The shock waves of a blasting operation, travelling through air and ground, damaged the plaintiffs’ dwelling house, according to their writ. The defendant construction company is named as the responsible agency, but its acts are not condemned as wrongful or negligent.
Although the actual blasting took place off the plаintiffs’ property, their complaint sounds in trespass. At common law, this form of action required no allegation of negligence in the defendant. Also, it had particular application to injury to real estate.
The substance of the defendant’s argument in contending that the complaint should be dismissed was that an essential element of this form of action was obviously lacking. This element is referred to as an “entry,” or in more archaic language “a breaking of the close.”
It is thе fact of “entry” that makes negligence immaterial. Since entries on the land may themselves become elements in adverse claims of ownership, trespass gives the landowner a remedy whereby he may protect his title. The plaintiffs, calling upon the concept of the convertibility of matter and energy, сlaimed that the shock waves of the blast accomplished the required physical invasion. The trial court was not persuaded that this was the kind of an entry that rеpresented a threat to the plaintiffs’ titular rights, and granted the defendant’s motion to dismiss the complaint. That ruling was then certified to this Court for review before final judgment.
It was part of the genius of the common law to shape the pleading of substantive rights so as to bring them within the formal limits of historically acceptable writ forms. Sеe generally Maitland, The Forms of Action at Common Law (1936). Remedies could be reached at common law only by molding the phrasing of a claim of wrong to the language of one of the few recognized forms of action, evolved from the special writs that English sovereigns had consented to issue.
The present stаtute governing the form of complaints, 12 V.S.A. §971, is the end product of a series of reforms designed to eliminate fictions and needless formalities which served only to obstruct the pleading of substantive wrongs. To compel a plaintiff to find relief only by a return to the ritualized world of common law
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pleading would run counter to the philosophy behind all of the statutory simplification for half a century. More than that, along with the rest of the United States and England, our Court has already rejectеd the penalizing of accidental or unavoidable trespass.
Ploof
v.
Putnam,
The inquiry does not end here. If the complaint, even in the form presented, sets forth the substantive essentials of a valid claim .against the defendant in understandable terms, the plaintiffs should not have been turned out of court by dismissal. If a cause of action is stated, the pleading is sufficient.
Agosta
v.
Granite City Real Est. Co.,
The standard of care for blasting operations conducted in this jurisdiction was outlined in
Thompson
v.
Green Mtn. Power Co.,
These plaintiffs do not claim that the defendant was remiss in foreseeing their injury, or in giving warning. They are in the position of saying that they ought not to be barred from recovery for their damage because there were no reasonable measures, short of abandoning the operation, that would have preventеd injury to their property. The question this case .presents is whether or not failure to avoid damage of a type that might be expected to occur in сonnection with blasting is condemnable only as negligence ?
We think not. The growth of the negligence concept on the substantive side of the law tended to оbscure the existence of special rules under the older forms of action applying, to certain .types of risk. For example, the keeper of dangerous wild animals was generally held
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responsible for injuries incident to their escape. See cases' collected in
Increasingly, there are activities essential to general welfare which, even though conducted with great care, can be expеcted to cause some unavoidable harm or damage. The risks of harm of these enterprises are denominated as reasonable in terms of.the prudent man when weighed against the desirability of the activity. See generally Ehrenz-r weig, Negligence Without Fault (1951). It seems clear that the just result is to allocate the loss so that those gaining the benefit of the activity bear the cost, if the utility of the activity is great enough to justify the invasion of private rights. The price of engaging in such activities is to make good the resulting harm, even though the actor’s conduct is free from fault. 2 Harper & James, Torts, 816 (1956).
The’ use of dangerous explosives has been particularly subject to rules imposing strict liability. See note 20 A.L.R.2d. 1372. With the rise of the substantive conception of negligence as a ground for redress, some attempts were made to equate blasting unavoidably causing damage and breach of the duty to exercise due care. This results in labelling as negligent any activity which causеs harm whether carried on with reasonable prudence or not. Such a view stretches the concept of negligence to meaningless breadth, destrоying its utility as a measure of conduct relating to avoidable harm.
Instead, in cases involving the use of explosives, there has been applied an apрroach referred to as strict or absolute liability. Negligence need not be demonstrated, but only the use of explosives and resulting damage. The foresеeability of the resulting harm does not condemn the activity as negligence in spite of careful conduct, in those cases where the possibility of harm cаnnot be avoided short of discontinuing the socially necessary and desirable activity. But if damage occurs, even in the presence of careful cоnduct, within the range of foreseeable harm, and of a kind within the class of risk which makes the operation extrahazardous, liability attaches. 2 Harper & Jamеs, Torts, 816-9 (1956). The allocation of the burden of such a loss to the actor, while strict, is, as can be seen, not unlimited.
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This allocation cannot be made in the case of harm resulting from legal but dangerous activities unless, by their complaint, the plaintiffs can ask the defendant to justify its injurious activity, involving the use of a highly hazardous agency. This complaint informed the defendant that a probable and foreseeable consequence had followed its blasting activities, resulting in damage. Although the defendant may contest the substance of these allegations, no more was necessary to properly initiate the litigation. The consequence with respect to the plaintiff’s property was the same whether the defendant’s use of dynamite was negligent or not, and they are entitled ho be heard on their complaint. Compare
Griswold
v.
Weathers field,
In
Goupiel
v.
Grand Trunk Ry. Co.,
The order dismissing the complaint is reversed and the cause is remanded.