Law, Business and Society 11th Edition by Tony McAdams

Exercise 17

Judge Rubin
THE PROCEEDINGS BELOW
On June 14, 2005, Gallagher sued HV Pierhomes LLC and HV Development Contracting Co. The initial complaint contained claims for negligence, strict liability, and public and private nuisance. On December 21, 2005, Gallagher filed an amended complaint, which abandoned the negligence claim. All of Gallagher's claims for relief arose out of the pile driving operations conducted by the defendants on the site of the former Key Highway Shipyard. Gallagher contended that vibrations from the pile driving damaged her home, located at 423 East Hamburg Street in Baltimore. Key Highway; a row of mixed use properties; Covington Street; a retaining wall; and a solid earthen wall, on which Gallagher's house rests, separate Gallagher's house from the pile driving site.
The Key Highway Shipyard, formerly owned by the Bethlehem Steel Corporation, was used to repair naval (sic) ships during World War II and through the Vietnam War. A shipyard of some sort has operated at this location from the beginning of the 20th century until 1982, when Bethlehem Steel closed the facility.
The defendants demolished the original shipyard piers, which were built 40 to 50 years ago and constructed new piers in the same location, by driving piles into the Baltimore Inner Harbor. The defendants built 58 townhomes on these new piers. Pile driving was the only method of constructing the new town- homes in this particular location because the U.S. Army Corps of Engineers would not allow the Inner Harbor to be "back filled." The pile driving of which Gallagher complained occurred periodically between September 2003 and October 2004.
The plaintiff's home was constructed shortly before the War of 1812. She testified that no pile driving was conducted in the area during the years she lived in the house, beginning in 1997, until the defendants' activities commenced in September 2003. Previously, pile driving was used to build the Seagirt Marine Terminal, the Dundalk Marine Terminal, as well as the Pratt and Light Street Pavilions, which are located across from the plaintiff's residence in the Inner Harbor.
Before the defendants began their project, permits were received from the U.S. Army Corps of Engineers, the Maryland Department of the Environment, and the City of Baltimore. The permitting process took approximately two years. Pile driving on the site began only after geotechnical studies were conducted by engineering firms. During the course of actual pile driving, two permanent seismic stations and five mobile geophones were placed in the surrounding neighborhood to ensure that vibrations were monitored and did not exceed the limits established by the engineers. During the course of the defendants' activities, there was only a single recorded vibration that exceeded the limits.
The case proceeded to trial on December 15, 2006. The plaintiff testified that she heard and felt vibrations from the pile driving in her home. She further testified that cracks began to develop in her plaster walls and in other portions of her home soon after the pile driving began and that no cracks occurred once the pile driving was completed. She was not aware of any other residents in the area who made claims or filed lawsuits for damage to their homes as a result of the vibrations caused by the defendants' pile driving. No evidence of any other claims or suits on account of pile driving vibrations was presented at trial.
On December 21, 2006, the jury returned a verdict in Gallagher's favor. The jury found that: (1) pile driving caused damage to Gallagher's home, and HV Pierpont and HV Development were responsible for the pile driving; (2) the pile driving created a public nuisance; (3) the pile driving created a private nuisance; and (4) Gallagher suffered damages in the amount of $ 55,189.14.
After the jury's verdict was announced, the defendants renewed their motions for judgment.... By Order entered on August 20, 2007, the circuit court granted the defendants' motion for judgment notwithstanding the verdict [The judge overruled the jury-Ed.] on all claims. Gallagher [appealed].
STRICT LIABILITY IN MARYLAND
[The Restatement of Torts,] Section 519, sets forth the general principle upon which courts have held defendants to be liable regardless of fault: "One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm."
In summary, Maryland recognizes strict liability, [and] adopts the definition of abnormally dangerous activity as set forth in Section 519 of the Restatement (Second) of Torts (1977). In many, but not all cases, the "thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs."
STRICT LIABILITY IN PILE DRIVING CASES
The circuit court acknowledged that "whether pile driving is an abnormally dangerous activity has yet to be determined by the Maryland Court of Appeals." The circuit court nevertheless concluded, after applying sections 519 and 520 to the facts of the case, that the Court of Appeals would hold that the pile driving activity in this case would not warrant the application of strict liability.
