Dyer v. Maine Drilling & Blasting

Supreme Judicial Court of Maine · 2009 · Torts

TortsStrict liabilityAbnormally dangerous activitiesBlastingCausationRes ipsa loquiturblastingabnormally dangerous activity

Facts

The Dyers owned an older home and garage in Prospect, and Maine Drilling performed more than 100 blasts nearby between October 2004 and August 2005 for a bridge project, with the closest blast about 100 feet from the home. Before blasting, Maine Drilling conducted a pre-blast survey and a family member videotaped the property's condition; after blasting began, the family observed substantial new or worsened cracking, floor settlement, sagging, and movement of a retaining wall. Seismograph readings showed that six blasts slightly exceeded Bureau of Mines guidelines, and Vera felt the whole house shake during at least two blasts. The Dyers' expert testified that blasting could cause settlement, especially if the house sat on uncontrolled fill, and that although other causes were possible, such damage usually develops over years rather than months.

Issue

Whether Maine should adopt strict liability for abnormally dangerous activities such as blasting under the Second Restatement, whether the summary judgment record created a genuine issue of material fact on causation, and whether res ipsa loquitur may be used to establish negligence in a blasting case.

Rule

One who carries on an abnormally dangerous activity is subject to strict liability for harm resulting from that activity although the actor exercised utmost care, but the plaintiff must still prove causation, and strict liability is limited to the kind of harm that makes the activity abnormally dangerous. Whether an activity is abnormally dangerous is determined case by case using the six Restatement (Second) § 520 factors: high degree of risk, likelihood the resulting harm will be great, inability to eliminate the risk with reasonable care, uncommon usage, inappropriateness to the place, and whether the activity's value to the community is outweighed by its dangerous attributes. Res ipsa loquitur does not apply to blasting cases because even careful blasting may cause harmful vibrations.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Granite Valley Excavation, a private contractor, uses explosives to remove rock for a new shopping complex on the edge of Portland, Maine. Nearby homeowner Elena Park alleges that vibrations cracked her foundation even though the contractor followed every available blasting precaution and stayed within published vibration guidelines.

If Elena sues under a strict-liability theory, which statement is most accurate under the majority rule?

Explanation. The majority adopted Restatement (Second) of Torts §§ 519-520. A defendant conducting an abnormally dangerous activity is subject to strict liability for resulting harm even if it exercised utmost care. But the plaintiff must still show causation, and the activity must be found abnormally dangerous through the case-specific six-factor analysis; blasting is not automatically abnormally dangerous in every case. (Derived from Dyer v. Maine Drilling & Blasting (n.d.).)