Gallagher v. H v. Pierhomes, LLC

RONALD RUBIN, Judge, Specially Assigned. We are asked in this case to extend the doctrine of strict liability for abnormally dangerous activities, currently expressed in the Restatement (Second) of Torts §§ 519 and 520 (1977), to pile driving operations conducted at the Baltimore Inner Harbor that resulted in property damage to Gallagher’s residence, located 325 feet from the construction site. We also are asked to declare that pile driving, in the factual circumstances presented in this case, constitutes both a public and a private nuisance. We shall decline all of those requests and, consequently, affirm the well-reasoned decision of the circuit court.

The plaintiff in this case, Michela Gallagher, appeals from the decision of the Circuit Court for Baltimore City, which granted the motion of the defendants, HV Pierhomes, LLC and HV Development & Contracting Co., for judgment notwithstanding the jury’s verdict. The jury returned a verdict of $55,189.14 in Gallagher’s favor for damage to her home which, the jury found, was caused by the defendants’ pile driving activities in connection with the construction of waterfront townhomes at the Baltimore Inner Harbor. After a hearing, the circuit court granted the defendants’ motion under Rule 2-532. The plaintiff timely noted an appeal and raised the following questions for review, 1 which we have slightly rephrased: ⁹⁸ 1.

Did the trial court err in concluding that pile driving is not an abnormally dangerous activity? 2. Did the trial court err in concluding that the plaintiff had not proven a claim for private nuisance? 3. Did the trial court err in concluding that the plaintiff had not proven a public nuisance? We are asked in this case to extend the doctrine of strict liability for abnormally dangerous activities, currently expressed in the Restatement (Second) of Torts §§ 519 and 520 (1977), to pile driving operations conducted at the Baltimore Inner Harbor that resulted in property damage to Gallagher’s residence located 325 feet from the construction site.

The Proceedings Below On June 14, 2005, Gallagher sued HV Pierhomes LLC and HV Development & Contracting Co. The initial complaint contained claims for negligence, strict liability, and public and private nuisance. On December 21, 2005, Gallagher filed an amended complaint, which abandoned the negligence claim. All of Gallagher’s claims for relief arose out of the pile driving operations conducted by the defendants on the site of the former Key Highway Shipyard. Gallagher contended that vibrations from the pile' driving damaged her home, located at 423 East Hamburg Street in Baltimore.

Key Highway; a row of mixed use properties; Covington Street; a retaining wall; and a solid earthen wall, on which Gallagher’s house rests, separate Gallagher’s house from the pile driving site. The Key Highway Shipyard, formerly owned by the Bethlehem Steel Corporation, was used to repair navel ships during World War II and through the Vietnam War. A shipyard of some sort has operated at this location from the beginning of ⁹⁹ the 20th century until 1982, when Bethlehem Steel closed the facility. The defendants demolished the original shipyard piers, which were built 40 to 50 years ago and constructed new piers in the same location, by driving piles into the Baltimore Inner Harbor.

The defendants built 58 townhomes on these new piers. Pile driving was the only method of constructing the new townhomes in this particular location because the U.S. Army Corps of Engineers would not allow the Inner Harbor to be “back filled.” 2 The pile driving of which Gallagher complained occurred periodically between September 2003 and October 2004. 3 The plaintiffs home was constructed shortly before the War of 1812. She testified that no pile driving was conducted in the area during the years she lived in the house, beginning in 1997, until the defendants’ activities commenced in September 2003. Previously, pile driving was used to build the Seagirt Marine Terminal, the Dundalk Marine Terminal, as well as the Pratt and Light Street Pavilions, which are located across from the plaintiffs residence in the Inner Harbor.

Before the defendants began their project, permits were received from the U.S. Army Corps of Engineers, the Maryland Department of the Environment, and the City of Baltimore. The permitting process took approximately two years. Pile driving on the site began only after geotechnical studies were conducted by engineering firms. During the course of actual pile driving, two permanent seismic stations and five mobile geophones were placed in the surrounding neighborhood to ensure that vibrations were monitored and did not exceed the limits established by the engineers.

