David O. Godwin, Jr. (Ashlee K. Smith of Godwin, Erlandson, MacLaughlin, Vernon [545] and Daney, LLC, Ellicott City, MD), on brief, for Petitionors.

Benjamin T. Boscolo (Gerald Herz and Kevin H. Stillman, Chasen Boscolo Injury Lawyers, Greenbelt, MD), on brief, for Respondent.

J. Porter Wiseman, Esquire, Washington, DC, Jeffrey L. Kessler, Esquire, Adam J. Kaiser, Esquire, Jeffrey H. Newhouse, New York, New York, Amici Curiae brief of the National Football League Players Association, National Basketball Players Association, Women's National Basketball Players Association, Major League Baseball Players Association, National Hockey League Players Association, Professional Hockey Players Association, and Major League Soccer Players Union.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.

ELDRIDGE, J.

In this case, involving a claim by a former professional football player for benefits under the Maryland Workers' Compensation Act,^[1] based upon an injury during pre-game warm-up at the employer's stadium in Prince George's County, Maryland, the employer and its insurer presents two issues. The first is whether the Maryland Workers' Compensation Commission should have exercised jurisdiction over the claim when the employment agreement contained a forum selection clause providing, inter alia, that claims for workers' compensation benefits should be governed by Virginia law and that the Virginia Workers' Compensation Commission should have exclusive jurisdiction to resolve such claims. The second issue presented by the employer and insurer is whether injuries occurring while playing and practicing professional football are "accidental injuries" and thus compensable under the Maryland Workers' Compensation Act.

I.

The facts underlying the two issues raised in the Court are not disputed by the parties. In March 2004, the respondent Thomas Tupa and the petitioner Pro-Football, Inc., trading as (t/a) the "Washington Redskins," entered into a four-year National Football League (NFL) employment contract for Tupa to play football for Pro-Football, Inc. The position played by Mr. Tupa was "punter." Pro-Football, Inc., t/a the Washington Redskins, is incorporated in Maryland and owns its stadium, named "FedEx Field," which is located in Landover, Prince George's County, Maryland. All of Pro-Football, Inc.'s "home" football games are played at FedEx Field in Maryland, and the players' practice or "warm-up" just before the games also occurs at FedEx Field. Pro-Football, Inc., has its headquarters and practice facility in Virginia, and most practices are at the Virginia facility. Such practices, of course, are for the purpose of getting the players ready to play well at the football games.

The employment contract between Tupa and Pro-Football, Inc., contained, in an addendum, a forum selection clause which stated as follows:

"JURISDICTION. The parties hereto agree that this Player Contract shall for all purposes be deemed to have been negotiated and executed in Virginia; that should any dispute, claim or cause of action (collectively `dispute') arise concerning [546] rights or liabilities arising from the relationship between the Player and the Club, the parties hereto agree that the law governing such dispute shall be the law of the Commonwealth of Virginia, and that the exclusive jurisdiction for resolving such dispute in the case of Workers' Compensation is the Virginia Workers' Compensation Commission, and in the case of Workers' Compensation claims the Virginia Workers' Compensation Act shall govern."

In January 2005, Tupa complained of mild lower back pain, and he was examined by Dr. Thomas Schuler of the Virginia Spine Institute. At the time, Dr. Schuler determined that Tupa suffered from "significant underlying spondylosis and stenosis," a condition which the doctor did not believe would effect Tupa's ability to play during the 2005-2006 football season, particularly because Tupa had successfully completed the 2004-2005 season. The doctor concluded that Tupa "should be able to play one or two more seasons" before the condition greatly impacted him.

On August 19, 2005, at FedEx Field, during his pre-game warm-up for a pre-season game, Tupa landed awkwardly after a punt and felt a sharp pain in his lower back. He described the pain as a "jarring" sensation, sought immediate medical attention, and received medication.

On August 22, two days later, Tupa again visited Dr. Schuler, who noted that Tupa was reporting "95% back pain." An MRI disclosed "significant progression of the disc degeneration ... [t]hat clearly progressed significantly from a year ago with much more collapse." When Tupa saw Dr. Schuler again on August 23, Dr. Schuler concluded that Tupa had significant discogenic pain and could possibly be a good candidate for surgery. The doctor also determined that Tupa was not able to continue playing professional football until he was able to get his condition and the related pain "calmed down." The doctor recommended intradiscal steroid injection "as a last ditch effort to get [Tupa] back to a functional status."

