Dyer v. Maine Drilling & Blasting, Inc.

Citation984 A.2d 210,2009 ME 126
Decision Date17 December 2009
Docket NumberDocket: Wal-09-116.
CourtSupreme Judicial Court of Maine (US)

Jeffrey T. Edwards, Esq. (orally), James C. Bush, Esq., Preti, Flaherty, Beliveau & Pachios, LLP, Portland, ME, for Vera E. Dyer, Paul Dyer and Robert Dyer.

Frederick C. Moore, Esq. (orally), Jessica Adler Coro, Esq., Law Offices of Frederick C. Moore, Portland, ME, for Maine Drilling & Blasting, Inc.



Concurrence/Dissenting: SAUFLEY, C.J., and ALEXANDER, J.

Concurrence/Dissenting: SAUFLEY, C.J.


[¶ 1] Vera E., Paul, and Robert Dyer appeal from a summary judgment entered in the Superior Court (Waldo County, Hjelm, J.) in favor of Maine Drilling & Blasting, Inc. (Maine Drilling). The Dyers argue that: (1) we should follow the weight of authority and adopt a common law rule of strict liability for abnormally dangerous activities; (2) the trial court erred in concluding that the Dyers failed to generate a genuine issue of material fact regarding a causal relationship between Maine Drilling's blasting activities and damage to their property; and (3) the doctrine of res ipsa loquitur should be available to establish their negligence claims. Because we adopt the Second Restatement's imposition of strict liability for abnormally dangerous activities, see Restatement (Second) of Torts §§ 519-520 (1977), and because there remain factual disputes on the issue of causation, we vacate the court's grant of a summary judgment and remand for further proceedings.


[¶ 2] Viewed in the light most favorable to the non-moving party, see Jorgensen v. Department of Transportation, 2009 ME 42, ¶ 2, 969 A.2d 912, 914, the summary judgment record supports the following facts.

[¶ 3] Vera Dyer and her sons, Paul and Robert, have a home in Prospect that the family has owned since the 1950s. The home, believed to be over seventy years old, has a cement foundation and floor. A stand-alone garage with a cement floor was constructed in the 1980s.

[¶ 4] On September 22, 2004, Maine Drilling distributed a form notice that informed the Dyers that Maine Drilling would begin blasting rock near the home on or about October 1, 2004, in connection with a construction project to replace the Waldo-Hancock Bridge and bridge access roads.1 The notice stated that Maine Drilling uses "the most advanced technologies available ... to measure the seismic effect to the area," and assured the Dyers "that ground vibrations associated with the blasting [would] not exceed the established limits that could potentially cause damage."

[¶ 5] As offered in the notice, Maine Drilling provided a pre-blast survey of the Dyer home. The survey report recorded the surveyor's observation of "some concrete deterioration to [the] west wall" and "cracking to [the] concrete floor," and a slight tilt to a retaining wall behind the garage. Richard Dyer, another son of Vera, thoroughly documented the condition of the home and garage by videotape before blasting began.

[¶ 6] Maine Drilling conducted over 100 blasts between October 2004 and early August 2005. The closest blast was approximately 100 feet from the Dyer home. Vera was inside the home for at least two of the blasts and felt the whole house shake. During other blasts, she was not in the home because Maine Drilling employees advised her to go outside. Vera visited Florida from approximately January through April 2005, and so was absent from her home when blasting occurred during that period. Paul, however, checked on the home several times a week while Vera was in Florida.

[¶ 7] In the early spring of 2005, after the blasting work had begun and while Vera remained in Florida, both Paul and Richard observed several changes from the pre-blasting condition of the home and the garage: (1) the center of the basement floor had dropped as much as three inches; (2) the center beam in the basement that supported part of the first floor was sagging, and as a result the first floor itself was noticeably unlevel; (3) there was a new crack between the basement floor and the cement pad that formed the foundation of the chimney in the basement; (4) new or enlarged cracks radiated out across the basement floor from the chimney foundation; and (5) cracks that had previously existed in the garage floor were noticeably wider and more extensive. The brothers also noticed that a flowerbed retaining wall that helped to support the rear wall of the garage had "moved demonstrably."

[¶ 8] When she returned to Maine, Vera observed the same changes in the condition of the property as her sons had reported and also noted larger or new cracks or separations on the back wall of the home's foundation.

