Klein v. Pyrodyne Corporation

817 P.2d 1359, 117 Wash. 2d 1
CourtWashington Supreme Court
DecidedOctober 14, 1991
Docket56879-1
StatusPublished
Cited by60 cases

This text of 817 P.2d 1359 (Klein v. Pyrodyne Corporation) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klein v. Pyrodyne Corporation, 817 P.2d 1359, 117 Wash. 2d 1 (Wash. 1991).

Opinions

Guy, J.

The plaintiffs in this case are persons injured when an aerial shell at a public fireworks exhibition went astray and exploded near them. The defendant is the pyrotechnic company hired to set up and discharge the fireworks. The issue before this court is whether pyrotechnicians are strictly hable for damages caused by fireworks displays. We hold that they are.

Defendant Pyrodyne Corporation (Pyrodyne) is a general contractor for aerial fireworks at pubhc fireworks displays. Pyrodyne contracted to procure fireworks, to provide pyrotechnic operators, and to display the fireworks at the Western Washington State Fairgrounds in Puyallup, Washington, on July 4, 1987. Ah operators of the fireworks display were Pyrodyne employees acting within the scope of their employment duties.

As required by Washington statute, Pyrodyne purchased a $1 million insurance pohcy prior to the fireworks show. The pohcy provided $1 million coverage for each occurrence of bodily injury or property damage liability. Plaintiffs allege that Pyrodyne failed to carry out a number of the [4]*4other statutory and regulatory requirements in preparing for and setting off the fireworks. For example, they allege that Pyrodyne failed to properly buiy the mortar tubes prior to detonation, failed to provide a diagram of the display and surrounding environment to the local government, failed to provide crowd control monitors, and failed to keep the invitees at the mandated safe distance.

During the fireworks display, one of the 5-inch mortars was knocked into a horizontal position. From this position an aerial shell inside was ignited and discharged. The shell flew 500 feet in a trajectory parallel to the earth and exploded near the crowd of onlookers. Plaintiffs Danny and Marion Klein were injured by the explosion. Mr. Klein's clothing was set on fire, and he suffered facial bums and serious injury to his eyes.

The parties provide conflicting explanations of the cause of the improper horizontal discharge of the shell. Pyrodyne argues that the accident was caused by a 5-inch shell detonating in its aboveground mortar tube without ever leaving the ground.1 Pyrodyne asserts that this detonation caused another mortar tube to be knocked over, ignited, and shot off horizontally. In contrast, the Kleins contend that the misdirected shell resulted because Pyrodyne's employees improperly set up the display. They further note that because all of the evidence exploded, there is no means of proving the cause of the misfire.

The Kleins brought suit against Pyrodyne under theories of products liability and strict liability.2 Pyrodyne filed a motion for summary judgment, which the trial court granted as to the products liability claim. The trial court denied Pyrodyne's summary judgment motion regarding the Kleins' strict liability claim, holding that Pyrodyne was [5]*5strictly liable without fault and ordering summary judgment in favor of the Kleins on the issue of liability. Pyrodyne appealed the order of partial summary judgment to the Court of Appeals, which certified the case to this court. Pyrodyne is appealing solely as to the trial court's holding that strict liability is the appropriate standard of liability for pyrotechnicians. A strict liability claim against pyrotechnicians for damages caused by fireworks displays presents a case of first impression in Washington.

Analysis

I

Fireworks Displays as Abnormally Dangerous Activities

The Kleins contend that strict liability is the appropriate standard to determine the culpability of Pyrodyne because Pyrodyne was participating in an abnormally dangerous activity. This court has addressed liability for fireworks display injuries on one prior occasion. In Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 435 P.2d 626 (1967), this court held that a pyrotechnician could maintain a negligence suit against the manufacturer of the defective fireworks. The issue as to whether fireworks displays are abnormally dangerous activities subject to strict liability was not raised before the court at that time, and hence remains open for this court to decide.

The modem doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, 159 Eng. Rep. 737 (1865), rev'd, 1 L.R.-Ex. 265, [1866] All E.R. 1, 6, aff'd sub nom. Rylands v. Fletcher, 3 L.R.-H.L. 330, [1868] All E.R. 1, 12, in which the defendant's reservoir flooded mine shafts on the plaintiff's adjoining land. Rylands v. Fletcher supra, 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." W. Keeton, [6]*6D. Dobbs, R. Keeton. & D. Owen, Prosser and Keeton on Torts § 78, at 547-48 (5th ed. 1984).

The basic principle of Rylands v. Fletcher, supra, has been accepted by the Restatement (Second) of Torts (1977). See generally Prosser and Keeton on Torts § 78, at 551 (explaining that the relevant Restatement sections differ in some respects from the Rylands doctrine). Section 519 of the Restatement provides that any party carrying on an "abnormally dangerous activity" is strictly liable for ensuing damages. The test for what constitutes such an activity is stated in section 520 of the Restatement. Both Restatement sections have been adopted by this court, and determination of whether an activity is an "abnormally dangerous activity" is a question of law. New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 500, 687 P.2d 212 (1984); Langan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973).

Section 520 of the Restatement lists six factors that are to be considered in determining whether an activity is "abnormally dangerous". The factors are as follows:

(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.

Restatement (Second) of Torts § 520 (1977). As we previously recognized in Langan v. Valicopters, Inc., supra at 861-62 (citing Restatement (Second) of Torts § 520, [7]*7comment f (Tent. Draft 10, 1964)), the comments to section 520 explain how these factors should be evaluated:

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Bluebook (online)
817 P.2d 1359, 117 Wash. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-pyrodyne-corporation-wash-1991.