When Tupa next saw the doctor on September 2, 2005, Tupa reported that the pain had not subsided and that he continued to have numbness and tingling sensations in his feet. Dr. Schuler recommended giving Tupa's condition more time to heal naturally before proceeding with an operative solution. Dr. Schuler also noted that "the patient is still disabled from participating in the NFL, and he is still working aggressively in his rehabilitation to get back to a functional pain-free status."

Despite a treatment regime which included medication and physical therapy, Tupa's condition did not improve. In January 2006, during an end of season evaluation, Dr. Schuler noted that Tupa suffered from "a marked disc collapse ... of approximately 90%." Dr. Schuler concluded that Tupa's condition would not improve further without major spinal surgery, and that, even if Tupa did have surgery, it would be unlikely that he would ever be able to play professional football again. After discussing his options, along with the related risks, with Dr. Schuler, Tupa decided to forego surgery. Dr. Schuler noted that Tupa "under[stands] the risks of surgery versus no surgery, and participation and non-participation in the NFL. [Tupa] agrees ... he is not a candidate for the NFL at this time."

On May 15, 2006, Tupa filed a claim for benefits because of his back injury with the Virginia Workers' Compensation Commission. He subsequently withdrew this claim, and the Virginia Commission dismissed the matter "without prejudice."

On October 12, 2006, Tupa sought an independent medical evaluation from Dr. [547] Michael Franchetti. Dr. Franchetti concluded that the back injury sustained by Tupa on August 19, 2005, was "within a reasonable degree of medical certainty ... a career-ending injury for" Tupa. Another doctor, Dr. Charles Jackson, evaluated Tupa on December 11, 2006, and he likewise concluded that Tupa's professional football career would be shortened, but he disagreed with the other doctors' assessment that the back injury was caused by Tupa's professional football activities. Rather, he concluded that the August 19th injury "manifest[ed] an ongoing degenerative spine condition which ... was aggravated by years of [punting]." He determined that "[t]he kicking incident did not cause or precipitate damage to [or] materially change the degenerative condition which" caused the end of Tupa's career.

At the present time, Tupa has not sought surgical intervention to address his back pain. He no longer plays professional football, but is currently employed in a sedentary position, which he has held since February 2006. Tupa was paid by Pro-Football, Inc., pursuant to his contract, for the remainder of the 2005-2006 season. Although Tupa still suffers from pain and takes medication to address it, he acknowledged in the circuit court trial that he believes that he will eventually need back surgery, although he is delaying the procedure for as long as possible.

Tupa filed a claim for workers' compensation benefits with the Maryland Workers' Compensation Commission on March 30, 2007. The petitioners, Tupa's employer and its insurer, challenged Tupa's claim on the issues of "jurisdiction," whether the injury was an accidental injury, and whether his disability was casually related to the injury in August 2005. On March 3, 2008, the Maryland Workers' Compensation Commission held a hearing on Tupa's contested claim. The Commission decided, on March 14, 2008, that the Maryland Commission could properly exercise jurisdiction over Tupa's claim, that Tupa had sustained an accidental injury arising "out of and in the course of [his] employment," and that Tupa's disability was causally related to his accidental injury. Tupa was awarded temporary partial disability benefits and the petitioners were ordered to pay the related medical expenses.

Pro-Football, Inc., and its insurer filed an action for judicial review in the Circuit Court for Prince George's County and requested a trial by jury. Although the parties agreed that there were no factual disputes regarding the issue of jurisdiction, a two-day jury trial was held, in which the jury decided that Tupa had sustained an accidental injury in August 2005 and that his disability was causally connected to that accidental injury. The Circuit Court determined, as a matter of law, that the Maryland Workers' Compensation Commission was entitled to exercise jurisdiction over Tupa's workers' compensation claim.

