Gronn v. Rogers Const., Inc.

• Decision Date: 13 April 1960
• Citation: 221 Or. 226,350 P.2d 1086
• Parties: H. E. GRONN and Sophia Gronn dba Gronn's Mink Ranch, Appellants, v. ROGERS CONSTRUCTION, INC., a corporation, Respondent.
• Court: Oregon Supreme Court

Page 1086

350 P.2d 1086

221 Or. 226

H. E. GRONN and Sophia Gronn dba Gronn's Mink Ranch, Appellants, v. ROGERS CONSTRUCTION, INC., a corporation, Respondent.

Supreme Court of Oregon, Department 1.

Argued March 3, 1960.

Decided April 13, 1960.

W. W. McKinney and T. W. Churchill, Salem, argued the cause and submitted a brief for appellants.

David O. Bennett, St. Helens, argued the cause for respondent. With him on the brief was John M. Coke, Portland.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and HOLMAN, JJ.

O'CONNELL, Justice.

The plaintiffs bring this action to recover damages to their mink herd alleged to have been caused by vibrations, concussion and noise resulting from the defendant's operations in connection with the construction of a road. Plaintiffs appeal from a judgment of involuntary nonsuit.

Plaintiffs own and operate a mink ranch near Clatskanie, Oregon. Defendant, under a contract with the State Highway Department, was engaged in highway construction work near plaintiffs' ranch. In connection with this work defendant engaged in blasting operations at a quarry located approximately one-third of a mile from plaintiffs' ranch. The defendant operated rock-crushing equipment at the quarry site and the rock was then hauled by large mobile conveyors to the road under construction. Plaintiffs allege that the discharge of the explosives at the quarry and the noise and vibration from the rock-crushing equipment and trucks frightened and excited the mink as a result of which a large number of the mink kittens were stillborn or stunted in growth, and some of the adult mink were rendered less valuable because they became useless for breeding stock and because of the reduction in the quality of the pelts.

It was shown that the nature of the mink is such that loud and unusual noises or concussions at the time of whelping are likely to cause the female mink to produce stillborn kittens and to neglect or abandon those kittens which are born alive.

Plaintiffs allege two causes of action: the first based upon the theory of strict liability; the second on the theory of nuisance. To make out the first cause of action it is alleged that defendant was engaged in an ultrahazardous activity in the quarrying operation, and that notwithstanding the fact that it knew or should have known of the close proximity of plaintiffs' mink ranch and of the above described propensities of mink, it nevertheless, set off numerous charges of explosives causing the alleged damage.

In the second cause of action, based upon the theory of nuisance, it is alleged that the discharge of explosives, the operation of the rock-crushing equipment and hauling operations caused noises and concussions of great violence and frequency which resulted in the alleged damage.

We shall consider first the applicability of the doctrine of strict liability of the facts of the present case.

The case of Bedell v. Goulter, 1953, 199 Or. 344, 261 P.2d 842 established the rule in this state that one who discharges explosives may, under the proper circumstances, be strictly liable for the consequent injury, even though the injury is brought about solely through vibration or concussion. But that case did not purport to establish a rule making the blaster absolutely liable for all damages resulting from a blasting operation. The court had before it the question of the blaster's liability to the owner of a structure which was damaged by the blast. The case at bar presents quite a different question. Plaintiffs do not seek recovery for damages which might have been caused to buildings on their land, nor do they complain that the noise and vibration caused them personal discomfort in the use and enjoyment of their land; and they do not claim that any of their mink were killed or harmed directly by the force of the explosion. Their sole claim rests upon the damage which it is alleged resulted to their mink because of the peculiar susceptibility of mink to noise and vibration. Is this the type of risk of harm which characterizes defendant's conduct as extra hazardous? Clearly not. Defendant's conduct is classified as ultrahazardous because of the potential physical damage resulting from the force of an explosion, not because of the 'psychological' effect it may have on either human beings or animals. As stated in Prosser on Torts (2d ed.), p. 338, 'In general, strict liability has been confined to those consequences which lie within the extraordinary risk created, both as to the type of harm threatened and the persons within the area of danger.' To the same effect see Harper, Liability Without Fault and Proximate Cause, 30 Mich.L.Rev. 1001, 1006 (1932):

'* * * But one who engages in extra-hazardous conduct is liable only for those consequences which belong to the general class of harms threatened by his conduct. Thus, though the defendant keeps a wild animal that is vicious by nature, he is not liable for injuries produced by a horse becoming frightened and running away at the sight of the animal on the road. Such a harm is not one of the general classes of harms which make his conduct extra-hazardous.'

