This is the case of Toms v Calvary Assembly of God, Inc.

the following;

Fact:

Judgment:

Issue:

Holding:

General Analysis

Applied Analysis

l Toms v. Calvary Assembly of God, Inc. 132 A.3d 866 (Md. Ct. App. 2016) Andrew Toms operated a dairy farm in Maryland. He owned a herd of approximately 90 dairy cows. A party other than Toms owned a 40-acre tract of land that was adjacent to Toms 's farm. With permission from the possessor of that tract of land, Calvary Assembly of God Inc. ( a church) hosted a reworks display on that property as part of a youth crusade. Calvary retained a professional fireworks company to handle the reworks display. That company applied for and received the permit required by a Maryland statute. The fireworks company volunteered to have a 300-footfiring radius around the specific site at which the fireworks would be red. The SOD-foot radius exceeded the 250-foot minimum radius that state law required for the amount of reworks to be discharged. The reworks display was open to the public. A deputy re marshal was present to supervise the event. Approximately 250 shells were discharged over a I 5 -minute period, without any misres. At the time of the event, Toms 's cattle were inside the barn that was located on his property. The barn was located more than 300 feetperhaps roughly 500 feetfrom the ring location. Toms arrived at the barn a few minutes after the discharging of reworks began. According to Toms, the explosions startled his dairy cows and caused them to stampede inside the barn. In the lawsuit referred to below, Toms contended that the stampede resulted in the deaths of four cows. In addition to the loss of the four cows, Toms sustained property damage to fences and gates, disposal costs, and lost milk revenue. Toms sent a demand letter to Calvary outlining the damages he claimed, but Calvary and the fireworks company denied li- ability. Toms then led a lawsuit in which he sought to have Calvary and the reworks company held liable on two alternative theories: negligence and strict liability. After a bench trial, a Maryland district court held that the defendants were not negligent and that strict liability was inapplicable. Toms appealed to a Maryland circuit court, which affirmed. The Maryland Court of Appeals then granted Toms 's request that it decide whether the lower courts ruled correctly on the strict liability question. Greene, Judge To determine whether an activity is abnormally dangerous, a In this case, we address whether noise emanating from the dis- court uses six factors. These factors are: charge of a reworks display constitutes an abnormally dan- gerous activity, which would warrant the imposition of strict liability. b Whether an activity constitutes an abnormally dangerous ac- tivity is a question of law. Maryland [recognizes] the doctrine of strict liability, which does not require a finding of fault in d order to impose liability on a party. See Yommer v. McKenzie, a. 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; c. inability to eliminate the risk by the exercise of reasonable care; . extent to which the activity is not a matter of common usage; e. inappropriateness of the activity to the place where it is car- ability doctrine is found in the Restatement (Second) of Torts 519520 (1977). This court adopted that formulation in Yommer, while the Restatement (Second) was still in its tentative draft. Re- statement (Second) 519 defines strict liability [this way]: One who carries on an abnormally dangerous activity is sub- ject to liability for harm to the person, land or chattels of an- other resulting from the activity, although he has exercised the utmost care to prevent the harm. . . . This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. f. extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) 520. As the Restatement (Second) reminds us: Because of the interplay of these various factors, it is not pos- sible to reduce abnormally dangerous activities to any deni- tion. 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 vAuAAltrlv, Au] uwuurun v. 14. v. A vynwunuu, WV, IJI 41.1ru uuu (Md. App. 2008), the Court of Special Appeals held that pile- driving was not an abnormally dangerous activity. There, pile- driving operations at the Inner Harbor in Baltimore City caused minor damage in a 200-year-old residence located 325 feet away from the construction site. The intermediate appellate court found that the defendants had acted appropriately in obtaining the proper permits, conducting geotechnical studies, and care- fully monitoring the vibrations produced by the pile driving operations. The court concluded that the risk of harm produced by pile-driving operations \"is not a high degree of risk which requires the application of strict liability\" because that risk can be eliminated \"through the exercise of ordinary care.\" Whether fireworks discharge constitutes an abnormally dan- gerous activity is a case of first impression in Maryland. Some jurisdictions, however, have addressed the issue of whether re- works are abnormally dangerous. Although fireworks liability cases often share similar facts, jurisdictions disagree on whether discharging reworks is an abnormally dangerous activity. The highest appellate court in Washington, for instance, held pyrotechnicians strictly liable when a shell exploded improperly an activity. . . . Where one discharges reworks illegally or in such a manner as to amount to a nuisance and causes in- jury to another, some jurisdictions have held that liability fol- lows without more. But the production of a public fireworks display, under the circumstances presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must be predicated upon proof of negligence. Id. at 162. Other courts have ruled similarly. [We now consider] whether strict liability for an abnormally dangerous activity should be imposed on a . . . fireworks display [that was otherwise lawful under Maryland law]. [A Maryland statute] defines reworks as \"combustible, implosive or explo- sive compositions, substances, combinations of substances, or articles that are prepared to produce a visible or audible effect by combustion, explosion, implosion, deagration, or detonation.