Tupa's employer and its insurer noted an appeal to the Court of Special Appeals, which affirmed in a reported opinion, Pro-Football v. Tupa, 197 Md.App. 463, 14 A.3d 678 (2011). The intermediate appellate court agreed with the Commission and Circuit Court that the Commission properly exercised jurisdiction over Tupa's workers' compensation claim, that Tupa was a covered employee, that Tupa incurred an accidental injury in August 2005, and that there was ample evidence to sustain the jury's finding that Tupa's disability was caused by the August 2005 injury.

Tupa's employer and insurer petitioned this Court for a writ of certiorari which was granted. Pro-Football v. Tupa, 420 Md. 81, 21 A.3d 1063 (2011). The petitioners raise in this Court the following two [548] issues (Petitioners' brief in this Court at 2):

"Questions Presented

"I. Whether Maryland has jurisdiction over the Claimant's workers' compensation claim when the Claimant signed an employment contract agreeing to bring all workers' compensation claims in the Commonwealth of Virginia.

"II. Whether the Claimant sustained an accidental injury arising out of and in the course of his employment on August 19, 2005."^[2]

II.

The petitioners' principal argument is that the Maryland Workers' Compensation Commission had no jurisdiction over Tupa's claim and that the Maryland Workers' Compensation Act had no application to the claim because "the Claimant was contractually bound to bring his claim for workers' compensation benefits in the Commonwealth of Virginia." (Petitioners' brief at 4). The petitioners rely upon opinions of this Court indicating that "`forum-selection clauses are presumptively enforceable.'" (Ibid., quoting Secure Financial v. Popular Leasing, 391 Md. 274, 282, 892 A.2d 571, 576 (2006)).

None of this Court's opinions relied upon by the petitioners, however, involved a workers' compensation claim. More specifically, none of these opinions involved a statute which voided a provision in an employment contract waiving the rights of a covered employee under the Maryland Workers' Compensation Act.

The Maryland Workers' Compensation Act, in § 9-104(a) of the Labor and Employment Article of the Code, provides as follows:

"§ 9-104. Agreements.

(a) Exemption from duty; waiver of right. — (1) Except as otherwise provided in this title, a covered employee or an employer of a covered employee may not by agreement, rule or regulation:

(i) exempt the covered employee or the employer from a duty of the covered employee or the employer under this title; or

(ii) waive a right of the covered employee or the employer under this title.

[549] (2) An agreement, rule, or regulation that violates paragraph (1) of this subsection is void to the extent of the violation."

Thus, an agreement exempting "the employer from a duty of the ... employer under the" Act is "void." (§ 9-104(a)(i)). Furthermore, an agreement waiving "a right of the covered employee ... under the" Act is void (§ 9-104(a)(ii)). Although § 9-104 contains a few special provisions, such as for railroad employees, none of them are applicable to the present case.

Section 9-104(a), in plain, unambiguous language, precludes an agreement which exempts an employer from the duty of paying workers' compensation benefits which are otherwise due under the Maryland statute. The section also precludes an agreement which waives the right of an employee to receive workers' compensation benefits which are otherwise due under the Maryland statute. A holding that forum selection clauses constitute an exception to § 9-104 would contravene basic principles concerning the interpretation of statutes. The petitioners would have us construe § 9-104 as if there was in the statute an exception for forum selection clauses. This we cannot do. As stated in numerous cases, a "`plainly worded statute must be construed without forced or subtle interpretations designed to ... limit the scope of its operation.'" Harris v. Board of Education, 375 Md. 21, 31, 825 A.2d 365, 371 (2003), quoting Caffrey v. Dept. of Liquor Control for Montgomery County, 370 Md. 272, 292, 805 A.2d 268, 279 (2002). Inserting into § 9-104 an exception for forum selection clauses "`would be to re-draft the statute under the guise of construction,'" Montrose Christian School v. Walsh, 363 Md. 565, 595, 770 A.2d 111, 128-129 (2001), quoting Davis v. State, 294 Md. 370, 378, 451 A.2d 107, 111 (1982).

