Toms v. Calvary Assembly of God, Inc.

GREENE, J. In this case, we address whether noise emanating from the discharge of a fireworks display constitutes an abnormally dangerous activity, which would warrant the imposition of strict liability. Petitioner, Andrew David Toms (“Toms”), operates a dairy farm in Frederick County, Maryland, and maintains a herd of approximately 90 head of cattle. On September 9, 2012, a church-sponsored fireworks display took place on property adjacent to Toms’ dairy operation. A permit to discharge fireworks had been obtained, and the event was supervised by a deputy fire marshal.

No misfires or malfunctions took place. According to Toms, the fireworks display was so loud that it startled his cattle, and caused a stampede inside his dairy barn. The stampede resulted in the death of four dairy cows, property damage, disposal costs, and lost milk revenue. Toms filed suit against the respondents, collectively, Calvary Assembly of God, Inc. (“Calvary”), Zambelli Fireworks Manufacturing Co. (“Zambelli”), Zambelli employee Kristo ⁵⁴⁶ pher Lindberg (“Mr. Lindberg”), and Auburn Farms, Inc. 1 in the District Court of Maryland sitting in Frederick County (“District Court”).

He alleged that the stampede was the result of negligence, nuisance, and strict liability for an abnormally dangerous activity. After a bench trial, the District Court entered judgment in favor of the respondents. Toms appealed to the Circuit Court for Frederick County (“Circuit Court”). The Circuit Court affirmed the lower court’s ruling.

We granted Toms’ petition for writ of certiorari, Andrew David Toms v. Calvary Assembly of God, Inc., 442 Md. 515 , 113 A.3d 624 (2015). For the reasons explained below, we hold that lawfully discharging fireworks is not an abnormally dangerous activity, and, therefore, the imposition of strict liability is unwarranted. We affirm the judgment of the Circuit Court. FACTUAL AND PROCEDURAL BACKGROUND Toms operates a dairy farm on 69 acres of leased property near Walkersville, Frederick County, Maryland.

The farm includes a barn and a herd of approximately ninety dairy cows. Auburn Farms, Inc., at the time of the incident, possessed the adjacent 40 acre property. Calvary sought and obtained permission from Auburn Farms, Inc. to use its property to host a fireworks display celebrating a church youth crusade. 2 Calvary then hired Zambelli, a professional fireworks company, to handle the fireworks. Pursuant to Md.Code (2003, 2011 Repl.Vol.), § 10-104(b) of the Public Safety Article, an application for a permit to discharge fireworks was submitted to the Office of the State Fire Marshal.

The application identified the date, time, and location of the anticipated fireworks display, as well as the size and number of fireworks shells that would be used. It also ⁵⁴⁷ identified Mr. Lindberg as the Zambelli employee who would be responsible for discharging the fireworks, and included his “State shooter permit” 3 information, and proof of Zambelli’s insurance for the event. Deputy Fire Marshal Glen Ruch inspected Auburn Farms, Inc. and approved the location. He testified that, based on the number of shells, the State required a firing radius of 250 feet around the firing site. 4 However, he noted that, in the application, Mr. Lindberg included an aerial photo with notations indicating he planned to extend the firing radius to 300 feet.

The application was approved, including the 300 foot firing radius, and a permit to discharge fireworks was obtained by the respondents. The event was open to the public, and advertised in radio interviews, a newspaper ad, and on a banner located on Calvary’s property on Route 194. Toms recalls seeing the banner, but states he had no notice of the event’s time or location. On September 9, 2012, the day of the event, Mr. Lindberg accidently drove onto Toms’ farm, and Toms assisted him in locating the entrance to Auburn Farms, Inc. Mr. Lindberg testified that he identified himself and his purpose when speaking to Toms. 5 The fireworks display took place at ⁵⁴⁸ 8:30 p.m., and Senior Deputy Fire Marshal Michael Guderjohn was onsite to supervise the event.

Apparently, 250 shells were discharged over a fifteen-minute period without any misfires or duds. According to the parties’ Agreed Statement of Facts submitted in their briefs to this Court, there is no dispute that Toms’ barn was at least 300 feet away from the firing location. 6 At the time of the event, Toms’ cattle were inside the barn. Toms, however, arrived at the barn a few minutes after Mr. Lindberg began discharging fireworks. Toms states that the explosions startled his dairy cows, and caused them to stampede inside the barn.

