Toms v. Calvary Assembly of God, Inc.

Decision Date29 February 2016
Docket NumberNo. 26, Sept. Term, 2015.,26, Sept. Term, 2015.
Citation446 Md. 543,132 A.3d 866
Parties Andrew David TOMS v. CALVARY ASSEMBLY OF GOD, INC., et al.
CourtCourt of Special Appeals of Maryland

Lawrence E. Finegan (Frederick, MD), on brief, for petitioner.

Sarah N. Koop (Law Office of Maher & Associates, Hunt Valley, MD), on brief, for respondents.

Argued before BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.

GREENE

, J.

In this case, we address whether noise emanating from the discharge of a fireworks display constitutes an abnormally dangerous activity, which would warrant the imposition of strict liability.

Petitioner, Andrew David Toms ("Toms"), operates a dairy farm in Frederick County, Maryland, and maintains a herd of approximately 90 head of cattle. On September 9, 2012, a church-sponsored fireworks display took place on property adjacent to Toms' dairy operation. A permit to discharge fireworks had been obtained, and the event was supervised by a deputy fire marshal. No misfires or malfunctions took place. According to Toms, the fireworks display was so loud that it startled his cattle, and caused a stampede inside his dairy barn. The stampede resulted in the death of four dairy cows, property damage, disposal costs, and lost milk revenue.

Toms filed suit against the respondents, collectively, Calvary Assembly of God, Inc. ("Calvary"), Zambelli Fireworks Manufacturing Co. ("Zambelli"), Zambelli employee Kristopher Lindberg ("Mr. Lindberg"), and Auburn Farms, Inc.1 in the District Court of Maryland sitting in Frederick County ("District Court"). He alleged that the stampede was the result of negligence, nuisance, and strict liability for an abnormally dangerous activity. After a bench trial, the District Court entered judgment in favor of the respondents. Toms appealed to the Circuit Court for Frederick County ("Circuit Court"). The Circuit Court affirmed the lower court's ruling. We granted Toms' petition for writ of certiorari, Andrew David Toms v. Calvary Assembly of God, Inc., 442 Md. 515, 113 A.3d 624 (2015)

. For the reasons explained below, we hold that lawfully discharging fireworks is not an abnormally dangerous activity, and, therefore, the imposition of strict liability is unwarranted. We affirm the judgment of the Circuit Court.

FACTUAL AND PROCEDURAL BACKGROUND

Toms operates a dairy farm on 69 acres of leased property near Walkersville, Frederick County, Maryland. The farm includes a barn and a herd of approximately ninety dairy cows. Auburn Farms, Inc., at the time of the incident, possessed the adjacent 40 acre property. Calvary sought and obtained permission from Auburn Farms, Inc. to use its property to host a fireworks display celebrating a church youth crusade.2 Calvary then hired Zambelli, a professional fireworks company, to handle the fireworks.

Pursuant to Md.Code (2003, 2011 Repl.Vol.), § 10–104(b) of the Public Safety Article

, an application for a permit to discharge fireworks was submitted to the Office of the State Fire Marshal. The application identified the date, time, and location of the anticipated fireworks display, as well as the size and number of fireworks shells that would be used. It also identified Mr. Lindberg as the Zambelli employee who would be responsible for discharging the fireworks, and included his "State shooter permit"3 information, and proof of Zambelli's insurance for the event. Deputy Fire Marshal Glen Ruch inspected Auburn Farms, Inc. and approved the location. He testified that, based on the number of shells, the State required a firing radius of 250 feet around the firing site.4 However, he noted that, in the application, Mr. Lindberg included an aerial photo with notations indicating he planned to extend the firing radius to 300 feet. The application was approved, including the 300 foot firing radius, and a permit to discharge fireworks was obtained by the respondents.

