Ultrahazardous Activity Liability

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 What is an Ultrahazardous Activity?

An ultrahazardous activity is defined as an act that is so inherently dangerous that the individual performing it may be held liable for injuries to other individuals — even if they take every reasonable step to prevent the injury. An ultrahazardous activity may also be known as an abnormally dangerous activity.

An ultrahazardous activity is classified as a strict liability tort. This means that the individual performing the activity can be held liable even if they did not make any mistakes and took precautions to prevent harm.

In some cases, the term ultrahazardous activity can be used to describe high-risk, extreme recreational activities such as cliff diving or skydiving. However, these activities are generally not included in a tort discussion because, in most cases, an individual must sign a liability waiver and a consent form prior to engaging in the activity.

What is Required to Prove Damages from Ultrahazardous Activities?

In order for an individual to prevail on an ultrahazardous or abnormally dangerous activity claim, a plaintiff is required to prove the following elements:

  • The activity involved a verifiable risk of serious harm to persons or property;
  • The activity cannot be performed without a risk of serious harm, no matter how much care is taken; and
  • The activity is not commonly engaged in by individuals in the community.

The plaintiff must prove that they did, in fact, sustain an injury. The plaintiff must also prove that the defendant’s actions were the actual cause.

Of the elements the plaintiff is required to prove noted above, the most important is arguably the community standards element. An action that is not normally considered to be ultrahazardous may be transformed into an ultrahazardous activity if it is performed in a specific community or location.

For example, transporting hazardous materials may not in itself be considered an ultrahazardous activity. However, if the transportation of hazardous materials was conducted near a school, it may be considered to be an ultrahazardous activity.

What are Some Common Examples of Ultrahazardous Activities?

Some common examples of ultrahazardous activities may include:

  • The storage or use of explosives;
  • Blasting or demolitions operations;
  • Using, transporting, storing, or handling hazardous chemicals;
  • Disposing of nuclear or chemical wastes;
  • Controlled burning of buildings or fields;
  • Activities involving radioactive materials; and
  • Certain types of product defects.

If an individual who engages in an abnormally dangerous activity injures another individual during the activity, they will be held liable even if they exercised reasonable care.

Are any Defenses Available in Ultrahazardous Activities Claims?

There are few defenses to ultrahazardous activities claims. However, they are very difficult to prove. In most cases, the participation in an ultrahazardous activity itself is enough to prove liability.

Defenses in ultrahazardous claims usually involve a lack of care on the part of the injured party. For example, if they did not pay attention to warnings or violated safety precautions.

Some defenses to abnormally dangerous activities claims may include:

  • Contributory negligence or comparative negligence. Pursuant to these defenses, the injured party’s own actions contributed to their injury. Their damages may be reduced or denied accordingly;
  • Assumption of the risk. The injured party was aware of the risk and was fairly warned, but proceeded to engage in the activity anyway, resulting in their own injury.

In other words, if the defendant is able to show that the plaintiff was partially responsible for their own injuries, the defendant may be able to use it as a defense and reduce their liability.

What is Negligence?

Negligence is an individual’s failure to exercise reasonable care that results in an injury or damage to another individual. Negligence is one of the primary claims in tort law.

A plaintiff can prove negligence by showing the following four elements:

  • The defendant had a duty of care;
  • The defendant breached that duty;
  • The defendant’s actions caused the plaintiff’s injury; and
  • The plaintiff suffered actual damages.

The plaintiff must show the defendant owed them a duty of care. In cases where the defendant is a business person or a professional, it will typically involve assessing different standards of professional conduct, duties to ensure customer safety, etc.

The plaintiff must then show that the defendant breached that duty. This is typically accomplished by analyzing whether or not the defendant was able to foresee any possible risks that may impact the plaintiff’s safety or health.

The plaintiff must show that the defendant’s breach of duty was the actual and immediate cause of the plaintiff’s injuries. If there were other factors that may have also led to the plaintiff’s injuries, the defendant’s liability may be reduced.

The plaintiff must be able to measure the damages they suffered. In other words, the plaintiff must quantify their injuries into an actual, verifiable amount. For example, if a plaintiff is injured during surgery, they must be able to show the monetary amount that will be required to fix the injury.

What is Contributory Negligence?

Contributory negligence is an old legal concept that dates back to English common law. It states that if a plaintiff is found to be at all negligent in the incident, they cannot recover any damages from the defendant. This is also known as a total bar from recovery. Pursuant to contributory negligence, if a plaintiff is even 1% at fault for their injuries, they recover nothing.

This is an extreme approach that has been slowly replaced with other laws in most states. The only states that still use pure contributory negligence include:

  • Alabama;
  • Maryland;
  • North Carolina;
  • Virginia; and
  • Washington, D.C.

What is Comparative Negligence?

Comparative negligence is one approach to damage reduction in negligence cases. Examples of comparative negligence include:

  • Pure comparative negligence;
  • Modified comparative negligence, or the 50% rule; or
  • Modified comparative negligence, the 51% rule.

Pure comparative negligence does not bar a plaintiff from recovering, even if the court finds that the plaintiff is 99% at fault for their injuries. The damages amount they receive will be reduced by their fault percentage.

For example, if a plaintiff sues for $100,000 but is found to be 70% at fault, they may still recover $30,000 in damages. There are thirteen states that follow this rule, including:

  • Alaska;
  • Arizona;
  • California;
  • Florida;
  • Kentucky;
  • Louisiana;
  • Mississippi;
  • Missouri;
  • New Mexico;
  • New York;
  • Rhode Island;
  • South Dakota; and
  • Washington.

The modified comparative negligence, 50% rule, bars the plaintiff from recovery if they are found to be 50% or more at fault for their injuries. If the plaintiff is found to be 49% or less negligent, they may recover damages. Similar to pure comparative negligence, their recovery is reduced by their fault percentage. States that utilize this approach include:

  • Arkansas;
  • Colorado;
  • Georgia;
  • Idaho;
  • Kansas;
  • Maine;
  • Nebraska;
  • North Dakota;
  • South Carolina;
  • Tennessee;
  • Utah; and
  • West Virginia.

Modified comparative negligence, the 51% rule is the same as the 50% rule, just that the percentage is slightly higher. If the court deems the plaintiff is 50% or less at fault, they may recover damages.

Although the difference between the 50% rule and 51% rule seem minute, the idea is that if the plaintiff and defendant share the blame equally, the plaintiff should still be able to seek compensation, even if their damages are reduced. States that utilize this rule include:

  • Connecticut;
  • Delaware;
  • Hawaii;
  • Illinois;
  • Indiana;
  • Iowa;
  • Massachusetts;
  • Michigan;
  • Minnesota;
  • Montana;
  • Nevada;
  • New Hampshire;
  • New Jersey;
  • Ohio;
  • Oklahoma;
  • Oregon;
  • Pennsylvania;
  • Texas;
  • Vermont;
  • Wisconsin; and
  • Wyoming.

Some states may use a combination of these, so it is important to consult with an attorney to determine which rules may apply.

Do I Need a Lawyer for an Ultrahazardous Activities Lawsuit?

It is essential to have the help of an experienced personal injury lawyer for any ultrahazardous activities claims. If you have been injured or your property has been damaged during an ultrahazardous activity, you may have grounds for a civil lawsuit to recover damages.

Your lawyer can review your case, explain the nuances of ultrahazardous activities law, and represent you during any court proceedings, if necessary. Your attorney will help ensure you get the best recovery for your injuries.

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