Moreover, the applicable authorities support our conclusion that the forum selection clause in the employment contract was ineffective to divest the Maryland Workers' Compensation Commission of the ability to exercise jurisdiction. In Kacur v. Employers Mut. Cas. Co., 253 Md. 500, 509, 254 A.2d 156, 161 (1969), this Court held that a forum selection clause in the employment contract was ineffective in a workers' compensation case, and the Court quoted with approval Professor Larson as follows (3 Larson, Workmen's Compensation Law, § 87.71 at 395 (1968 Supp.)):

"`Express agreement between employer and employee that the statute of a named state shall apply is ineffective either to enlarge the applicability of that state's statute or to diminish the applicability of the statutes of other states. Whatever the rule may be as to questions involving commercial paper, interest, usury and the like, the rule in workmen's compensation is dictated by the overriding consideration that compensation is not a private matter to be arranged between two parties; the public has a profound interest in the matter which cannot be altered by any individual agreements. This is most obvious when such an agreement purports to destroy jurisdiction where it otherwise exists; practically every statute has emphatic prohibitions against cutting down rights or benefits by contract. The only exception occurs under several statutes which explicitly permit the parties to agree that the local statute shall not apply to out-of-state injuries.'"

In McElroy v. Pohopek, 375 Md. 574, 578 n. 2, 594-595, 826 A.2d 474, 476 n. 2, 486 (2003), this Court held that Maryland Workers' Compensation law applied to an employee's claim despite a forum selection clause in the employment contract stating that the employee's workers' compensation claims "shall be exclusively governed by [550] the [workers'] compensation laws of the State of Alabama." See also Alaska Packers Assn. v. Comm'n, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935) (The employment contact, entered in California for work in Alaska, provided that Alaska Workers' Compensation law should apply, but the Supreme Court of California, upholding an award of benefits under California workers' compensation law, held that the forum selection clause was invalid. The Supreme Court of the Untied States affirmed, holding that the application of California workers' compensation law violated neither the Full Faith and Credit Clause nor the Due Process Clause of the Fourteenth Amendment).

As pointed out by the Court of Special Appeals in the present case, numerous cases in other states have also refused to give effect to forum selection clauses in workers' compensation cases. See Pro-Football v. Tupa, supra, 197 Md.App. at 477, 14 A.3d at 686, collecting some of the cases; Swenson v. Nickaboine, 793 N.W.2d 738, 743 (Minn.2011); Gotkin v. Weinberg, 2 N.J. 305, 308, 66 A.2d 438, 439 (1949); McIlvaine Trucking, Inc. v. Workers' Compensation Appeal Board, 570 Pa. 662, 673, 810 A.2d 1280, 1286 (2002); Jenkins v. Sal Chem. Co., 167 W.Va. 616, 280 S.E.2d 243 (1981).

III.

The petitioners' second argument is that Tupa's injury was not an "accidental personal injury" within the meaning of the Maryland Workers' Compensation Act, § 9-101(b)(1) of the Labor and Employment Article.^[3] Petitioners' rely upon Rowe v. Baltimore Colts, 53 Md.App. 526, 454 A.2d 872 (1983).

In Rowe, a professional football player was injured while practicing in a "scrimmage," and sought workers' compensation benefits. The Court of Special Appeals held in Rowe that the player had not suffered an "accidental injury" within the meaning of the definition presently codified as § 9-101(b)(1). The Rowe opinion, 53 Md.App. at 535, 454 A.2d at 877, stated that "accidental injury" within the meaning of the Workers' Compensation Act included injury "produced by some unusual and extraordinary condition or happening in the employment." The opinion continued (53 Md.App. at 535-536, 454 A.2d at 878, emphasis added):

"The key to the application of the term `accidental injury,' is whether the occurrence was an unusual or unexpected happening in the course of employment. Thus, if a stenographer was suddenly subjected to another employee's striking him or her in the elbow with great force, the resulting injury would at a minimum be unusual, unexpected, and surprising. It would, in any event, not be a commonplace happening. Consequently, the stenographer would properly be said to have incurred an accidental injury within the meaning of the Workmen's Compensation Law.

"On the other hand, a professional football player is engaged in an occupation [551] in which physical contact with others is not only expected, commonplace, and usual, but is a requirement."

The Court of Special Appeals in the present case held that Rowe was contrary to current statutory and case law, and specifically that it was inconsistent with this Court's opinion in Harris v. Board of Education, supra, 375 Md. 21, 825 A.2d 365. The Court of Special Appeals overruled Rowe, and we fully agree with that Court's action.

