Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
substances to protect crops. See Loe v. Lenhardt, 362 P.2d 312 (Or. 1961). At least one court has
held that storing radioactive material may be considered an abnormally dangerous activity. See In
re Hanford Nuclear Reservation Litigation, 534 F.3d 986 (9th Cir. 2008) (amended opinion).
A number of recent academic articles have argued that hydraulic fracturing (or “fracking”)
should be considered an abnormally dangerous activity. See, e.g., Leonard S. Rubin, Frack to the
Future: Considering a Strict Liability Standard for Hydraulic Fracturing Activities, 3 GEO.
WASH. J. ENERGY & ENVIRO. L. 117 (2012). Some have blamed fracking for explosions,
groundwater contamination, and even flammable tap water. See, e.g., Abrahm Lustgarten, Does
Natural Gas Drilling Make Water Burn?, SCI. AM., Apr. 27, 2009. The courts have been less
enthusiastic. Kansas has explicitly refused to categorize fracking as abnormally dangerous,
Williams v. Amoco Prod. Co., 734 P.2d 1113 (Kan. 1987). Wyoming has held all oil and gas
drilling to be abnormally dangerous, Hull v. Chevron, U.S.A., Inc., 812 F.2d 584, 589 (10th Cir.
1987). But as of the summer of 2017, no state had applied the doctrine to fracking in particular.
2. The Restatements. Both the Restatement (Second) and (Third) of Torts impose strict
liability on abnormally dangerous activities. The two Restatements, however, have different
definitions of “abnormally dangerous activities.” The Restatement (Third) classifies an activity as
abnormally dangerous if “(1) the activity creates a foreseeable and highly significant risk of
physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one
of common usage.” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM §
20(b)(1)-(2) (2010). By contrast, the Restatement (Second) laid out a series of factors to be
considered in classifying an activity as abnormally dangerous. Those factors include: (a) a “high
degree of risk of some harm” to others; (b) a likelihood that such harm would be great; (c) an
“inability to eliminate the risk by the exercise of reasonable care”; (d) the “extent to which the
activity is not a matter of common usage”; (e) the “inappropriateness” of the setting in which the
activity takes place; and (f) the extent to which the activity’s dangerousness outweighs its “value
to the community.” RESTATEMENT (SECOND) OF TORTS § 520 (1977).
3. The case of the cannibal minks. In 1942, the Utah Supreme Court decided Madsen v. East
Jordan Irrigation Co., 125 P.2d 794 (Utah 1942). The case arose when the defendant, in repairing
its canal, “blasted with explosives, causing vibrations and noises which frightened the mother
mink and caused 108 of them to kill 230 of their ‘kittens.’” The plaintiff sued for damages,
arguing that the defendant was strictly liable for the lost mink kittens. The court rejected the
claim and explained that even though Utah law did not require any concussive effect to invoke the
doctrine of strict liability for blasting, still a blaster was not liable for all damages caused by its
activities:
[H]e who fires explosives is not liable for every occurrence following the explosion
which has a semblance of connection to it. Jake’s horse might become so excited
that he would run next door and kick a few ribs out of Cy’s jersey cow, but is such
a thing to be anticipated from an explosion? Whether the cases are concussion or
nonconcussion, the results chargeable to the nonnegligent user of explosives are
those things ordinarily resulting from an explosion. Shock, air vibrations, thrown
missiles are all illustrative of the anticipated results of explosives; they are physical
as distinguished from mental in character. The famous Squib case does not mitigate
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