During the ¹⁰⁰ course of the defendants’ activities, there was only a single recorded vibration that exceeded the limits. The case proceeded to trial on December 15, 2006. The plaintiff testified that she heard and felt vibrations from the pile driving in her home. She further testified that cracks began to develop in her plaster walls and in other portions of her home soon after the pile driving began and that no cracks occurred once the pile driving was completed.

She was not aware of any other residents in the area who made claims or filed lawsuits for damage to their homes as a result of the vibrations caused by the defendants’ pile driving. No evidence of any other claims or suits on account of pile driving vibrations was presented at trial. Following the presentation of the plaintiff’s case, the defendants moved for judgment under Rule 2-519. The circuit court reserved its decision on the motion.

The defendants presented their case-in chief and, thereafter, renewed their motion for judgment. The circuit court, after receiving additional written submissions from the parties again reserved its decision on the motions for judgment and allowed the case to go to the jury. 4 On December 21, 2006, the jury returned a verdict in Gallagher’s favor. The jury found that: (1) pile driving caused damage to Gallagher’s home, and HV Pierpont and HV Development were responsible for the pile driving; (2) the pile driving created a public nuisance; (3) the pile driving created a private nuisance; and (4) Gallagher suffered damages in the amount of $55,189.14. After the jury’s verdict was announced, the defendants renewed their motions for judgment.

After memoranda were submitted the circuit court held a hearing. By Order entered on August 20, 2007, the circuit court granted the defendants’ motion for judgment notwithstanding the verdict on all claims. Gallagher timely noted this appeal. Additional facts will be discussed, as necessary. ¹⁰¹ Standard of Review A motion for judgment notwithstanding the verdict under Rule 2-532 “tests the legal sufficiency of the evidence.” Impala Platinum, Ltd. v. Impala Sales (USA), Inc., 283 Md. 296, 326 , 389 A.2d 887 (1978). “The court will deny the motion if there is any evidence, however slight, upon which a reasonable jury could have reached its verdict.

The court must assume the truth of all credible evidence on the issue and all inferences fairly deducible therefrom in the light most favorable to the party against whom the motion is made.” P. Niemeyer & L. Schuett, Maryland Rules Commentary 448 (3d ed. 2003). In the words of Judge Sally Adkins (now serving on the Court of Appeals): “A party is entitled to a judgment not withstanding the verdict (JNOV) when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense. ” Jacobs v. Flynn, 131 Md.App. 342, 353 , 749 A.2d 174 (2000) (emphasis added). See also Mahler v. Johns Hopkins Hospital, Inc., 170 Md.App. 293, 317-18 , 907 A.2d 276 (2006); Ramsey v. Physician’s Memorial Hospital, Inc., 36 Md.App. 42, 48-49 , 373 A.2d 26 (1977). Because the evidence before the circuit court was legally insufficient to support the imposition of strict liability in tort for the conduct in issue, or to establish a private or public nuisance, the granting of the motion was not error.

Strict Liability in Maryland For more than a century, the Court of Appeals has recognized the doctrine of strict liability, derived initially from Rylands v. Fletcher, L.R. 3 H.L. at 338, Fletcher v. Rylands, 3 H. & C. 774, 159 Eng. Rep. 737 (1865), rev’d in Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), aff'd in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). See Baltimore Breweries Co. v. Ranstead, 78 Md. 501 , 28 A. 273 (1894); Susquehanna Fertilizer Co. v. Malone, 73 Md. 268 , 20 A. 900 (1890). See also Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 212-13 , 4 A.2d 757 (1939).

The original “rule” of Rylands, erroneously, is said to ¹⁰² be “that the person who, for his own purposes, brings on his land and collects and keeps there anything that likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all damage which is the natural consequence of its escape.” Fletcher v. Rylands, L.R. 1 Ex. at 279-80. As Dean Prosser has explained: “In the House of Lords this broad statement was sharply limited, and placed upon a different footing. Lord Cairns said that the principle applied only to a ‘non-natural’ use of the defendant’s land, as distinguished from ‘any purpose for which it might in the ordinary course of the enjoyment of the land be used.’ ” W. Prosser & W. Keaton, Torts § 78 at 545 (5th ed. 1978), quoting in part Rylands v. Fletcher, L.R. 3 H.L. at 338. The Court of Appeals adopted the modern version of strict liability in Yommer v. McKenzie, 255 Md. 220 , 257 A.2d 138 (1969).

In that case, the Court of Appeals used the definition set forth in the tentative draft of § 519, and the criteria for determining an abnormally dangerous activity set fort in § 520 of the Restatement (Second) of Torts (Tent. Draft No. 10,1964). In Yommer , the owners of a residential property sued the owners of a gasoline station immediately adjacent to their property. The gasoline storage tank had leaked, contaminating the plaintiffs well water.

The Court of Appeals affirmed the jury’s verdict in favor of the homeowners even though there had been no finding of negligence. Key to the Court’s decision in Yommer was the placement of the gasoline storage tank. No one would deny that gasoline stations as a rule do not present any particular danger to the community. However, when the operation of such activity involves the placing of a large tank adjacent to a well from which a family must draw its water for drinking, bathing and laundry, at least that aspect of the activity is inappropriate to the locale, even when equated to the value of the activity.

Yommer, 255 Md. at 225 , 257 A.2d 138 . The Court of Appeals, after quoting approvingly from Dean Prosser’s commentary to the tentative draft of the Restatement (Second) of ¹⁰³ Torts, said: “We accept the test of appropriateness as the proper one: that the unusual, the excessive, the extravagant, the bizarre, are likely to be non-natural uses which lead to strict liability.” Yommer, 255 Md. at 226 , 257 A.2d 138 (footnote omitted). See also Toy, 176 Md. at 212-13 , 4 A.2d 757 . In Kirby v. Hylton, 51 MdApp. 365, 443 A.2d 640 (1982), this Court noted the importance of the location of the activity in assessing whether the imposition of strict liability was legally justified.

In that case, we rejected the application of strict liability when a child was injured when run over by a heavy drain pipe that was awaiting placement on land adjacent to his house. This Court said: “Yommer emphasized that the appropriateness of the activity in the particular place was the most crucial factor.” Kirby, 51 Md.App. at 374 , 443 A.2d 640 . Applying the section 520 factors, this Court continued: As the record makes clear, the storage of the pipe was not the kind of abnormally dangerous activity which was contemplated by Yommer and § 520. The activity did not involve a high degree of risk of harm to others, which, if it occurred, was likely to be great and which could not have been eliminated by the exercise of reasonable care; the storage of the pipe in order to improve a residential water and sewage system, was neither totally uncommon to the neighborhood nor was it inappropriate to the particular place where it occurred; and it had at least some value to the neighborhood.

Kirby, 51 Md.App. at 375 , 443 A.2d 640 . This Court revisited strict liability in Dudley v. Baltimore Gas & Elec. Co., 98 Md.App. 182 , 632 A.2d 492 (1993). In that case, the plaintiff claimed that a leaking natural gas line caused the destruction of her home in Baltimore City.

The plaintiff alleged that the gas company should be strictly liable for the destruction of her home because equipment supplied by the gas company allowed natural gas to accumulate and explode in the plaintiffs residence. Dudley, 98 Md.App. at 205 , 632 A.2d 492 . According to the plaintiff, “the activity of ¹⁰⁴ delivering gas to consumers through a pipe distribution system is inherently dangerous, even without defects in products, and simply cannot be performed safely.” Dudley, 98 Md.App. at 206 , 632 A.2d 492 . The circuit court granted summary judgment for the gas company on the strict liability claim.