This Court in Harris v. Board of Education explicitly rejected the principle used in Rowe that an "accidental injury" must arise from an unusual or unexpected occurrence. Prior to Harris, several appellate opinions had held that, in order for an injury occurring during employment to be "accidental," the injury must result from some "unusual strain, exertion or condition in employment." Sargent v. Board of Education, Baltimore County, 49 Md.App. 577, 580-581, 433 A.2d 1209, 1211 (1981). See, e.g., Stancliff v. H. B. Davis Co., 208 Md. 191, 198, 117 A.2d 577, 581 (1955); Geipe, Inc. v. Collett, 172 Md. 165, 190 A. 836 (1937); Schemmel v. Gatch & Sons, 164 Md. 671, 166 A. 39 (1933); State Roads Commission v. Reynolds, 164 Md. 539, 165 A. 475 (1933).

In Harris, a cafeteria worker was engaged in her usual work day activity of laundering the linens at the end of the day. She dragged a forty-five pound box of laundry soap outside, and when she subsequently bent down, her back "cracked." She was in excruciating pain, and she immediately sought medical attention. During judicial review of the Workers' Compensation Commission's order granting Harris compensation, the case went to the jury, which determined that the Harris's injury was not "accidental" because it did not result from an unusual work activity.

This Court in Harris reviewed previous cases requiring that an accidental personal injury arise out of "unusual activity" in order to qualify for workers' compensation and determined that

"[t]he line of cases in this Court requiring that an accidental personal injury arise out of `unusual activity' for there to be coverage obviously adds a requirement not contained in the statutory language." 375 Md. at 30, 825 A.2d at 371.

Reviewing the statutory language and earlier Maryland Workers' Compensation cases, including Victory Sparkler Co. v. Francks, 147 Md. 368, 128 A. 635 (1925), this Court held that "what must be unexpected, unintended, or unusual is the resulting injury and not the activity out of which the injury arises." Harris, 375 Md. at 36, 825 A.2d at 374. The Harris Court explained (375 Md. at 33, 825 A.2d at 372):

"`The statutory definition of injury, which was made compensable without reference to neglect of employer or fault of worker, except when the injury was self-inflicted or the sole result of the intoxication of the employee, and the abolition of the fellow-servant rule, of defenses of contributory negligence and assumption of risk, and the substitution of a regulated and certain compensation for damages, contribute convincingly to the conclusion that the legislative intent was to include within the act not only the newly created class of compensable injuries, but also every injury which could be suffered by any worker in the course and arising out of the employment, for which there was then a subsisting right of action.... With this conception of the purpose and effect of the act, the Legislature was consistent in making the prescribed liability of the employer and remedy of the employee exclusive with respect to all injuries [552] sustained in the hazardous employment,'" quoting Victory Sparkler, 147 Md. at 376-377, 128 A. at 637-638.

In 2 Larson's Workers' Compensation § 22.04 (2007), the treatise refers to the "conspicuously wrong" idea that football injuries should not be considered accidental because "football is a dangerous sport fraught with expectation of injury." Larson points out that, in "almost all states in which the National Football League operates," injuries occurring during practice or the game are "routinely treated as compensable." He comments that denying workers' compensation benefits to professional football players effectively denies a class of covered employees compensation for doing precisely the job they were hired to do. Larson also draws attention to the inherent contradictions in this approach, stating:

"And why is doing the job itself not covered? Because everyone knows it is fraught with danger. As well, then, tell the coal miner — whose occupation is far more dangerous — that he or she is covered, so long as the miner does not go down into the mine.... The books are full of cases in which compensation is denied a covered worker because he or she was not doing the job at the time. But never before because he or she was doing the job....To say that football injuries are not accidental because of the probability of injury is, if one looks more closely, no more than to say that any activity with a high risk factor should be ruled noncompensable."