The event was open to the public, and advertised in radio interviews, a newspaper ad, and on a banner located on Calvary's property on Route 194. Toms recalls seeing the banner, but states he had no notice of the event's time or location. On September 9, 2012, the day of the event, Mr. Lindberg accidently drove onto Toms' farm, and Toms assisted him in locating the entrance to Auburn Farms, Inc. Mr. Lindberg testified that he identified himself and his purpose when speaking to Toms.5 The fireworks display took place at 8:30 p.m., and Senior Deputy Fire Marshal Michael Guderjohn was onsite to supervise the event. Apparently, 250 shells were discharged over a fifteen-minute period without any misfires or duds. According to the parties' Agreed Statement of Facts submitted in their briefs to this Court, there is no dispute that Toms' barn was at least 300 feet away from the firing location.6

At the time of the event, Toms' cattle were inside the barn. Toms, however, arrived at the barn a few minutes after Mr. Lindberg began discharging fireworks. Toms states that the explosions startled his dairy cows, and caused them to stampede inside the barn. No witnesses, however, actually saw the stampede because no one was inside the barn with the cattle at the time the event started. The stampede, Toms states, resulted in the deaths of three cows shortly thereafter, and injuries to a fourth cow that ultimately led to its death, because it had to be "culled" from the herd a few weeks later.7 In addition to the loss of four dairy cows, Toms sustained property damage to fences and gates, disposal costs, and lost milk revenue. Toms sent a demand letter to Calvary outlining the damages, but Calvary and Zambelli denied liability.

On December 9, 2013, Toms filed suit in District Court against the respondents seeking damages of $13,148.20 under the theories of negligence, nuisance and strict liability for an abnormally dangerous activity. On May 2, 2014, a one-day bench trial took place in the District Court before Judge W. Milnor Roberts. Several witnesses testified on Toms' behalf, including his dairy veterinarian, Dr. Richard Doak, and lay witnesses with experience handling cattle. At the time of the event, the lay witnesses were located nearby the barn, and they testified about the loudness of the fireworks display, and hearing "banging" noises emanating from the barn at the time of the alleged stampede. Dr. Doak testified, among other things, about the tendency of loud unexpected noises to trigger a "startle response" in cows, which can lead to a stampede as well as injuries if a herd is confined to a small space.

The respondents called several witnesses to testify. Deputy Fire Marshal Ruch testified that Calvary and Zambelli complied with applicable laws by applying for, and receiving, a permit to discharge fireworks. He also inspected and approved of the firing location. On the day of the event, Senior Deputy Fire Marshal Guderjohn supervised the fireworks show, and stated that Mr. Lindberg maintained a proper firing radius around the firing location, and that all shells were properly discharged without incident. Additionally, he stated that several fireworks displays had taken place within a mile of Toms' location on previous occasions. Mr. Lindberg also testified, and stated that the fireworks were discharged from 550 to 600 feet from Toms' barn.

The District Court entered judgment in favor of the respondents. It found that although Toms sustained damage, Toms did not establish any basis for liability for the injuries to his property, including livestock. The District Court determined that the fireworks display was a single event with no evidence that injuries or damages were sustained by direct contact with the discharged shells. No evidence established negligence on behalf of the respondents, because they had lawfully complied with statutory requirements by obtaining a permit, and the conditions of the permit were not violated. As to the issue of strict liability, the District Court found that the discharge of fireworks could be an abnormally dangerous activity, but that the danger is contained within the area allowed by the permit: here, a 300 foot firing radius. The District Court, however, did not find that noise from a fireworks discharge itself was abnormally dangerous. Furthermore, it reasoned, strict liability for an abnormally dangerous activity could not be imposed, because Toms' barn was not located within 300 feet of the firing location.

On May 29, 2014, pursuant to Md. Rule 7–113

, Toms noted an appeal on the record to the Circuit Court. On November 24, 2014, oral arguments took place before Judge Julie S. Solt of that court. On January 8, 2015, the court affirmed the District Court's judgment. Although it held that the use of fireworks was abnormally dangerous as to the damage from explosions, the Circuit Court stated that the respondents "are not strictly liable because the type of harm—damage caused by noise—is not of a type that makes the activity abnormally dangerous." Under the theory of negligence, it found no evidence to show that the respondents breached any duty of care. There was substantial evidence to show that the respondents "acted reasonably and with due care in preparing [and discharging] the fireworks display." Lastly, the Circuit Court held that the theory of private nuisance was inapplicable, because, as a one-time event, "the fireworks were not substantial and unreasonable and did not rise to the level of significant harm needed to create a private nuisance."8

We granted certiorari, Andrew David Toms v. Calvary Assembly of God, Inc., 442 Md. 515, 113 A.3d 624 (2015)

, to answer the following question:

Does the doctrine of strict liability for an abnormally dangerous activity apply to the noise of a fireworks discharge, based on the facts of this case?

For the reasons stated below, we shall answer in the negative. Accordingly, we affirm the judgment of the Circuit Court, and agree that there is no liability for abnormally dangerous activities, but...

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