DANNY KLEIN, ET AL, Respondents, v. PYRODYNE CORPORATION, Petitioner.
No. 56879-1
En Banc.
May 23, 1991.
Ron Meyers, for respondents.
GUY, J. — The plaintiffs in this case are persons injured when an aerial shell at a public fireworks exhibition went astray and exploded near them. The defendant is the pyrotechnic company hired to set up and discharge the fireworks. The issue before this court is whether pyrotechnicians are strictly liable for damages caused by fireworks displays. We hold that they are.
Defendant Pyrodyne Corporation (Pyrodyne) is a general contractor for aerial fireworks at public fireworks displays. Pyrodyne contracted to procure fireworks, to provide pyrotechnic operators, and to display the fireworks at the Western Washington State Fairgrounds in Puyallup, Washington, on July 4, 1987. All operators of the fireworks display were Pyrodyne employees acting within the scope of their employment duties.
As required by Washington statute, Pyrodyne purchased a $1 million insurance policy prior to the fireworks show. The policy provided $1 million coverage for each occurrence of bodily injury or property damage liability. Plaintiffs allege that Pyrodyne failed to carry out a number of the
During the fireworks display, one of the 5-inch mortars was knocked into a horizontal position. From this position an aerial shell inside was ignited and discharged. The shell flew 500 feet in a trajectory parallel to the earth and exploded near the crowd of onlookers. Plaintiffs Danny and Marion Klein were injured by the explosion. Mr. Klein‘s clothing was set on fire, and he suffered facial burns and serious injury to his eyes.
The parties provide conflicting explanations of the cause of the improper horizontal discharge of the shell. Pyrodyne argues that the accident was caused by a 5-inch shell detonating in its aboveground mortar tube without ever leaving the ground.1 Pyrodyne asserts that this detonation caused another mortar tube to be knocked over, ignited, and shot off horizontally. In contrast, the Kleins contend that the misdirected shell resulted because Pyrodyne‘s employees improperly set up the display. They further note that because all of the evidence exploded, there is no means of proving the cause of the misfire.
The Kleins brought suit against Pyrodyne under theories of products liability and strict liability.2 Pyrodyne filed a motion for summary judgment, which the trial court granted as to the products liability claim. The trial court denied Pyrodyne‘s summary judgment motion regarding the Kleins’ strict liability claim, holding that Pyrodyne was
ANALYSIS
I
FIREWORKS DISPLAYS AS ABNORMALLY DANGEROUS ACTIVITIES
The Kleins contend that strict liability is the appropriate standard to determine the culpability of Pyrodyne because Pyrodyne was participating in an abnormally dangerous activity. This court has addressed liability for fireworks display injuries on one prior occasion. In Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 435 P.2d 626 (1967), this court held that a pyrotechnician could maintain a negligence suit against the manufacturer of the defective fireworks. The issue as to whether fireworks displays are abnormally dangerous activities subject to strict liability was not raised before the court at that time, and hence remains open for this court to decide.
The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, 159 Eng. Rep. 737 (1865), rev‘d, 1 L.R.-Ex. 265, [1866] All E.R. 1, 6, aff‘d sub nom. Rylands v. Fletcher, 3 L.R.-H.L. 330, [1868] All E.R. 1, 12, in which the defendant‘s reservoir flooded mine shafts on the plaintiff‘s adjoining land. Rylands v. Fletcher supra, has come to stand for the rule that “the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.” W. Keeton,
The basic principle of Rylands v. Fletcher, supra, has been accepted by the Restatement (Second) of Torts (1977). See generally Prosser and Keeton on Torts § 78, at 551 (explaining that the relevant Restatement sections differ in some respects from the Rylands doctrine). Section 519 of the Restatement provides that any party carrying on an “abnormally dangerous activity” is strictly liable for ensuing damages. The test for what constitutes such an activity is stated in section 520 of the Restatement. Both Restatement sections have been adopted by this court, and determination of whether an activity is an “abnormally dangerous activity” is a question of law. New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 500, 687 P.2d 212 (1984); Langan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973).
Section 520 of the Restatement lists six factors that are to be considered in determining whether an activity is “abnormally dangerous“. The factors are as follows:
- existence of a high degree of risk of some harm to the person, land or chattels of others;
- likelihood that the harm that results from it will be great;
- inability to eliminate the risk by the exercise of reasonable care;
- extent to which the activity is not a matter of common usage;
- inappropriateness of the activity to the place where it is carried on; and
- extent to which its value to the community is outweighed by its dangerous attributes.