No witnesses, however, actually saw the stampede because no one was inside the barn with the cattle at the time the event started. The stampede, Toms states, resulted in the deaths of three cows shortly thereafter, and injuries to a fourth cow that ultimately led to its death, because it had to be “culled” from the herd a few weeks later. 7 In addition to the loss of four dairy cows, Toms sustained property damage to fences and gates, disposal costs, and lost milk revenue. Toms sent a demand letter to Calvary outlining the damages, but Calvary and Zambelli denied liability. On December 9, 2013, Toms filed suit in District Court against the respondents seeking damages of $13,148.20 under the theories of negligence, nuisance and strict liability for an abnormally dangerous activity.

On May 2, 2014, a one-day ⁵⁴⁹ bench trial took place in the District Court before Judge W. Milnor Roberts. Several witnesses testified on Toms’ behalf, including his dairy veterinarian, Dr. Richard Doak, and lay witnesses with experience handling cattle. At the time of the event, the lay witnesses were located nearby the barn, and they testified about the loudness of the fireworks display, and hearing “banging” noises emanating from the barn at the time of the alleged stampede. Dr. Doak testified, among other things, about the tendency of loud unexpected noises to trigger a “startle response” in cows, which can lead to a stampede as well as injuries if a herd is confined to a small space.

The respondents called several witnesses to testify. Deputy Fire Marshal Ruch testified that Calvary and Zambelli complied with applicable laws by applying for, and receiving, a permit to discharge fireworks. He also inspected and approved of the firing location. On the day of the event, Senior Deputy Fire Marshal Guderjohn supervised the fireworks show, and stated that Mr. Lindberg maintained a proper firing radius around the firing location, and that all shells were properly discharged without incident.

Additionally, he stated that several fireworks displays had taken place within a mile of Toms’ location on previous occasions. Mr. Lindberg also testified, and stated that the fireworks were discharged from 550 to 600 feet from Toms’ barn. The District Court entered judgment in favor of the respondents. It found that although Toms sustained damage, Toms did not establish any basis for liability for the injuries to his property, including livestock.

The District Court determined that the fireworks display was a single event with no evidence that injuries or damages were sustained by direct contact with the discharged shells. No evidence established negligence on behalf of the respondents, because they had lawfully complied with statutory requirements by obtaining a permit, and the conditions of the permit were not violated. As to the issue of strict liability, the District Court found that the discharge of fireworks could be an abnormally dangerous activity, but that the danger is contained within the area allowed by the permit: here, a 300 foot firing radius. The District Court, however, ⁵⁵⁰ did not find that noise from a fireworks discharge itself was abnormally dangerous.

Furthermore, it reasoned, strict liability for an abnormally dangerous activity could not be imposed, because Toms’ barn was not located within 300 feet of the firing location. On May 29, 2014, pursuant to Md. Rule 7-113, Toms noted an appeal on the record to the Circuit Court. On November 24, 2014, oral arguments took place before Judge Julie S. Solt of that court. On January 8, 2015, the court affirmed the District Court’s judgment.

Although it held that the use of fireworks was abnormally dangerous as to the damage from explosions, the Circuit Court stated that the respondents “are not strictly liable because the type of harm — damage caused by noise — is not of a type that makes the activity abnormally dangerous.” Under the theory of negligence, it found no evidence to show that the respondents breached any duty of care. There was substantial evidence to show that the respondents “acted reasonably and with due care in preparing [and discharging] the fireworks display.” Lastly, the Circuit Court held that the theory of private nuisance was inapplicable, because, as a one-time event, “the fireworks were not substantial and unreasonable and did not rise to the level of significant harm needed to create a private nuisance.” 8 We granted certiorari, Andrew David Toms v. Calvary Assembly of God, Inc., 442 Md. 515 , 113 A.3d 624 (2015), to answer the following question: Does the doctrine of strict liability for an abnormally dangerous activity apply to the noise of a fireworks discharge, based on the facts of this case? ⁵⁵¹ For the reasons stated below, we shall answer in the negative. Accordingly, we affirm the judgment of the Circuit Court, and agree that there is no liability for abnormally dangerous activities, but for reasons different than those articulated by the Circuit Court. STANDARD OF REVIEW The question before this Court is whether discharging fireworks — specifically, the noise it produces — is abnormally dangerous, and thus, subject to strict liability.

