Smith v. Lockheed Propulsion Co.

• Decision Date: 17 January 1967
• Court: California Court of Appeals Court of Appeals
• Parties: , 29 A.L.R.3d 538 Raymond Phil SMITH and Thelma Sue Smith, Plaintiffs and Appellants, v. LOCKHEED PROPULSION COMPANY, a corporation, Defendant and Respondent. Civ. 8007.

Page 128

56 Cal.Rptr. 128

247 Cal.App.2d 774, 29 A.L.R.3d 538

Raymond Phil SMITH and Thelma Sue Smith, Plaintiffs and Appellants, v. LOCKHEED PROPULSION COMPANY, a corporation, Defendant and Respondent.

Civ. 8007.

Court of Appeal, Fourth District, Division 2, California.

Jan. 17, 1967.

Hearing Denied March 15, 1967.

[247 Cal.App.2d 776] Irmas & Rutter and S. M. Irmas, Jr., Beverly Hills, for plaintiffs and appellants.

Welsh & Cummins and Louis M. Welsh, San Diego, for defendant and respondent.

OPINION

TAMURA, Justice.

Plaintiffs appeal from a judgment of nonsuit in their action to recover damages to their real property allegedly caused by seismic vibrations activated by a static firing rocket motor test conducted by defendant on adjoining lands pursuant to a contract with the United States. The complaint was framed on theories of negligence and strict liability.

In accordance with the well-settled rule governing review of a judgment of nonsuit, the evidence will be viewed in the light most favorable to plaintiffs. (Kopfinger v. Grand Central Public Market, 60 Cal.2d 852, 37 Cal.Rptr. 65, 389 P.2d 529; Meyer v. Blackman, 59 Cal.2d 668, 31 Cal.Rptr. 36, 381 P.2d 916; Bristow v. Brinson, 212 Cal.App.2d 168, 27 Cal.Rptr. 796; Bedford v. Bosko, 217 Cal.App.2d 346, 31 Cal.Rptr. 727).

Since 1957, plaintiffs had been the owners of approximately 160 acres of land in Potrero Valley near Beaumont in Riverside County. For the first few years following acquisition of the ranch, plaintiffs used it as an adult camp, but they thereafter had undertaken a program of improvements designed for its ultimate use as a boys' camp. One of the principal attributes of the property was a well which over the years had consistently produced high quality water.

In 1961, defendant acquired approximately 9100 acres in Potrero Valley, one-half of it from its predecessor, Grand Central Rocket Company, for the purpose of testing rocket motors. A portion of the land bordered plaintiffs' property on three sides. In early 1962, defendant unsuccessfully sought to acquire plaintiffs' ranch, at which time defendant's counsel told plaintiff, 'We have to have your land before we can test.'

On April 25, 1962, the Beaumont News carried a press release issued by defendant announcing a scheduled test firing on May 12, 1962, and stating, 'The firing is not expected to produce ground vibrations outside the Potrero Valley itself.' Plaintiffs were apprehensive and communicated to defendant their concern for the safety of their well, structures and horses. Defendant's counsel told plaintiffs not to worry and assured them that defendant would take care of any damage caused by the test. Being still concerned, plaintiffs, through their attorney, transmitted a letter to defendant again informing it of their anxiety and requested defendant to desist from proceeding with the test. Defendant's counsel responded to the communication by informing plaintiffs, 'We can't stop the tests. It wouldn't be practical,' and reassured them that defendant would take care of any damage.

On May 12, defendant proceeded with the scheduled test firing of a '120 inch solid fuel applied research rocket motor' of three segments, reputedly the largest solid fuel rocket motor to be test fired to that date. The item was manufactured by defendant for the United States Air Force and at the time of the test the United States was its legal owner. The motor was mounted nose-down on three 'thrust collectors' which were affixed to a concrete base imbedded in the ground. The test stand was located approximately 7800 feet from the boundary of plaintiffs' property. The firing lasted 132 seconds and created up to a maximum of 350,000 pounds of thrust.

Plaintiff, who was on the sundeck of one of his buildings at the time of the test, felt a very strong vibration. A witness who was on plaintiffs' property testified that there was a rumbling, 'similar to an earthquake taking place,' which lasted five or six minutes. Another witness who was in Beaumont recalled that the earth tremor was similar to that which one would sense when a heavy truck passed by.

Immediately following the test, plaintiff inspected his property but found no damage to any structures. Water which was being pumped from the well into the swimming pool was clear throughout the period of the test but at test plus 80 minutes it became muddy. The changed water condition was called to the attention of defendant's counsel who appeared at the ranch a few hours following the test. Defendant's counsel stated, 'I don't know how we could have done it, but I can't argue with 80 minutes.'