Restatement (Second) of Torts § 520 (1977). As we previously recognized in Langan v. Valicopters, Inc., supra at 861-62 (citing Restatement (Second) of Torts § 520,
Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
Restatement (Second) of Torts § 520, comment f (1977). Examination of these factors persuades us that fireworks displays are abnormally dangerous activities justifying the imposition of strict liability.
We find that the factors stated in clauses (a), (b), and (c) are all present in the case of fireworks displays. Anytime a person ignites aerial shells or rockets with the intention of sending them aloft to explode in the presence of large crowds of people, a high risk of serious personal injury or property damage is created. That risk arises because of the possibility that a shell or rocket will malfunction or be misdirected. Furthermore, no matter how much care pyrotechnicians exercise, they cannot entirely eliminate the high risk inherent in setting off powerful explosives such as fireworks near crowds.
The dangerousness of fireworks displays is evidenced by the elaborate scheme of administrative regulations with which pyrotechnicians must comply. Pyrotechnicians must be licensed to conduct public displays of special fireworks.
Pyrodyne argues that if the regulations are complied with, then the high degree of risk otherwise inherent in the displays can be eliminated. Although we recognize that the high risk can be reduced, we do not agree that it can be eliminated. Setting off powerful fireworks near large crowds remains a highly risky activity even when the safety precautions mandated by statutes and regulations are followed. The Legislature appears to agree, for it has declared that in order to obtain a license to conduct a public fireworks display, a pyrotechnician must first obtain a surety bond or a certificate of insurance, the amount of which must be at least $1 million for each event.3
The factors stated in clauses (a), (b), and (c) together, and sometimes one of them alone, express what is commonly meant by saying an activity is ultrahazardous. Restatement (Second) of Torts § 520, comment h (1977). As the Restatement explains, however, “[l]iability for abnormally danger-
The factor expressed in clause (d) concerns the extent to which the activity is not a matter “of common usage“. The Restatement explains that “[a]n activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community.” Restatement (Second) of Torts § 520, comment i (1977). As examples of activities that are not matters of common usage, the Restatement comments offer driving a tank, blasting, the manufacture, storage, transportation, and use of high explosives, and drilling for oil. The deciding characteristic is that few persons engage in these activities. Likewise, relatively few persons conduct public fireworks displays. Therefore, presenting public fireworks displays is not a matter of common usage.
Pyrodyne argues that the factor stated in clause (d) is not met because fireworks are a common way to celebrate the Fourth of July. We reject this argument. Although fireworks are frequently and regularly enjoyed by the public, few persons set off special fireworks displays. Indeed, the general public is prohibited by statute from making public fireworks displays insofar as anyone wishing to do so must first obtain a license.
The factor stated in clause (e) requires analysis of the appropriateness of the activity to the place where it was carried on. In this case, the fireworks display was conducted at the Puyallup Fairgrounds. Although some locations — such as over water — may be safer, the Puyallup Fairgrounds is an appropriate place for a fireworks show
The factor stated in clause (f) requires analysis of the extent to which the value of fireworks to the community outweighs its dangerous attributes. We do not find that this factor is present here. This country has a long-standing tradition of fireworks on the Fourth of July. That tradition suggests that we as a society have decided that the value of fireworks on the day celebrating our national independence and unity outweighs the risks of injuries and damage.
In sum, we find that setting off public fireworks displays satisfies four of the six conditions under the Restatement test; that is, it is an activity that is not “of common usage” and that presents an ineliminably high risk of serious bodily injury or property damage. We therefore hold that conducting public fireworks displays is an abnormally dangerous activity justifying the imposition of strict liability.
This conclusion is consistent with the results reached in cases involving damages caused by detonating dynamite. This court has recognized that parties detonating dynamite are strictly liable for the damages caused by such blasting. See Foster v. Preston Mill Co., 44 Wn.2d 440, 443, 268 P.2d 645 (1954); see also Bringle v. Lloyd, 13 Wn. App. 844, 537 P.2d 1060 (1975); Erickson Paving Co. v. Yardley Drilling Co., 7 Wn. App. 681, 502 P.2d 334 (1972). There are a number of similarities between fireworks and dynamite. Both activities involve licensed experts intentionally igniting for profit explosives that have great potential for causing damage. Moreover, after the explosion no evidence remains as to the original explosive. The notable difference between fireworks and dynamite is that with fireworks the public is invited to watch the display and with dynamite the public is generally prohibited from being near the blasting
II
PUBLIC POLICY AND STRICT LIABILITY FOR FIREWORKS DISPLAYS
Policy considerations also support imposing strict liability on pyrotechnicians for damages caused by their public fireworks displays, although such considerations are not alone sufficient to justify that conclusion. Most basic is the question as to who should bear the loss when an innocent person suffers injury through the nonculpable but abnormally dangerous activities of another. In the case of public fireworks displays, fairness weighs in favor of requiring the pyrotechnicians who present the displays to bear the loss rather than the unfortunate spectators who suffer the injuries. In addition,
[t]he rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof:
One of these common features is that the person harmed would encounter a difficult problem of proof if some other standard of liability were applied. For example, the disasters caused by those who engage in abnormally dangerous or extra-hazardous activities frequently destroy all evidence of what in fact occurred, other than that the activity was being carried on. Certainly this is true with explosions of dynamite, large quantities of gasoline, or other explosives.
