Yommer v. McKenzie

Singley, J., delivered the opinion of the Court. Mr. and Mrs. McKenzie, the plaintiffs below, live at Little Crossing in Garrett County. Their immediate neighbors are the defendants, Mr. and Mrs. Yommer, who operate a grocery store and gasoline filling station. On 17 December 1967, Mr. McKenzie noticed a “smell” in his well water which, on analysis, proved to be caused by the presence of gasoline in the well.

McKenzie complained to Yommer, who arranged to have one of his storage tanks removed and replaced in January 1968. However, it was not until the McKenzies had a filter and water softener installed in April of 1968 that it was possible for them to use the water for cooking and bathing. At the time of the trial of the case in December of 1968 there was testimony that the McKenzies were still bring ²²² ing drinking water from Grantsville, about a mile distant. The McKenzies, alleging a nuisance, sued the Yommers for damages and recovered a verdict of $3,500.

The Yommers had moved for a directed verdict at the end of the plaintiffs’ case and renewed their motion at the end of the entire case. The Yommers have appealed from the judgment entered on the verdict, assigning as error the trial court’s refusal to direct a verdict in their favor. We shall affirm. The thrust of the Yommers’ argument is threefold: (i) that the establishment of a gasoline filling station does not constitute a nuisance; (ii) that the McKenzies failed to show that the damage they sustained was occasioned by the Yommers’ negligence in the operation of the filling station; and (iii) that there was no proof that the McKenzies’ well was contaminated by gasoline from the Yommers’ tanks.

(i) We have previously held that the establishment of a gasoline filling station does not constitute a nuisance per se, Smith v. Standard Oil Co., 149 Md. 61 , 130 A. 181 . (1925) but that it may become a nuisance because of its location or manner in which it is operated. Adams v. Comm’rs of Trappe, 204 Md. 165 , 102 A. 2d 830 (1954); Pocomoke City v. Standard Oil Co., 162 Md. 368 , 159 A. 902 (1932). See also Hendrickson v. Standard Oil Co., 126 Md. 577 , 95 A. 153 (1915).

(ii) - The argument that the McKenzies must prove negligence in order to recover fails to take into account the doctrine of strict liability imposed by the rule of Rylands v. Fletcher 1 which has been adopted by our prior decisions. Susquehanna Fertilizer Co. v. Malone, 73 Md. 268 , 20 A. 900 , 25 Am. St. Rep. 595 (1890); Baltimore Brew ²²³ eries Co. v. Ranstead, 78 Md. 501 , 28 A. 273 , 27 L.R.A. 294 (1894); compare with Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197 , 4 A. 2d 757 (1939). Dean Prosser states the rule of the English cases “[T]hat the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.” Prosser, Torts (Sol ed. 1964) § 77 at 522.

See also Prosser, “The Principle of Hylands v. Fletcher” in “Selected Topics on the Law of Torts” (1953) at 135-190. Or, as Mr. Justice Sutherland put it in describing a nuisance in Euclid v. Ambler Co., 272 U. S. 365, 388, 47 S. Ct. 114 , 71 L. Ed. 803 , 54 A.L.R. 1016 (1926), “[It Is] merely a right thing in the wrong place — like a pig in the parlor instead of the barnyard.” Restatement, Torts (1938) § 519 at 41 relied on by the Yommers, limits the applicability of the rule of Rylands v. Fletcher to what it terms an “ultrahazardous activity” and Incorporates a caveat, “The Institute expresses no opinion as to whether the construction and use of a large tank or artificial reservoir in which a large body of water or other fluid is collected is or is not an ultrahazardous activity.” (at 44). Prosser, Torts, supra, § 77 at 527, is critical of the ultrahazardous activity concept which “* * * goes beyond the English rule in ignoring the relation of the activity to its surroundings, and falls short of it in the insistence on extreme danger and the impossibility of eliminating it with all possible care. The shift of emphasis is not at all reflected in the American cases, which have laid quite as much stress as the English ones upon the place where the thing is done.” Restatement, Torts 2d, for which Dean Prosser is the Reporter, § 519-520 at 52-68 (Tent.

Draft No. 10, 1964) provides more guidance for us than its predecessor. For the “ultrahazardous activity” test an “abnormally dangerous activity” test has been substituted. The effect of ²²⁴ this change is to enlarge the circumstances under which the rule of strict liability will apply. As the Reporter pointed out to the American Law Institute: “ ‘Ultrahazardous,’ as it is defined in the old Section, is misleading.

There is probably no activity whatever, unless it be the use of atomic energy, which is not perfectly safe if the utmost care is used — which would of course include the choice of an absolutely safe place to carry it on.” Restatement, Torts 2d, supra, Note to Institute at 57. The black letter of new § 520 sets out the definition: “520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others; (b) Whether the gravity of the harm which may result from it is likely to be great; (c) Whether the risk cannot be eliminated by the exercise of reasonable care; (d) Whether the activity is not a matter of common usage; (e) Whether the activity is inappropriate to the place where it is carried on; and (f) The value of the activity to the community.” We believe that the present case is clearly within the ambit of this definition. Although the operation of a gasoline station does not of itself involve “a high degree of risk of some harm to the person, land or chattels of others,” the placing of a large underground gasoline tank in close proximity to the appellees’ residence and well does involve such a risk, since it is not a matter of com ²²⁵ mon usage. 2 The harm caused to the appellees was a serious one, and it may well have been worse if the contamination had not been detected promptly.

Although there is no evidence of negligence on the part of the Yommers (indeed such a showing is not required as will be discussed below), it is proper to surmise that this risk cannot, or at least was not, eliminated by the exercise of reasonable care. The fifth and perhaps most crucial factor under the Institutes’ guidelines as applied to this case is the appropriateness of the activity in the particular place where it is being carried on. 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