\" We disagree with Toms that our analysis should be so narrow as to focus solely on the audible componentthe noise produced by a reworks display. [T]he noise itself is a by-product of the activity of discharging fireworks. By definition, under [the rel- evant statute], fireworks \"are prepared to produce a visible or audible effect. . . Therefore, when applying the multi-factor test from 520 of the Restatement (Second), we will consider all the characteristics and the nature of the risks associated with discharging reworks. After all, we are also mindful that \"[o]ne who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on.\" Restatement (Second) 519, cement e. We [now] apply the Restatement factors to the instant case: (a) existence of a high degree of risk of some harm to the person, land, or chattels of others. Special events requiring the use of large, professional \"display reworks\" are heavily regu- lated in Maryland pursuant to [a statutory scheme that requires a detailed application for a permit, supervision by a qualified person, and both official inspection and approval of the site for the display. All of those steps took place here] We hold that a lawful reworks display does not pose a high degree of risk, be- cause the statutory scheme in place is designed to signicantly reduce the risks associated with fireworks, namely mishandling, misfires, and malfunctions. Furthermore, the required firing ra- dius of 250 feet was voluntarily extended by [the professional fireworks company] to 300 feet. Critically, in enacting the [statu- tory scheme, the legislature] did not regulate the audible effects of display fireworks, which indicates that any risk associated with the decibel level of a fireworks discharge is minimal or non-existent. Lawful fireworks displays do not pose a significant risk be- cause [the Maryland Code provides that] \"[a] person who pos- sesses or discharges reworks in violation\" of the permitting process \"is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $250 for each offense.\" To impose a rela- tively light penalty for an unlawful reworks display is telling. If an unlawful reworks display is 0an a misdemeanor offense can be a safe and enjoyable activity. This is evidenced by the active role the State Fire Marshal and authorities having ju- risdiction have over the permitting process. Health and safety, therefore, are of paramount concern, and we are satised that the regulations sufficiently protect the public and property. Only qualified professional fireworks companies and their agents authorized shootersmay apply for a permit. The requirements of mandatory insurance coverage, a physical site inspection, and event supervision is evidence of reasonable care that reduces the risk of harm. The site inspection and prior approval of an authority having jurisdiction ensures that the ring location is appropriate and that injury is unlikely. Importantly, additional measures are required if other properties are located within the fallout zone, including notice and permission from that property owner for their property to be used in the fallout zone. The SOD-foot firing radius is sufficient. Furthermore, no- tice to Toms was not necessary, because his dairy barn was lo- cated beyond the ring radius. In our View, the Restatement does not require the elimination of all risk, and because the risks in- herent with a reworks discharge can be reduced to acceptable levels, this factor does not support a conclusion of an abnormally dangerous activity. ((1) extent to which the activity is not a matter of com- mon usage. [W]e define \"common usage,\" as it pertains to this case, broadly to include not only the professionals who discharge fireworks, but also the spectators who partake in the fireworks display. Almost by definition, lawful reworks displays involve two parties: the shooter and the audience. We conclude that law- ful reworks displays are a matter of common usage. (e) inappropriateness of the activity to the place where it is carried on. When this court adopted the Restatement ( Second )'s multi-factor test for abnormally dangerous activities, this partic- with no possibility of incarceration, why then should strict li- ability be imposed for risks associated with a lawful fireworks display? (b) likelihood that the harm that results from it will be great. This factor also weighs in favor of not imposing strict li- ability, because the purpose of a 300-foot perimeter surrounding the firing location is to mitigate the likelihood of harm. The stat- utory scheme regulating the use of fireworks is specifically de- signed to reduce risk. Because Toms's dairy barn, and therefore his cows, were not located within the fallout zone, the likelihood of harm to the public and property was significantly reduced. The 300-foot ring radius was effective because no shells fired that night malfunctioned, and no debris littered Toms's property. (c) inability to eliminate the risk by the exercise of reason- able care. We disagree with Toms that reasonable care cannot reduce the risk of harm to livestock to acceptable levels. [In the statutory scheme, the legislature] took care to implement suf- ficient precautions so as to ensure that lawful fireworks displays ular factor was identified as being the most crucial. See Yammer, supra. Implicit in the granting of a permit to discharge fireworks is the lawfulness of that proposed reworks display. At trial, two deputy fire marshals testified about the procedures entailed with the permitting process, that a physical site inspection showed that the proposed firing location was appropriate, that the event was supervised and properly executed, and that the defendants complied with all applicable laws. Furthermore, a deputy re marshal testified that although the state required a perimeter of 250 feet from the firing location, the defendants voluntarily ex- tended it to 300 feet. In sum, we agree that a lawful reworks display does not fall within the context of \"the unusual, the ex- cessive, the extravagant, the bizarre . . . non-natural uses which lead to strict liability.