LESSONS FROM BP: DEEPWATER OIL DRILLING ABNORMALLY DANGEROUS ACTIVITY.

IS

AN

VALERIO SPINACI* I. II.

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INTRODUCTION 2 STATE COMMON LAW IS NOT PREEMPTED 4 A. A Preliminary Issue 4 B. The Rules for Preemption 6 C. No Federal Statutes Overcome the Presumption Against Preemption 7 1. Clean Water Act 7 2. Oil Pollution Act 9 THE DOCTRINE OF ABNORMALLY DANGEROUS ACTIVITY 11 A. Ultrahazardous Strict Liability in the United States 11 1. Rylands v. Fletcher: The Seminal Case 11 2. The Restatement (First) of Torts: Common Activities 13 3. The Restatement (Second) of Torts: Confusion with Negligence 15 B. Abnormally Dangerous Activities in Florida 19 C. Defenses 21 DEEPWATER OIL DRILLING IS ABNORMALLY DANGEROUS 22 A. It Is Likely to Produce Great Harm: Factors (a) and (b) 24 1. Effect on Aquatic Life 25 2. Effect on Human Health 26

Italian Juris Doctor (“Dottore in Giurisprudenza”), summa cum laude, Università degli Studi “Roma Tre”; J.D. Candidate, Nova Southeastern University. Dr. Valerio Spinaci works as teacher assistant and research assistant for Prof. James Wilets, and for Prof. Ishaq Kundawala at Nova Southeastern University. He participated to the creation of several law review articles and other publications, both in the U.S. and in Italy. He is an expert and teacher of communication and learning techniques. A former actor and scriptwriter, he also produced and contributed writings for numerous books on Theater and Role-playing. My deepest gratitude goes to professor Micheal Flynn, one of the best and most entertaining professor I have ever met. In addition to the invaluable contribution and supervision to this article, he taught me all I know about torts law, and much more. A special thanks to Christine Whited and Mario Giommoni, awesome authors and editors that helped me with putting these words in a better shape, and to Jeremy Singer, the Nova Law Review Editor-in-Chief, for suggesting the last version of the title. Finally, thanks to the Nova Law Review staff, for their constant dedication and companionship, and for producing this polished final version that you, reader, can enjoy.

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3. Economic Loss 27 No Standard of Reasonable Care Can be Exercised: c 29 The Activity Is Not a Matter of Common Usage: (d) 30 Off-shore Oil Drilling Is Inappropriate because of the Location: Factor (e) 31 E. The Value of the Activity Does Not Outweigh the Risk: Factor (f) 32 CONCLUSION 33 B. C. D.

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INTRODUCTION

On April 20, 2010, while drilling oil from the outer Continental Shelf, the Deepwater Horizon oil rig exploded killing eleven people and spilling more than five millions of gallons of oil into the Gulf of Mexico. 1 Deepwater Horizon held the record as the deepest oil rig in history, and the oil spill it produced is one of the largest ever.2 Fortunately, catastrophic spills like the Deepwater Horizon are not the rule.3 But offshore operators spill each year millions of gallons of oil, fuel and other chemicals into federal waters.4 According to the U.S. Minerals Management Service, approximately forty spills were greater than 1,000 barrels since 1964, and thirteen only in the last 10 years.5 Offshore oil extraction operations have produced some of the largest oil spills in the world’s history.6 The numbers become higher when considering oil spills from tankers, carriers and barges.7 As estimated by the U.S. Coast Guard, 1.3 million gallons of petroleum are spilled into U.S. waters from vessels and pipelines in a typical year.8 In addition, spills statistics are often misleading,

. Sheila Pulham, BP Oil Spill: An Interactive Timeline, GUARDIAN, July 8, 2010, http://www.guardian.co.uk/environment/interactive/2010/jul/08/bp-oil-spill-timelineinteractive (last visited July 30, 2010). 2 . BP Oil Spill Is Now the Largest Ever in Gulf, CBS/AP, July 1, 2010, http://www.cbsnews.com/stories/2010/07/01/national/main6636406.shtml (last visited July 30, 2010); Dan Shapley, So How Big Was the BP Oil Spill?, DAILY GREEN, July 16, 2010, http://www.thedailygreen.com/environmental-news/latest/bp-oil-spill-size-0528 (“More than 180 million gallons.”) (last visited July 30, 2010). 3 . David Ivanovich & Kristen Hays, Offshore Drilling Safer, but Small Spills Routine, HOUSTON CHRONICLE, July 20, 2008, at A1. 4 . Id. 5 . Id.; see also List of Oil Spills, WIKIPEDIA, http://en.wikipedia.org/wiki/List_of_oil_spills (containing a non-exhaustive list of the oil spills occurred throughout the world is available) (last visited July 30, 2010). 6 . Jonathan L. Ramseur, Cong. Research Serv., Oil Spills in U.S. Coastal Waters: Background, Governance, and Issues for Congress, 32 (Updated Aug. 23, 2007) (available at http://assets.opencrs.com/rpts/RL33705_20070823.pdf). Before the Deepwater Horizon, “[t]he largest accidental oil spill in world history—the IXTOC I, estimated at 140 million gallons—was due to an oil well blowout in Mexican Gulf Coast waters in 1979.” Id. at 33. 7 . INT’L TANKER OWNER POLLUTION FEDERATION, OIL TANKER SPILL STATISTICS: 2009 (available at http://www.itopf.com/information-services/data-andstatistics/statistics/documents/Statspack2009-FINAL.pdf) (last visited July 30, 2010). 8 . See generally Polluting Incident Compendium: Cumulative Data and Graphics for Oil Spills, 1973-2004. (U.S. Coast Guard, Last Updated September 2006).

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16 In other words.com/id/37389981/ns/businessoil_and_energy/ (last visited July 30. Ministers have edited out all ECDG’s comments assessing the risks involved in deep-sea drilling in the Atlantic. 2010). http://seattletimes. Drilling. updated May 28. TIMES. N. See generally John W. 10 ASSOCIATED 30. But times are changing. La Bp Trivellerà in Libia a 600 km dalla Sicilia.co. 2010 at 4. East Timor.798 metres (5. 2010). May 19. 11 4 .com/html/businesstechnology/2014476834_apusgulfdrillingbhpbi lliton. 2010 at 13.13 Further. Oil has played. deep water drilling is being resumed in other wells in the Gulf of Mexico. Schoen. The 14-page environment report prepared by the [bank financing the drilling operations] makes no mention of blowouts or the equipment needed to prevent them.9 Moreover. 2010. See http://www. July. 2010.15 Finally.” Id. Renewable. PRESS. the worst has yet to come: Brazil is drilling deeper than the BP Deepwater Horizon oilrig and with fewer precautions.S.msn.S.900 feet) of water .com/id/38337393/ (last visited July . Russia Embraces Offshore Arctic Drilling. for instance.because some incidents are not reported in the Coast Guard’s database. http://www. East Timor Considers Ultra-Deep Oil Drilling. Andrew E.nwsource. JOE BROCK. http://www. Australia and others continued to pursue “ultra-deep” exploration.html 17 . July. less dangerous. a fundamental role in the world’s economy. 17 Alternative feasible sources of energy exist. AUSTRALIAN. Feb.12 Despite the experience. Called ‘Severe Threat’. at 32. “International media largely ignored the recent incidents in Nigeria.msnbc. China Oil Spill Doubles in Size. AFRICA’S OIL SPILLS ARE FAR FROM U. The risk is the environmental damage becoming irreversible.uk/environment/2010/jun/30/uk-loans-brazil-offshore-drilling (“The platform is now operating 125km off the coast of Brazil in 1.html 14 . REUTERS ANALYSIS. Kramer & Clifford Krauss.”) See also http://online.msn.com/article/idUSLDE64G12X (last visited July. 15. Cara Anna.com/2011/02/16/business/global/16arctic.S. 16 .guardian.com/article/SB10001424052970203863204574346610120524166.msnbc. 2010. 12 .reuters.Y. 25. 2010). Monica Ricci Sargentini. Paul Cleary. . where the public can only guess how much oil might have been leaked.11 and the numbers are going to increase: even if the U. July 26.wsj. http://www. the problem is more than compelling. and 9 . British Petroleum will start drilling soon in the Mediterranean14 and in the Artic Ocean.10 There are also a lot of oil spills that go largely unnoticed. 15 . 13 . China had experienced its largest oil spill. MSNBC. CORRIERE DELLA SERA. while the Deepwater Horizon spill was still ongoing. and other countries suspended deepwater drilling as a result of the spill. 21. statistics are no better when considering the rest of the world. MEDIA GLARE. .nytimes. and still plays. Id.deeper than BP’s Deepwater rig that exploded in April and led to the disastrous oil spill in the Gulf of Mexico. 30.html. . http://www. 2011. . BP Spill Clouds Future of U. and the moratorium that followed the spill.

20 Historically. cl. Jones. 22 . Oil Pollution Act (OPA). 92 COLUM. INT'L L. 1742 (1992). pursuant to the Constitution. Ambrose O. 127 (2010)(“At the time of writing. 1705. & POL'Y 55. CONST. environment friendlier energy sources. Ekpu. 65 (1995).22 and 18 . “For example. federal law could preempt the application of the state common law. Strict Liability for Hazardous Enterprise. and the Judges in every State shall be bound thereby”. art. Finally. 20 . U.18 Still. Clean Water Act (CWA). Comprehensive Environmental Response. and it was reported that the United States Department of Justice opened both civil and criminal investigations into the occurrence. one of the reasons why oil is so cheap is that nobody is really accounted for the environmental damages produced by oil drilling.” Id.19 This article will show that the common law doctrine of strict liability for abnormally dangerous activity constitutes the best way to remedy and to prevent further oil spills from occurring. at 127. the Resource Conservation and Recovery Act (RCRA).S. Compensation. Still. REV.”). and then concluding that a defendant’s liability “could be determined on the basis of fault liability or strict liability. 21 . Outer Continental Shelf Lands Act (OCSLA). federal and state laws have supplemented the common law standards of liability in many instances. 24 DENV. and Liability Act (CERCA). A VALID COMMON LAW CLAIM A Preliminary Issue: Why Common Law Should Not Be Preempted An issue preliminary to the present discussion concerns federal preemption. and the Judges in every State shall be bound thereby”. 19 Cf. VI. Part III will generally describe the doctrine of abnormally dangerous activities. Coastal 5 . 149 (starting the analysis on oil spill liability with the acknowledgment that “[t]he United States is a common law jurisdiction”. among others. system owns in its arsenal one of the most powerful weapons to fight the oil plague. William K. The Deepwater Horizon Disaster – Some Liability Issues. the U. A. O. Part II will analyze the issue of whether federal preemption thwarts the application of state tort law.most importantly. frustrating any chance to establish tort liability.S.”). VI states that the federal law “shall be the supreme Law of the Land. L. Environmental Impact of Oil on Water: A Comparative Overview of the Law and Policy in the United States and Nigeria. Safe Drinking Water Act (SDWA). id. However.21 Congress has regulated oil pollution through piecemeal legislation. 5 TLNMLJ 125. J. Art. Ruwantissa Abeyratne. Different theories are raised to support the parties’ liability. oil maintains its supremacy mainly because of its low cost. 2. The author lists several federal statutes. The Supremacy Clause of the Constitution states that the federal law “shall be the supreme Law of the Land. Thus. questions continued to emerge as to who was liable for the spill. II. Part IV will argue that offshore oil drilling is an abnormally dangerous activity. and its application in Florida. the Federal Water Pollution Control Act provides for strict liability for clean-up costs.