Larson criticizes "the kind of loose thinking" that characterizes professional sports injuries as not accidental (ibid.):

"As a little reflection will show, this is tantamount to saying that the player in effect intended to get himself injured. This is, of course, preposterous. True, some of these sports are rough. But everything about them is elaborately designed to prevent actual disabling physical injury. All the forbidden practices — clipping, piling-on, face-masking, spearing, unnecessary roughness, and a host of others — are precisely intended to do everything possible to forestall injury.... It is, of course, not particularly surprising if, as a result of some such mish-mash of erroneous impressions both about professional sports and about workers' compensation the untrained person-on-the-street (or in the jury) just somehow feels the professional athlete should not get compensation. But it is unworthy of a legally trained mind to substitute this kind of superficial reaction for an accurate analysis that simply accords professional athletes the same protection under compensation law as is enjoyed by everyone else who works for a living."

Tupa's injury occurred "out of and in the course of [his] employment." He was warming up for a game when he landed awkwardly and thereafter sought immediate medical treatment. Ample evidence was presented to show that Tupa suffered a compensable accidental injury during the course of his employment.^[4]

[553] RESPONDENT'S MOTION TO STRIKE GRANTED. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONERS TO PAY COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT.

[1] Maryland Code (1991, 2008 Repl.Vol.), § 9-101 et seq. of the Labor and Employment Article.

[2] As pointed out in the text, the Court of Special Appeals dealt with four issues, namely (1) whether the Maryland Commission should have exercised jurisdiction in light of the forum selection clause in the employment contract, (2) whether Tupa was a "covered employee" under the Maryland statute, (3) whether the injury in August 2005 was an "accidental injury" within the meaning of the Maryland statute, and (4) whether Tupa's disability was caused by the August 2005 injury. The petition for a writ of certiorari raised the first three of these issues but did not include the fourth. In their briefs and oral argument before this Court, however, the employer and insurer raised only two issues, i.e.,whether the Maryland Commission should have exercised jurisdiction in light of the forum selection clause and whether Tupa sustained an accidental injury within the meaning of the Maryland Workers' Compensation Act.

The "covered employee" issue was not mentioned in petitioners' opening brief, reply brief, or oral argument. Consequently, the issue is not before us. See, e.g., Maryland Rule 8-504(a)(3); CWA v. Public Service Commission, 424 Md. 418, 423 notes 2 and 3, 36 A.3d 449, 451-452 notes 2 and 3 (2012) ("Appellant did not brief this issue, and we do not consider it"); Chesek v. Jones, 406 Md. 446, 455-456 n. 7, 959 A.2d 795, 800 n. 7 (2008) ("[W]e will not address question 4 ... where [the] parties failed to brief the issue and failed to address it at oral argument"); DiPino v. Davis, 354 Md. 18, 56, 729 A.2d 354, 374 (1999) ("[I]f a point germane to the appeal is not adequately raised in a party's brief, the court may, and ordinarily should, decline to address it").

[3]Section 9-101(b) provides as follows:

"(b) Accidental personal injury. — `Accidental personal injury' means:

(1) an accidental injury that arises out of and in the course of employment;

(2) an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of employment of the covered employee; or

(3) a disease or infection that naturally results from an accidental injury that arises out of an in the course of the employment, including:

(i) an occupational disease; and

(ii) frostbite or sunstroke caused by a weather condition."

[4]In the "Statement of Facts" portion of their opening brief in this Court, the petitioners include the following footnote:

"Petitioners would note that the Claimant's contract is governed by the Collective Bargaining Agreement (`CBA') entered into by the NFL players' union (NFLPA) and the NFL owners (NFLMC).... Accordingly, federal law pre-empts Maryland law with regard to interpretation of the CBA, a player's compliance therewith, and the propriety of Claimant's injury-related claims. See the Labor Management Relations Act § 301, codified at 29 U.S.C. § 185. See also Ali v. Giant Food, LLC, 595 F.Supp.2d 618 (Md.2009) [(D.Md.2009)]."

No arguments based on the collective bargaining agreement between the players and owners, on federal law, on preemption, or on any federal labor statute, were made by the petitioners before the Commission, the Circuit Court, the Court of Special Appeals, or this Court. No such arguments were made in the certiorari petition or the argument portions of petitioners' briefs in this Court.

