Correa v. Curbey

• Decision Date: 26 October 1979
• Docket Number: CA-CIV,No. 2,2
• Citation: 605 P.2d 458,124 Ariz. 480
• Parties: Albert I. CORREA and Janet Correa, husband and wife, Plaintiffs/Appellants, v. Roy CURBEY and Dorothy Curbey, husband and wife, Defendants/Appellees. 3035.
• Court: Arizona Court of Appeals

Page 458

605 P.2d 458

124 Ariz. 480

Albert I. CORREA and Janet Correa, husband and wife, Plaintiffs/Appellants, v. Roy CURBEY and Dorothy Curbey, husband and wife, Defendants/Appellees.

No. 2 CA-CIV 3035.

Court of Appeals of Arizona, Division 2.

Oct. 26, 1979.

Rehearing Denied Dec. 3, 1979.

Review Denied Jan. 3, 1980.

Robert C. Moore, Phoenix, for plaintiffs/appellants.

Udall, Shumway, Blackhurst, Allen, Bentley & Lyons, P. C., by Merle M. Allen, Jr. and Steven H. Everts, Mesa, for defendants/appellees.

OPINION

HATHAWAY, Judge.

The principal issue presented on appeal by plaintiffs/appellants is whether the trial court committed reversible error in refusing to instruct the jury on strict liability. We find that it did and reverse.

The Correas brought this action against appellees Curbey for damages to their residence and well as a result of alleged blasting operations conducted by the Curbeys on their adjoining property. The testimony was conflicting as to whether any explosions had in fact occurred and the jury returned a defense verdict. Plaintiffs claim error in the refusal to give certain instructions.

The first error claimed is the refusal to give the following requested instruction concerning strict liability:

"I instruct you that when a person decides to use explosives upon his own property and in so doing causes damage to the property of persons living near him, the person so using the explosives is liable to such nearby persons for such damage.

And so in this case, if you find from the evidence that defendants Curbey, or either of them, caused an explosion or explosions to occur on their property which caused substantial damage to plaintiffs Correas' property, then the defendants would be liable to plaintiffs for all such damage."

The evidence must be considered in the strongest manner supporting the theory of the party requesting the instruction. Schneider v. Macari, 111 Ariz. 483, 533 P.2d 540 (1975); Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30 (1939). If there is any evidence tending to establish such theory, the instruction should be given even if contradictory facts are also presented, and the weight of the evidence is for the jury to determine. Nichols v. Baker, 101 Ariz. 151, 416 P.2d 584 (1966); Townsend v. Whatton, 21 Ariz.App. 556, 521 P.2d 1014 (1974); Wilson v. Sereno, 11 Ariz.App. 35, 461 P.2d 514 (1969).

While there is case law in Arizona dealing with strict liability when products are involved, the issue of strict liability when the defendant is engaged in an abnormally dangerous activity has not been passed upon by the courts. There being no authority to the contrary, we look to the Restatement (Second) of Torts, Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975), to determine first whether the requested instruction is a correct statement of the law as contained in Sections 519 and 520 of the Restatement. Section 519 states that imposition of strict liability is limited to those who carry on abnormally dangerous activities. Section 520 sets forth the factors to be considered in determining whether a particular activity is abnormally dangerous, and comment 1 to this section requires that the trial court make this determination. Loe et ux. v. Lenhardt et al., 227 Or. 242, 362 P.2d 312 (1961); Smith v. Lockheed Propulsion Company, 247 Cal.App.2d 774, 56 Cal.Rptr. 128 (1967). The record on appeal does not specifically indicate that this determination was made. However, implicit in the court's refusal to give an instruction on strict liability is the determination that blasting was not an abnormally dangerous activity.

Normally, we will not disturb the trial court in the exercise of its discretion unless it is clearly incorrect. State v. Janise, 116 Ariz. 557, 570 P.2d 499 (1977); Visco v. Universal Refuse Removal Company, 11 Ariz.App. 73, 462 P.2d 90 (1969); Hackin v. First National Bank of Arizona, 5 Ariz.App. 379, 427 P.2d 360 (1967). We believe the court incorrectly determined that blasting, if proven by the evidence, would not serve as the basis for strict liability. A clear majority of American jurisdictions have adopted the view that blasting is the paradigm case of abnormally dangerous activities and have held one who uses explosives strictly liable for any damage caused. Annot., 20 A.L.R.2d 1372 (1951, Supp. 1970); 31 Am.Jur.2d, Explosions and Explosives, Sec. 35, et seq.

In a leading case dealing with liability for the storage of explosives, the Second Circuit Court of Appeals stated:

"Dynamite is of the class of elements which one who stores or uses in such a locality, or under such circumstances as to cause likelihood of risk to others, stores or uses at his peril. He is an insurer, and is absolutely liable if damage results to third persons, either from the direct impact of rocks thrown out by the explosion (which would be a common-law trespass) or from concussion." Exner v. Sherman Power Const. Co., 54 F.2d 510 at 512, 513 (2nd Cir. 1931).

The question is: Who should bear the cost of any damages resulting from blasting, the person engaged in the dangerous activity or the innocent neighbor injured thereby? See Yukon Equipment v. Fireman's Fund Ins. Co., 585...