194 (1985). 51. Trans-Alaska Pipeline Authorization Act (TAPAA). 95. L.23 However. Deepwater Port Act (DPA). even when federal law regulates the harmful activity through extensive and comprehensive prohibitions. supra note 19.entrusted federal agencies have enacted a large body of regulations to supplement those rules. the Department of Transportation (including the Coast Guard).28 The companies engaged in abnormally dangerous activities will spread such costs by raising the prices of their products. 32 . REV. 27 . Zellmer. Vladeck. First. at 1673. See Guido Calabresi. and most important. the Army Corps of Engineers. including the environmental costs. Sandra Zellmer. Ports and Waterways Safety Act (PWSA). 1659.27 Tort liability forces the purveyors of risky activities to bear the cost of harm caused by the activity.32 Zone Management Act (CZMA). 25 . L. but it is more than just to force such companies to pay for the harm caused in pursuing their profits. “Societal norms of reciprocity. and enable them to make informed purchasing decisions. Robert L. 31 . 33 PEPP. it is unlikely that oil companies would chose the latter option. The Decision for Accidents: An Approach to 6 . and punishment for careless or malicious deeds undergird tort law. such as morality. supra note 19. even when relief would be unavailable under statutory law. 24 .24 In particular. Id. REV. Migratory Bird Treaty Act (MBTA). See also David C. 1673 (2009). See id. REV. L. PA. preserving common law remedies promotes economic efficiency. Preemption by Stealth. at n. At a federal level. supra note 19. state common law can maintain its fundamental role of “gap filler”. at 194. Zellmer. at 1674. morality. there are compelling reasons because of which tort common law should not be preempted. the Minerals Management Service. 28 . common law operates to protect different— but complementary—interests than public law. 101 (2005) (identifying the threat of liability as an important source of market discipline). 30 . See id. at 1673. Id. tort law provides an alternative basis to recover both compensatory and punitive damages. Glicksman. 45 HOUS. distributive justice.25 Moreover..26 Finally. distributive justice. supra note 19. 26 .29 That would make the consumers aware of the true costs of production. See Zellmer. at 1673–1674. Preemption and Regulatory Failure. supra note 20. Id. Glicksman. Federal Preemption and Private Legal Remedies for Pollution. the Department of Interior. the producer is motivated either to improve the production or take the product off the market.30 And when damage awards make the existing practice too expensive. a non-exclusive list includes the Environmental Protection Agency.” Id. reciprocity. 23 . See Zellmer. 121. 29 . 134 U.31 in Considering the importance of petroleum in our society.

713. to the extent of the accidents they cause. observed: [T]he party engaged in the potentially polluting enterprise is in the best position to estimate the risk of accidental pollution and plan accordingly. 38 . Id. 718 (1965). Tex-Tow. 88.”36 This principle makes no difference between federal statutes and federal regulation by a government agency. 505 U. supra note __ at 716 (“Treating the problems of accident law in terms of activities rather than in terms of careless conduct is the first step toward a rational system of resource allocation. In the extreme cases they are priced out of the market.S.”).38 Express preemption results when the federal legislation contains explicit pre-emptive language. Gade v. 141. Sav. 39 . 37 . auspicable result of rendering the alternative energy sources more feasible. imposing a penalty for an oil spill. at 98. See Calabresi. “Activities are made more expensive. REV.34 Accordingly. 154 (1982) (citing United States v. Shimer. federal regulations have the same pre-emptive effect of federal statutes.” Id.2d 1310 (7th Cir. Thus. Economically. 505 U. and thereby less attractive. . and Loan Ass'n v. as by raising its prices or purchasing insurance. 589 F.S. 1978).S. B.The foregoing was underlined in United States v. which interferes with or is contrary to federal law.S. must yield. Federal preemption may be either express or implied. Fidelity Fed. . L. . which statistically will cause pollution and in fact does cause pollution. 367 U. 381–382 (1961)). Inc. .. The Rules for Preemption It is a well-established principle of constitutional law that “any state law . the applicability of the common law should not be preempted. it makes sense to place the cost of pollution on the enterprise .33 where the Seventh Circuit. the Supreme Court has Nonfault Allocation of Costs.2d at 1314. 33 . Nat’l Solid Wastes Management. Tex-Tow. Gade.39 In the absence of such express language. 374. 35 . 589 F. 78 HARV. 7 . when they are enacted according to the congressional mandate. 108 (1992). with the final.37 However. de la Cuesta 458 U. 36 . imposing common law strict liability has the collateral effect to account oil companies for the harm produced by their activities. 34 .35 Because of the foregoing reasons. under preemption principles it appears crystal clear that neither federal law nor federal regulation would preempt Florida tort law in this case.

See 33 U. Zellmer. then. 218.43 The congressional purpose. 52. Santa Fe Elevator Corp. supra note 19.47 Finally.”45 Thus. the result seems easier when the federal law contains an express saving clause. Paul..” Id. 49 . 43 44 Id. 50 . Hines v.S.50 Violation of the prohibition or failure to comply with the Federal Government's directives 40 41 . 534 (1993). 142–143 . 67 (1941). 47 . 48 . at 485. 45 . 373 U. 218.S.S. 507 U.S.distinguished two types of implied preemption.42 or when application of the state law would interfere with the realization of the full purpose and objectives of Congress. Medtronic. Lohr. 331 U. Santa Fe Elevator Corp. Inc. designed to leave to the states the power to regulate the matter. at 1660.48 The foregoing principles were invoked by oil polluters as a protection from liability for oil spills in interstate waters. See id. 470.S. however. . is the “ultimate touchstone. . No Federal Statutes Overcome the Presumption Against Preemption 1. . Rice v. (1963). Clean Water Act The first statute to consider is the Clean Water Act (CWA). 529.S. 312 U. 518 U. 518 U. 485 (1996) (quoting Rice v. 8 . that Congress left no room for the States to supplement it”. . Davidowitz. courts have correctly chosen to preserve state law remedies. § 1321 (2010). 331 U. Lohr.C.40 Field preemption—when the “federal regulation is so pervasive . “In order to abrogate a common-law principle. v. Zellmer. v.46 Preempting a common law theory of recovery is usually more difficult.41 and conflict preemption—when compliance with both the federal and the state regulation would be physically impossible.”44 In case of overlap between federal and state law. 132. the statute must speak directly to the question addressed by the common law. See United States v. this presumption must be rebutted to preempt a state law. 230 (1947)..49 C. Fla. 230 (1947)). Inc.S. Texas. at 1678. supra note 19. 46 . 42 . Section 1321(b)(3) of the CWA prohibits any person from discharging into or upon waters of the United States any harmful quantity of oil. Lime & Avodado Growers. the latter is presumed valid “unless [preemption] was the clear and manifest purpose of Congress.S. however.

the contrary is true: CWA contains an explicit saving clause preventing any interpretation exclusive of state authority. affirmed in part. .51 However. vacated in part on other grounds. § 1321(b)(6). 456 F. 912.) 54 . In re Exxon Valdez. 398 (E. 2619 (2008). ..’ ‘shorelines. CWA is only an alternative channel to seek recovery. into any waters within such State. Va. First. onshore facility or offshore facility to any person or agency under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil . Id. no field preemption. Second. the common law does not conflict with the federal regulation. or from the removal of any such oil.Ct.’ and ‘natural resources. 55 . . .Supp. v. In fact. § 33 U. 673 F. 1979) (concluding that nothing in CWA “conflicts with or otherwise preempts any state statute imposing liability” nor “limit the amount of that liability”. CWA was designed to maintain the common law theories. the doctrine of abnormally dangerous activity aims at the same purpose that the CWA tries to obtain. Baker. See id. Any attempt to imply preemption will lead to a similar conclusion.52 As written.C. of Puerto Rico v. nothing in the Act expressly preempts state law. Puerto Rico 1978).Supp. . 628 F. under the title “[L]ocal authority not preempted” states: 52 51 (1) Nothing in this section shall affect or modify in any way the obligations of any owner or operator of any vessel . but “merely provides states with an alternative federal remedy” assuring the preservation of the natural resources of this country. it is not physically impossible to comply with both. 128 S.54 Through the saving clause. 478 F.S.55 Thus. . in fact. Congress did not intend CWA penalties for water pollution to occupy the entire field of pollution remedies. 1327 (D.regarding cleanup operations triggers liability for civil penalties. 270 F. . .Supp. Complaint of Allied Towing Corp.2d 652. Exxon Shipping Co.S. See also Com.D.53 Express preemption. SS Zoe Colocotroni. from imposing any requirement or liability with respect to the discharge of oil . 1982) (Only purpose of oil spill cleanup provisions of this section is to 53 9 . The principal purpose of this section is to deter harmful oil spills.) Accord.. 2605.C. Moreover. § 1321(b)(1). or with respect to any removal activities related to such discharge.2d 1043. Complaint of Oswego Barge Corp.3d 1215 (9th Cir. Alaska 2001).’” and was not intended to “eliminate sub silentio oil companies' common law duties to refrain from injuring the bodies and livelihoods of private individuals”). the former providing an easier way to punish the same harmful conduct. cert. . vacated and remanded (Clean Water Act does not preempt a private right of action for punitive as well as compensatory damages for damage to private rights. § 1321(o)(2). (CWA is “expressly geared to protecting ‘water. denied. 450 U. on remand 236 F. (2) Nothing in this section shall be construed as preempting any State .56 Such a . strict liability under common law will enter into play only when the statute is already violated by an unlawful oil spill.2d 47 (2d Cir. 56 . then. has to be excluded. . This section specifically addresses oil spills.