[¶ 9] The Dyers engaged an expert in ground engineering and environmental services, Mark Peterson, who testified at a deposition that the U.S. Bureau of Mines has established a "safe operating envelope" for seismic impact of blasts to minimize property damage. Under these guidelines, a blast is considered unlikely to cosmetically damage fragile structures in a building if its velocity falls below the established envelope. Where, however, a structure is underlain by "uncontrolled fill" as opposed to "engineered fill,"2 damage can potentially result even if blasting is within the Bureau of Mines's envelope. Peterson testified that the Dyer home might be built on top of uncontrolled fill. Assuming this, Peterson stated that "there is not 100% certainty how the [Dyers'] floor would behave" in response to vibrations from blasting, and that settlement of uncontrolled fill could occur as a result of blasting.

[¶ 10] Readings from a seismograph that Maine Drilling placed adjacent to the Dyer residence showed that six blasts produced vibrations that "slightly" exceeded the Bureau of Mines's envelope. According to Peterson's report, seismograph readings showed that blasts in October and November 2004, late March 2005, and early April 2005, produced vibrations in excess of those guidelines. Seismograph readings indicate that the most severe vibration at the Dyer home occurred on November 9, 2004.

[¶ 11] Peterson testified that it is common for Maine homes to have cracking in foundations or basement floors that appear "over the course of the years," which could be caused by such things as vibrations, earth pressure, ground settlement, temperature, and ground water. Peterson opined that settlement under the Dyer home could have taken place for reasons unrelated to Maine Drilling's blasting, but that he would have expected such settlement to have occurred prior to blasting. Conversely, Peterson concluded that settlement due to the blasting was possible because: (1) the Dyers observed changes in floor settlement after blasting; (2) the pre-blast survey and the Dyers' observations did not indicate that the current basement settlement conditions existed before blasting began; (3) uncontrolled fill could consolidate and cause settlement from blasting vibrations; and (4) the most severe vibrations from blasting occurred prior to observations that the basement floor had settled.

[¶ 12] The Dyers filed a three-count complaint, subsequently amended, alleging causes of action in strict liability and negligence. Maine Drilling filed a motion for summary judgment as to all counts in the Dyers' complaint. The Dyers opposed Maine Drilling's motion and filed a statement of additional material facts.

[¶ 13] The court granted Maine Drilling's motion for a summary judgment and awarded costs to Maine Drilling. The court found in favor of Maine Drilling on the Dyers' claim for strict liability, citing Reynolds v. W.H. Hinman Co., 145 Me. 343, 75 A.2d 802 (1950) and other Maine precedent in support of its ruling. As to the Dyers' negligence claim, the court concluded that the record provided evidence to identify a standard or duty of care, based on standards formulated by the Bureau of Mines, and that there remained factual disputes regarding a breach of that standard or duty of care. The court concluded, however, that the record was insufficient to generate a triable claim that Maine Drilling's conduct was a cause of damage to the Dyer home and that the record failed to include an expert opinion that the blasting was a legal cause of the damage. The court also determined that the Dyers could not rely on the doctrine of res ipsa loquitur in this case because the record on summary judgment failed to contain evidence that the alleged damages could not have occurred in the absence of negligence. The Dyers filed this appeal.

A. Standard of Review

[¶ 14] We review a grant of a summary judgment de novo, considering the evidence in the light most favorable to the non-moving party. Jorgensen, 2009 ME 42, ¶ 2, 969 A.2d at 914. "We will affirm a grant of summary judgment if the record reflects that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law." Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575.

B. Strict Liability

[¶ 15] Because the Dyers pleaded strict liability, and their claim was dismissed on that count as well as on negligence counts, we address the strict liability issue, and apply that analysis regardless of the validity of the negligence claim. See Jensen v. S.D. Warren Co., 2009 ME 35, ¶ 35, 968 A.2d 528, 537 (addressing issues that could arise on remand depending on resolution of other claims). We adopt today the Second Restatement's imposition of strict liability for abnormally dangerous activities,3 and remand to the court to determine if the blasting in this case was an abnormally dangerous activity under the Restatement's six-factor test. See Restatement (Second) of Torts §§ 519-520 (1977).4 In doing so, we overrule our prior opinions...

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