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Apodaca v. AAA Gas Co.3/11/2003
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.
Restatement § 520. The commentary explains that the court must consider each factor, apportioning weight to each in accordance with the evidence. See id. cmts. f & l. While each factor need not be present, "ordinarily several of them will be required for strict liability. . . . [although] it is not necessary that each of them be present, especially if others weigh heavily." Id. cmt. f. According to Restatement Section 520, " he essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even . . . without the need of a finding of negligence." Id.
High Degree of Risk and Likelihood of Harm Will Be Great
Defendants concede that factors (a) and (b) are satisfied because propane is a flammable gas that explodes when ignited by the smallest spark. Plaintiffs' recitation of the facts highlights these factors:
ny escape of propane . . . has a virtual certainty of exploding because the tiniest spark will ignite it. It expands from its liquid state 270 times its volume into a gaseous state the instant it is released into the atmosphere. It is heavier than air and therefore develops vapor clouds from the ground up . . . Once it is in an unconfined gas form, l.p. gas is no longer controllable and can easily be ignited by any number of unsuspicious ignition sources, including static electricity produced by clothing or a dropped tool; indeed, "l.p. gas seeks an ignition source."
Given these facts and Plaintiffs' injuries, the likelihood of great harm from a propane explosion is obvious. Factors (a) and (b) have been satisfied.
Elimination of Risk by the Exercise of Reasonable Care
Although the Restatement instructs courts to consider each factor, the question of whether reasonable care can eliminate the high degree of risk is often central to the determination of whether an activity is abnormally dangerous. Arlington Forest Assocs., 774 F. Supp. at 390; Koos v. Roth, 652 P.2d 1255, 1263 (Or. 1982); McLane, 467 P.2d at 638; Erbrich Prods. Co. v. Wills, 509 N.E.2d 850, 857 n.3 (Ind. Ct. App. 1987). This is so because it is the inability to eliminate the risks by taking precautions that distinguishes strict liability from negligence. See Saiz, 113 N.M. at 396-97, 827 P.2d at 111-12.
While some jurisdictions read Restatement § 520(c) to require a complete elimination of the risk, see, e.g., McLane, 467 P.2d at 638; Zero Wholesale Gas Co. v. Stroud, 571 S.W.2d 74, 76, 78 (Ark. 1978), the elimination of any and all risks is virtually impossible in most cases. This Court finds the better rule is that subsection (c) refers to an inability to eliminate the high degree of risk, i.e., an inability to reduce the risk to reasonable levels. See Restatement § 520 cmt. h; Arlington Forest Assocs., 774 F. Supp. at 390 n.4; New Meadows Holding Co. v. Washington Water Power Co., 687 P.2d 212, 216 (Wash. 1984) (en banc). " nything can happen. The question is, how likely is this type of accident if the actor uses due care?" Indiana Harbor Belt R.R. Co., 916 F.2d at 1179.
Undeniably, propane is a dangerous substance, but reasonable precautions can
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