The plaintiffs in this case are persons injured when an aerial shell at a public fireworks exhibition
Question:
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 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 $1,000,000 insurance policy prior to coverage for each occurrence of bodily injury or property damage liability. Plaintiffs allege that Pyrodyne failed to carry out a number of the other statutory and regulatory requirements in preparing for and setting off the fireworks. For example, they allege that Pyrodyne failed to properly bury the mortar tubes prior to detonation, failed to provide a diagram of the display and surrounding environment to the local government, failed to provide crowd control monitors, and failed to keep the invitees at the mandated safe distance.
During the fireworks display, one of the 5-inch mortars was knocked into a horizontal position. From this position a 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. 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. 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 strictly liable without fault and ordering summary judgment in favor of the Kleins on the issue of liability. Pyrodyne appealed the order of partial summary judgment to the Court of Appeals, which certified the case to this court. Pyrodyne is appealing solely as to the trial court’s holding that strict liability is the appropriate standard of liability for pyrotechnicians. A strict liability claim against pyrotechnicians for damages caused by fireworks displays presents a case of first impression in Washington.
Analysis
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. * * *
The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, [citation], in which the defendant’s reservoir flooded mine shafts on the plaintiff’s adjoining land. Rylands v. Fletcher 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.’’ [Citation.]
The basic principle of Rylands v. Fletcher has been accepted by the Restatement (Second) of Torts (1977). [Citation.] 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. [Citations.]
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: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (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 (1977). As we previously recognized in [citation], the comments to section 520 explain how these factors should be evaluated: 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. Any time 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.
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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.
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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 because the audience can be seated at a reasonable distance from the display. Therefore, the clause (e) factor is not present in this case.
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 4th 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.
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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 * * *. This establishes the standard of strict liability for pyrotechnicians. Therefore, we affirm the decision of the trial court.
Step by Step Answer:
Smith and Roberson Business Law
ISBN: 978-0538473637
15th Edition
Authors: Richard A. Mann, Barry S. Roberts