Defendant thereafter supplied plaintiffs with bottled water and engaged a contractor to attempt to repair the well. The contractor, however, determined that the casing had been sheared at the 95 ft. level and reported that the well was beyond repair. Defendant then engaged a well-digger who drilled a new well within a few yards of the old one but despite extensive tests it failed to produce any consistently potable water.

Plaintiffs' witness, Dr. Alford, an expert on seismology and structural vibrations, testified that in his opinion the test firing was the 'probable cause' of the damage to the well. He found no reported seismic disturbances in Potrero Valley for a period of at least two months before and after the test. In his opinion, despite the low level vibrations at the ranch, the duration of the test increased the amplitude of the vibrations sufficient to cause the damage. He testified that the soil structure in Potrero Valley was porous and that the vibrations probably caused the underground water-filled soil to collapse at some point and that this additional weight on adjoining soil set off an 'underground avalanche.' In his opinion, an increase in the mass of the test stand would have decreased the vibrations.

A civil engineer specializing in waterworks testified that the interval of 80 minutes between the test and the time when the well water became muddy was consistent with the theory that the well damage was caused by a seismic disturbance. He explained the time-lag as 'the same phenomena you see in a fresh road-cut, that the dirt continues to ravel after the disturbance occurs.'

A real estate appraiser testified that the fair market value of the ranch on May 12, 1962, with the old well in production, was $206,000 but that absent the water supply, the fair market value would be $60,000.

In addition to the claimed devaluation of the property resulting from the loss of water supply, plaintiffs, in separate causes of action, sought damages for injuries to certain specific items of property caused by the contractors engaged by the defendant to restore the water supply. There was evidence that the contractors damaged a cement block wall, shrubbery, paving, and a skip loader.

At the close of plaintiff's case, defendant moved for a nonsuit on the following grounds: (1) Plaintiffs' only remedy was an action in inverse condemnation against the United States; (2) Absence of evidence of negligence or other 'breach of duty' by defendant: (3) The inapplicability of the doctrine of strict liability; and (4) Absence of evidence that plaintiffs' damages were the proximate result of defendant's act. The court granted the nonsuit primarily because, in its view, there was 'insufficient evidence of negligence.' It concluded that it was unnecessary to determine whether defendant's activity was ultrahazardous, apparently on the ground that the evidence failed to establish a causal relationship between the activity and the injury. ¹

Plaintiffs contend that on the evidence presented, the case should have been submitted to the jury on both theories--negligence and strict liability. If the evidence would support a jury verdict in plaintiffs' favor on either theory, the judgment must be reversed. This necessarily follows from the rule that a nonsuit may be granted '* * * 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given' * * *.' (Meyer v. Blackman, supra, 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 38, 381 P.2d 916, 918; Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Kopfinger v. Grand Central Public Market, supra, 60 Cal.2d 852, 855, 37 Cal.Rptr. 65, 389 P.2d 529; Reuther v. Viall, 62 Cal.2d 470, 474, 42 Cal.Rptr. 456, 398 P.2d 792; Hansen v. Richey, 237 Cal.App.2d 475, 477, 46 Cal.Rptr. 909; McDonald v. City of Oakland, 233 Cal.App.2d 672, 674, 43 Cal.Rptr. 799).

Before we reach the question whether the case should have been submitted to the jury on either theory of liability, we must determine whether there was sufficient evidence from which the jury could have properly found that the test firing was the cause in fact of the damage to the well. It is axiomatic that an essential element of a plaintiff's cause of action, whether based on negligence or strict liability, is the existence of a causal connection between defendant's act and the injury which plaintiff suffered. (Prosser, Law of Torts, (2d ed.1955) p. 218 et seq.).

Cause in fact, as well as proximate cause, is ordinarily a fact question for the jury. (Basin Oil Co. of California v. Baash-Ross Tool Company, 125 Cal.App.2d 578, 603--604, 271 P.2d 122; Ishmael v. Millington, 241 Cal.App.2d 520, 50 Cal.Rptr. 592; Burdette v. Rollefson Constr. Co., 52 Cal.2d 720, 726, 344 P.2d 307; Rest., Torts 2d, § 434). It cannot be said that the evidence shows a want of causation as a matter of law unless the only reasonable hypothesis is that such want exists; if reasonable minds may differ, it is a jury question. (Thirion v. Fredrickson & Watson Constr. Co., 193 Cal.App.2d 299, 306, 14...