What is an Ultrahazardous activity give three examples of Ultrahazardous activities?

Strict liability is a legal doctrine that applies to highly specific activities that are considered “ultrahazardous” or “abnormally dangerous.” These activities carry a very high risk of causing injury or damage, which cannot be eliminated even if every possible precaution is taken.

Defendants that engage in an activity which is deemed ultrahazardous or abnormally dangerous will held liable for any resulting injury even though there was a total absence of fault. Hence the name “strict liability” or “liability without fault.” Although the concept of strict liability appears in several areas of the law, this article focuses on strict liability for ultrahazardous or abnormally dangerous activities.

The reasoning behind the strict liability doctrine is that some activities create such grave risks that the defendant may be strictly liable even when he or she has exercised the utmost care. In a sense, being legally liable for the damages caused by ultrahazardous or abnormally dangerous activities is a cost of business for those who engage in them.

The doctrine of strict liability for ultrahazardous or abnormally dangerous activities originated in a 1868 English case known as Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). “Florida courts have adopted the doctrine of strict liability for ultrahazardous or abnormally dangerous activity as established by Rylands v. Fletcher, … and reformulated by the Restatement of Torts §§ 519, 520 (1938).” Great Lakes Dredging & Dock Co. v. Sea Gull Operating Corp., 460 So. 2d 510, 512 (Fla. 3d DCA 1984).

Ultrahazardous / Abnormally Dangerous Activities

“Florida has fully adopted Restatement of the Law of Torts §§ 519 and 520 for regulating abnormally dangerous activity.” St. Cyr v. Flying J Inc., No. 3:06-cv-13-J-33TEM, 2006 U.S. Dist. LEXIS 52239, at *9 (M.D. Fla. July 31, 2006). The Restatement of Torts provides that “[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Restatement Second, Torts, § 519(1).

“Central to this doctrine, however, is a finding that the ultrahazardous or abnormally dangerous activity poses some physical, rather than economic, danger to persons or property in the area, which danger must be of a certain magnitude and nature.” Great Lakes, 460 So. 2d at 513. “For an activity to be abnormally dangerous, not only must it create a danger of physical harm to others but the danger must be an abnormal one.” Id. (quoting Restatement (Second) of Torts § 520 comment f).

The Restatement of Torts further provides, “[t]his strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.” Restatement Second, Torts, § 519(2). “[S]tated differently, “the rule of strict liability . . . applies only to harm that is within the scope of the abnormal risk that is the basis of the liability.” Great Lakes, 460 So. 2d at 513 (quoting Restatement (Second) of Torts § 519 comment e).

To determine whether an activity qualifies for application of the doctrine of strict liability, courts turn to the Restatement (Second) of Torts, § 520, which lists the following factors that should be considered in determining whether an activity is abnormally dangerous:

(a) the existence of a high degree of risk of some harm to the person, land, or chattels of others;

(b) the likelihood that the harm that results from it will be great;

(c) the inability to eliminate the risk by the exercise of reasonable care;

(d) the 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) the extent to which its value to the community is outweighed by its dangerous attributes.

Restatement Second, Torts, § 520.

Examples of Ultrahazardous / Abnormally Dangerous Activities

The Restatement (Second) of Torts § 520 has been adopted in Florida and is consistently utilized to determine whether the doctrine of strict liability for abnormally dangerous activities should be applied in cases where the issue is raised. Finding an activity to be an ultrahazardous or abnormally dangerous is significant since “under Florida law, a defendant is still liable for the consequences of his conduct even though some other cause contributed to the same damage.” Poole v. Lowell Dunn Co., 573 So. 2d 51, 53 (Fla. 3d DCA 1990).

However, “Florida draws a distinction between ‘ultrahazardous’ activities and activities which are merely inherently dangerous, and do not result in strict liability.” Graziuso v. Ocean Reef Club, Inc., No. 06-cv-10085, 2007 U.S. Dist. LEXIS 105191, at *5 (S.D. Fla. Jan. 17, 2007) (emphasis added). See also, e.g., Coulson v. De Angelo, 493 So. 2d 98, 99 (Fla. 4th DCA 1986) (“[L]iability under the doctrine is generally imposed where a defendant engages in an activity which necessarily involves a risk of serious harm.”); Midyette v. Madison, 559 So. 2d 1126, 1128 n.2 (Fla. 1990) (“[A] danger that is merely ‘inherent’ does not give rise to strict liability.”).

Examples where courts have found an activity to be ultrahazardous / abnormally dangerous include:

• Fumigation – Old Island Fumigation, Inc. v. Barbee, 604 So. 2d 1246, 1247 (Fla. 3d DCA 1992) (quotation omitted) (“Fumigation is an ultrahazardous activity as it ‘necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of the utmost care, and is not a matter of common usage.’”)
• Blasting – Poole v. Lowell Dunn Co., 573 So. 2d 51, 53 (Fla. 3d DCA 1990) (finding blasting to be “ultrahazardous” activity); and
• Impounding Phosphatic Slimes – Cities Ser. Co. v. State, 312 So. 2d 799, 804 (Fla. 2d DCA 1975) (finding strict liability proper for the abnormally dangerous activity of impounding phosphatic slimes behind earthen walls, which were subject to breaking).

Examples where courts have found an activity not to be ultrahazardous / abnormally dangerous include:

• Unloading Sulfuric Acid from a Tanker – Baltodano v. Ctl Distrib., 820 So. 2d 421, 421–22 (Fla. 3d DCA 2002) (finding “[t]he trial court properly concluded that the ‘drum off’ unloading of sulfuric acid from a tanker through a hose and nozzle under pressure, into multiple individual fifty-five-gallon drums is a dangerous enterprise, but it is not an ultrahazardous activity; the danger attendant to that activity can be eliminated by the use of proper handling procedures.”);
• Operating a Large Wrecking Crane – Am. Auto. Asso. v. Tehrani, 12 Fla. L. Weekly 1465 (1st DCA 1987) (“[I]n the context of this case the activity of operating [a] large wrecker was neither an ‘ultrahazardous activity’ nor an ‘inherently dangerous activity’ as these terms are explicated in the Restatement (Second) of Torts, §§ 416, 427 and 520 ….”); and
• Selling Propane – St. Cyr, 2006 U.S. Dist. LEXIS 52239, at *11 (“the Court finds that the danger involved in the sale of propane can easily be eliminated by the exercise of reasonable care by use of proper handling and dispensing procedures such as employing properly trained attendants and performing routine inspections.”).