This limitation on the defendant's liability has been applied in a case similar to the case at bar. In Madsen v. East Jordan Irr. Co., 1942, 101 Utah 552, 125 P.2d 794, plaintiff, the owner and operator of a mink farm sought recovery against the defendant for damage resulting to plaintiff's mink from defendant's blasting operation. It was alleged that the explosion caused vibrations and noises which frightened the mother mink and caused some of them to kill their kittens. In holding that the lower court properly sustained a demurrer to the complaint, the court said:

'* * * Whether the cases are concussion or non-concussion, the results chargeable to the nonnegligent user of explosives are those things ordinarily resulting from an explosion. Shock, air vibrations, thrown missiles are all illustrative of the anticipated results of explosives; they are physical as distinguished from mental in character. * * * In the instant case, the killing of their kittens was not an act of self-preservation on the part of the mother mink but a peculiarity of disposition which was not within the realm of matters to be anticipated.' 125 P.2d at page 795.

We hold that the defendant's conduct does not impose upon it strict liability for the harm which is recited in plaintiffs' complaint as a basis for recovery.

We next consider the second cause of action based upon the law of nuisance. We are taught that an invasion of one's interest in the use and enjoyment of land (private nuisance) may result from conduct which is either intentional or unintentional; intentional if the defendant acts for the purpose of causing the invasion or if he knows that it is resulting or is substantially certain to result from his conduct; unintentional if he acts negligently, recklessly or ultrahazardously. We have already concluded that the defendant's conduct was not ultrahazardous with respect to the harm of which plaintiffs complain. The limitation upon strict liability described above is equally applicable to the law of nuisance. Harper, op. cit. supra at page 1006. And there is no evidence that defendant's conduct was reckless. Restatement of the Law of Torts, §§ 500, 822. The question is, therefore, narrowed to the inquiry as to whether there is an intentional or negligent invasion of plaintiffs' interest in the use and enjoyment of their land.

The defendant relies upon the principle stated in Amphitheaters, Inc. v. Portland Meadows, 1948, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690 that a landowner 'cannot increase the liabilities of his neighbor by applying his own property to special and delicate uses, whether for business or pleasure.' 184 Or. at page 353, 198 P.2d at page 854. Bradbury Marble Co. v. Laclede Gas Light Co., 1908, 128 Mo.App. 96, 106 S.W. 594; Eastern and South African Telegraph Company v. Cape Town Tramways Companys, [1902] L.R.,A.C. 381; Kine v. Jolly, [1905] L.R., 1 Ch.D. 480; Noyes v. Huron & Erie Mortgage Corp., [1932] 3 D.L.R. 143. See: Salmond on Torts (11th ed.), pp. 252-260; Comment, 62 Harv.L.Rev. 704 (1949); Comment, 3 Miami L.Q. 316 (1949).

In weighing the conflicting interests of persons using land it is certainly appropriate to take into consideration the fact that the plaintiff's use is sensitive in character. But a sensitive use is entitled to protection if the conduct of the defendant is unreasonable with respect to that sensitive use. It seems obvious, therefore, that the principle stated to terms of sensitivity of use is nothing more than an emphasis upon one aspect of the general weighing process which must be employed to determine where the balance of interests lies. An invasion of plaintiff's interest is unreasonable 'unless the utility of the actor's conduct outweighs the gravity of the harm' 4 Restatement, Torts, § 826, p. 241. 1 Harper & James, The Law of Torts, § 1.24; Prosser on Torts (2d ed.), pp. 410-416. See, Prosser, Nuisance Without Fault, 20 Texas L.Rev. 399 (1942). Some of the specific factors considered in determining the interests of the parties are the extent and character of harm involved; the social value of the respective uses; the suitability of each use to the character of the locality in which it is conducted; the ability of the defendant or plaintiff to prevent or avoid the harm. York v. Stallings, Or.1959, 341 P.2d 529; Amphitheaters, Inc. v. Portland Meadows, supra; Kramer v. Sweet, 1946, 179 Or. 324, 169 P.2d 892; Stoddard v. Snodgrass, 1926, 117 Or. 262, 241 P. 73, 43 A.L.R. 1160; 4 Restatement, Torts, §§ 828, 829. See: Prosser on Torts (2d ed.), pp. 410-416.

Both plaintiffs and defendant were engaged in legitimate uses of property. According to the accepted standards of our society defendant's conduct in constructing a public highway would, undoubtedly, be deemed of greater social value than plaintiffs'...