Whether an activity constitutes an abnormally dangerous activity is a question of law. Restatement (Second) of Torts § 520 cmt. 1 (Am. Law Inst. 1977) (stating that the function of the court is to decide whether an activity is abnormally dangerous by considering several factors and “the weight given to each that it merits upon the facts in evidence”). “As with all questions of law, we review this matter de novo.” State v. Johnson, 367 Md. 418, 424 , 788 A.2d 628, 631 (2002). See also Gallagher v. H.V. Pierhomes, LLC, 182 Md.App. 94, 109 , 957 A.2d 628, 636 (2008).

For questions of fact for an action tried without a jury, we apply a clearly erroneous standard. Md. Rule 8 — 131(c) states: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. “On appellate review, the Court of Appeals may set aside the judgment of the lower court based on the factual findings of the lower court only when those findings are clearly erroneous.” Helinski v. Harford Mem’l Hosp., Inc., 376 Md. 606, 614 , 831 A.2d 40, 45 (2003) (citing Md. Rule 8-131(c)). DISCUSSION Maryland has long recognized the doctrine of strict liability, which does not require a finding of fault in order to ⁵⁵² impose liability on a party.

See Yommer v. McKenzie, 255 Md. 220, 222, 257 A.2d 138, 139 (1969); Toy v. Atl. Gulf & Pac. Co., 176 Md. 197, 212 , 4 A.2d 757, 764-65 (1939). The doctrine is derived from the famous 1868 English case of Rylands v. Fletcher, which recognized that, under certain circumstances, no-fault liability could be imposed. 9 “For more than a century, the Court of Appeals has recognized the doctrine of strict liability, derived initially from Rylands v. Fletcher .... ” Gallagher, 182 Md.App. at 101 , 957 A.2d at 632 .

The modern formulation of the strict liability doctrine is found in the Restatement (Second) of Torts §§ 519-520 (1977). This Court adopted that formulation in Yommer , while the Restatement (Second) of Torts was still in its tentative draft. 255 Md. at 223-24 , 257 A.2d at 139 . In Rosenblatt v. Exxon Co., U.S.A., we discussed the evolution of the doctrine: “Unlike the rule first enunciated in Rylands, this definition does not limit applicable activities to those causing an ‘escape’ of something onto the land of another; it requires only that there be harm to the person or property of another resulting from the abnormally dangerous activity.” 335 Md. 58, 70 , 642 A.2d 180, 185 (1994). Restatement (Second) of Torts § 519 defines strict liability for an abnormally dangerous activity: 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....

This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. To determine whether an activity is abnormally dangerous, a court uses six factors. These factors are: ⁵⁵³ (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520 (Am.

Law Inst. 1977). See Kelley v. R.G. Indus., Inc., 304 Md. 124, 132 , 497 A.2d 1143, 1146 (1985) (“Whether an activity is ‘abnormally dangerous’ under these sections depends on its satisfying the following six factors, specified in § 520.”). As the Restatement (Second) of Torts reminds us: Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.

Restatement (Second) of Torts § 520 cmt. f (Am. Law Inst. 1977). The Reporter’s Note for this section identifies typical abnormally dangerous activities, such as the storage of large quantities of water or explosives in dangerous locations, and conducting blasting operations in the middle of a city. In Maryland, we weigh each factor independently.

More emphasis is placed on the fifth factor: the appropriateness of the activity in relation to its location. Yommer, 255 Md. at 226 , 257 A.2d at 140 . “The thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs.” Kelley, 304 Md. at 133 , 497 A.2d at 1147 . “Yommer emphasized that the appropriateness of the ⁵⁵⁴ activity in the particular place was the most crucial factor.” Kirby v. Hylton, 51 Md.App. 365, 374 , 443 A.2d 640, 645 (1982) (citation omitted). “The Court of Appeals reiterated the importance of locale in Rosenblatt v. Exxon Co. USA [ 335 Md. 58 , 642 A.2d 180 (1994) ]” Gallagher, 182 Md.App. at 104 , 957 A.2d at 634 . In Yommer , the owners of a gasoline station were held strictly liable for damages resulting from gasoline contamination of the well water of an adjacent residential property. 255 Md. at 227 , 257 A.2d at 141 . There, we applied the Restatement factors, and found the fifth factor to be the most persuasive factor: 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 at 140 . “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 at 141 . In applying the six factors, it is not necessary to have all six factors weigh in favor of a particular party. “Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.” Restatement (Second) of Torts § 520 cmt. f (Am.