429 F.3d at 1226. Suburban Sanitary Com'n v.Supp. Senate Rep. 2. 270 F. reprinted in (1977) U. 60 .3d 1215. was also considered. the legislative history indicates a lack of congressional intent to preempt state law. at 1231.61 The Ninth Circuit considered the CWA savings clause. 128 S. CAE-Link Corp. supra note 19. 128 S. See id. aff’d 573 F. 4390. Congress create precise remedy solely for United States to recover specified damages pursuant to carefully devised formula). Exxon argued that the Clean Water Act and federal admiralty law preempted common law damages awards. Oil Pollution Act As a response to the Exxon Valdez wreck in 1989.S..C. which caused an oil spill of eleven million gallons into the coastal waters of Alaska. Ct. 58 . at p. 1225 (9th Cir.. Ct. Exxon Shipping Co. See Zellmer.62 The Supreme Court affirmed. the Senate Report of the 1977 CWA amendments. 59 . 830 (D. at 2633-34. 10 . Atlantic Richfield Co.News. vacated sub nom.57 Finally.58 Accordingly. contains the following comments: The committee considered amendments to section 311 to establish liability for damages occurring outside the jurisdiction of any State as a result (of) an oil spill.63 Some of the same reasons apply when considering the next statute. 622 A. the provision of liability for damages and a compensation fund which does not preempt State liability requirement would be appropriate.No. 1977).95-370.. including compensation for income loss due to damages to property or natural resources. in the relevant part. and left the private tort claims intact. 756 (Md. Pa. Baker. 62 .2d 1303 (congressional purpose was to impose a standard of conduct higher than that related just to economic efficiency). This rationale was followed by the appellate court in the Exxon Valdez oil spill. United States v. 1228. 2605 (2008). 61 . by considering deepwater oil drilling an abnormally dangerous activity. In that context. at 1679. 270 F. . 60 Since OPA does not retroactively apply to spills occurred before 1990. the savings clause does preserve state law remedies).2d 745. See Wash.59 The jury awarded compensatory and punitive damages to fishermen and landowners injured by the oil spill under Alaska law. Exxon Shipping Co. 1993) (to the extent that the action does not otherwise thwart the goal of the CWA. v. .Code Cong. rather than obstructed.goal will be accomplished. The committee deferred action on these proposals and will consider them as part of the comprehensive oil spill liability legislation. 63 . & Admin. at 65. CWA should not preempt the state common law. Exxon Valdez. 57 . For instance. In re Exxon Valdez. 2001). A related amendment creating a new compensation fund .

enacted the Oil Pollution Act (OPA) in 1990.70 Since its enactment. Ct. 95-808-CIV-J-MMP. §§2701–2761 (2010). 171 F. 1133 (D. 33 U. Massachusetts: Federal Preemption Of State Oil Spill Statutes. cert. . . Potomac Elec. 2000) (damage to land adjacent to river). 924 F. or be construed to affect. 611 (2008). . relating to the discharge. 607. to impose additional liability or additional requirements.S. . at *3 (M. Congress included two savings clauses almost identical to those contained in the CWA. v. REP.C. 65 11 . Inc. § 2718(a).71 In United States 64 .68 Thus. Power Co. . No.D. Williams v. See. . e. 66 . Preemption was discussed “more than any other single issue” by the Senate Environment and Public Works Committee.S. 10119. at 17 (1989). preemption had been the most discussed point. 1021 (1998) (rejecting plaintiff's argument that the OPA allowed recovery in excess of the statutory limit and concluding that the OPA preserves state law claims for those damaged by the spill but not for other responsible parties Seeking contribution claims from third parties). L.67 In the last version of the act. Arctic Peace Shipping Co. 523 U. 101-94. Supp. federal courts rejected OPA preemption of common law tort claims for damages to natural resources. 10133 (1991). Randle. 67 . Aug. 2001) (oyster beds). Note. No. See also Exxon Shipping Co. 115 F. 70 . 1996). L. 1997) (per curiam). 2d 561. Moran Mid-Atl. 21 ENVTL. M/V New Carissa. 1996) (damage to land adjacent to river). Nat'l Shipping Co. Michael D. or to impose. § 2718(a). denied. Fla. The Oil Pollution Act of 1990: Its Provisions. 71 . . MAR. 128 S. 1996 WL 866119. aff'd. of Saudi Arabia v.. for any violation of law.65 The act also imposed strict liability for parties responsible for oil spills. Intent.g. from imposing any additional liability or requirements with respect to the discharge of oil . (c) (2010).. Or. shall in any way affect.C.D. . 1436.66 In enacting the OPA. Supp. Nothing in [the OPA] shall .J. S. . and Effects. 565 (D. Clausen v.S. or to determine the amount of. See 33 U. 2d 1127. cf. see also Russell V. . . 68 . .. Va. or any removal activities in connection with such a discharge. . . 14. Rep. § 2718(c).64 The OPA substantially expanded the existing regulation concerning oil spills. at 2613. the authority of the United States or any State . Dostie Dev. Corp. United States v. any fine or penalty . as preempting the authority of any State . See id. Md. be construed . Nothing in this Act . 32 TUL...69 And. . 1446-48 (E. Driscoll. or substantial threat of a discharge.. 122 F.3d 1062 (4th Cir. 69 . of oil. Supp.

Inc. thus. 89 (2000). 411 U. at 325. which is unchallenged here.80 In sum. and any federal limitation of liability runs to ‘vessels. Am. at 336. the Federal Act presupposes a coordinated effort with the States.S. 12 .S. Id. at 105–106. Locke. and refused to find implied preemption in presence of the saving clauses. establish liability rules and financial requirements relating to oil spills. . and specified that the decision “preserves this important role for the States. Locke. the courts’ view of OPA’s saving clauses does allow state law—including state common law—as a supplemental and an additional source of liability for oil spills. . .v.S.S.’ That is one of the reasons why the Congress decided that the Federal Act does not pre-empt the States from establishing either ‘any requirement or liability’ respecting oil spills.”76 By coincidence.. 75 .’ not to shore ‘facilities. (1973)). not all state laws similar to the matters covered by the whole of OPA or to the whole subject of maritime oil transport. OPA had not been enacted yet. 89 (2000). at 336. Askew. 77 78 529 U. because of two similar saving clauses. 411 U. 411 U.78 The court explained that [T]here need be no collision between the Federal Act and the Florida Act because . 76 . Id. Waterways Operators. 74 . in Askew v. Id. The evident purpose of the saving clauses is to preserve state laws which. the court also acknowledged that they “have upheld state laws imposing liability for pollution caused by oil spills”.77 the Supreme Court held that the federal Water Quality Improvement Act did not preempted state law. Locke. at 106 (citing Askew v. at 105. however. 72 73 . 79 .74 The Court reasoned that Placement of the saving clauses in Title I of OPA suggests that Congress intended to preserve state laws of a scope similar to the matters contained in Title I of OPA. 80 . 529 U. the cite was to a Florida case. American Waterways Operators. Id.75 Finally. the court applied the same rationale in Locke. at 328–329.72 the Supreme Court ultimately interpreted the scope of the saving clauses. See United States v. 529 U.S. Id. . 325 Askew. .79 At the time of the Askew decision.73 The unanimous court limited the state power to regulations imposing additional liability relating to oil spills.S. rather than imposing substantive regulation of a vessel's primary conduct. Inc..

circleofblue. 81 . http://www. neither CWA nor OPA preempt state common law. although it is worthy noting that British Petroleum is facing.Accordingly. among others. a lawsuit filed under the CWA by three environmental groups of citizens for the Deepwater Horizon oil spill 81. 2010. Environmental Groups Sue BP Under Clean Water Act. June 7.org/waternews/2010/world/north-america/environmental-groups-suebp-under-clean-water-act/ 13 .

App. must keep it in at his peril. & I. Collins. Rylands v. & 1. 84 . REV.E. Design Defects.84 Ironically.L.83 In other words. exploding oil wells.” See also Case.H. supra note 79. 270 P. Kevin Case.82 The idea set forth in Rylands is simple: someone conducting an activity on his own property.-KENT L.R. but Justice Blackburn held the defendant strictly liable. 149. Id. the defendant’s reservoir flooded on plaintiff’s adjoining land. Rylands.R. stating. Gen.85 The defendant was not negligent.III. On appeal. 1868). at 178. and blasting operations. 448 (1873) (holding that no “legal principle can throw so serious an obstacle in the way of progress and improvement”) with Green v. the true rule of law is.E.” must pay the damages “which ensues if he does not succeed in confining it to his own property”. Rylands v. 3 L. 279 (1866). App. at 332. Note. is prima facie answerable for all the damage which is the natural consequence of its escape. 87 . Fletcher: The Seminal Case Strict liability for ultrahazardous activities was first established in the English case Rylands v. Fletcher. 83 82 14 . Petroleum Corp. 177 (2006). A. regardless of whether it was carried on without wrongful conduct. 85 . 330 (H. 86 . 265. 3 L. Exch. Fletcher v.E. some activities are so risky that those who engage in them must be liable for the consequences of a loss of control over the activity itself. THE DOCTRINE OF ABNORMALLY DANGEROUS ACTIVITY Ultrahazardous Strict Liability in the United States 1. Fletcher. See Rylands. Rylands. Compare Brown v.R. if he does not do so. Rylands itself involved a spill. at 340. the opinion was affirmed.. 81 CHI. 53 N. 1928) (holding “in all fairness” that oil drilling was an inherently hazardous activity). App. Tanks in the Streets: SUVS. strict liability involved two . at 339. and Ultrahazardous Strict Liability. 3 L.86 After an initial hostility to the Rylands principle American courts began to adopt the doctrine. imposing strict liability even in absence of negligence. . “which he knows will be mischievous if it gets on his neighbour’s. 1 L. 952 (Cal.87 In the first cases applying Rylands. and. with additional language referring to the defendant’s “non-natural use” of his land. & 1. that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes. “Typical early cases involved the storing of nitroglycerin.R. 442.

the California Supreme Court imposed liability on the defendant. in all fairness. 94 . 514 (2d Cir. . 93 .components: first. the owner of the business. Case.94 However.. 531 (Ohio 1899) (considering the dangerousness of storing nitroglycerine). explosive for use in his business . In Exner. at 955. the court stated: When .90 In Green v.. See. 264 (1987). 528. See Case. Id. St. . 65 N. and of such relative infrequent occurrence. and the court eventually held in favor of the plaintiff. supra note 79. Nolan & Edmund Ursin.91 plaintiff’s injury was caused by defendant’s exploding oil well. . 54 N. . REV. at 179.2d 510. the defendant. adding. . See Case. the abnormal dangerousness of certain activities. supra note 79. and . See. the fairness of imposing the cost for the harm resulting from the activity on the actor rather than on third unrelated parties. 54 F. 90 15 .”92 The court went on. . stating. at 179.95 . however carefully done. . 257. Marys Woolen Mfg. Bradford Glycerine Co.g. .” Id. Where one.88 second. L. the Restatement (First) of Torts and the Restatement (Second) of Torts apparently restrained the breadth of the doctrine. supra note 79. 93 The fairness component was more explicit in Green than in the previous cases. 92 .g. . 1928). 952 (Cal. Exner v. at 265.E. rather than a third person who has no relation to the explosion. be required to compensate the other for the damage done. v. and injury is done to the other as the direct and proximate consequence of the act. in the conduct and maintenance of an enterprise lawful and proper in itself. e. that it may well call for strict liability as the best public policy. 270 P.. 270 P. . See also Virginia E. supra note 85. The Revitalization of Hazardous Activity Strict Liability.. at 956.C. has engaged in the perilous activity of storing . should bear the loss. 95 . Sherman Power Const. e. there is no justification for relieving it of liability.. the one who does the act and causes the injury should. other than that of injury.89 Those components were still more evident in the first decision applying strict liability for oil drilling. 1931). though without fault. 91 . Accordingly. deliberately does an act . See also Nolan & Ursin. 89 . at 179. Co. General Petroleum Corp. making its application more unpredictable. Co. . both the components were present in the court analysis. “[t]he important factor is that certain activities under certain conditions may be so hazardous to the public generally. Green. 88 Id. suggesting a theory of enterprise liability: “strict liability properly applies to business enterprises that benefit from hazardous activities and can spread losses among the whole community.

105 For example. .”97 By excluding the activities of “common usage” from strict liability. RESTATEMENT (FIRST) OF TORTS § 519 (1938). Roth.98 The doctrine’s practical significance was reduced to its minimum. at 8.106 the Supreme Court of Oregon distinguished agricultural field burning from 96 . at 266. 100 101 . 102 . 97 98 . This section provided: [O]ne who carries on an ultrahazardous activity is liable to another whose person. like driving cars and operating railroads. supra note 79. 16 . Id. Case. 652 P. 103 .103 The court applied the Restatement (First).101 where the California Supreme Court imposed strict liability on a defendant who engaged in pest control.100 They did so by narrowly defining the activity under adjudication. at 180. and considered the fact that professional fumigators were few in number. Id. supra note 79. See Case. in Koos v. although the utmost care is exercised to prevent the harm.” An example of the former is Luthringer v. 1265 (Or. 105 . and considering the overall circumstances in such a way as to make it “uncommon. . in the decades after the promulgation of the Restatement. and (b) is not a matter of common usage. at 193. at § 520. land or chattels of others which cannot be eliminated by the exercise of the utmost care.2d 1 (Cal. defining fumigation as a specialized activity.104 Similarly. 1948). at 266. 99 . Id.102 The plaintiff was harmed during the fumigation activities. See Nolan & Ursin. supra note 85. Id. 1982). land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous.2. circumventing the “common usage” restraint. a “common usage” activity becomes abnormally dangerous in particular circumstances.96 An activity was “ultrahazardous” when it “(a) necessarily involves a risk of serious harm to the person. Moore. even when ultrahazardous. Nolan & Ursin. 104 . as a result of a gas leak. courts revitalized the strict liability principle. the Restatement limited the expansion of the doctrine to new areas. 106 .2d 1255. The Restatement (First) of Torts: Common Activities The First Restatement of Torts embraced strict liability for ultrahazardous activity. 190 P.99 However. at 3. supra note 85. Id.

RESTATEMENT (SECOND) OF TORTS §§ 519–520 (1977). the provision rarely limits the rage of activity qualifying as ultrahazardous. the risk of seepage is contamination of the area's precious and limited water supply.everyday backyard burning. See Cities Service Co. State. 115 . at 180. 36 SAN DIEGO L. “a combination of the factors . v. supra note 108.V.I. 1243 (D. . Boston. 111 . as here.107 Both fire related activities involved “destruction of raw material by oxidation. 1993). then. Id. . 114 . 312 So. 112 . 110 . § 520 cmt.”115 Second. supra note 79.113 3. h.110 strict liability was proper even though service stations are a matter of common usage.” but the “scale” and the “location” made the basic act of burning leaves ultrahazardous. Supp. But where. The American Law Institute modified the name of the doctrine.114 First. See id.109 Thus. 846 F. . that operation and ownership of service stations is a matter of common usage and that it is not unusual today to find service stations in residential areas. Id. Id. In 108 107 17 . “Taken literally. the Restatement (Second) of Torts modified the doctrine at least in its formal aspects.’ or ‘extra-hazardous.” as opposed to the older “ultrahazardous.’” Id. locating the storage tanks above the aquifer created an abnormally dangerous and inappropriate use of the land. the District Court of the Virgin Island stated: It may well be. 2d 799. is commonly expressed by saying that the activity is ‘ultrahazardous. According to the drafters. was emptied of its substantial significance.” Id.111 The court considered but ignored the commonality of the activity in light of the surrounding circumstances. 597. an otherwise ordinary activity can be found abnormally dangerous when it is carried out in an ultrahazardous manner..112 The “common usage” limitation. but the substance remained the same.”108 Thus. 615 (1999). Strict Liability for Abnormally Dangerous Activity: The Negligence Barrier. under the . REV. See also Gerald W. it labeled the activities “abnormally dangerous. field burning was found abnormally dangerous because it created hazards “beyond the ordinary risks associated with common uses of fire. at 193. 109 . Id. 113 . See Case. See Case. as Defendants contend. See generally Boston. in In re Tutu Wells Contamination Litig. supra note 79. 802 (1975). The Restatement (Second) of Torts: Confusion with Negligence Finally. at 616–624. at 1269.

Compare RESTATEMENT (SECOND) OF TORTS §§ 519–520 (1977) with RESTATEMENT (FIRST) OF TORTS §§ 519–520 (1938). (d) extent to which the activity is not a matter of common usage. supra note 79. at 624. Case. See Case.116 An activity is abnormally dangerous when some of the following factors exist: (a) existence of a high degree of risk of some harm to the person. RESTATEMENT (SECOND) OF TORTS § 520 cmt. strict liability must be imposed after considering six factors that determine whether the activity is abnormally dangerous. especially if others weigh heavily. supra note 85. supra note 79. at 180.122 While not expressly rejecting the Restatement. [I]t is not necessary that each of them be present. (c) inability to eliminate the risk by the exercise of reasonable care. and are all of importance.” 121 . Boston. 118 But while the restyling appears to restrict the application of strict liability. . at 182. RESTATEMENT (SECOND) OF TORTS § 520 (1977). 118 . land or chattels of others. . and (f) extent to which its value to the community is outweighed by its dangerous attributes. supra note 85.117 The first four clauses are generally derived from the First Restatement. the test is substantially unchanged. See also Nolan & Ursin. the Second Restatement reduced the burden on the plaintiff to prove a risky activity.” and requiring the courts to consider the “extent to which” the activity is not a matter of common usage. 117 . The Restatement explains that “the factors listed in Clauses (a) to (f) of this Section are all to be considered. . supra note 108. Id. 120 . the three terms are used interchangeably. (b) likelihood that the harm that results from it will be great. however. 122 . at 272–273.reformulation. f (1977). See Nolan & Ursin. “rather than categorically excluding common activities. at 272. the new factors (e) and (f) suggested a theory more similar to negligence than to strict liability. 116 .119 The fulfillment of just a few of the factors is still enough to find an activity abnormally dangerous. some courts and commentators have shown hostility toward this approach circumventing those two factors when engaging in an abnormally dangerous activity this article. 18 . 119 . (e) inappropriateness of the activity to the place where it is carried on. Case. by using in factor (c) “reasonable care” instead of the previous “utmost care. only factors (e) and (f) seem new. as both courts and commentators have noted.120 In addition. at 181–182. because of the two additional factors.”121 Moreover. supra note 79.

.E. 133 . to small neighboring property owners for them to bear alone. 126 . Id. 130 . referring to its “uniquely hazardous characteristics” and “extraordinary dangers deriving from sheer quantity. e. at 1262.125 Acknowledging the “appropriateness” of agricultural field burning to its location. [but] the potential victim cannot make that choice.”132 In Siegler v.2d 1206 (Alaska 1978). v. 128 . the court considered fair “putting the burden where it should belong as a matter of abstract justice. Kulhman. the court expressly declined to consider factor (e). 652 P.g. and these should be distributed by means of the price of the resulting product and not shifted. . at 1263.131 the Indiana Supreme Court rejected the argument that the defendant’s blasting activity was “necessary”. and expenses of operation. 129 . Fireman's Fund Ins. in Enos Coal Mining Co. Roth.”135 Also. 1982). 19 . 502 P. 125 . at 1261.”126 Likewise. 124 . 134 . Yukon Equip.2d at 1255. 188 N. Id. 2d 406 (Ind. 585 P. 1263. 1972).134 The court focused on the nature of risks created by the tanker. “[a] business should bear its own costs. 2d at 408. “an activity is not otherwise immune from strict liability because it is ‘appropriate’ in its place. burdens. and said. Koos.” 128 and noted that “the person conducting the activity can choose whether or not to chance the potentially costly consequences . See.133 the Supreme Court of Washington considered transportation of gasoline abnormally dangerous. Id. bulk and weight. the “value to the community” was irrelevant to the court’s decision. at 1184. which enormously multiply its hazardous properties. Id. . 127 . v. 652 P.”129 Accordingly. 652 P. 132 .130 Just to pick some other examples. particularly.127 The court emphasized that the proper inquiry was “who shall pay for harm that has been done. See Koos. Id. Koos v.2d at 1262. 188 N. factor (f) was ignored and the touchstone was again the fairness of requiring one person who engages in the risky activity to pay the costs. in Koos v. Schuchart. Enos Coal. 652 P.2d 1255 (Or.. upon the one of the two 123 .analysis. stating that.2d 1181 (Wash. See also Boston. Roth. Co. Id. that is.124 the Oregon Supreme Court held that a farmer burning his fields was strictly liable for the harm caused to a neighbor by the fire. 131 .2d at 1262–1263. 135 . Koos. 1963). at 662.E. supra note 108.123 For instance.

Inc. In balancing these interests. 138 . supra note 79.2d at 223 (citations omitted). See Case. . . Valicopters. 139 . the confusion created by the application of factor (c) of the Restatement deserves some clarifying words. The change from the First Restatement “utmost care” to the “reasonable care” was justified by stating that “probably no activity. Whether strict liability or negligence principles should be applied amounts to a balancing of conflicting social interest [of] the risk of harm versus the utility of the activity. at 222. Id. unless . This 137 136 20 . perhaps the use of atomic energy. we must ask who should bear the loss caused by the pesticides. 567 P. .” 136 As it seems evident. at 184. § 520(f) is not a true element of strict liability: “The justification for strict liability. the Washington Supreme Court in Langan v. Langan.. The Restatement requires “inability to eliminate the risk by the exercise of reasonable care. They may benefit society by increasing production. the Langans may never be able to sell their crops to organic food buyers.” There is no doubt that pesticides are socially valuable in the control of insects. Factor (c) requires the inability to eliminate the risk of the activity by exercising reasonable care. cmt. Under these circumstances. as adopted in Siegler. was still determinative.2d 218 (Wash. In the present case. Id. the Langans were eliminated from the organic food market for 1973 through no fault of their own. Appellants. As a criterion for determining strict liability.” Id. . 567 P. . .137 Further. weeds and other pests. Finally.140 Fairness. there can be an equitable balancing of social interests only if appellants are made to pay for the consequences of their acts. from which all risks of harm could not be eliminated by the taking of all conceivable precautions” Id. but substantially disregarded them. will all profit from the continued application of pesticides. is that useful but dangerous activities must pay their own way. the two components of the original doctrine as established in Rylands were present in all those cases. If crop dusting continues on the adjoining property. in other words. before turning to the adoption of the doctrine in Florida. 1977). was met. on the other hand. 141 . it listed all the six factors. writing. then. at 1185. this factor has received some criticism among legal writers . See RESTATEMENT (SECOND) OF TORTS § 520 (1977). 140 .138 expressly criticized factor (f). h.139 The Langan court declared that the test of the Restatement.”141 Now.innocent parties whose acts instigated or made the harm possible. an activity can be .

147 . properly focusing the analysis on the dangers imposed by the activity.149 First. and second. 1185 (Wash. See Case. See id.142 When starting the inquiry using the former meaning. 1066 (Fla.. either because of its magnitude or because of the circumstances surrounding it. 2d 1062. or because the effects threatened by a loss of control are extremely dangerous.risky either because it is hard to control.g. argued that factor (c) requires the impossibility of proving negligence. Kulhman.2d 1181. however. However. 731 (Kan. it is clear that the doctrine of abnormally dangerous activities—as reformulated by the Restatement—can be. even though it is carried on with all reasonable care. 144 .150 Florida courts have followed this approach. at 189. Ct. See Boston.146 Several courts have understood and applied this interpretation. RESTATEMENT (SECOND) OF TORTS § 520 cmt. at 187.2d 724. minimal. 145 . the first consideration will always be whether the defendant used reasonable care in––unsuccessfully––controlling the activity. 142 . Laterra v. 149 . risk.143 That would lead to absurd outcomes. proposition is doubtful. at 631. 844 P.”). 994 So. See Case. Requiring a higher standard of care for more dangerous activities results in a circular inquiry.144 At least one commentator.145 But if an activity is abnormally dangerous in absence of negligence how can the activity become less dangerous when the defendant is negligent? The dangerousness of the activity itself is the same. App.”148 In short. regardless the defendant’s conduct. 148 . United States v. See Case. “[t]he essential question is whether the risk created is so unusual. Id. 21 . Every activity creates at least some.147 This also seems to be consistent with the spirit of the Restatement. Id. e. See. Siegler v. 143 . 502 P. the fairness of imposing liability on those engaged in such risky activity for their own benefit. supra note 79. f (1977). at 188. 2008) (“Strict liability does not concern itself with whether the actor exercised reasonable care. coupled with the victim’s lack of relation with such activity. Treaste. . 146 . supra note 79. as to justify the imposition of strict liability for the harm that results from it. and was in fact construed by the great majority of jurisdictions as reduced to two basic themes. supra note 108. 1992) (considering suicide with gas an abnormally dangerous activity even if the defendant-suicidal was negligent). the standard of care is immaterial. that with admittedly unclear language explained. The dangers created to the community by engaging in the risky activity under particular circumstances. Stevens. The proper focus is on the dangerousness of the activity carried on. as discussed below. 1972) (disregarding anyone’s negligence in light of the extreme danger posed by hauling gas on the highway). 150 . supra note 79.

159 151 152 . Id. section 519 and 520. It was the duty of the company to confine the refuse from their works so that it could not enter upon and injure their neighbors. 2d 799 (Fla. the negligence language used by the court blurred the extent of the two components revealed in the English case.154 Eighty-six years later. the defendant gas company polluted the plaintiff’s water as a result of its operations. See id. it now seems reasonable that they pay their own way. Dist. Id.B. App. it was done at their peril.156 The court held that “[t]he doctrine of Rylands v. 154 . 5 So.152 The court indirectly applied the Rylands principles to solve the case. 156 . Id. . 1889). 22 . 1975). State. Abnormally Dangerous Activities in Florida The Supreme Court of Florida introduced the Rylands doctrine in the case Pensacola Gas Co. 312 So. 157 .158 Before reaching the sixfactors-analysis. Id. in Cities Service Co. 153 . v. at 802–803. however. Fletcher should be applied in Florida. the escape of the refuse filthy water being in itself an evidence of negligence on the part of the gas company. stating that: The appellant gas company had the right to use the water in and about the gas works as they pleased. It is too much to ask an innocent neighbor to bear the burden thrust upon him as a consequence of an abnormal use of the land next door. Ct.155 the District Court of Appeal of Florida imposed strict liability over a defendant that caused vast damages by accidentally discharging phosphate lime into the Peace River. Though there are still many hazardous activities which are socially desirable. at 801. the court stated: [E]ven the non-negligent use of one’s land can cause extensive damages to a neighbor's property. the court applied the doctrine as reformulated by the Restatement of Torts.153 Even if the court imposed a sort of strict liability. Id. Pebley.”157 In expressly adopting Rylands. 593 (Fla. and if they did so. but they had no right to allow the filthy water to escape from their premises and to enter the land of their neighbors. at 595. 158 .151 In Pebley. v. 155 .

1984). Id. App.162 Thus. that the ultrahazardous or abnormally dangerous activity poses some physical . Clyde J. 165 . Id. danger to persons or property in the area.Thus. after discussing the six factors and finding strict liability proper. 164 . dangerousness of the activity and fairness of accounting the carrier for the risks. After briefly balancing the six factors.”168 In Great Lakes Dredging and Dock Co.169 although rejecting plaintiff’s contention that strict liability was proper. at 893–895. the key consideration will always be that useful but dangerous activities must pay their own way. and the District Court of Appeal of Florida reversed. at 893. the court seemed to recognize the importance of the two elements. 161 . . Id. 162 . the Florida court focused its analysis again on the magnitude of harm. 163 . the Florida court reasoned that one person who carries on the risky activity should bear the loss. 2d 891 (Fla.166 The trial court refused to impose strict liability. See id. 166 . considering “[c]entral to [the abnormally dangerous activity] doctrine . App. . writing at the very end of its decision: “The conclusion is inescapable that no matter what theory is invoked by a plaintiff whose property is damaged by the lawful activities conducted upon or conditions existing on the land of another. at 513. . 1983). 460 So. Co. the court further admitted its reliance on one in particular: the great risk of harm. the court was “impressed by the magnitude of the activity and the attendant risk of enormous damage. Id.”170 Other decisions followed the same . 169 . 167 . which danger must be of a certain magnitude and nature. Ct.167 Remarkably. 23 . Inc. . v. at ___. 170 . Id..”161 In addition. Dist. rather than the victim. Dist. 438 So.164 where the court applied the Restatement analysis. at 801. the court returned to emphasize the fairness component. 168 .. at 893. the court first perceived that an innocent person should not suffer the consequences of the abnormally dangerous activity.. Cities Serv. 312 So. 2d at 803. See id. Sea Gull Operating Corp.160 In its words. 160 159 Id. who had no relation to the activity other than being injured by it. 2d 510 (Fla. Yancey and Sons Dairy.165 In Bunyak. Ct.163 The fairness component was also considered in Bunyak v. Id. liquefied cow manure flowed from defendant’s farm to plaintiff’s land. 896. .

v. 604 So. 203 (1993) (“The [contributory] negligence of the United States . at 1743. App. 180 .” 178 Following this trend. a defendant is still liable for the consequences of his conduct even though some other cause contributed to the same damage. 175 . this court held that “[u]nder Florida law. 2d 1246 (Fla.2 . See. 2008).”174 C. supra note 15. Defenses Finally. Barbee. . one who engages in an abnormally dangerous activity “is subject to strict liability for the resulting harm although it is caused by the unexpectable (a) innocent. 172 . an ultrahazardous activity. See Jones. Dist. 179 . RESTATEMENT (SECOND) OF TORTS § 522 (1977). 2d 1246 (Fla. Any alleged negligence by a third party does not free the fumigation company from liability. 174 . Old Island. 177 . the court agreed that when the risk results in an injury. 994 So. negligent or reckless conduct of a third person. .171 Further. supra note 15. is no longer available under OPA”). and disallow all or most defenses. 171 24 . The modern statutory trend is to set aside those defenses. Dist. at 1742.J.rationale. Inc. Kende. at 1066 n. 176 State statutes are even more rigid. in Old Island Fumigation. Id.g. “it is immaterial that the harm occurs through the . Christopher B. Ct. Development And Presentation Of The Pollution Victims' Claim.173 The court expressly stated that “[s]trict liability does not concern itself with whether the actor exercised reasonable care. we have to direct some of our attention to an issue common to each jurisdiction: defenses that might exclude strict liability. MAR. 1992) (holding that fumigation was “ultrahazardous activity”). Stevens. 2d at 1248 (citations omitted). 1992).. or (b) action of an animal.177 According to the Restatement. 178 . . Ct. 2d 1062 (Fla. or (c) operation of a force of nature. Old Island Fumigation. In a case involving . Barbee. Jones. in United States v. 604 So.180 Still applying the Restatement.F. 176 . v.172 the Florida Supreme Court has recently reaffirmed the immateriality of the standard of reasonable care in the abnormally dangerous activity analysis. 5 U. 173 . e. 604 So. 175 Even when imposing strict liability. Inc. App. L. . Id. federal statutes limit the defenses available to the plaintiff.S.179 the Florida Court of Appeal stated.

2005)) “[N]o Kentucky case has extended strict liability to the transmission of oil through pipelines. especially because it is performed in circumstances that render it extremely dangerous.. Sep. at 330. 183 . 2007 WL 1309612.183 At this point. at 1744. supra note 15. use. 20.D. No.” Id. accidents like the one in the Gulf of Mexico are comparable to this kind of conduct. 188 . Ky. See. Jones. such as drilling in the deep water with a technology insufficient to . seems correct. causing damages to the plaintiff. 182 ..” in contrast. at *6 (D. 181 25 . Marathon Ashland Pipe Line. N. an animal or a force of nature” irrespectively of whether the action of the human being who partakes in the abnormally dangerous activity harmful is innocent. Green v. at *3 (E. No. May 4. In re Complaint of Weeks Marine. 205 Cal. at *1 (E.185 On the other end. DEEPWATER OIL DRILLING IS ABNORMALLY DANGEROUS When considering oil related activities.. and especially the Restatement (Second) approach. 2007) (quoting Cantrell v. or maintenance of the object or instrumentality that may have caused the injury. Ky. to the danger posed by oil spills or the transporting of hazardous substances. On one end of the spectrum. supra note 15.. No. negligent or even reckless.184 however. 185 . jurisdictions are split. an oil well exploded during drilling operations. very few courts have already decided . 2005) “The Court does not find that [plaintiff] has demonstrated that the risk of harm imposed on the community by [operating a crane] is “extraordinary.D. we have laid the groundwork to show that offshore oil drilling is an abnormally dangerous activity.” Id. Mid-Valley Pipeline Co. 186 . 184 . Id. in Green v. for example. at 1755. See Jones. 187 . However. 328 (1928). In the middle category. e. some courts have refused to consider mere transportation of petroleum an abnormally dangerous activity.”188 Of course. See Smith v. Inc. LLC. General Petroleum Co.186 As we have mentioned.182 In the absence of some victim’s fault. See id. IV. at least one jurisdiction deemed the danger created by an oil spill during such transportation an “extraordinary” risk of harm. strict liability was found appropriate in oil drilling situation similar to blasting activities. the Restatement expressed no opinion on deliberately harmful behavior by third parties.J. 2005 WL 1570652. 03-298.187 The California Supreme Court found absolute liability “regardless of any element of negligence either in the doing of the act or in the construction. 3:07-CV-13. Id. a (1977). at 333–334.”181 The modern trend. General Petroleum Co.unexpectable action of a human being. June 30. 04-494. 2005 WL 2290283. RESTATEMENT (SECOND) OF TORTS § 522 cmt.g. strict liability justly requires anyone conducting an abnormally dangerous activity to bear the burden of the accidents produced.

Badlands Power Fuels. Inc.190 And such conclusion is supported by those decisions that have already considered oil drilling as a ultra hazardous activity—regardless the location. v.189 It is time.2d 70 (Wyo. When the activity’s “dangers and inappropriateness for the locality” are great enough. Cyanamid Co. oil drilling performed in deepwater must be subject to strict liability as matter of law. . Co. as we said. the location of the drilling activity and the importance of the breakwater to the safety . 1963) (Wyoming law recognizes that the drilling of an oil and gas well is an ultrahazardous activity. v. to consider one at a time the six factors’ applicability to deep water oil drilling. v. Indiana Harbor Belt R. Prod. at 186. Rptr. we cannot say. Like. Franks v. at 655.. Travelers Indemnity Co. 564 (9th Cir. Indep. f (1977). 586 (10th Cir. 189 26 . without the need of a finding of negligence. Inc. 192 .193 In conjunction. 2004) (citing Pan American Petroleum Corp.R. (citing Hull v.whether oil drilling—regardless the location—is an abnormally dangerous activity.g. “Only the Tenth Circuit Court of Appeals has squarely answered the question of whether oil well drilling is an ultrahazardous activity. Co. Oppen. LLC. 1990). Shell Offshore.” Id. 191 . 812 F. .. 501 F. the District Court of Appeal dwarfed all the other factors. 381 P.2d 882. 673 F. supra note 79. State. City of Redondo Beach. 1987) (concluding that drilling operations are not ultrahazardous). .2d 548. . .”192 Factors (a) and (b) can be considered together. cmt. Inc. Union Oil Co. supra note 108. 1177 (7th Cir. 497. v.3d 484.”) 190 . that respondents' drilling was not ultrahazardous. Co. 1994) (“Given the peculiar facts ..”). but see Ainsworth v. 200 Cal.194 In Cities Serv. 2009). 900 (D. Under Florida law. See Case. 550 (5th Cir. See EOG Resources. App. See RESTATEMENT (SECOND) OF TORTS § 520. Superior Court. emphasizing “the magnitude of the activity and the attendant risk” of harm and explained why such magnitude was great: . 1974) (“We decline to reach the issue of whether defendants' oil drilling operations constitute an ‘ultrahazardous activity’ and express no opinion as to the applicability of this doctrine to the facts presently before us. 34 Cal.A.D. At the end of the analysis––that will keep an eye on Florida law––it will appear both logic and just to consider the petroleum companies accountable for such a remunerative but dangerous activity. 194 .. See. as a matter of law. these two factors represent the dangerousness of the activity.Supp. Chevron U. Cf. 499 (1984) (“[B]y its very nature. a dangerous agency). such dangerousness is probably the most relevant factor.. 916 F. Ct. 1987) (finding that oil well drilling is an ultrahazardous activity)). But see SKF Farms v.191 A. then. e. 492 (Wyo.S. the issue of whether an activity is ultrahazardous cannot be decided on demurrer. “[the carrier] should be required as a matter of law to pay for any harm it causes. It Is Likely to Produce Great Harm: Factors (a) and (b) “The greater the risk of an accident .” Id. 193 . Rptr. the stronger is the case for strict liability.2d 584. 344 (Cal. See Boston. 2d 337. Am. v. v. 96 P. . 829 F.”)..2d 1174. N.2d 558.

then. DAILY NEWS. v. Cities Serv. during interview with the Financial Times.198 In case of oil drilling. at 61. 196 . 198 .197 However. the damage. REV. supra note 108. 199 . Weyhrauch. State. 1975) (emphasis added). Ekpu. 2d 799. at 656. In this case. it was to be expected that extensive damage would be visited upon property many miles away. both the risk that an oil spill will occur and the magnitude of the harm that are gigantic. 363 (1992). As to the risk that some damage will result. Cities Service introduced water into its mining operation which when combined with phosphatic wastes produced a phosphatic slime which had a high potential for damage to the environment. high impact event. http://www. Co. Dist. 2010.201 Indeed. supra note 3 and accompanying text. html. Here. If a break occurred. We conclude that the Cities Service slime reservoir constituted a non-natural use of the land such as to invoke the doctrine of strict liability. 312 So. Oil Spill Litigation: Private Party Lawsuits And Limitations.Y.com/news/national/2010/06/03/2010-0603_bp_ceo_tony_hayward_admits_company_didnt_have_the_right_tools_to_stop_gulf_oil_s. See id. See generally Bruce B. Ct. 27 LAND & WATER L. 803 (Fla. in fact. App. when the risk of harm resulting from the activity was on a large enough scale. 197 .199 As to the severity of harm.The impounding of billions of gallons of phosphatic slimes behind earthen walls which are subject to breaking even with the exercise of the best of care strikes us as being both ‘ultrahazardous' and ‘abnormally dangerous.195 In considering the potential dangerousness of the activity as the main point of the analysis. Boston. supra note 16. 200 . 195 27 . and often irreparable. strict liability is proper either when there is little chance of great harm or when such a risk is high but the magnitude of harm threatened is low. N. BP CEO Tony Hayward Admits Company Didn't Have The Right Tools to Stop Gulf Oil Spill. Tony Hayward. which is far beyond the phosphate mining area described in the Cities Service affidavit.nydailynews.196 The other factors appeared almost irrelevant. the court focused on the environmental damage. See Ivanovich & Hays. See id. Sean Alfano.”200 Thus. as discussed before. oil spills are more than common. acknowledged that the company considered the blowout a “low probability. BP spilled more than 140 million gallons into . 201 . This is not clear water which is being impounded. the magnitude of harm in case of oil spill may be monumental. extended almost to the mouth of the Peace River.‘ as the case may be. British Petroleum’s Chief Executive Officer. June 3.

nytimes. supra note 16.205 Second. at 62. at A16. “900 bald eagles. survival of offspring.com/Co-Ea/DisastersOil-Spills. 2010.html. Id. 208 . June 15. http://www. 210 . deepwater oil drilling creates a risk upon the environment. are “still a mystery. First.the Gulf waters and killed eleven people as a result of the rig's explosion. TIMES. the oil can indirectly destroy the fauna by impairing fish “feeding efficiency. 209 . BATON ROUGE ADVOC.nytimes.”207 In fact.”210 Still. Shrimpers Watch Winds. July 28. even when life forms are not killed immediately.203 shrimps. the long-term effects of oil on the marine ecosystem are still unknown. Concerns Stay. See also http://www. the effects of large oil spills are directly lethal on marine organisms like corals.pollutionissues. at A1. 250. Bob Anderson. supra note 197. 2010. human health. Justin Gillis & Campbell Robertson. Rudolf. oil itself can have impacts on coastal plant species by the mere effects of touching and smothering.Y.html#ixzz0uzKw6Iko (last visited July 31. June 2. 2010).. See John Collins Rudolf.204 and any other kind of animals including birds and mammals. Crisis Persists *** Concerns Raised About Oil Spreading into Three Lakes. . updated July 30.] population-level consequences are difficult to measure.209 In particular.” Id. 2. and increases temperature by absorbing solar radiation. and some economic activities that are water related. and ‘direct coating’ which impedes the vital processes of respiration in animals. 2010. Threatened Reefs. TIMES. while discussing on the extent of . “Studies on the effects of oil and chemicals on coral are limited to the shallow-water variety. however. N.800 sea otters. and resistance to diseases. On the Surface.” Id. “The total amount spilled was estimated to be 140 million gallons of crude oil.000 seabirds. . Deep Underwater. growth and reproductive rates. and 300 harbor seals were killed directly by the Exxon Valdez spill . at A1. TIMES. N. like the way with which such a dissolution takes place. 204 . Essentially no research has been conducted on their slow-growing deepwater cousins. DISASTERS: OIL SPILLS. 205 . 2010 at A16. See Tracking the Oil Spill in the Gulf. 206 .Y. 203 . the exact effects on the deep-sea life from the oil that dissolved below the surface.Y. Gulf Oil Spill Is Vanishing Fast.”206 Additional known effects are “disturbance of the food chain. 1.com/gwire/2010/08/24/24greenwire-undersea-oil-plume-vanishes-in-gulfdegraded-b-87391. [however. N.202 In particular. Ekpu. Effect on Aquatic Life Oil pollution affects the aquatic life in different ways. Id.com/interactive/2010/05/01/us/20100501-oil-spill-tracker. prevents sunlight penetration to plants.” Id.208 Finally. 207 . http://www.html?pagewanted=all 202 28 .

