Whitman Hotel Corp. v. Elliott & Watrous Engineering Co.

• Citation: 137 Conn. 562,79 A.2d 591
• Parties: WHITMAN HOTEL CORP. et al. v. ELLIOTT & WATROUS ENGINEERING CO. et al. Supreme Court of Errors of Connecticut
• Decision Date: 13 March 1951
• Court: Supreme Court of Connecticut

Page 591

79 A.2d 591

137 Conn. 562

WHITMAN HOTEL CORP. et al. v. ELLIOTT & WATROUS ENGINEERING CO. et al.

Supreme Court of Errors of Connecticut.

March 13, 1951.

Joseph V. Fay, Jr., Hartford, and James F. Dawson, Hartford, for the appellants-appellees (defendants).

Allyn L. Brown, Jr., Norwith (Charles W. Jewett, Norwich, on the brief), for the appellants-appellees (plaintiffs).

Before JENNINGS, BALDWIN, INGLIS, O'SULLIVAN, and SHEA, JJ.

INGLIS, Judge.

The principal question involved in this case is whether the plaintiffs may recover for damage done to their building by vibrations of the earth set in motion by the blasting operations of the defendants, in the absence of negligence on the part of the latter.

The finding is not subject to correction. The plaintiff John M. Carbulon was the owner of property consisting of land and a large brick building known as the Wauregan Hotel, located in the business district of Norwich. On August 1, 1947, the Whitman Hotel Corporation, hereinafter referred to as the plaintiff, took possession of the hotel under a lease for twenty years which required it to keep the hotel building in repair. In May, 1947, the defendant Elliott and Watrous, Inc., entered into a contract with the United States war department, corps of engineers, to widen and deepen the channel of the Shetucket River in Norwich for a distance of 750 feet so as to create a more adequate raceway. The purpose of the project was to prevent the flooding of the downtown district of Norwith in the neighborhood of the Wauregan Hotel. The work was done for Elliott and Watrous, Inc., by the other defendant, the Elliott and Watrous Engineering Company, operating under a subcontract. Pursuant to and in accordance with the specifications of the contract, and in a method usual to such an operation, the defendants, between June 1, 1947, and February 28, 1949, discharged many hundreds of blasts of a dynamite known in the trade as 60 per cent high velocity gelatin in close proximity to a number of compactly located business buildings. The Wauregan Hotel was 230 feet from the river at its nearest point, and operations were carried on in the river on both sides of that point.

At various times between August 1, 1947, and February 29, 1948, many water and hearing pipes in the hotel were broken, causing water damage, plaster was cracked in numerous places, and a terrazzo floor was split. The intensity of the vibrations of the earth resulting from the explosions was sufficient to cause this damage, and on several occasions the development of cracks in the pipes and in the Plaster was noted nearly synchronously with the sound of the blasting. The parts of the structure which were damaged had been in good condition, and the expenditures made or contemplated by the plaintiff were for the purpose of restoring the building to the condition of usefulness it was in prior to the commencement of the blasting operations.

The trial court concluded that it was the vibration set up by the defendants' blasting operations which damaged the plaintiff's building; that the defendants were liable for that damage, even though they were guilty of no negligence in the conduct of their operations; and that the plaintiff was entitled to recover the cost of the repairs. It also concluded that the plaintiff Carbulon was not entitled to nominal damages.

It is almost universally held that one who by exploding dynamite causes damage to another's property through flying debris is absolutely liable for that damage irrespective of whether he was negligent either in the selection of the time or place for the blasting or in the method of blasting which he followed. This rule rests on the principle that the explosion of dynamite is an intrinsically dangerous operation and that, therefore, one who engages in it acts at his peril. 2 Cooley, Torts (4th Ed.) § 260; 22 Am.Jur. 179, § 53; Restatement, 3 Torts § 519, § 520, comment e. The rule is adhered to in Connecticut. It has been stated as follows: A person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results, even though he uses all proper care. Worth v. Dunn, 98 Conn. 51, 59, 118 A. 467. Although we, in that case, were speaking of liability for injury to person, the principle stated governs liability for injury to property as well.

