Foster v. Preston Mill Co.

Supreme Court of Washington · 1954 · Torts

Tortsstrict liabilityblastingminkproximate causestrict liabilityabsolute liabilityultrahazardous activity

Facts

Preston Mill conducted customary road-building blasting about two and one-quarter miles from Foster's mink ranch, setting off blasts twice daily with charges generally up to one hundred pounds. During mink whelping season, the mother mink were highly excitable and, when disturbed by noises or vibration, would run in their cages and sometimes kill their kittens. After the ranch manager told Preston Mill that blasting was causing such losses, the company reduced its normal charge size, but Foster sought damages only for losses sustained after that notice. The trial court found no public nuisance and effectively rejected nuisance, but imposed absolute liability for the post-notice losses.

Issue

Does strict or absolute liability for blasting extend to losses caused when relatively distant blasting produces vibration, concussion, or noise that frightens unusually sensitive mink mothers and leads them to kill their young? More specifically, is that kind of harm within the risk that makes blasting ultrahazardous?

Rule

Strict liability for an ultrahazardous activity applies only to harm resulting from the very risk that makes the activity ultrahazardous. In blasting cases, that risk is damage or injury from flying debris or from direct effects of earth vibration or air concussion on persons or property, not remote losses caused by the unusual sensitivity of animals involved in the plaintiff's extraordinary and unusual use of land.

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

Granite Crest Excavation was blasting rock to build a service road outside Boise, Idaho. A blast caused the earth under Nora Kim's nearby house to shake sharply, and a retaining wall on her property cracked even though the crew used customary methods and all due care.

If Nora sues Granite Crest on a strict-liability theory for blasting, what is the strongest argument for recovery?

Explanation. Strict liability for blasting is limited to harms arising from the extraordinary risk that makes blasting ultrahazardous. The majority recognizes that this includes direct damage from flying debris and also direct physical effects of earth vibration or air concussion. Nora's cracked wall was caused by direct vibration damage, so it falls within the protected scope of the blasting risk even absent negligence.