Siegler v. Kuhlman, 81 Wn.2d 448, 455, 502 P.2d 1181 (1972) (quoting Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225, 240 (1971)), cert. denied, 411 U.S. 983 (1973). In the present case, all evi-
III
STATUTORY STRICT LIABILITY FOR FIREWORKS
As well as holding Pyrodyne strictly liable on the basis that fireworks displays are abnormally dangerous activities, we also hold that
An example of a statute which the appellate court has held to be a strict liability statute is
The owner of any dog which shall bite any person . . . shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner‘s knowledge of such viciousness.
See Beeler v. Hickman, 50 Wn. App. 746, 750-51, 750 P.2d 1282 (1988). The court in Beeler held that the language of the statute clearly established strict liability for the owner of the dog. Although
Furthermore, no part of a statute should be deemed inoperative or superfluous unless it is the result of obvious mistake or error. Cox v. Helenius, 103 Wn.2d 383, 387-88, 693 P.2d 683 (1985); Newschwander v. Board of Trustees of Wash. State Teachers Retirement Sys., 94 Wn.2d 701, 707, 620 P.2d 88 (1980). This requires that every word, clause, and sentence of a statute be given effect, if possible. Pursuant to this requirement, both clauses of
POSSIBLE NEGLIGENT MANUFACTURE AS AN INTERVENING FORCE
Pyrodyne argues that even if there is strict liability for fireworks, its liability under the facts of this case is cut off by the manufacturer‘s negligence, the existence of which we assume for purposes of evaluating the propriety of the trial court‘s summary judgment. According to Pyrodyne, a shell detonated without leaving the mortar box because it was negligently manufactured. This detonation, Pyrodyne asserts, was what caused the misfire of the second shell, which in turn resulted in the Kleins’ injuries. Pyrodyne reasons that the manufacturer‘s negligence acted as an intervening or outside force that cuts off Pyrodyne‘s liability.
In support of its position, Pyrodyne relies upon Siegler v. Kuhlman, supra, and New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 687 P.2d 212 (1984). In Siegler, a young woman was killed in an explosion when the car she was driving encountered a pool of thousands of gallons of gasoline spilled from a gasoline truck. This court held that transporting gasoline in great quantities along public highways and streets is an abnormally dangerous activity that calls for the application of strict liability. Siegler, at 459-60. Justice Rosellini concurred, but stated:
I think the opinion should make clear, however, that the owner of the vehicle will be held strictly liable only for damages caused when the flammable or explosive substance is allowed to escape without the apparent intervention of any outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling it. I do not think the majority means to suggest that if another vehicle, negligently driven, collided with the truck in question, the truck owner would be held liable for the damage.
Siegler, at 460 (Rosellini, J., concurring). In New Meadows Holding Co., the plaintiff was injured when he attempted to light an oil stove and unwittingly ignited natural gas leak-
We note that the Restatement (Second) of Torts takes a position contrary to that advocated by Pyrodyne. Section 522 of the Restatement provides that:
One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it is caused by the unexpectable
(a) innocent, negligent or reckless conduct of a third person . . .
Restatement (Second) of Torts § 522 (1977). The comment to section 522 explains that “[i]f the risk [from an abnormally dangerous activity] ripens into injury, it is immaterial that the harm occurs through the unexpectable action of a human being“. Restatement (Second) of Torts § 522, comment a (1977).
