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Foster vs Preston Mill
Co.
S. Ct. WA [1954]
Author:- Sam
Biers
Limitations on Strict Liability
Relevant Facts: PL/res Foster owned a mink
farm. Df/ant was engaged in a blasting operation 2.25 miles
away. Foster provided notice that the blasting operations
were causing the mother mink to kill their kittens. The
blasting continued unabated.
Legal Issue(s): Whether the risk that any
unusual vibration or noise may cause wild animals, raised for
commercial purposes, to kill their young, are one of the things
which make the activity of blasting ultra hazardous, thereby
imposing absolute liability?
Court’s Holding: No
Procedure: Trial ct w/o jury rendered
judgment for Pl; Df appealed, reversed.
Law or Rule(s): One who carries on an ultra
hazardous activity is liable to another whose person, land or
chattels the actor should recognize as likely to be harmed by the
unpreventable miscarriage of the activity for harm resulting
thereto from that which makes the activity ultra hazardous,
although the utmost care is exercised to prevent the harm.
Court Rationale: The thing which makes
blasting ultra hazardous is the risk that property or persons may
be damaged or injured by coming into direct contact with flying
debris, or by being directly affected by vibrations of the earth
or concussions of the air. Moderate vibration and noise
2.25 miles away was no more than a usual incident of the ordinary
life of the community. It is the exceedingly nervous
disposition of mink, rather than the normal risks inherent in
blasting, which must bear the responsibility for the loss here
sustained. The policy of law does not impose the rule of
strict liability to protect against harms incident to the pl’s
extraordinary and unusual use of the land.
Plaintiff’s Argument: The Df’s
business is classified as a ultra hazardous activity which caused
the injury to the Pl.
Defendant’s Argument: The consequences
of mother mink killing their kittens as a result of blasting some
distance away do not lie within the extraordinary risk of the
activity.
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