Abnormally Dangerous Activities and Strict Liability

When analyzing whether something is an abnormally dangerous activity, the criteria of Restatement of Torts Second (§ 520) are often looked to, mainly the: “(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”.  Further, damages resulting from abnormally dangerous activities may be apportioned amongst those involved, ie. contractors, engineers, architects etc.  CPLR 1401 provides that “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.”

Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 398 N.Y.S.2d 401(1977) was the result of three plaintiff landowners bringing suit to recover for property damage allegedly caused by a hydraulic landfilling project.  The project was conducted by defendants, the Town of Hempstead, its contractor, and its design engineer, on 146 acres of swampy meadowland surrounding the plaintiffs’ homes.  A main issue in the case was whether the hydraulic dredging and landfilling, defined as the introduction by pressure of a continuous flood of massive quantities of sand and water, constituted an abnormally dangerous activity giving rise to strict liability.  Although plaintiffs in this matter brought suit on a negligence theory, the court considered it as a strict liability issue as well and analyzed whether the activity of hydraulic landfilling was abnormally dangerous.  The case was remitted to the trial court for a full evaluation in conjunction with the negligence theory.  Prior to that, the Court of Appeals questioned whether strict liability could apply.  In this consideration, the court found there to be little information on the degree to which hydraulic landfilling poses a risk of damage to neighboring properties and on the gravity of any such danger, or the extent to which the danger can be eliminated by reasonable care. Also, more information would have to be sought on the availability and relative cost, economic and otherwise, of alternative methods of landfilling.  However, the theory of strict liability could still have been considered.

In addition to the above factors to be considered in deciding whether a construction project may be an abnormally dangerous activity, the issue of proximate cause always arises.  The construction work must be the proximate cause of the injury being alleged, even if it is alleged under a strict liability theory.  For example, in Goldberg Weprin & Ustin, LLP v. Tishman Const. Corp., 275 A.D.2d 614, 713 N.Y.S.2d 57 (1st Dept. 2000), plaintiff brought a class action with other similarly situated businesses and individuals with offices or residences in the Times Square area against a construction company doing work there.  The plaintiffs sought damages for economic losses alleged to have resulted from the closing of the Times Square area, by order of the City of New York, due to the collapse of an elevator tower being used in connection with defendants’ construction project.  The suit was brought on the theory of strict liability, among others, but was dismissed.  The court found that in the absence of any alleged physical property damage, the connection between defendants’ activities and plaintiff’s economic losses alleged to have resulted from the City’s action is too remote to permit recovery on any tort theory, including that of strict liability.

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