McLane v. Northwest Natural Gas Co.

• Decision Date: 08 April 1970
• Citation: 467 P.2d 635,255 Or. 324,90 Or.Adv.Sh. 819
• Parties: DeVonna J. McLANE, Administratrix of the Estate of Lorence McLane, deceased, Appellant, v. NORTHWEST NATURAL GAS COMPANY, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 635

467 P.2d 635

255 Or. 324

DeVonna J. McLANE, Administratrix of the Estate of Lorence

McLane, deceased, Appellant, v. NORTHWEST NATURAL GAS COMPANY, a corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted May 12, 1969.

Decided April 8, 1970.

William E. Hurley, Portland, argued the cause for appellant. With him on the brief were Bernard & Hurley, Portland.

C. Anderson Griffith, Portland, argued the cause for respondent. With him on the brief were McMenamin, Blyth, Jones & Joseph, Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, ^* and HOLMAN, JJ.

HOLMAN, J.

This is an action for damages for wrongful death brought by the administratrix of decedent's estate for the benefit of decedent's widow and minor children. Plaintiff appealed from a judgment in favor of defendant which was entered after a demurrer to plaintiff's complaint was sustained and plaintiff elected not to plead further.

The sole question upon this appeal is whether plaintiff's complaint states a cause of action based upon strict liability. The relevant parts of plaintiff's complaint are as follows:

'* * *

'III

'* * * (D)efendant was the owner of * * * property on N. W. St. Helen's Road, Portland, Oregon, whereon it maintained * * * storage units wherein it collected and controlled large amounts of natural gas.

'IV

'* * * said commodity was capable of great harm if it escaped from control.

'V

'* * * (P)laintiff's decedent was on a portion of the property of the defendant away from the aforementioned collection of gas, to-wit, the plaintiff's decedent was preparing to assist in insulating a part of a liquified (sic) gas storage tank then under construction * * *.'

'VI

'A portion of the gas so collected escaped from the defendant's control and entered the aforesaid liquified (sic) gas storage tank, and then and there exploded, causing the death * * *.

'* * *

Plaintiff relies on the rule of Rylands v. Fletcher ¹ and Restatement of Torts § 519. The modern version of the Rylands v. Fletcher type of strict liability is applicable in situations in which social policy requires the defendant to make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activity. ² The basis of the liability is the intentional behavior in exposing the community to the abnormal risk. ³

The first question which arises in this case is whether defendant was engaged in an activity in which abnormal risks were inherent. Such an activity is spoken of as ultrahazardous or abnormally dangerous. ⁴ Whether an activity is abnormally dangerous is a question for the court. ⁵ It is our opinion that natural gas in vaporous form is sufficiently volatile to be capable of great harm and that the danger of explosion and/or fire from its storage in large quantities cannot be completely eliminated by the use of reasonable care. It is usually held that the storage of explosives in a settled area is abnormally dangerous. See Prosser, Torts 525, § 77 (3d ed 1964), and cases cited under footnotes 37 and 38. We view natural gas as of the same nature as an explosive.

The following Oregon cases have held a particular activity to be abnormally dangerous: Loe et ux. v. Lenhardt et al., 227 Or. 242, 362 P.2d 312 (1961), crop spraying with chemicals; Bedell et ux. v. Goulter et al., 199 Or. 344, 261 P.2d 842 (1953), blasting; Brown, Adm'x v. Gessler et al., 191 Or. 503, 230 P.2d 541, 23 A.L.R.2d 815 (1951), accumulation of water. We have come to the conclusion that when an activity is extraordinary, exceptions, or unusual, considering the locality in which it is carried on; when there is a risk of grave harm from such abnormality; and when the risk cannot be eliminated by the exercise of reasonable care, the activity should be classed as abnormally dangerous. We find the storage of large amounts of natural gas in a populated area to be such an activity.

Bedell et ux. v. Goulter et al., Supra, contains language ⁶ to the effect that in a blasting case the character of the locality in which the blasting was carried on is not material. This language apparently was based on Restatement § 520. We agree with the change proposed in Restatement (Second) § 520(e), which makes the locality in which the activity is carried on a relevant factor, and, therefore, we now disapprove of the language in Bedell. Also see a suggestion to this effect in Loe et ux. v. Lenhardt et al., Supra, 227 Or. at 251, 362 P.2d 312.