This Court affirmed. In analyzing the claim, the Court first noted: “The strict liability doctrine for abnormally dangerous activities is set out in the Restatement (Second of Torts §§ 519 and 520 (1977)).” After reviewing the factors set forth in the Restatement, the Court held that the activity in question was not abnormally dangerous. Dudley, 98 Md.App. at 207-08 , 632 A.2d 492 . The Court of Appeals reiterated the importance of locale in Rosenblatt v. Exxon Co. USA 335 Md. 58, 70-72 , 642 A.2d 180 (1994).

In that case, a previous tenant of commercial property had installed gasoline storage tanks on the property. A subsequent owner of the land found hydrocarbon in the soil and groundwater. The circuit court granted the prior owner’s motion for summary judgment on the counts of negligence, strict liability, trespass and nuisance. The plaintiff appealed and the Court of Appeals granted certiorari prior to review by this Court.

In affirming the grant of summary judgment on the strict liability claim, the Court of Appeals discussed Yommer , which also involved a gasoline storage tank, and reiterated “that the most crucial factor in determining whether an activity was abnormally dangerous was the ‘appropriateness of the activity’ to the place in which it was carried on.” Rosenblatt, 335 Md. at 70 , 642 A.2d 180 (quoting Yommer, 255 Md. at 225 , 257 A.2d 138 ). In rejecting the application of strict liability, the Court of Appeals declined to extend Yommer to every leaking gasoline tank without regard to its location. Rosenblatt, 335 Md. at 73 -74 & n. 6, 642 A.2d 180 . Accord National Tel.

Cooperative Ass’n v. Exxon Corp., 38 F.Supp.2d 1, 8-9 (D.D.C.1998). See also JBG/Twinbrook Metro Ltd. Partnership v. Wheeler, 346 Md. 601 , 609 n. 6, 697 A.2d 898 (1997). ¹⁰⁵ Section 519 sets forth the general principle upon which courts have held defendants to be liable regardless of fault: “One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Restatement (Second) of Torts § 519, at 34 (1977). Section 520 sets forth the following factors to be considered in determining whether an activity is abnormally dangerous: (a) existence of a high degree of some harm to the person, land or chattels of another; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520, at 36 (1977).

In summary, Maryland recognizes strict liability, adopts the definition of abnormally dangerous activity as set forth in § 519 of the Restatement (Second) of Torts (1977), and uses the six factor analysis set out in § 520. 5 In many, but not all cases, the “thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs.” 6 Kelley v. R.G. Industries, Inc., 304 Md. 124, 133 , 497 A.2d 1143 (1985). ¹⁰⁶ Strict Liability in Pile Driving Cases The circuit court acknowledged that “whether pile driving is an abnormally dangerous activity has yet to be determined by the Maryland Court of Appeals.” The circuit court nevertheless concluded, after applying sections 519 and 520 to the facts of the case, that the Court of Appeals would hold that the pile driving activity in this case would not warrant the application of strict liability. We agree. In the 1984 revision of Dean Prosser’s landmark treatise, Professor Page Keaton observed that varying formulations of strict liability have been applied by some courts to hold that pile driving is an abnormally or unreasonably dangerous activity warranting liability without fault. W. Prosser & W. Keaton, Torts § 87 at 550 (5th ed. 1984).

The reasoning of these decisions, as well as the results, is far from uniform. Some courts consider pile driving to be no different than blasting, and therefore dangerous enough to warrant strict liability regardless of the place in which it occurs. Others have taken a more fact-based approach, considering the activity in conjunction with the locale and the type of harm that resulted. For example,-in Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79 , 175 A.2d 561 (1961), the Supreme Court of Connecticut held that pile driving activity during the construction of the Connecticut turnpike in 1958 and 1959, in close proximity to the plaintiffs business premises, warranted the application of strict liability.

The Connecticut court analogized pile driving to blasting and aligned itself with those courts that imposed strict liability not only for flying debris but also for the vibrations caused by the explosive force of