff had not proven a public nuisance?
We are asked in this case to extend the doctrine of strict liability for abnormally dangerous activities, currently expressed in the Restatement (Second) of Torts §§ 519 and 520 (1977), to pile driving operations conducted at the Baltimore Inner Harbor that resulted in property damage to Gallagher’s residence located 325 feet from the construction site.
The Proceedings Below
On June 14, 2005, Gallagher sued HV Pierhomes LLC and HV Development & Contracting Co. The initial complaint contained claims for negligence, strict liability, and public and private nuisance. On December 21, 2005, Gallagher filed an amended complaint, which abandoned the negligence claim. All of Gallagher’s claims for relief arose out of the pile driving operations conducted by the defendants on the site of the former Key Highway Shipyard. Gallagher contended that vibrations from the pile' driving damaged her home, located at 423 East Hamburg Street in Baltimore. Key Highway; a row of mixed use properties; Covington Street; a retaining wall; and a solid earthen wall, on which Gallagher’s house rests, separate Gallagher’s house from the pile driving site.
The Key Highway Shipyard, formerly owned by the Bethlehem Steel Corporation, was used to repair navel ships during World War II and through the Vietnam War. A shipyard of some sort has operated at this location from the beginning of *99 the 20th century until 1982, when Bethlehem Steel closed the facility.
The defendants demolished the original shipyard piers, which were built 40 to 50 years ago and constructed new piers in the same location, by driving piles into the Baltimore Inner Harbor. The defendants built 58 townhomes on these new piers. Pile driving was the only method of constructing the new townhomes in this particular location because the U.S. Army Corps of Engineers would not allow the Inner Harbor to be “back filled.” 2 The pile driving of which Gallagher complained occurred periodically between September 2003 and October 2004. 3
The plaintiffs home was constructed shortly before the War of 1812. She testified that no pile driving was conducted in the area during the years she lived in the house, beginning in 1997, until the defendants’ activities commenced in September 2003. Previously, pile driving was used to build the Seagirt Marine Terminal, the Dundalk Marine Terminal, as well as the Pratt and Light Street Pavilions, which are located across from the plaintiffs residence in the Inner Harbor.
Before the defendants began their project, permits were received from the U.S. Army Corps of Engineers, the Maryland Department of the Environment, and the City of Baltimore. The permitting process took approximately two years. Pile driving on the site began only after geotechnical studies were conducted by engineering firms. During the course of actual pile driving, two permanent seismic stations and five mobile geophones were placed in the surrounding neighborhood to ensure that vibrations were monitored and did not exceed the limits established by the engineers. During the *100 course of the defendants’ activities, there was only a single recorded vibration that exceeded the limits.
The case proceeded to trial on December 15, 2006. The plaintiff testified that she heard and felt vibrations from the pile driving in her home. She further testified that cracks began to develop in her plaster walls and in other portions of her home soon after the pile driving began and that no cracks occurred once the pile driving was completed. She was not aware of any other residents in the area who made claims or filed lawsuits for damage to their homes as a result of the vibrations caused by the defendants’ pile driving. No evidence of any other claims or suits on account of pile driving vibrations was presented at trial.
Following the presentation of the plaintiff’s case, the defendants moved for judgment under Rule 2-519. The circuit court reserved its decision on the motion. The defendants presented their case-in chief and, thereafter, renewed their motion for judgment. The circuit court, after receiving additional written submissions from the parties again reserved its decision on the motions for judgment and allowed the case to go to the jury. 4 On December 21, 2006, the jury returned a verdict in Gallagher’s favor. The jury found that: (1) pile driving caused damage to Gallagher’s home, and HV Pierpont and HV Development were responsible for the pile driving; (2) the pile driving created a public nuisance; (3) the pile driving created a private nuisance; and (4) Gallagher suffered damages in the amount of $55,189.14.
After the jury’s verdict was announced, the defendants renewed their motions for judgment. After memoranda were submitted the circuit court held a hearing. By Order entered on August 20, 2007, the circuit court granted the defendants’ motion for judgment notwithstanding the verdict on all claims. Gallagher timely noted this appeal. Additional facts will be discussed, as necessary.
