Galbreath v. Engineering Const. Corp., 271A34

• Decision Date: 09 September 1971
• Docket Number: No. 271A34,No. 1,271A34,1
• Citation: 149 Ind.App. 347,273 N.E.2d 121
• Parties: , 56 A.L.R.3d 1002 Andrew K. GALBREATH, Plaintiff-Appellant, v. ENGINEERING CONSTRUCTION CORPORATION, Defendant-Appellee
• Court: Indiana Appellate Court

Page 121

273 N.E.2d 121

149 Ind.App. 347, 56 A.L.R.3d 1002

Andrew K. GALBREATH, Plaintiff-Appellant, v. ENGINEERING CONSTRUCTION CORPORATION, Defendant-Appellee.

No. 271A34.

Appellate Court of Indiana, Division No. 1.

Sept. 9, 1971.

Hillis & Hillis, Logansport, Cook & Cook, Kokomo, for appellant.

Rocap, Rocap, Reese & Young, Indianapolis, Miller, Tolbert, Hirschauer & Wildman, Logansport, for appellee.

SULLIVAN, Presiding Justice.

Plaintiff-appellant suffered negative judgments upon the two paragraphs of his complaint for personal injury damages. The first paragraph of Calbreath's complaint alleges that the defendant was negligent in detonating dynamite too close to a pressure gas main owned by Northern Indiana Public Service Company (NIPSCO), causing the gas line to rupture. Plaintiff, a NIPSCO employee, was repairing the ruptured main when the escaping gas ignited and exploded. Plaintiff was thereby injured. Defendant was allegedly further negligent in leaving a backhoe engine in operation and positioned just above the excavation where the gas line had been ruptured.

Galbreath's complaint contained a second paragraph alleging that defendant used dynamite to blast rock, an ultra and extra-hazardous activity especially in such close proximity to pressure gas mains, so as to create absolute liability against the defendant for plaintiff's injuries. The trial court sustained defendant's demurrer to the 'absolute liability' paragraph of plaintiff's complaint. The first issue presented for review, therefore, is whether the trial court erred in sustaining the demurrer and in entering judgment for defendant upon that paragraph of the complaint.

Plaintiff-appellant argues that the defendant is liable for any injury proximately caused by the blasting operation. He argues that once a tort feasor releases a destructive force, he is liable for foreseeable damage which follows so long as the destructive force remains loose and uncurbed. Acknowledging that Indiana has not yet imposed strict liability in such situations, plaintiff nevertheless asserts that it would be too thin a distinction for the court to hold that where a person is injured by falling debris (Wright v. Compton (1876) 53 Ind. 337), or that where a window is shattered by concussion some distance away (Enos Coal Mining Co. v. Schuchart (1963) 243 Ind. 692, 188 N.E.2d 406), there is liability and recovery without proof of negligence, yet deny recovery to a person who is injured by gas escaping from a broken main caused by blasting under the same or similar circumstances. ¹

In answer to this contention appellee states and we agree that there are no Indiana cases--indeed no cases which have been found from other jurisdictions--in which the rule of absolute liability has been extended to facts similar to those before us. Appellee thus logically concludes that the rule of strict liability regarding the use of explosives is concerned only with occurrences of trespassing debris or concussion damage.

Detailed research discloses no case in the United States permitting recovery for blasting damage or injury upon an absolute liability concept without actual trespass by debris or damage directly inflicted by concussion vibrations. ² See 20 A.L.R.2d 1372 at 1375, and supplements thereto. Absolute liability has been imposed in Indiana in the latter two situations, Wright v. Compton, supra, and Enos Coal Mining Co. v. Schuchart, supra, but has not heretofore been extended beyond those arbitrary factual limitations.

