Fireworks: Abnormally Dangerous Activity?
It’s only appropriate that today’s post examines fireworks on this Fourth of July.
Question 3 on the July 2017 Multistate Bar Examination specifically deals with fireworks.
One of the major issues tested in the July 2017 MEE question—one that the NCBE determined to be worth 40% of the question’s points—was whether the public fireworks display described in the fact pattern is an abnormally dangerous activity subject to strict liability.
The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, in which the defendant’s reservoir flooded mine shafts on the plaintiff’s adjoining land. Rylands has come to stand for the rule that “the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.”
Courts applying the rule of Rylands generally impose two requirements for finding an activity to be abnormally dangerous: (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) the activity is not a matter of common usage in the community. Common examples of abnormally dangerous activities include blasting, manufacturing explosives, storing deadly chemicals, crop dusting, and fumigating.
Normally, one probably wouldn’t think of publicly regulated fireworks displays as being equivalently dangerous as blasting and manufacturing explosives.
However, the July 2017 MEE question included lots of facts for examinees to assess in determining whether the public fireworks display is an abnormally dangerous activity subject to strict liability. The facts provided in the test question gave examinees an opportunity to make arguments on both sides of the question. Ultimately, the NCBE in its Analysis indicated that responses could conclude either way, noting that “An examinee’s conclusion is less important than his or her reasoning on whether a public fireworks display is an abnormally dangerous activity.”
Therefore, making sure that you incorporate and discuss the significance of all the facts that strengthen and weaken your conclusions will help you generate most of the points for this issue, which, again, is worth 40% of your overall points on this question.
Also, the NCBE Analysis discusses the First, Second, and Third Restatements of Torts.
Under the First Restatement, strict liability applied to an “ultra-hazardous” activity.
Under the Second and Third Restatements, strict liability applies to an “abnormally dangerous activity.” Section 520 of the Restatement (Second) lists six factors that are to be considered in determining whether an activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f ) extent to which its value to the community is outweighed by its dangerous attributes.
The Third Restatement employs a broader definition of “common usage” than the First and Second Restatements. Under the Third Restatement, “activities can be in common use even if they are engaged in by only a limited number of actors.”
Although there are different theories under the different Restatements, the NCBE Analysis stated that a “good answer need not analyze each theory discussed above.”
So when examining abnormally dangerous activities on the MEE, use the Third Restatement articulated by the Ryland court. It's simpler.