*101 Standard of Review
A motion for judgment notwithstanding the verdict under Rule 2-532 “tests the legal sufficiency of the evidence.”
Impala Platinum, Ltd. v. Impala Sales (USA), Inc.,
In the words of Judge Sally Adkins (now serving on the Court of Appeals): “A party is entitled to a judgment not withstanding the verdict (JNOV) when the evidence at the close of the case,
taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense. ” Jacobs v. Flynn,
Because the evidence before the circuit court was legally insufficient to support the imposition of strict liability in tort for the conduct in issue, or to establish a private or public nuisance, the granting of the motion was not error.
Strict Liability in Maryland
For more than a century, the Court of Appeals has recognized the doctrine of strict liability, derived initially from
Rylands v. Fletcher,
L.R. 3 H.L. at 338,
Fletcher v. Rylands,
3 H. & C. 774, 159 Eng. Rep. 737 (1865),
rev’d
in
Fletcher v. Rylands,
L.R. 1 Ex. 265 (1866),
aff'd
in
Rylands v. Fletcher,
L.R. 3 H.L. 330 (1868).
See Baltimore Breweries Co. v. Ranstead,
The Court of Appeals adopted the modern version of strict liability in
Yommer v. McKenzie,
In Yommer, the owners of a residential property sued the owners of a gasoline station immediately adjacent to their property. The gasoline storage tank had leaked, contaminating the plaintiffs well water. The Court of Appeals affirmed the jury’s verdict in favor of the homeowners even though there had been no finding of negligence. Key to the Court’s decision in Yommer was the placement of the gasoline storage tank.
No one would deny that gasoline stations as a rule do not present any particular danger to the community. However, when the operation of such activity involves the placing of a large tank adjacent to a well from which a family must draw its water for drinking, bathing and laundry, at least that aspect of the activity is inappropriate to the locale, even when equated to the value of the activity.
Yommer,
In
Kirby v. Hylton,
51 MdApp. 365,
As the record makes clear, the storage of the pipe was not the kind of abnormally dangerous activity which was contemplated by Yommer and § 520. The activity did not involve a high degree of risk of harm to others, which, if it occurred, was likely to be great and which could not have been eliminated by the exercise of reasonable care; the storage of the pipe in order to improve a residential water and sewage system, was neither totally uncommon to the neighborhood nor was it inappropriate to the particular place where it occurred; and it had at least some value to the neighborhood.
Kirby,
This Court revisited strict liability in
Dudley v. Baltimore Gas & Elec. Co.,
In analyzing the claim, the Court first noted: “The strict liability doctrine for abnormally dangerous activities is set out in the Restatement (Second of Torts §§ 519 and 520 (1977)).” After reviewing the factors set forth in the Restatement, the Court held that the activity in question was not abnormally dangerous.
Dudley,
The Court of Appeals reiterated the importance of locale in
Rosenblatt v. Exxon Co. USA
*105 Section 519 sets forth the general principle upon which courts have held defendants to be liable regardless of fault: “One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Restatement (Second) of Torts § 519, at 34 (1977). Section 520 sets forth the following factors to be considered in determining whether an activity is abnormally dangerous:
(a) existence of a high degree of some harm to the person, land or chattels of another;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement (Second) of Torts § 520, at 36 (1977).
In summary, Maryland recognizes strict liability, adopts the definition of abnormally dangerous activity as set forth in § 519 of the Restatement (Second) of Torts (1977), and uses the six factor analysis set out in § 520.
5
In many, but not all cases, the “thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs.”
6
Kelley v. R.G. Industries, Inc.,
*106 Strict Liability in Pile Driving Cases
The circuit court acknowledged that “whether pile driving is an abnormally dangerous activity has yet to be determined by the Maryland Court of Appeals.” The circuit court nevertheless concluded, after applying sections 519 and 520 to the facts of the case, that the Court of Appeals would hold that the pile driving activity in this case would not warrant the application of strict liability. We agree.