June 26. it is 211 . 2010. mutagenic and teratogenic. Noaki Schwartz & Matthew Brown. June 4. Complain of Flulike Symptoms. in 1989. .00. supra note 16. liver.html. scientists concur that oil in water is absolutely deleterious. Ekpu. TIMES. even though the extent of the harm may not be agreed upon. 2010. http://www. Brian Walsh.com/2010/06/03/gulf-oil-spill-sickness-c_n_598816. 217 .218 Other potential long-term risks include lung. 218 . Gulf Oil Spill: Human Health Effects Debated. for instance. http://www. [I]t is generally agreed that petroleum in water is harmful. on the exact effects of oil pollution on water.com/time/health/article/0. Gulf Oil Spill Sickness: Cleanup Workers Experience Health Problems. http://latimesblogs. June 3. June 25. toluene. ingesting a minimal amount of oil will cause “upset stomach. Human Health Hazards Associated with Petroleum Related Pollution.”214 While brief contacts with small quantity of light crude oil are not harmful. DAILY FIN. showed that respiratory symptoms might arise years after the exposure. 2010. kidney. See id.com/story/health-effects-of-oilspills-on-humans-more-questions-than-an/19530364/?icid=sphere_copyright. “[T]he Department of Health and Human 29 . the effects arising from the exposure to the oil spilled: many of the chemicals extracted from crude oil are “carcinogenic.O.216 A 2007 study on following cleanup damages after the 2002 Prestige oil spill in Galicia. 2010. 215 . The Oil Spill and Human Health: More Questions Than Answers. supra note 211. at 61. Assessing the Health Effects of the Oil Spill. “There has not always been a consensus . 219 . Spain. the direct effects of the accident resulted in the spill. .219 Significant steps have been taken to increase the knowledge about the longer-term effects of oil exposure. 212 . eleven workers died on April 20. First. “[O]nly seven spills have been studied of the hundreds around the world.latimes. LOS ANGELES TIMES.213 Second. Shari Roan. 213 . Id. HUFFINGTON POST.html. Id.212 However. 220 Finally. and DNA damages. Melly Alazraki. 214 .211 2. .html.huffingtonpost. when the Deepwater Horizon went up in flames. Benzene.the environmental damages. 2010. Effect on Human Health Likewise. in THE PETROLEUM INDUSTRY AND THE NIGERIAN ENVIRONMENT-PROCEEDINGS OF 1981 INTERNATIONAL SEMINAR 57 (1981) [hereinafter THE PETROLEUM INDUSTRY].”215 Long-term exposures can affect the central nervous system. Olusi..8599. and butylene are three of the most dangerous.” Id.com/greenspace/2010/06/experts-speculateon-likely-human-health-effects-of-oil-spill. Alazraki. .time.1999479.dailyfinance. S. http://www. vomiting and diarrhea. some damages are evident. there is some dispute about the potential effects of the spilled oil on human health. 216 . 220 . .217 Skin and respiratory disorders were also common symptoms after the Exxon Valdez oil spill.” Id.

and emotional—that the spill will have on the people currently living in the Gulf.D. 224 . few would disagree that risks posed on the human health by are abnormally dangerous. 55 FORDHAM L.difficult to estimate the catastrophic impact—mental. 1982) (holding that “purely economic losses” are not recoverable on a strict liability theory without a showing that the losses flowed from harm to persons. 230 . REV. supra note 207. physical. commercial fishermen. See Ekpu. 229 . at 372. 1001. 222 Thus. Supp. 223 . Id. at 372. 1030-1032 (1997).” Id.” Id.231 However. supra note 16. supra note 196. Such economic interests were traditionally unprotected: strict liability permitted only recovery for harm to persons. Weyhrauch. 231 .232 Service has set aside $10 million to track oil spill-related illnesses in states along the Gulf Coast and study cleanup workers. 232 .. In re TMI Litig.” Id. 225 . McIntyre. 857–58 (M. and on the generations to come. Utils. or livelihood. 222 . Tortfeasor Liability For Disaster Response Costs: Accounting For The True Cost Of Accidents.224 tourist booking agents. 226 . and remanded in part sub nom. real property or chattels. at 61.223 beach owners and users. Economic Loss Finally. 710 F.221 Overall. Id. For instance. 30 . for example. 227 .228 Water contamination impairs also recreational activities like swimming or water surfing. 1983). was recently found “dead from a self-inflicted gunshot wound. As a consequence of the catastrophe. navigation. Id. some courts limited the imposition of strict liability for recovering economic loss. an Alabama fisherman with an oil-spill cleanup job for BP. Id. an oil spill may affect. Id. Corp. because they are directly resulting from the abnormally dangerous activity.2d 117 (3d Cir. Pa. 544 F.230 Logically. General Pub. 853. depending on its size. 221 . “[t]here are people in a serious crisis. oil spills result in the impairment of large zones of water that were used for recreation. these damages should have been included within the scope of strict liability. land or chattel). Weyhrauch. 228 .229 And the list is absolutely non-exhaustive. Walsh. David C. aff'd in part.225 waterfowl guides and photographers. Id. Pennsylvania v. Gov't Entities Claims. distinguishing between “harm” and “physical harm” and applying strict liability to “harm”: therefore.227 and commercial fish processors. liability for economic loss should not excluded by the rule. vacated. 3. supra note 196. See id. The Restatement apparently supports this conclusion.226 fishing industry employees.

2010) Id. at *10. the commercial fishermen must prove all of the elements of their causes of action.237 Then. Curd. . . *1 (Fla. June 17. (emphasis added). Id. 31 . Mosaic Fertilizer. Id. SC08-1920. claiming loss of income or profit. and by strict liability principles. . the economic loss rule does not prevent the plaintiffs from bringing this cause.In Curd v. or (2) where the defendant is a manufacturer or distributor of a defective product which damages itself but does not cause personal injury or damage to any other property. 238 . Id. Rather we have plaintiffs who have brought traditional negligence and strict liability claims against a defendant who has polluted Tampa Bay and allegedly caused them injury. 236 . that in order to be entitled to compensation for any loss of profits. . . . 237 . 239 . . at *1. The plaintiffs’ causes of action are controlled by traditional negligence law . We find this breach of duty has given rise to a cause of action sounding in negligence.236 The court first explained the applicability of the economic loss rule.”238 Finally. . the defendant spilled pollutants into Tampa Bay. No. 235 .235 The plaintiffs-fishermen sued for both negligence and strict liability.234 In Curd. at *5.233 the Florida Supreme Court has solved the issue consistently with the letter of the Restatement. 2010 WL 2400384.239 It must be noted that although the court avoided the issue of strict 233 234 . including damages. however. 2010 WL 2400384 at *6 Id. stating. concluding that [D]ischarge of the pollutants constituted a tortious invasion that interfered with the special interest of the commercial fishermen to use those public waters to earn their livelihood. LLC. the court held in favor of the plaintiffs. . the court went on applying the principle to the plaintiffs’ negligence claim and found a “protectable economic expectation in the marine life that qualifies as a property right. We note. [T]he economic loss rule in Florida is applicable in only two situations: (1) where the parties are in contractual privity . Clearly neither the contractual nor products liability economic loss rule is applicable to this situation. . .

supra note 27 at 716. that using reasonable care can eliminate the risks of oil drilling. June 8. July 27.Supp. 241 . July 13. See Ivanovich & Hays. seems to be broader than it appears. at this point. at *8–9. 2010. However. even an accurate estimation of the real damage becomes hard. . REUTERS. 240 The court’s holding. See id. it cited to two oil spill cases to reach its conclusion. TIMES.Y. in fact.com/article/idUSTRE65O5TA20100713. in fact. 246 . Me. MONITOR. M/V Tamano. it is almost the rule. See also Kristen Hays. 1973). regardless of the negligence. On the Surface.2d 558 (9th Cir. Concerns Stay. 243 Oil drilling is dangerous regardless of whether or not there is a lack of negligence. 242 . when such a spill does occur in the deep sea.com/USA/2010/0608/Gulf-oil-spill-Whyis-it-so-hard-to-stop. RESTATEMENT (SECOND) OF TORTS § 520(c) (1977). v. http://www. B. this is not the proper question. Calabresi. that economic losses must be taken into account when considering the severity of the harm threatened by engaging in the activity. 2010.html?_r=2&pagewanted=2&hp 240 32 . But we think clear enough. http://www. 370 F.242 The relevant inquiry is whether the magnitude of the danger is the same regardless of someone’s fault. as explained before.C. No Standard of Reasonable Care Can be Exercised: Factor (c) Another factor to consider is whether the risk of injury can be avoided through the exercise of reasonable care. BP to Test New Cap to Stem Oil Flow. 244 .liability. 501 F. and sufficient to justify the enhanced protection provided by strict liability principles. First.reuters. supra note 79. Case. at 188.241 One may argue. Cf. it is likely that an oil spill may occur.com/2010/07/28/us/28spill.csmonitor. N. http://www. the magnitude of the risk either that an oil spill will occur or that irreparable damages will result in the event of a spill is enormous. 2010. Therefore. 245 . 243 . 1974). Gulf Oil Spill Is Vanishing Fast. then. the defendant's conduct is irrelevant in a strict liability analysis. Gulf oil spill: Why Is It so Hard to Stop?. Spotts. The difficulties in closing the spill increase with the depth.245 and finally. See John Collins Rudolf. the argument against strict liability will likely fail. the resulting harm to the environment—and not only the environment—is intolerable. Burgess v.246 Accordingly. CHRISTIAN SCI. Oppen.nytimes. 247 (D.244 Second. Union Oil Co. See Peter N. The issue of whether the use of water by subjects other than fishermen—surfers and similarly—is a special interest falling within the scope of the decision would bring us too far from our analysis. supra note 3.

