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Apodaca v. AAA Gas Co.3/11/2003
remedy for uncommon and extraordinarily dangerous activities where negligence liability is an inadequate deterrent or remedy. See, e.g., Brooks v. Beech Aircraft Corp., 120 N.M. 372, 375-77, 902 P.2d 54, 57-59 (1995). And, it "imposes responsibility upon persons engaged in such activities for any resulting harm even though all reasonable precautions have been taken against the risk of harm the activity creates." Saiz, 113 N.M. at 397, 827 P.2d at 112. But where the "hazards of an activity can be avoided by being careful . . ., there is no need to switch to strict liability." Indiana Harbor Belt R.R. Co., 916 F.2d at 1177.
New Mexico first recognized the doctrine of strict liability for ultrahazardous activities in Thigpen v. Skousen & Hise, 64 N.M. 290, 293, 327 P.2d 802, 805 (1958). In that case, the Court adopted Sections 519 and 520 of the Restatement. First Nat'l Bank v. Nor-Am Agric. Prods., Inc., 88 N.M. 74, 79, 537 P.2d 682, 687 (Ct. App. 1975); see also Saiz, 113 N.M. at 397 & n.8, 827 P.2d at 112 & n.8 (indicating that the court now follows Section 519 of the Restatement). Since Thigpen, our courts have measured a number of activities against the ultrahazardous standard, refusing to apply the theory to any. See, e.g., Saiz, 113 N.M. at 397, 827 P.2d at 112 (installing high voltage lighting system is not ultrahazardous); Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 757, 605 P.2d 1154, 1156 (1980) (declining to impose strict liability for artificial collection and channeling of large quantities of water in rural area); Rodgers v. City of Loving, 91 N.M. 306, 310, 573 P.2d 240, 244 (Ct. App. 1977) (burning weeds in open field within city limits and near buildings is not ultrahazardous); First Nat'l Bank, 88 N.M. at 79, 537 P.2d at 687 (marketing highly toxic chemical commonly used as a seed disinfectant is not ultrahazardous); Otero v. Burgess, 84 N.M. 575, 577, 505 P.2d 1251, 1253 (Ct. App. 1973) (storing dynamite is not ultrahazardous).
Defendants argue that ultrahazardous activity should be limited to dynamite blasting, asserting that because our courts have refused to extend the doctrine beyond such cases, we should not do so here. However, this Court is not foreclosed from such a finding, if the facts warrant. See Thigpen, 64 N.M. at 294, 327 P.2d at 805 (adopting Restatement Sections 519 and 520 and noting blasting is one type of ultrahazardous activity); see also Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 842 F. Supp. 475, 477-78 (D. N.M. 1993) (mem. & order) (noting that the doctrine has not been extended beyond blasting is only an "historical observation"). Thus, an analysis of the Restatement factors is appropriate.
Section 519 of the Restatement sets forth the general rule regarding strict liability in tort for abnormally dangerous activities as follows:
(1) ne who carries on an abnormally dangerous activity is subject to liability for harm . . . resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Section 520 of the Restatement defines "abnormally dangerous" as "abnormal dangers [that] arise from activities that are in themselves unusual, or from unusual risks created by more usual activities under particular circumstances." Restatement§ 520 cmt. f. The Restatement then sets out six factors that a court must consider 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
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