In spite of the fact that we have stated that liability attaches 'even though he uses all proper care,' the defendants contend that considerations of negligence are imported into the rule by the phrase 'in such a way as will necessarily or obviously expose the person of another to the danger of probable injury.' They say, in substance, that this means that no liability attaches unless it would appear to a reasonably prudent person that injury would result from the explosion, and therefore the real basis of the cause of action is failure to use reasonable care. The phrase has no such intendment. As pointed out above, the basis of liability in this class of case is that one acts at his peril if he engages in an intrinsically dangerous operation. The purpose of the phrase relied upon by the defendant is to define an intrinsically dangerous operation. If dynamite is exploded under such circumstances that it will not expose the person or property of another to the danger of probable injury, then the explosion is not an intrinsically dangerous operation. If the circumstances are such that the explosion does necessarily or obviously expose the person or property of another to the danger of probable injury, then it is an intrinsically dangerous operation. The phrase, therefore, does not make the failure to use reasonable care a condition of liability. It does not make the test of liability the question whether a reasonably prudent person would consider that under the attendant circumstances the explosion would either necessarily or obviously expose another to the danger of probable injury and would refrain from setting off the blast. What it does relate to is the fact of exposure to the danger of probable injury. It means that, to make out a case of intrinsically dangerous operation upon which absolute liability may be predicated, it is essential that it appear that the dynamite was discharged under such circumstances that it, in fact, necessarily or obviously exposed the person or property of another to the danger of probable injury. Welz v. Manzillo, 113 Conn. 674, 682, 155 A. 841. It is said in Harper, Law of Torts, page 408, in support of the author's statement that the basis of the cause of action is not negligence: 'Blasting is frequently not only desirable but absolutely essential under circumstances that entail serious potentialities of harm. Under such circumstances it is not negligence. Nevertheless, there is liability to make good such losses as come within the scope of the rule, that is such harms, the danger of which is the reason for predicating liability upon this type of conduct. * * * In all of these situations danger may be foreseen by reasonable men, as possible if not probable, but the risks to others are not by the ordinary prudent man, regarded as unreasonable. It is precisely these conditions which give rise to the doctrine of strict liability. Defendant is not regarded as engaging in blameworthy conduct. He is creating hazards to others, to be sure, but they are ordinary, and reasonable risks incident to desirable social and economic activity. But common notions of fairness require that the defendant make good any harm that results even though his conduct is free from fault.' The cause of action for damages resulting from the intrinsically dangerous operation of blasting does not necessarily sound in negligence.

In cases in which the damage resulting from the explosion of dynamite has been caused, not by flying debris, but by concussion of the atmosphere or vibration of the earth, there is a clear-cut division of the authorities. Some jurisdictions hold that there is no liability for such damage unless there has been negligence on the part of the blaster. This is the so-called New York rule, and it is followed not only in that state but also in Alabama, Arizona, Kansas, Kentucky, Maine, Massachusetts, New Jersey and Texas. Booth v. Rome, W. & O. T. R. Co., 140 N.Y. 267, 278, 35 N.E. 592, 24 L.R.A. 105; Holland House Co. v. Baird, 169 N.Y. 136, 141, 62 N.E. 149; Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 177, 44 So. 627, 12 L.R.A., N.S., 389; Drumm v. Simer, 68 Ariz. 319, 321, 205 P.2d 592; City of Cherryvale v. Studyvin, 76 Kan. 285, 287, 91 P. 60, 11 L.R.A., N.S., 385; Williams v. Codell Construction Co., 253 Ky. 166, 169, 69 S.W.2d 20, 92 A.L.R. 737; Reynolds v. W. H. Hinman Co., Me., 75 A.2d 802, 811; MacGinnis v. Marlborough-Hudson Gas Co., 220 Mass. 575, 578, 108 N.E. 364, L.R.A.1915D, 1080; Simon v. Henry, 62 N.J.L. 486, 488, 41 A. 692; Standard Paving Co. v. McClinton, Tex.Civ.App., 146 S.W.2d 466, 468.

In the greater number of jurisdictions, however, as is indicated by the following citations, no distinction is made between damage resulting from the throwing of debris on the one hand and damage resulting from concussion or vibration on the other. The dynamiter is held absolutely liable for the latter as well as the former. Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 513, 80 A.L.R. 686; Colton v. Onderdonk, 69 Cal. 155, 159, 10 P. 395; FitzSimons & Connell Co. v. Braun, 199 Ill. 390, 397, 65 N.E. 249, 59 L.R.A. 421; Watson v. Mississippi River Power Co., 174 Iowa 23, 27, 156 N.W. 188, L.R.A.1916D, 101; Cahill v. Eastman, 18 Minn. 324, 332; Stocker v. City of Richmond Heights, 235 Mo.App. 277, 283, 132 S.W.2d 1116; Wendt v. Yant Construction Co., 125 Neb. 277, 279, 249 N.W. 599; Louden v. City of Cincinnati, 90 Ohio St. 144, 149, 106 N.E. 970, L.R.A.1915E,...