In the 1984 revision of Dean Prosser's landmark treatise, Professor Page Keaton observed that varying formulations of strict liability have been applied by some courts to hold that pile driving is an abnormally or unreasonably dangerous activity warranting liability without fault. The reasoning of these decisions, as well as the results, is far from uniform. Some courts consider pile driving to be no different than blasting, and therefore dangerous enough to warrant strict liability regardless of the place in which it occurs. Others have taken a more fact-based approach, considering the activity in conjunction with the locale and the type of harm that resulted.
For example, in Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79, 175 A.2d 561 (1961), the Supreme Court of Connecticut held that pile driving activity during the construction of the Connecticut turnpike in 1958 and 1959, in close proximity to the plaintiff's business premises, warranted the application of strict liability. The Connecticut court analogized pile driving to blasting and aligned itself with those courts that imposed strict liability not only for flying debris but also for the vibrations caused by the explosive force of the blast. The Connecticut court noted, but declined to follow, a line of New York decisions, illustrated by Fagan v. Pathe Industries, Inc., 274 A.D. 703, 86 N.Y.S.2d 859, 863-64 (App. Div„ 1st Dept. 1949), that rejected strict liability for pile driving where the damage was caused only by vibrations.
STRICT LIABILITY IN THIS CASE
The appellant argues that pile driving should be considered abnormally dangerous simply because it produces uncontrollable vibrations, similar to blasting. She also asserts that pile driving created an abnormal risk to persons, such as Gallagher, who have historic homes, and that damage resulting from the inevitable emission of vibration cannot be eliminated through the exercise of due care. Although some courts have adopted this view, others have declined to impose strict liability for vibrations resulting from blasting (as opposed to flying debris).
The circuit court, after reviewing the evidence presented at trial, concluded that the defendants' pile driving in the Inner Harbor did not involve a high degree of risk of harm to the person, land or chattels of another,… We agree. Comment g to section 520 states: "The harm threatened must be major in degree, and sufficiently serious in its possible consequence to justify holding the defendant strictly liable for subjecting others to an unusual risk." The risk of harm proven in this case, relatively minor damage to a 200-year-old home from the vibrations of the pile driving, simply is not a high degree of risk which requires the application of strict liability…
[A] plaintiff must show that the defendants' pile driving was likely to produce significant harm, not simply that she suffered some harm as a result of the pile driving activity.
After considering the factors of section 520 of the Restatement, we agree with the circuit court's conclusion that the pile driving in this case was not an abnormally dangerous activity.
NUISANCE
Gallagher also contends that the defendants' conduct interfered with the use and enjoyment of her land, amounting to a public and private nuisance. The circuit court disagreed, concluding that Gallagher's evidence of a private or public nuisance was insufficient as a matter of law.
Under Maryland law, to sustain a private nuisance claim "there must be a substantial interference with the plaintiff's reasonable use and enjoyment of its property." Exxon Corp. v. Yarema, 69 Md. App. 124,151, 516 A.2d 990 (1986), cert, denied, 309 Md. 47, 522 A.2d 392 (1987). In Yarema, we held that the defendants' "contamination of ground water imposed crippling restrictions not only on the contaminated land but on all the property adjacent to the land." A private nuisance requires the interference to be "substantial and unreasonable and such as would be offensive or inconvenient to the normal person."
Nothing of that order occurred in this case. The defendants' activity was reasonable in time, place, manner, and duration and did not substantially interfere with Gallagher's use and enjoyment of her land.… Residents of Baltimore City must accept the occasional annoyance and discomforts incidental to city life.
The elements of a public nuisance were discussed by the Court of Appeals in Tadjer v. Montgomery County. Quoting Dean Prosser, the Court of Appeals said: "To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several."
The circuit court concluded that the evidence produced at trial was insufficient to prove a public nuisance under these standards. We agree.
Affirmed.
a. The plaintiff, Gallagher, brought three causes of action in her amended complaint. List them.
b. Why do you think the jury ruled in favor of Gallagher?
c. Why did Gallagher lose at the trial level even though the jury had ruled in her favor?
d. Explain why the appeals court upheld the judgment against Gallagher.
e. Who do you think should have won this case? Explain.