In the 1984 revision of Dean Prosser’s landmark treatise, Professor Page Keaton observed that varying formulations of strict liability have been applied by some courts to hold that pile driving is an abnormally or unreasonably dangerous activity warranting liability without fault. W. Prosser & W. Keaton, Torts § 87 at 550 (5th ed. 1984). The reasoning of these decisions, as well as the results, is far from uniform. Some courts consider pile driving to be no different than blasting, and therefore dangerous enough to warrant strict liability regardless of the place in which it occurs. Others have taken a more fact-based approach, considering the activity in conjunction with the locale and the type of harm that resulted.
For example,-in
Caporale v. C.W. Blakeslee & Sons, Inc.,
The Supreme Court of Minnesota held that vibrations caused by pile driving warranted the imposition of strict liability in
Sachs v. Chiat,
In
Vern J. Oja Associates v. Washington Park Towers, Inc.,
A contrary conclusion was reached by the Supreme Court of Illinois in
In re Chicago Flood Litigation,
A class action was filed by the property owners and their insurers. The trial court granted the defendant’s motion to dismiss the two strict liability counts of the complaint, which alleged that pile driving was abnormally dangerous and ultra- *109 hazardous. The intermediate appellate court upheld the dismissal of the strict liability claims. The Supreme Court of Illinois, after a careful application of the section 520 factors, affirmed the dismissal of the strict liability claims.
Strict Liability in this Case
Having reviewed the pertinent authorities, we now turn to the strict liability claim in this case. Whether an activity is abnormally dangerous is a question of law for the court. Restatement (Second) of Torts § 520, comment 1, at 42 (1977);
In re Chicago Flood Litigation,
The appellant argues that pile driving should be considered abnormally dangerous simply because it produces uncontrollable vibrations, similar to blasting. She also asserts that pile driving created an abnormal risk to persons, such as Gallagher, who have historic homes, and that damage resulting from the inevitable emission of vibration cannot be eliminated through the exercise of due care. Although some courts have adopted this view,
e.g., Cincinnati Terminal Warehouses,
The circuit court, after reviewing the evidence presented at trial, concluded that the defendants’ pile driving in the
*110
Inner Harbor did not involve a high degree of risk of harm to the person, land or chattels of another, as that phrase is used in section 520(a). We agree. Comment g to section 520 states: “The harm threatened must be major in degree, and sufficiently serious in its possible consequence to justify holding the defendant strictly liable for subjecting others to an unusual risk.” The risk of harm proven in this case, relatively minor damage to a 200 year old home from the vibrations of the pile driving, simply is not a high degree of risk which requires the application of strict liability.
See Trull,
■Under section 520(b), a plaintiff must show that the defendants’ pile driving was likely to produce significant harm, not simply that she suffered some harm as a result of the pile driving activity. 8
In this case, the evidence does not show that the harm resulting from the defendants’ conduct in fact would be great or even that there was a serious risk of great harm to persons or property from pile driving. The extent of the plaintiffs damage, in the context of strict liability cases, is not great; the house was not rendered structurally unsound or uninhabitable.
See Yommer,
The evidence in this case provides no basis for concluding that there is an inability to eliminate the risks from pile driving through the exercise of ordinary care. Section 520(c). “If an activity can be performed safely with ordinary
*111
care, negligence serves both as an adequate remedy for injury and a sufficient deterrent to carelessness and the imposition of strict liability is unnecessary.”
Fletcher v. Conoco Pipe Line Co.,
The “common usage” standard of Section 520(d) has not been uniformly interpreted by the courts.