Thus, on the one hand, Pyrodyne urges us to adopt the view that any intervention by an outside force beyond the defendant‘s control is sufficient to relieve the defendant from strict liability for an abnormally dangerous activity. On the other hand, section 522 provides that no negligent intervention by a third person will relieve the defendant
A basic principle regarding the scope of legal liability for strict liability is that the sequence of events between the defendant‘s conduct and the plaintiff‘s injury must have occurred without the intervention of some unexpected, independent cause:
The sequence of events must have been such that it is not unfair to hold the defendant liable therefor. Here we find the ordinary rules governing legal causation quite adequate to state the law. Thus, although accumulation of water is extra-hazardous because its escape involves a risk of serious damage to adjoining property holders, nevertheless the escape must occur in the ordinary course of nature, and if some superseding cause occasions the escape there is no liability. We have such a superseding cause where the escape is caused by the act of God or by a vis major which defendant is not bound as a reasonable man to anticipate. Even the gnawing of a rat may be such an unexpected independent cause as to make it unjust to hold defendant liable. So, also, if the escape of the water is brought about by the intervening wrongful act of a third person which was not foreseeable under the circumstances, the defendant is relieved from liability.
(Citations omitted. Italics ours.) Harper, Liability Without Fault and Proximate Cause, 30 Mich. L. Rev. 1001, 1009-10 (1932); see also Prosser and Keeton on Torts § 79, at 563-64. Conversely, if the damage or injury to the plaintiff was brought about in a manner that was foreseeable under the circumstances, then the defendant is not relieved from liability. See Galbreath v. Engineering Constr. Corp., 149 Ind. App. 347, 273 N.E.2d 121, 56 A.L.R.3d 1002 (1971) (blasting
We hold that intervening acts of third persons serve to relieve the defendant from strict liability for abnormally dangerous activities only if those acts were unforeseeable in relation to the extraordinary risk created by the activity. Cf. Herberg v. Swartz, 89 Wn.2d 916, 578 P.2d 17 (1978) (intervening but foreseeable acts of third persons are no defense to liability in negligence); Restatement (Second) of Torts § 447 (1977) (same). The rationale for this rule is that it encourages those who conduct abnormally dangerous activities to anticipate and take precautions against the possible negligence of third persons. Where the third person‘s negligence is beyond the actor‘s control, this rule, unlike the Siegler dicta, nonetheless imposes strict liability if the third person negligence was reasonably foreseeable. Such a result allocates the economic burden of injuries arising from the foreseeable negligence of third persons to the party best able to plan for it and to bear it — the actor carrying on the abnormally dangerous activity.6
In the present case, negligence on the part of the fireworks manufacturer is readily foreseeable in relation to the extraordinary risk created by conducting a public fireworks display. Therefore, even if such negligence may properly be regarded as an intervening cause, an issue we need not decide, it cannot function to relieve Pyrodyne from liability.7 This is not to say, however, that in a proper case a defendant in a strict liability action could not pursue a
CONCLUSION
We hold that Pyrodyne Corporation is strictly liable for all damages suffered as a result of the July 1987 fireworks display. Detonating fireworks displays constitutes an abnormally dangerous activity warranting strict liability. Public policy also supports this conclusion. Furthermore,
DORE, C.J., and UTTER, BRACHTENBACH, ANDERSEN, and DURHAM, JJ., concur.
DOLLIVER, J. (concurring) — I concur fully with the result reached by the majority. In my opinion the statute,
I am not in agreement, however, with the analysis reached by the majority relative to the application of Restatement (Second) of Torts § 520 (1977), which characterizes fireworks displays as “abnormally dangerous“. Even
I first note that no other jurisdiction has adopted a common law rule of strict liability for fireworks displays. While this state regularly does things differently from its companion jurisdictions and, indeed, its uniqueness is many times a source of justifiable pride, extreme care should be exercised before embarking on a new doctrine foreign to this state as well as to all others.
A party engaging in an abnormally dangerous activity is strictly liable for any damages which might ensue. See New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 687 P.2d 212 (1984); Langan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973). The majority points to Restatement (Second) of Torts § 520 (1977) with its six factors to be considered in determining whether an activity is “abnormally dangerous“.
The six factors in section 520 are:
- existence of a high degree of risk of some harm to the person, land or chattels of others;
- likelihood that the harm that results from it will be great;
- inability to eliminate the risk by the exercise of reasonable care;
- extent to which the activity is not a matter of common usage;
- inappropriateness of the activity to the place where it is carried on; and
- extent to which its value to the community is outweighed by its dangerous attributes.