Law Inst. 1977). Though the doctrine of strict liability has evolved since the rule in Rylands was first announced, 10 the policy concerns in ⁵⁵⁵ favor of limiting its application remain. Previously, when this Court was still applying the rule in Rylands, this Court noted that without strict limitations, “the rule would impose grievous burdens as incident to the ownership of land____” Toy, 176 Md. at 213 , 4 A.2d at 765 . In Rosenblatt , we discussed the nature of the limitations on the doctrine: We have taken care to limit the application of this doctrine because of the heavy burden it places upon a user of land.

Our cases have limited the class of abnormally dangerous activities to those activities which would be abnormally dangerous in relation to the area where they occur. Moreover, we have limited the doctrine with regard to the class of actors to which it applies: we have required that the one engaging in the relevant activity have ownership or control over the land.... And, finally, we have required that the act have a relation to the occupation or ownership of land. 335 Md. at 73-74 , 642 A.2d at 187 (internal citations omitted). In Kelley , we refused to apply the doctrine in a case involving a minor’s death caused by the firing of a handgun. 304 Md. at 133 , 497 A.2d at 1147 . “The dangers inherent in the use of a handgun in the commission of a crime ... bear no relation to any occupation or ownership of land.

Therefore, the abnormally dangerous activity doctrine does not apply to the manufacture or marketing of handguns.” Id. After applying the Restatement’s multi-factor test, in Kirby v. Hylton, the Court of Special Appeals declined to expand the strict liability doctrine where a minor was fatally injured after playing -with, and being run over by, a heavy pipe. 51 Md.App. 365, 375 , 443 A.2d 640, 645-46 (1982). The intermediate appellate court stated: We find that we need not address the issues of escape and intervention because we do not think that the storage of a pipe in the instant case is an abnormally dangerous activity ⁵⁵⁶ according to the criteria set forth in § 520 of the tentative draft and quoted in Yommer .... Because the activity did not entail an unreasonable risk of harm, the appellants must show negligence in order to recover and cannot rely on the doctrine of strict liability.

Kirby, 51 Md.App. at 375-76 , 443 A.2d at 645-46 . In Gallagher v. H.V. Pierhomes, LLC, the Court of Special Appeals held that pile driving was not an abnormally dangerous activity. 182 Md.App. 94, 113 , 957 A.2d 628, 639 (2008). There, pile driving operations at the Inner Harbor in Baltimore City caused minor damage in a 200 year old residence located 325 feet away from the construction site. Gallagher, 182 Md.App. at 110 , 957 A.2d at 637 .

The intermediate appellate court found that the defendants had acted appropriately in obtaining the proper permits, conducting geotechnical studies, and carefully monitoring the vibrations produced by the pile driving operations. “[Tjhere was only a single recorded vibration that exceeded the limits.” Gallagher, 182 Md. App. at 99-100 , 957 A.2d at 631 . The court concluded that the risk of harm produced by pile driving operations “is not a high degree of risk which requires the application of strict liability” because that risk can be eliminated “through the exercise of ordinary care.” Gallagher, 182 Md.App. at 110 , 957 A.2d at 637-38 . Jurisdictional Split on Strict Liability and Fireworks Whether fireworks discharge constitutes an abnormally dangerous activity is a case of first impression in Maryland, because fireworks liability normally arises in the context of nuisance and negligence litigation. 11 Some jurisdictions, how ⁵⁵⁷ ever, have addressed the issue of whether fireworks are abnormally dangerous. As evidenced by the cases below, litigation often came to fruition due to a malfunction or misfire at a fireworks display, which resulted in spectator injuries.

Although fireworks liability eases often share similar facts, jurisdictions disagree on whether discharging fireworks is an abnormally dangerous activity, as evident by the split of legal authority on the matter. The highest appellate court in Washington, for instance, held pyrotechnicians strictly liable when a shell exploded improperly and injured spectators at a public fireworks show. Klein v. Pyrodyne Corp., 117 Wash.2d 1 , 810 P.2d 917 , amended by 117 Wash.2d 1 , 817 P.2d 1859 (1991). It stated that Restatement factors (a) through (d) weighed in favor of imposing strict liability, because discharging fireworks creates a “high risk of serious bodily injury or property damage” due to the possibility of a malfunction or similar issue.

Klein, 810 P.2d at 922. “The dangerousness ... is evidenced by the elaborate scheme of administrative regulations with which pyrotechnicians must comply[,]” including licensing and insurance requirements. Id. at 920. Under factor (d), it further determined that discharging fireworks was not a matter of common usage, because the licensing scheme restricts the general public from engaging in that activity. Id. at 921.

