Harper v. Regency Development Co., Inc.

• Decision Date: 01 May 1981
• Citation: 399 So.2d 248
• Parties: Joseph I. HARPER, Jr., Tula Ann Harper, Raymond Youngman, Margaret J. Youngman, Elizabeth S. Staggs, Lillian L. Wilson, Linda Watts v. REGENCY DEVELOPMENT COMPANY, INC., Champion Construction Co., Inc., Ellard Contracting Co., Inc. 80-19.
• Court: Alabama Supreme Court

Page 248

399 So.2d 248

Joseph I. HARPER, Jr., Tula Ann Harper, Raymond Youngman, Margaret J. Youngman, Elizabeth S. Staggs, Lillian L. Wilson, Linda Watts v. REGENCY DEVELOPMENT COMPANY, INC., Champion Construction Co., Inc., Ellard Contracting Co., Inc.

80-19.

Supreme Court of Alabama.

May 1, 1981.

Rehearing Denied June 5, 1981.

Rodney A. Max of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appellants.

John F. Whitaker of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.

Fournier J. Gale, III, and H. Thomas Wells, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for Drummond Coal Co.

JONES, Justice.

The claims upon which this appeal is based arise out of Appellees' blasting operations on Red Mountain in Birmingham, Alabama, during the months of June, July and August of 1978. ¹

Plaintiffs-Appellants are members of a residential community located on the slope of Red Mountain. Plaintiffs initiated these claims in 1979 in the district court, seeking compensation for property damage allegedly caused by Appellees' blasting operations during development of a condominium complex near the crest of the mountain.

Subsequent discovery revealed that the actual costs of repairs to Plaintiffs' residences were in excess of the jurisdictional amount of the district court ($5,000). By the time the amount of actual damages became known, however, expiration of the statute of limitations prevented dismissal and refiling of the actions in the circuit court. Consequently, Appellants amended their claims so as to remain within the district court's jurisdiction.

Upon a finding for Appellees in the district court, Appellants appealed to the circuit court and amended their complaints to claim their actual damages. Thereupon, the circuit court granted Appellees' objections to the amendments and motions to dismiss Count 1 of each of Appellants' complaints. Dismissal of Count 1 of each complaint was predicated upon grounds that it was based solely upon "strict liability" (Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d

539 (1969)), while denial of Appellants' amendments to the ad damnum clauses was based upon ARCP 13(j). We affirm as to the order denying the amendments; we reverse and remand as to the order dismissing Count 1 of each complaint.

APPELLEES' CONTENTIONS FOR AN APPLICABLE LIABILITY STANDARD

Understandably, the position advanced by Appellees is a plea for application of the doctrine of stare decisis: To establish liability for damage allegedly caused by blasting operations, the burden is upon the Plaintiff to allege and prove that such damage was the result of Defendant's negligence and not the result of blasting conducted in accordance with usual methods and a reasonable standard of care. Mitchell v. Richardson, 277 Ala. 651, 173 So.2d 814 (1964); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So.2d 229 (1963); Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748 (1958).

As a corollary, Appellees urge that strict liability is an unnecessary and unreasonable standard to impose in blasting cases in that: 1) Blasting is a reasonable and necessary activity in developing land, Cratty v. Samuel Aceto & Co., 151 Me. 126, 116 A.2d 623 (1955); 2) Liability without fault is an unreasonable and unnecessarily restrictive doctrine, Klostermann v. Houston Geophysical Co., 315 S.W.2d 664 (Ct.App.Tex.1958); 3) Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), as proposed by Appellants, arguably adopts a negligence standard as opposed to one of strict liability, Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939); 4) To apply a standard of liability without fault would amount to judicial legislation, Coalite, Inc. v. Weeks, 284 Ala. 219, 224 So.2d 251 (1969); 5) Proof of negligence is not an unreasonable burden in blasting cases, Crawford Coal Co. v. Stephens, 382 So.2d 536 (Ala.1980).