ABSOLUTE LIABILITY EXTENDS TO INJURY PROXIMATELY CAUSED BY USE OF EXPLOSIVES, WHETHER INFLICTED BY DEBRIS, CONCUSSION, OR OTHERWISE

It seems to us, however, that if by direct concussion caused by a defendant's use of explosives, a substance equally hazardous is released, which substance in the ordinary experience of man is likely to cause damage or injury if unconfined and does so, we must hold the originator of the concussion responsible for the foreseeable consequences. If, therefore, as the existing law in Indiana presently requires, use of explosives is acknowledged as extrahazardous so as to impose absolute liability for certain damage or injury proximately caused thereby without regard to the exercise of reasonable care, it is absurd to reject such absolute liability for damage or injury also proximately caused though not immediately or directly so. Compare Gronn, Madsen and Foster cases, supra, at Footnote 2.

It is generally recognized that artificial distinctions such as that heretofore maintained in blasting cases are for the purpose of injecting a real or imagined public policy consideration at an arbitrary point in the process of determining an actor's responsibility for injurious acts. As was eloquently stated by Judge Andrews in his dissent in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 103--104:

'What we do mean by the word 'proximate' is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. * * * (W)hat the prudent would foresee * * * may have some bearing, for the problem of proximate cause is not to be solved by any one consideration. It is all a question of expediency. There are no fixed rules to govern our judgment. * * * There is in truth little to guide us other than common sense. * * * The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or, by the exercise of prudent foresight, could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. * * * We draw an uncertain and wavering line, but draw it we must as best we can.'

It is folly, however, and does the law no service to arbitrarily implement social policy without regard to logic or consistency. The latter viewpoint was well stated as follows:

'Under the traditional approach it is a manifest contradiction to hold that a duty to the world has been breached, yet exonerate the defendant because of public policy. In effect, the court determines that, although there is a breach of duty, the defendant has committed no actionable wrong. It is far more logical to include consideration of public policy with the determination of the defendant's duty. If for public policy reasons liability must be restricted, then his conduct in the light of all circumstances is not unreasonable to any plaintiff. As life in modern society grows more complex and knowledge increases, the concepts of unreasonable and foreseeable risk must also progeress, and contemporary judges and jurors are the means by which it should expand and grow.' The Effect of the Palsgraf Doctrine in Indiana, 29 Ind.Law J. 622, at 627--628.

We now therefore hold that if acknowledged extra-hazardous activity, e.g., blasting, proximately causes damage, whether by direct impact of debris or by concussion waves, or otherwise, the actor is absolutely liable for such damage without regard to his exercise of reasonable care in the carrying out of such activity. ³

While it might be considered appropriate to reject the concept of 'proximate cause' as a measure of the extent to which one using explosives can be held absolutely liable, and to adopt in its place a standard such as the 'orbit of danger' test enunciated by Judge Cardozo in the Palsgraf case, supra, we do not deem it to be within our prerogative to do so. There is perhaps merit in the argument that foreseeability is misplaced as an element of proximate cause and is proper only in the consideration of whether there exists a duty between a particular plaintiff and a particular defendant. Of course, in absolute liability situations, the 'duty' ⁴ is imposed by the nature of the activity conducted by the defendant and is without regard to the care or lack thereof exercised in the course of that activity. Foreseeability, however, is very relevant in absolute liability cases, if not from a proximate cause aspect, then from the standpoint of the scope of harm, the orbit of foreseeable risk, which embraces the particular extrahazardous activity. The latter concept might at first blush appear to merge very ethereally with and into the element ordinarily injected into proximate cause limitations of liability, i.e., that the injury or damage produced must be of that class of injury or damage which should have been reasonably anticipated. Various scholars have wisely although not without difficulty drawn the distinction. The Effect of the Palsgraf Doctrine in Indiana, 29 Ind.Law J. 622; Harper, Liability Without Fault and Proximate Cause, 30 Mich.L.Rev. 1001; 100 ALR2d Anno. 942; 155 ALR Anno. 157.

Judge Cardozo stated it as follows:

'The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary.' Palsgraf v. Long Island R. Co., supra, 162 N.E. 99, 101.

Stated another way perhaps even more simply:

* * * "negligence is tested by foresight but proximate cause is determined by hindsight,' and that 'although a rigorous definition...