In addition to the high risk discharging fireworks creates, that court determined that public policy and fairness warranted strict liability. Id. at 922. Otherwise, the injured spectators would have been subject to the “problem of proof’ because “all evidence was destroyed as to what caused the misfire of the shell that injured the Kleins.” Id. Arizona’s intermediate appellate court was persuaded by the rationale in Klein in a case involving a misfire at a mall-sponsored fireworks display.

Miller v. Westcor Ltd. P’ship, 171 Ariz. 387 , 831 P.2d 386, 392 (Ct.App.1991). Although the issue was in the context of negligence liability under § 427 of the Restatement (Second) of Torts, like Klein, it found that the risk of malfunction or misfire could not be entirely eliminated, and that the “legislature has also recognized the dan ⁵⁵⁸ gerousness of fireworks by regulating their use” as reflected in a “statutory requirement that a pyrotechnician obtain a surety bond or certificate of insurance for at least $1,000,000 in order to obtain a license to conduct a public fireworks display.” Miller, 831 P.2d at 391-92 . Therefore, it held that public fireworks displays were an inherently dangerous activity- Other jurisdictions, however, have come to the opposite conclusion, and have held that the level of risk involved with a fireworks discharge does not warrant strict liability. In Haddon v. Lotito, Pennsylvania’s highest appellate court applied the ultrahazardous activity test, and determined that strict liability — referred to as absolute liability — did not apply in a case involving spectator injuries at a public fireworks display. 399 Pa. 521 , 161 A.2d 160, 162 (1960).

Critically, that court distinguished lawful from unlawful fireworks displays: [A] public fireworks display, handled by a competent operator in a reasonably safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous an activity____Where one discharges fireworks illegally or in such a manner as to amount to a nuisance and causes injury to another, some jurisdictions have held that liability follows without more. But the production of a public fireworks display, under the circumstances presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must be predicated upon proof of negligence. Id. (internal citations omitted).

Other courts have ruled similarly. In Litzmann v. Humboldt Cty., California’s intermediate appellate court determined that “the handling and discharge of fireworks ... were not such as to come within the definition of ultrahazardous activities.” 273 P.2d 82 , 88 (Cal.Dist.Ct.App.1954). In that case, an undischarged firework was negligently discarded on fairgrounds, and a minor was severely injured when he found and ignited it. After applying the Restatement factors, that court declined to impose strict liability, because “[i]t was the failure of care that caused the injuries and not the nature of the risks involved.” Litzmann, 273 P.2d at 88. ⁵⁵⁹ [TJhese risks could be eliminated by a degree of care far within the bounds of ‘utmost care’.... [B]y the method of firing adopted[,] it was a reasonably easy matter to direct the firing so that injury would not arise through misdirection of the missiles; and that observation by those skilled enough to be licensed to explode fireworks was adequate to detect the lack of explosion of the material shot into the air.

It appears, therefore, that the activities engaged in and charged to be ultrahazardous were in fact risks which could be and would be eliminated if commensurate care had been exercised. Id. In Cadena v. Chicago Fireworks Mfg. Co., the Illinois intermediate appellate court stated that only Restatement factors (a), which focuses on the existence of a high degree of risk of some harm, and (b), which concerns the likelihood that the harm that results will be great, weighed in favor of strict liability. 297 Ill.App.3d 945 , 232 Ill.Dec. 60 , 697 N.E.2d 802, 814 (1998) overruled on other grounds by Ries v. City of Chicago, 242 Ill.2d 205 , 351 Ill.Dec. 135 , 950 N.E.2d 631 (2011).

Notably, that court reminded readers that factor (c) “does not require the reduction of all risk” and that “the exercise of reasonable care in displaying fireworks will significantly reduce the risks involved [in a fireworks display].” Cadena, 232 Ill.Dec. 60 , 697 N.E.2d at 814 (emphasis in original). Unlike other courts, it interpreted factor (d) broadly and found that “fireworks displays are a matter of common usage” because “many individuals view them and many municipalities display fireworks....” Id. (emphasis in original). Fireworks Liability in Maryland In the instant case, Toms asks this Court to expand the strict liability doctrine and hold that noise emanating from a fireworks discharge is abnormally dangerous to livestock. 12 The Restatement factors we consider are: ⁵⁶⁰ (a) existence of a