In early March 2016, a small-town dispute reached the Maryland Court of Appeals and somewhat surprisingly garnered coverage in several prominent local publications, including The Frederick News Post,[1] The Daily Record,[2] and The Washington Post.[3] In Toms v. Calvary Assembly of God, Inc., Mr. Toms, a dairy farmer in Walkersville, Maryland, sued the Calvary Assembly of God (“the Church”), alleging that the noise from the Church’s fireworks display on an adjacent farm caused Mr. Toms’s cows to stampede. In the stampede, several of Mr. Toms’s cows sustained injuries, and some died. After Mr. Toms lost in both the District Court and Circuit Court for Frederick County, the Court of Appeals granted certiorari to address whether the doctrine of strict liability for an abnormally dangerous activity applies to the noise of a fireworks discharge.[4] The Court of Appeals held that the Church was not strictly liable for Mr. Toms’s damages, as fireworks displays are not abnormally dangerous due to the statutory scheme regulating their use.[5]
While the facts of the case are interesting and probably will be used on future law school Torts exams, the case may have received widespread attention due to the fascinating legal questions it presented. Although Mr. Toms did not succeed, he wisely presented several legal theories, including arguments that the Church should be held liable under theories of traditional negligence, res ipsa loquitur, nuisance, and strict liability. This blog post, like the Court of Appeals’ opinion, will focus on strict liability.
The strict liability doctrine dates back to the famous 1868 English case Rylands v. Fletcher. Maryland has recognized this doctrine since at least 1894.[6] Under the modern version of the doctrine, even if the actor exercises the utmost care to prevent harm, he will be liable without a finding of fault if he engaged in an abnormally dangerous activity.[7] Importantly, the harm must be of a kind the risk of which makes the activity abnormally dangerous.[8] The Toms case is a perfect example of this rule. Fireworks are dangerous for their explosive nature, risk of malfunction, and propensity to cause burns and fire damage if misfired. While there is a jurisdiction split as to whether fireworks are abnormally dangerous,[9] no court has found strict liability due to damage caused by the fireworks’ noise alone.
In determining whether an activity is abnormally dangerous, courts look to the following factors: (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) the 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.[10]
The Toms fact pattern may seem rare, but strict liability has applied in many other situations. These include the making, transportation, and disposal of explosives or toxic chemicals, blasting and demolition on construction sites, and owning certain exotic or dangerous animals. Related strict liability principles also may apply to products liability and even certain crimes.
Importantly, Maryland courts and courts throughout the nation have asserted that the location of the activity is the most important factor of the six-factor test.[11] Furthermore, businesses should weigh the danger posed by the activity in relation to the value of their business to the community: If the business has very little social utility or benefit, it will be harder to justify the risk to human health and property. Finally, many states have adopted the Restatement (Second) of Torts on strict liability, so case law from other jurisdictions, while not binding, may be especially persuasive to a local court.
Attorneys at Ferguson, Schetelich & Ballew, P.A. have experience in all aspects of tort litigation, and can provide guidance to potential litigants in cases involving strict liability claims.
[1] http://www.fredericknewspost.com/news/crime_and_justice/courts/court-death-of-cows-at-walkersville-dairy-farm-cannot-be/article_b922ee26-5a5b-5697-a8c0-9cd5ce4d9563.html.[2] http://thedailyrecord.com/2016/03/01/md-high-court-finds-fireworks-not-abnormally-dangerous/.[3] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/04/fireworks-noise-stampede-in-dairy-barn-4-dead-cows-strict-liability/.[4] http://www.mdcourts.gov/opinions/coa/2016/26a15.pdf.[5] Id.[6] See Balt. Breweries Co. v. Ramstead, 78 Md. 501, 28 A. 273 (1894).[7] See Restatement (Second) of Torts § 519.[8] Id.[9] http://www.mdcourts.gov/opinions/coa/2016/26a15.pdf, at pp. 14-17.[10] Restatement (Second) of Torts § 520.[11] See Kelley v. R.G. Indus., Inc., 304 Md. 124, 133-34, 497 A.2d 1143, 1147 (1985) (citing four cases from other jurisdictions in support).