HISTORY

The history of this State's application of standards of liability in blasting cases is succinctly and aptly set forth in Appellants' brief:

"Since 1907, persons injured or damaged ... by the concussion or vibration caused by blasting have been without a remedy, unless they could show that the blaster was negligent in his blasting operations. In effect, blasters in Alabama have been allowed to cause injury and damage to surrounding property so long as they do it carefully. This ... approach to liability for blasting is derived from traditional common law dichotomies of trespass/negligence (trespass on the case) and direct injury/indirect injury. These dichotomies may be explained as follows: If rocks are thrown onto plaintiff's property, there is a trespass because of the direct injury, and the defendant is liable without fault. ² ) If, however, the damage was caused by concussion in the air or vibration in the ground, the injury is caused indirectly, and the remedy lies in trespass on the case for which the plaintiff must prove negligence in the blasting. ³ "

See, also, Rendlemen, More on Procedure Reform, 33 Ala.Law. 37, 44 (1972).

A majority of states now characterize blasting, under certain conditions, as an abnormally dangerous activity and apply a strict liability approach for injury or damage caused thereby. Restatement (Second) of Torts, §§ 519-524A (1977). This Court, in Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979), hinted at the need to reconsider this State's application of the trespass/trespass on the case dichotomy associated Under a traditional standard of negligence approach, the plaintiff must specifically show negligent conduct in the operative blasting procedures that proximately caused damage. In essence, the plaintiff's evidentiary hurdles are two-pronged: 1) proving that the defendant's conduct fell below the industry's acceptable standard of care; and 2) proving that such conduct proximately caused the damage suffered.

with damage caused by blasting operations. ⁴

Both prongs of proof set the stage for a battle of the experts. The first prong, in the absence of statutory or regulatory guidelines, places the plaintiff's expert against the defendant's expert in a contest to determine the industry's empirical standard of care. Republic Steel Corp. v. Peoples, 217 F.2d 236 (5th Cir. 1954). ⁵ The latter prong pits the plaintiff's evidence of before and after damage in the context of circumstantial cause and effect against the defendant's expert, who testifies that the damage is not the result of the blasting.

In light of the subjective nature of any scientific criteria, fostered by disagreement among industry experts, creation of an acceptable standard of conduct becomes extremely difficult. At any rate, the present status of the law, when strictly applied, leaves the fact finder bound by standards established and practiced by the very industry sought to be held accountable, and not by any consideration of the abnormally and inherently dangerous character of the instrumentality or substance employed and the intrinsic risk of harm to others.

In recognition of the harshness of the traditional negligence standard of liability, this Court has relaxed the requisite standard of proof in blasting cases. In Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748 (1958), a plaintiff's judgment was affirmed where the expert testimony showed only that if plaintiff's "damage was done ... in the obtaining of chert from this pit by the use of dynamite ..., it would be because it was not done properly, was done in a negligent manner." Admittedly, such conclusionary evidence, even by an expert without any predicate as to the usual and customary practice in the industry or as to the manner in which defendant's conduct deviated therefrom falls far short of the requisite standard of proof in traditional negligence cases. See, also, Crawford Coal Co. v. Stephens, 382 So.2d 536 (Ala.1980), and the cases cited therein.

Additionally, this Court has consistently treated blasting claims as actions in trespass, thus applying absolute liability, where rocks or other debris were thrown upon plaintiff's property without any differentiation between the precise damage caused by the trespassing objects and any simultaneous damage caused by concussion or vibration. See Milford v. Tidwell, 276 Ala. 110, 159 So.2d 621 (1963); Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67 (1913); Bessemer Coal, Iron and Land Co. v. Doak, 152 Ala. 166, 44 So. 627 (1907).

While this accommodation to plaintiff's heavy burden of proof has not overtly altered the standard of liability, at the very least it has tended to treat the dangerous condition created by the ultrahazardous activity as the basis for testing the requisite proof of fault. Indeed, the Doak Court observed that where blasting takes place in the midst of "a thickly settled city," one "acts at his peril."

STRICT LIABILITY IN TORT

In the now famous case of Rylands v. Fletcher, supra, the defendants were mill owners who had constructed a reservoir on their land. Water escaped therefrom into an abandoned coal mine through connecting passages and into the adjoining mine of the plaintiff. In the absence of trespass (the flooding damage being indirect) or the existence of any nuisance, the English court applied the doctrine of strict liability in tort to hold defendants liable, saying:

"We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it 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."

Fletcher v. Rylands, L.R. 1 Ex. 265, 279-80 (1866).

This holding was somewhat restricted upon review by the House of Lords, wherein the strict liability principle was made applicable only to "non-natural" uses of defendant's land, as distinguished from "any purpose for which it might in the ordinary course of the...