\" Yommer, supra. (f) extent to which its value to the community is out- weighed by its dangerous attributes. Here, a church- sponsored fireworks display celebrated a youth crusade, and the event was open to the public. As a symbol of celebration, fireworks play an important role in our society, and are often met with much fanfare. The statutory scheme regulating its use minimizes the risk of accidents, thus reinforcing the pop- ularity of these displays. [We] conclude that the social de- sirability of fireworks appears to outweigh their dangerous attributes. Policy considerations. We are mindful that the doctrine of strict liability for abnormally dangerous activities is nar- rowly applied in order to avoid imposing \"grievous burdens\" on landowners and occupiers of land. [Citation omitted] The use of fireworks, especially in public reworks displays, is heav- ily regulated [by the state]. [According to the statute,] a permit to discharge reworks cannot be obtained unless the State Fire Marshal determines that proposed fireworks display will \"not endanger health or safety or damage property. . . In light of this policy, the defendants cannot be held strictly liable, because they lawfully complied with the conditions of the permit as well as applicable laws. At trial, Toms did not present any evidence concerning what noise levels should be appropriate for public fireworks display. Sufcient evidence was not presented to the trier of fact that a lawful fireworks display was abnormally dangerous to livestock. Lawful fireworks displays are not an abnormally dangerous ac- tivity, because the statutory scheme regulating the use of fire- works significantly reduces the risk of harm associated with the discharge of fireworks. Circuit Court judgment airmed. strict liability for the harm that results from it, even though it is carried on with all reasonable care. Restatement (Second) 520, comment f. The Reporter's Note for this section identifies typical abnormally dangerous activi- ties, such as the storage of large quantities of water or explosives in dangerous locations, and conducting blasting operations in the middle of a city. [W]e weigh each Restatement factor independently. [I]t is not necessary to have all six factors weigh in favor of a particular party. More emphasis is placed on the fth factor: the appropri- ateness of the activity in relation to its location. In Yommer, the owners of a gasoline station were held strictly liable for damages resulting from gasoline contamination of the well water of an adjacent residential property. There, we applied the Restatement factors, and found the fth factor to be the most persuasive factor: 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 as- pect of the activity is inappropriate to the locale, even when equated to the value of the activity. Yommer, 257 A.2d at 139. \"We accept the test of appropri- ateness as the proper one: that the unusual, the excessive, the extravagant, the bizarre are likely to be non-natural uses which lead to strict liability.\" Id. Though the doctrine of strict liability has evolved . . . , the policy concerns in favor of limiting its application remain. [For nvnmnln ir Cni'nnlan u "'f pl'urlqnmpt' Iff' 0'7 A 7d '7? and injured spectators at a public reworks show. Klein v. Pyradyne Corp, 810 P.2d 917 (Wash. Sup. Ct. 1991). [The court] stated that Restatement factors (a) through (d) weighed in favor of imposing strict liability, because discharging fireworks creates a \"high risk of serious bodily injury or property damage\" due to the possibility of a malfunction or similar issue. Id. at 922. [The court added that] \"[t]he dangerousness . . . is evidenced by the elaborate scheme of administrative regulations with which pyro- technicians must comply[,]\" including licensing and insurance requirements. Id. at 920. Under factor (d), [the court] further determined that discharging reworks was not a matter of com- mon usage, because the licensing scheme restricts the general public from engaging in that activity. In addition to the high risk discharging reworks creates, the court determined that pub- lic policy and fairness warranted strict liability. Otherwise, the injured spectators would have been subject to the \"problem of proof\" because \"all evidence was destroyed as to what caused the misfire of the shell that injured the [plaintiffs] Id. at 921-22. Other jurisdictions, however, have come to the opposite con- clusion, and have held that the level of risk involved with a re- works discharge does not warrant strict liability. In Haddon v. Lotito, 161 A.2d 160 (Pa. Sup. Ct. 1960), Pennsylvania's highest appellate court applied the ultrahazardous activity test, and de- termined that strict liability . . . did not apply in a case involving spectator injuries at a public fireworks display. Critically, that court distinguished lawful from unlawful fireworks displays: [A] public fireworks display, handled by a competent opera- tor in a reasonably safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous