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Apodaca v. AAA Gas Co.3/11/2003
reasonably reduce the risk of, if not prevent, explosions. See generally NFPA 58; Searle v. Suburban Propane Div. of Quantum Chem. Corp., 263 A.D.2d 335, 339 (N.Y. App. Div. 2000) (finding installation and maintenance of a propane gas storage tank did not constitute an ultrahazardous activity since reasonable precautions can be taken to prevent explosion); Travelers Ins. Co. v. Chrysler Corp., 845 F. Supp. 1122, 1125 (M.D. N.C. 1994) (mem. & order) (declining to extend strict liability to propane powered vehicles because of the low risk of harm with the exercise of reasonable care); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587-89 (Colo. 1984) (en banc) (instructing on degree of care required of propane suppliers in negligence claim). Moreover, Plaintiffs and Defendant AAA Gas agree the accident could have been avoided if the tank and its delivery system had been purged of propane or the repair had been performed outside the garage.
To avoid the necessary consequences of these facts, Plaintiffs define the activity subject to strict liability to include characteristics of the Plaintiffs that made the situation more dangerous-handing over a fully loaded propane truck for repair to mechanics, who are unlicensed and inexperienced in the safe handling of propane, at a repair shop located in the heart of Albuquerque. In short, Plaintiffs' position is that no amount of reasonable care can make the repair safe when the truck is fully loaded and handed over to inexperienced mechanics. However, Plaintiffs' characterization would swallow the rule.
For strict liability purposes, the danger cannot be predicated on mere causal or collateral negligence of others with respect to [the activity] under the particular circumstances . . . .[Plaintiff's] particularized approach to defining the nature of an activity would, in effect, enable plaintiffs to invoke strict liability for all negligently-conducted activity.
Arlington Forest Assocs., 774 F. Supp. at 392 (internal quotation marks and citation omitted). "Any plaintiff in a negligence action could simply characterize the offending behavior as incapable of being safely performed even with due care, thus bringing it within the scope of strict liability." Id.
The fact remains that if Defendants had delivered the tank unloaded and purged of gas, or if Plaintiffs had repaired the truck outside the garage, the risk of an explosion would likely have been greatly reduced. See NFPA 58, §§ 6-6.2.2(a), 6-6.2.3(c). This is not a case where the risk of harm is impossible to predict because serious injuries may result despite every reasonable precaution. See Thigpen, 64 N.M. at 294, 327 P.2d at 805 ("Blasting is ultrahazardous because high explosives are used and it is impossible to predict with certainty the extent or severity of its consequences.") (quoting Restatement § 520(c)) (emphasis added); see also Philip Morris Inc. v. Emerson, 368 S.E.2d 268, 282 (Va. 1988) (denying strict liability for negligent release of pentaborane gas since, unlike blasting which is impossible to predict, all parties had the ability to eliminate the risk of injury by exercising reasonable care). But see Siegler v. Kuhlman, 502 P.2d 1181, 1187 (Wash. 1972) (en banc) (transporting gasoline by truck on highway involved high degree of risk that could not be eliminated-reasonable care could not ensure against "concealed or latent mechanical or metallurgical defects in the carrier's equipment, . . . negligence of third parties, . . . latent defects in the highways and streets, and . . . all of the other hazards not generally disclosed or guarded against by reasonable care").
The high degree of risk inherent in an activity can be reduced to a min
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