The trial judge ruled that the storage of natural gas is not abnormally dangerous (ultrahazardous) because if care is used, the risk of an explosion or a fire is minimal. We agree that miscarriage is not frequent, probably because a high degree of care is usually used and, therefore, the risk of some harm cannot be said to be great. However, when miscarriage does occur, it can be lethal. We rather suspect that a blending process goes on and that the risk of some harm may be less if the gravity of the possibly harm is great enough. Harper and James recognize this in discussing liability for blasting:

'Moreover, while harm to others is neither certain, nor, in many cases, probable, if a high degree of caution and diligence is employed, still there is an irreducible minimum of risk involved even when all precautions are taken, and the possible harm is of such a serious nature that sound social policy demands that the actor assume the risk.' 2 Harper and James The Law of Torts 814, § 14.6 (1956).

The incidence of harm must necessarily be relatively infrequent or it would be negligence to carry on the activity at all, despite its utility.

We believe the principal factor which brings the activity within the abnormally dangerous classification is not so much the frequency of miscarriage (although this may be important) as it is the creation of an additional risk to others which cannot be alleviated and which arises from the extraordinary, exceptional, or abnormal nature of the activity. There is no reason why defendant's activity should not pay the cost of the additional risk of harm to others which arises from the activity's unusual nature. It is a risk which does not result from customary industrial activity. It is not a normal risk which is mutually created and borne by all.

The establishment of exact criteria for determining whether an activity comes within the abnormally dangerous classification has its limits. A decision concerning who should bear the burden of the risks inherent in an activity involves a balancing of many conflicting interests. Such a weighing process does not easily lend itself to an exact formula. The following quotation from J. Faust, Jr., Strict Liability in Landowner Cases, 42 Or.L.Rev. 273, 288--289 (1963), is appropriate:

'It is submitted that the court's classification of an activity as extrahazardous is not determined solely by a measurement of the degree of the risk involved. Common sense indicates that this classification cannot depend entirely on the quantum of risk any more than a classification of an intrusion as trespassory can depend entirely on the physical character of the intrusion. The question is whether the plaintiff or the defendant should bear the burden of the risks inherent in the activity, and the answer to this question must necessarily involve a balancing of the conflicting interests of the litigants and the public.'

Undoubtedly, another factor which enters the picture is the feeling that where one of two innocent persons must suffer, the loss should fall upon the one who created the risk causing the harm.

Defendant cites, for the proposition that natural gas is not abnormally dangerous cases which involve the escape of gas from mains, pipes, and meters used in its distribution to customers. These cases can be distinguished on the basis that the distribution of gas in mains and pipes in streets and houses is a matter of common usage. See Prosser, Torts 330, § 59 (2d ed 1955), and Comment I, Restatement (Second) § 520. Whether the cited cases were correctly decided or whether the distinction mentioned is valid is not of present concern because this is not a case of that kind. In any event, we believe the Storage of large amounts of natural gas should be classed as an abnormally dangerous activity.

The concurring-dissenting opinion contends plaintiff should have to prove that defendant is engaged in an abnormally dangerous activity. We agree insofar as it holds that plaintiff must prove that defendant was in possession of a substantial quantity of natural gas in vaporous form upon its premises. We do not believe, however, the manner of its storage is relevant in determining whether it is abnormally dangerous. If there is a manner in which it can be stored with the safety of a usual industrial commodity in the locality in question, its storage is not an abnormally dangerous activity. The result of the ability to store it with such safety is that it would be negligence to store it in any other manner.

We also disagree that it is necessary for plaintiff to prove the propensities of natural gas in vaporous form. From available literature and general knowledge we became aware that natural gas in vaporous form is an explosive when mixed with air within certain proportional limits and subjected to heat or a spark. With this information in mind, we decided that its propensity to explode was sufficient to make its storage abnormally dangerous. This is not a case in which an activity is claimed to have been abnormally dangerous because of the manner in which a substance is used or handled. We agree that natural gas in other than vaporous form may present an entirely different problem.

Defendant next contends that the Rylands v. Fletcher type of absolute liability is not applicable because neither the stored gas nor the force of its explosion escaped from defendant's...