Clark-Aiken Co. v. Cromwell-Wright Co., Inc.

• Decision Date: 03 March 1975
• Docket Number: CLARK-AIKEN,CROMWELL-WRIGHT
• Citation: 367 Mass. 70,323 N.E.2d 876
• Parties: TheCOMPANY v.COMPANY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 876

323 N.E.2d 876

367 Mass. 70

The CLARK-AIKEN COMPANY v. CROMWELL-WRIGHT COMPANY, INC.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Oct. 9, 1974.

Decided March 3, 1975.

Frederick M. Myers, Jr., Pittsfield, for plaintiff.

John D Lanoue for defendant.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, KAPLAN, and WILKINS, JJ.

TAURO, Chief Justice.

This case is before us pursuant to G.L. c. 231, § 111, on a report by a judge of the Superior Court. The question submitted on report is as follows: 'Does Count II of the plaintiff's declaration set forth a cause of action known to the law of the Commonwealth of Massachusetts?'

The plaintiff brought an action in tort in two counts; the first alleging negligence, the second in strict liability. ¹ It seeks to recover for damage caused when water allegedly stored behind a dam on the defendant's property was released and flowed onto its property. A Superior Court judge sustained the defendant's demurrer on the ground that 'Count II . . . does not allege a cause of action under the law of this Commonwealth.' He held that, 'in order to recover for damage caused by the water which escaped from the dam owned by the Defendants, the Plaintiffs must allege and prove that the escape was caused by intentional or negligent fault of some person or entity.' ² The sole issue before us is whether a cause of action in strict liability exists in this Commonwealth regardless of considerations of fault on the part of the defendant. After careful consideration, we conclude that strict liability as enunciated in the case of Rylands v. Fletcher, (1868) L.R. 3 H.L. 330, is, and has been, the law of the Commonwealth.

In light of the long and detailed opinion by the Superior Court judge, with its exhaustive analysis of the pertinent cases, and because of the extensive briefing by counsel in the instant case, we believe it appropriate, and indeed necessary, to analyze closely the history and development of the strict liability rule, beginning with Rylands v. Fletcher, supra.

The doctrine known as strict liability, or absolute liability without fault, was first enunciated in the English case of Rylands v. Fletcher, supra. In that case, the defendants had a reservoir built on land located above a number of vacant mine shafts. When the reservoir was partially filled it burst through one of the underlying shafts, causing water to flow into the plaintiff's coal workings. The actual construction of the reservoir was undertaken by contractors of the defendants, who were found to have been negligent. The defendants themselves were unaware of the shafts, and were found not to have been negligent. The trial court found for the defendants. Fletcher v. Rylands, (1865) 3 H. & C. 774, 799.

On appeal, this decision was reversed in Fletcher v. Rylands, (1866) L.R. 1 Ex. 265. The lower appellate court considered two possible courses in the case: it could be decided on the basis of negligence, in which case the court would be required to face the issue of whether a defendant would be liable for the acts of its contractors, ³ or it could be viewed as a strict liability case, thereby obviating the need for making such a determination.

The court concluded, '(T)he true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.' (1866) L.R. 1 Ex. at 279. After reaching this conclusion, Mr. Justice Blackburn stated, 'The view which we take of the first point renders it unnecessary to consider whether the defendants would or would not be responsible for the want of care and skill in the persons employed by them' (emphasis added). Id. at 287. It is clear that negligence was not a factor in the appellate court's decision of the case. Were it otherwise, the court would have been required to reach an issue on which it specifically reserved decision. In imposing strict liability, it also ruled that where only the contracors were found to have been negligent, and considering the then state of English law, negligence could not be imputed to the defendants. Thus, negligence was clearly irrelevant to the decision in that case.

