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Apodaca v. AAA Gas Co.3/11/2003
hazard arising from the extremely volatile and explosive nature of the propane. Whereas AAA Gas was licensed, trained in the safe handling and storage of propane gas, and specifically knowledgeable in the safety requirements for having their trucks repaired in a mechanics garage, Plaintiffs correctly note that they were not required to be licensed and assert they had no special training in the safe handling of propane gas. Plaintiffs characterize the ultrahazardous activity as the "delivery of a loaded truck for [mechanical] repairs to those not expert and trained in handling l.p. gas . . . [at a repair shop located in the heart of Albuquerque]."
Standard of Review
The question whether an activity is ultrahazardous or "abnormally dangerous" is determined by the court. Restatement (Second) of Torts § 520 cmt. l (1977) (hereinafter Restatement). Abnormally dangerous activity as referred to in Restatement (Second) of Torts §§ 519-20 (1977) is recognized to be the same as what was previously referred to as "ultrahazardous activity" in the first edition of Restatement of Torts §§ 519-20 (1938). Saiz v. Belen Sch. Dist., 113 N.M 387, 397 n.8, 827 P.2d 102,112 n.8 (1992). This inquiry is different from questions of negligence, or the failure to use reasonable care, which is a question for the jury. Restatement cmt. l. " trict liability . . . involves a characterization of the defendant's activity or enterprise itself, and a decision as to whether he is free to conduct it at all without becoming subject to liability for the harm that ensues even though he has used all reasonable care." Id. Thus, the determination of whether an activity is abnormally dangerous is a question of law for a court to decide. See Fernandez v. Walgreen Hastings Co., 1998-NMSC-039, 1, 126 N.M. 263, 968 P.2d 774 (determining whether plaintiff alleges a valid theory upon which relief may be granted is a pure question of law); see also Saiz, 113 N.M. at 395-96, 827 P.2d at 110-11 (comparing abnormally dangerous activity to inherently dangerous activity which is a question of law). Questions of law require de novo review. Gabaldon v. Erisa Mortgage Co., 1999-NMSC-039, 7, 128 N.M. 84, 990 P.2d 197.
Analysis
The doctrine of strict liability for an abnormally dangerous activity derives from the notion that "`one who conducts [the activity] should prepare in advance to bear the financial burden of harm proximately caused to others by such activity.'" Arlington Forest Assocs. v. Exxon Corp., 774 F. Supp. 387, 389 (E.D. Va. 1991) (mem.) (quoting C. Morris & C.R. Morris on Torts, Ch. IX at 231 (2d ed. 1980)). It is a "social policy [that] requires the defendant to make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activity." McLane v. Northwest Natural Gas Co., 467 P.2d 635, 637 (Or. 1970). "The basis of the liability is the intentional behavior [that exposes] the community to the abnormal risk ." Id. Abnormal risks "will be tolerated by the law, but [the company] must pay its way by insuring the public against the injury it causes." Arlington Forest Assocs., 774 F. Supp. at 389-90 (internal quotation marks and citation omitted). In short, the company is the insurer of the activity because it is impossible to eliminate the abnormal risk of the activity. The doctrine is not to be imposed where negligence law provides an adequate remedy.
Strict liability was developed "to govern accidents that negligence liability cannot adequately control." Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir. 1990). The doctrine provides a
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