The majority claims factors (a), (b), (c), and (d) are present while factors (e) and (f) are not present. I agree factors (e) and (f) do not apply for the reasons given by the majority. I also agree factors (a) and (b) are present. Where
Fireworks, no less than motor vehicles, for example, are high risk instrumentalities. In reality, all instrumentalities inevitably involve some degree of risk. Nothing in human life is risk free. The real issue is whether the hazard can be reduced to acceptable limits. This analysis is particularly apt where, as here, the likelihood of injury to significant numbers of persons is great unless the risk is significantly reduced. Blasting at some remove from civilization is one thing; public, urban fireworks displays are another matter.
It is apparent the Legislature, recognizing the dangers of public fireworks displays, attempted to regulate comprehensively fireworks displays.
In discussing factor (d), the majority states that since “few persons set off special fireworks displays” they are not a matter of common usage. Majority, at 9. I believe the majority misconstrues factor (d). The Restatement comment on clause (d) discusses activities carried on by only a few persons, e.g., blasting, the transportation of high explosives, the drilling of oil wells. What is significant is that each of the activities used for illustrative purposes is not only an activity which is not a matter of common usage, but it is
I also disagree with the majority‘s treatment of the six factors as acting only in favor of strict liability. Properly construed, each of the factors may also mitigate against strict liability. In New Meadows, we expressly stated, “Factors (d), (e), and (f) clearly weigh against imposition of strict liability.” New Meadows, 102 Wn.2d at 502. The majority concedes “the value of fireworks to the community outweighs its dangerous attributes.” Majority, at 10. Properly construed, therefore, factor (f) is not merely a nullity in the strict liability analysis, but should actually mitigate against the imposition of strict liability.
Thus, by my analysis, only two of the six factors in section 520 are met and one factor weighs against strict liability. The penultimate paragraph in the comment on clause (c) states:
A combination of the factors stated in Clauses (a), (b) and (c), or sometimes any one of them alone, is commonly expressed by saying that the activity is “ultrahazardous,” or “extra-hazardous.” Liability for abnormally dangerous activities is not, however, a matter of these three factors alone, and those stated in Clauses (d), (e), and (f) must still be taken into account.
(Italics mine.) Comment h, at 39. See also New Meadows, 102 Wn.2d at 503-04 (Pearson, J., concurring) (“Strict liability may not be imposed under the Restatement (Second) of
Finally, it is my belief that the Legislature has abrogated the common law in the area of the control of fireworks displays and thus section 520 would not apply. Numerous courts have adopted the principle that a statute covering the entire subject area necessarily abrogates the common law in the area. The Wyoming Supreme Court has stated:
Inasmuch as our statutes deal with the subject extensively and provide a remedy which the legislature apparently considered sufficient, it is difficult to argue from a commonsense point of view, that statutes have not superseded and abrogated the common law. As stated in In re Roberts’ Estate, 58 Wyo. 438, 133 P.2d 492, 500 (1943), if a statute covers the whole subject matter, the abrogation of the common law on the same subject will necessarily be implied.
(Italics mine.) Schlattman v. Stone, 511 P.2d 959, 961 (Wyo. 1973); see also Casey v. Massachusetts Elec. Co., 392 Mass. 876, 883 n.12, 467 N.E.2d 1358 (1984); State v. Salafia, 29 Conn. Supp. 305, 313, 284 A.2d 576 (Sup. Ct. 1971).
Although Washington courts have never explicitly stated the abrogation rule, at least two cases have impliedly followed it. In Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 774 P.2d 1199 (1989), we interpreted
We think, however, that when a statute is enacted by the legislature covering generally a certain subject of substantive law it should be followed and applied by the courts wherever applicable, irrespective of what the common law or rule of decision may have been theretofore . . .
Although this statement does not expressly provide for abrogation, it supports the principle.
The case law also supports the viewpoint that it is unnecessary and even dangerous to refer to the common law where statutory provisions cover the subject matter. The Oregon Supreme Court has stated:
When a statute specifically defines the employment relationship, it is unnecessary and potentially misleading to turn to formulations found in other statutory or common law decisions. Despite deeply ingrained professional habits to the contrary, the formulas stated by courts are not more authoritative than those enacted by the legislature.
Realty Group, Inc. v. Department of Rev., 299 Or. 377, 383-84, 702 P.2d 1075 (1985). See also Penn Mut. Life Ins. Co. v. Hunt, 237 Mass. 241, 243-44, 129 N.E. 391 (1921).
Given the comprehensive nature of
Thus, while I agree with the result reached by the majority, I would confine the opinion to that which is contained in part II in its opinion.
SMITH, J., and CALLOW, J. Pro Tem., concur with DOLLIVER, J.