Press Release. as we have seen before. the overall risks produced by drilling in such deeper water are much greater than normal.251 With a vertical depth of 35. in Koos v. 248 247 33 . . f (1977).000 feet. supra note 79. 254 . 250 . 2009) (retrieved June 7. 1982).C. Case. this factor would also weight in favor of strict liability. Moore. at 659. certainly does not fit within this definition. the fact that an activity is a matter of common usage is rarely outcome determinative.nytimes. even conducted in land or in shallow waters. In Luthringer v. . 249 . deepwater oil drilling is certainly not.”247 Oil drilling. 253 . an otherwise ordinary activity can be found abnormally dangerous when it is carried out in a dangerous manner. it was a Guinness record of uncommonality. available at http://www. adopted in Florida: “abnormal dangers arise from activities that are in themselves unusual.2d 1 (Cal. Urbina. TIMES. 251 .Y. supra note 79. supra note 249. This conclusion is totally consistent with the Restatement approach. 652 P. 252 . In any event. See Boston.252 Not only the activity is not common. i (1977). In Gulf.685 m). 190 P. or from unusual risks created by more usual activities under particular circumstances. In the Gulf of Mexico there are approximately 3. Transocean. RESTATEMENT (SECOND) OF TORTS § 520 cmt.680 m) and a measured depth of 35.050 ft (10. but few reach a depth of 1. June 5. 2010). at 193. N. An activity is a matter of common usage when it is habitually “carried on by the great mass of mankind or by many people in the community. 2. while oil is commonly drilled in-land or in coastal waters. even assuming that oil drilling could be considered an activity of common usage. The Activity Is Not a Matter of Common Usage: Factor (d) The more the activity is customary the less it is abnormally dangerous. supra note 108. applying strict liability to the latter. at 193.com/fw/main/IDeepwaterHorizon-i-Drills-Worlds-Deepest-Oil-and-Gas-Well-419C151.248 The significance of factor (d) can be limited by narrowly defining the activity involved. the court distinguished agricultural field burning from everyday backyard burning.055 ft (10. the Deepwater Horizon is the deepest oilrig in history. It Was Unclear Who Was in Charge of Rig.254 And that brings us to the next point. 2010.Obviously. Transocean's Ultra-Deepwater Semisubmersible Rig Deepwater Horizon Drills World's Deepest Oil and Gas Well (Sep. Just to recall. offshore deepwater facilities have found their way only recently. Thus. In fact.”253 .249 Similarly.2d 1255 (Or.500 drilling wells and production platforms.deepwater. Roth.html. http://www. 1948). 250 Accordingly. pest control was considered “professional fumigation” and found abnormally dangerous.com/2010/06/06/us/06rig.html. See Case. Ian Urbina. RESTATEMENT (SECOND) OF TORTS § 520 cmt.

See Turner. at 661. conducting an activity in the wrong place can render it abnormally dangerous. 802 (1975).258 Similarly. “The conclusion is. for example. .2d at 226. . To hold that operators could not flow salt water over the surface of land owned by them . Fletcher only to the thing out of place.2d 389 (1931). that the American decisions. from allowing salt water to escape from their wells and flow over the surface of the land of others. the proper inquiry is whether the activity is a “non-natural” use of the land. . 205 Cal. Big Lake Oil Co.. . Compare Turner vs. 258 . 2d 799. . Case. supra note 79.W. . supra note 108. State. 96 S.W. But even such cases are distinguishable: thus.256 However. in few cases of properly conducted oil wells in Texas and Oklahoma. The intent and purpose of the act is to prevent persons in the operation of oil and gas wells to deposit oil .. have applied the principle of Rylands v. Pease.259 the Supreme Court of Oklahoma found the location for oil drilling operations appropriate.2d at 14. 5 P. Id.2d 221 (Tex.261 I f oil is spilled in the open sea the risk of harm to third parties is at its best. a different community may turn a dangerous activity such as oil drilling into a natural use of the land. and . the abnormally dangerous condition or activity which is not a ‘natural’ one where it is. Co. 96 S. v. See Cities Serv. the court in Tidal stressed that the touchstone for determining the appropriateness of the location is the possibility of injuring others or others’ land.W. Off-shore Oil Drilling Is Inappropriate for the Location Further. While in a rural and isolated land area such possibility is reduced to its minimum. 96 S. at 13–14.” Id. Tidal. 261 . General Petroleum Co. 312 So. 1936).. 260 . in short. Id. in streams used by others for watering stock. at 193.D. 259 .257 the Supreme Court of Texas held that oil drilling was a natural use of land in Texas and refused to impose strict liability for harm caused by the escape of salt water wastes from oil drilling operations. I 34 .260 However. like the English ones.255 In Florida. as discussed before. v. 328 (1928). 1936) with Green v.2d 221 (Tex. would result in depriving the owner of land of the right to use it to his own advantage where such use would in no way harm or injure others. engaging the same conduct in a place where it may affect other people may turn it into an abnormally dangerous. See Boston. the injury would hit a large number of different 255 256 . . that happened. . 257 . 5 P. in Tidal Oil Co. Big Lake Oil Co. in Turner vs.

supra note 108. from landowners to just users of the marine resources. who had no relation to the activity other than being injured by it.264 Scientists compared working in the deep sea is to working in space: “It's a hard place to get to. supra note 196. f (1977). many recent cases suggest that the utility to the community is largely irrelevant. is that even balancing oil’s utility to the community. See id. and subject to daunting laws of physics. reasoning that who carries on the risky activity should bear the loss. as we have seen.plaintiff. RESTATEMENT (SECOND) TORTS § 520 cmt. rather than the victim. ECON. http://economictimes. at 55. BP and other petroleum companies will continue to profit by extracting oil in the deepwater. OIL: THE BIG BUSINESS 1 (1975) in OPEC BULLETIN 55 (1994). As discussed.cms..263 the depth of the sea makes more difficult solving problems that may arise. an oil well may not be considered abnormally dangerous in Texas or Oklahoma because of the importance the oil industry has to the local economy. 266 . as 'easy' sources of oil are depleted and as the exploration effort moves into new and ever more challenging frontiers.266 The Restatement explains this factor as the prosperity the activity provides to the community.262 But the reasons why offshore deepwater is inappropriate for oil drilling are more compelling. the Florida court rejected the “value to the community” factor in Cities Service Co. supra note 239. 2010. Not only deepwater oil drilling is more likely to cause accidents. but the carriers of such risky oil drilling must bear any costs that may result when their activity goes wrong. 263 262 35 . 264 . See Spotts. For example. TUGENDGART & A. See Oil Spill Casts Doubts on Deep Water Exploration. 267 . 269 .268 The conclusion is supported by the approach of other jurisdictions considering the issue. .indiatimes. Spotts.”265 E.com/articleshow/6042891. See id. a tricky space in which to maneuver. See C. TIMES. such utility is largely outweighed by the extraordinary dangers of deepwater oil drilling. not diminish.” Id. at 372. 265 . “In the future. 267 However. supra note 16. Jun 13. it is inevitable that technology and risk will increase. 665. See Weyhrauch. 268 . The Value of the Activity Does Not Outweigh its Risk: Factor (f) How desperate are we for oil? It is undisputed that oil has been the most important source of energy in the world. Boston. Ekpu. then. whereas the same oil well in Indiana or California might be found abnormally dangerous because it is a lesser industry in those areas. HAMILTON. Siphoning systems used to remedy to the spill have “never been tested at such depths. the Restatement does not require the presence of all .269 What seems clear. supra note 239.” Id.

a plaintiff may freely choose to recover under a common law strict liability theory. when not impossible. the doctrine of abnormally dangerous activity appears the easiest way to determine oil companies’ strict liability. the likelihood of harm increases.271 Here. supra note 79. f (1977). Oil spills are almost always within the exclusive control of the companies that operate the wells. Strict liability provides an incentive for oil companies to take appropriate precaution to avoid such catastrophic events.270 three to four factors are generally sufficient for a court to impose strict liability. and victims can do little to guard against oil pollution or to avoid damages resulting by it. deep water oil drilling qualifies as an activity that because of its dangerousness should be subject to a strict liability regime. RESTATEMENT (SECOND) OF TORTS § 520 cmt. This is especially true in Florida. Fletcher and developed by the Restatements of Torts.six factor. or at least requires them to bear the burden of the accidents not avoided. and must coexist and work together with state law tools to effectively protect the right of the United States citizens––and more generally. at 194. Further. those who receive a benefit from the sea. and oil pollution in particular. as the simplest and safest way to redress the environmental damage caused by petroleum companies. Case. Federal law is but one of the tools that can be used to keep our waters clean. the doctrine is applicable regardless the federal statutes that already impose some sort of liability. In short. not requiring any showing of the defendant’s negligence. When the oil drilling operations are conducted in the deep water. instead. and in those jurisdictions where courts are willing to consider as primary factors the magnitude of the danger created by the activity. . and disallowing almost every defense. and the fairness of making the carrier of the activity 270 271 . this is an easy case for strict liability. Pursuant to the doctrine of abnormally dangerous activities. As consistently applied throughout the United States. Only the Deepwater Horizon has leaked into the water more than 140 million gallons of oil. 36 . Accordingly. CONCLUSION Contamination of water. and scientists are still discussing how many spills like this one our planet may endure. all the six factors weigh in favor of considering deep water oil drilling an abnormally dangerous activity. and repairing such damage is arduous. the resulting damages becomes monumental. as first established in Rylands v. V. are among the worst threats to the environment that man can produce.

The Deepwater Horizon oil spill is maybe the best place to start. Courts that have decided otherwise did not take into account the actual dangerousness of the enterprise. Finally.liable. such conclusion is strongly supported by those decisions that have already considered oil drilling—regardless the location—an abnormally dangerous activity. and they will likely reconsider the issue when faced with the additional risks imposed by the inappropriate location. the mission will be easier. The risks that offshore oil drilling imposes on the society are extreme. In the event of litigation in Florida. then. and people are powerless and faultless with respect to control and prevent the damages. 37 .

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