On appeal to the House of Lords, Mr. Justice Blackburn's decision was upheld, although the doctrine of strict liability was narrowed somewhat. Speaking for the House, Lord Cairns stated: '(I)f the Defendants . . . had desired to use . . . (their land) for any purpose which I may term a non-natural use . . . and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape . . . that which the Defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose . . . (escape and resulting injury) then for the consequence of that, in my opinion, the Defendants would be liable' (emphasis added). Rylands v. Fletcher, (1868) L.R. 3 H.L. at 339. Although Lord Cairns limited the doctrine to include liability only for 'non -natural' uses of one's land, he indicated that he 'entirely concur(red)' with Mr. Justice Blackburn's analysis. Id. at 340. Further, in using the disjunctive 'or' in the quotation above, he made clear that conduct of the activity itself is sufficient for imposition of liability, and that imperfection in the mode of doing so, or negligence, is merely an alternative basis therefor. ⁴

There is, then, nothing in either opinion in the Rylands case which would support the defendant's contention that the case is founded on negligence. Furthermore, the English courts have never regarded it as anything but one of strict liability. See, e.g., Smith v. Fletcher, (1874) L.R. 9 Ex. 64, 67; Rainham Chem. Works, Ltd. v. Belvedere Fish Guano Co. Ltd. (1921) 2 A.C. 465, 471; Western Engraving Co. v. Film Labs. Ltd. (1936) 1 All.E.r, 106. ⁵ Finally, there is no basis to conclude that this court has adopted anything but the broad strict liability rule of the case, and Massachusetts case law follows and supports this view.

In the instant case the defendant contends (and the Superior Court judge agreed) that none of the Massachusetts cases which purportedly apply the rule of strict liability are in fact premised on that doctrine. Furthermore, the defendant disputes the authority of those cases which seemingly approve the doctrine, recognizing it as the law of the Commonwealth, and argues that the citing of the Rylands case as authority in them is either in an improper context or unnecessary to the decision. We cannot agree with this analysis. We think that logic and reason permit these cases to be read consisently with the existence of strict liability as a rule of law in this Commonwealth. We proceed to an examination of these cases to illustrate the point.

The case often cited for adopting the rule of the Rylands case in Massachusetts is Ball v. Nye, 99 Mass. 582 (1868). There, the plaintiff sued for damages resulting from the discharge of filthy matter which percolated from the defendant's vault into the plaintiff's cellar and well. The defendant requested the trial judge to instruct the jury that the plaintiff could not recover absent negligence or intentional conduct on the part of the defendant. The judge refused, and instead directed a verdict for the plaintiff. In instructing the jury, he stated 'that the defendant was bound to so construct his vault that the contents thereof should not percolate through into the plaintiff's cellar and well, and, it being conceded that percolations did pass through, to the plaintiff's injury, such percolations were evidence of negligence, upon which the plaintiff was entitled to a verdict.' Id. at 583--584.

The judge below, in analyzing the opinion in the Ball case, concludes that, because the court discussed 'negligence' and 'due care,' Rylands v. Fletcher, although cited, was not applied. He reads the case instead as one of either trespass or negligent wrongdoing. However, this reading ignores the fact that the defendant there requested charges to the jury on these grounds, and they were denied. Further, the trial judge's statement that the percolations themselves were evidence of negligence can be seen as another way of expressing the application of strict liability. In fact, it is clear from his directing a verdict for the plaintiff that the judge considered the circumstances to have established negligence as matter of law. It could be argued that this is akin to strict liability. ⁶ Thus, the Bull case, although pleaded as a case of negligence or intentional tort, does in fact adopt the Rylands case and the rule of strict liability as the law of the Commonwealth.

The next case citing the Rylands case is Shipley v. Fifty Associates, 106 Mass. 194 (1870), where snow and ice that had accumulated on the defendant's roof fell on the plaintiff, causing injuries. The court held that the defendant had no right to construct his building so as to allow snow and ice to fall from it onto the street and injure people walking thereon, and 'no other proof of negligence on his part is needed.' Id. at 199. Thus, the court held that the construction and maintenance of the roof itself was negligent, and held the defendant liable. This language accords with the 'continuum theory' of negligence (supra at fn. 6), and is not at all inconsistent with adoption of that rule. The defendant disagrees, and cites Delano v. Mother's Super Mkt., Inc., 340 Mass. 293, 163 N.E.2d 920 (1960), as indicating that the Shipley case is not a strict liability case. The Delano case itself is not, and should not be, a strict liability case, ⁷ and Justice Whittemore's comment in dissent that 'probably, on correct analysis, none of our roof cases shows liability without fault', id. at 300, 163 N.E.2d at 924,...