See In re Complaint of Weeks Marine,
Gallagher does not contest the fact that pile driving is the only way to construct piers at the Inner Harbor. Nor does she contest the fact that piles were driven 40 to 50 years ago to construct the piers at the Key Highway Shipyard that were demolished so that the defendants could replace the old piers and construct new ones. Her argument, in essence, is that the defendants could have built townhomes on land instead of over the water. This argument ignores both reality and the import of section 520(e) of the Restatement. “Even if pile driving were inherently or intrinsically dangerous, the Restatement comment to the fifth factor explains that some such activities ‘can be carried on only in a particular place.... If these activities are of sufficient value to the community (see Comment k), they may not be regarded as abnormally dangerous
*112
when they are so located, since the only place where the activity can be carried on must necessarily be regarded as an appropriate one.’ ”
In re Chicago Flood Litigation,
Manifestly, the Baltimore waterfront is an appropriate place to conduct pile driving, to build piers, and to construct buildings (commercial or residential) overlooking the water. Such activities have been occurring at the Inner Harbor for decades, and nearly every structure at the Inner Harbor is built upon piles. The original piers for the Key Highway Shipyard, constructed on piles, were built some 40 years before Gallagher bought her historic residence. Surely there is no more appropriate place for pile driving than the Inner Harbor; the locale simply cannot be characterized as “the unusual, the excessive, the extravagant [or] the bizarre.”
Yommer,
The final factor under section 520(f) is the value of the activity to the community. Gallagher contends in her memoranda that “the value to the community that the townhomes might provide does not outweigh the danger from pile driving. Further, the luxury townhomes Appellees built can only be afforded by a small number of very wealthy people.” Gallagher’s memoranda presents an overly cramped view of section 520(f).
Baltimore has been a major seaport since the 1700’s. However, due to shallow water, the Inner Harbor was chiefly a light freight and commercial passenger port until the 1950’s, when shifts in the economy ended such uses. The renewal of the Inner Harbor was spearheaded by then Mayor William Donald Schaefer, resulting in Harborplace, which opened in July 1980. Since that time, the Inner Harbor has become a major cultural hub and a key ingredient to Baltimore’s overall *113 economic life. 9 We agree with the circuit court that the defendants’ redevelopment of an abandoned shipyard site has great value, economic and cultural, to the citizens of Maryland.
After considering the factors of section 520 of the Restatement, we agree with the circuit court’s conclusion that the pile driving in this case was not an abnormally dangerous activity.
Nuisance
Gallagher also contends that the defendants’ conduct interfered -with the use and enjoyment of her land, amounting to a public and private nuisance. The circuit court disagreed, concluding that Gallagher’s evidence of a private or public nuisance was insufficient as a matter of law.
Under Maryland law, to sustain a private nuisance claim “there must be a substantial interference with the plaintiffs reasonable use and enjoyment of its property.”
Exxon Corp. v. Yarema,
Nothing
of
that order occurred in this case. The defendants’ activity was reasonable in time, place, manner, and duration and did not substantially interfere with Gallagher’s use and enjoyment of her land.
CAE-Link Corp.,
The elements of a public nuisance were discussed by the Court of Appeals in
Tadjer v. Montgomery County,
The circuit court concluded that the evidence produced at trial was insufficient to prove a public nuisance under these standards. We agree.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. The defendants raised additional questions in their memoranda regarding whether the trial court abused its discretion under Rule 5-702 *98 in admitting the testimony of the plaintiff's expert witness and the sufficiency of the evidence as to proximate cause. Because the trial court did not address these issues in her decision under Rule 2-532, and the defendants did not file a cross-appeal, these questions are not properly before us. At oral argument, counsel for the defendants conceded that these points are not preserved for appellate review.
. The Inner Harbor is approximately 40 feet deep at this location.
. A new Ritz Carlton Hotel sits adjacent to the defendants' townhome project at the Baltimore Inner Harbor. This project was also built on piers, resting on approximately 2,000 piles, but Gallagher did not claim that pile driving from the Ritz Carlton project caused damage to her home.
. More precisely, the circuit court allowed the jury to decide causation, but reserved for the court the decision as to whether the activity in question was abnormally dangerous.
. All of the factors listed in § 520 are important and often interrelated. A court should consider all of the factors, apportioning their importance based on the evidence in the case. See Restatement (Second) of Torts § 520, comment h, at 39 (1977).
. "Central to the determination of whether an activity is abnormally dangerous is whether it could be made safe through the exercise of
*106
reasonable care.”
Arlington Forest Assoc. v. Exxon Corp.,
.
Fagan
relied on
Booth v. Rome, W. & O.T. R.R. Co.,
. In
State Department of Environmental Protection v. Ventron Corp.,
. See www.baltimore.to/baMniore.litml;www.harborplace.com.