The respondent has moved to strike from petitioners' brief the above-quoted footnote, and we agree that respondent's motion should be granted. See Maryland Rules 8-131(a) and 8-131(b). See also, e.g., Fisher v. Eastern Correctional, 425 Md. 699, 714, 43 A.3d 338, 347 (2012); Robinson v. Baltimore Police Dep't, 424 Md. 41, 49, 33 A.3d 972, 977 (2011); McDaniel v. Baranowski, 419 Md. 560, 567 n. 7, 19 A.3d 927, 931 n. 7 (2011); John Hopkins Hosp. v. Correia, 405 Md. 509, 513, 954 A.2d 1073, 1075 (2008); Garner v. Archers Glen Partners, Inc., 405 Md. 43, 60-61, 949 A.2d 639, 649 (2008).

John G. Bell, Seattle, for appellants.

Hackett, Beecher, Hart, Branom & Vavrichek, Theodore H. Millan, Seattle, for respondent.

[109 Wn.2d 582] Bryan P. Harnetiaux, Daniel E. Huntington, Robert H. Whaley, Spokane, amicus curiae for Washington Trial Lawyers Ass'n.

Richard C. Coyle, Keith Gerrard, Seattle, amicus curiae for the Boeing Co.

CALLOW, Justice.

Quaere: Should owners and operators of flying aircraft be held strictly liable for ground damage caused by operation of the aircraft, or should their liability depend on a finding of negligence?

The trial court determined that strict liability was applicable and awarded judgment in favor of the plaintiff landowners. We find that the general principles of negligence should control. We reverse and remand for trial.

I

The case involves a claim for property damage caused when a plane owned by Cox Aircraft Co. and piloted by Hal Joines (the pilot) crash-landed onto Douglas Crosby's property. The plane was a DeHavilland DHC-3 Otter aircraft. Its engine had recently been converted from piston-driven to turbine and the conversion had been undertaken in strict conformity with Federal Aviation Administration (FAA) requirements. FAA certification of the plane's fuel system was still pending at the time of the accident.

On December 19, 1984, the pilot flew the airplane over the Olympic Peninsula and then turned back to Seattle, intending to land at Boeing Field. However, the engine ran out of fuel in mid-flight, and the pilot was forced to crash land the plane at Alki Point in West Seattle. The plane landed on the roof of Crosby's garage, causing $3,199.89 in damages.

Crosby sued both the pilot and Cox Aircraft. His complaint raised the following alternative allegations: (1) that the pilot was negligent in his operation of the plane; (2) that Cox Aircraft was negligent in its maintenance of the plane; (3) that Cox Aircraft, the alleged employer of the pilot, should be held vicariously liable for all negligence of [109 Wn.2d 583] the pilot under the doctrine of respondeat superior; and (4) that both [746 P.2d 1199] the pilot and Cox Aircraft should be held strictly liable for all damages caused by the crash landing. The pilot and Cox Aircraft denied liability and filed a third-party complaint against Parker Hannifin Corporation alleging that Parker had equipped the plane with a defective fuel system control valve which failed to operate properly, thus causing the plane's engine to run out of fuel and forcing the pilot to make the crash landing.

The trial court granted partial summary judgment for Crosby, holding that both the pilot and Cox Aircraft were strictly liable for all damage done to Crosby's property. The court did not address Crosby's negligence claims, nor the third-party complaint against Parker. The pilot and Cox Aircraft appealed. We accepted certification.

The Boeing Company and the Washington State Trial Lawyer's Association (WSTLA) have both filed amicus curiae briefs regarding the appropriate standard of liability to be imposed. Boeing argues that the liability of aircraft owners and operators for ground damage should be governed by a negligence standard. WSTLA contends (as does plaintiff Crosby), on the other hand, that strict liability should be applied. The defendants argue for yet a third standard--a "rebuttable presumption" of negligence on the part of the aircraft owner and operator. We hold that the general principles of negligence control.

II

This is the first case in this State to directly deal with the standard of liability governing ground damage caused by aircraft. Mills v. Orcas Power & Light Co., 56 Wash.2d 807, 821 n. 6, 355 P.2d 781 (1960), alluded to this issue, but only in dicta. No subsequent cases have considered the question, and the Legislature has enacted no statute on the matter.

Plaintiff Crosby and amicus party WSTLA urge us to adopt Restatement (Second) of Torts § 520A (1977):[109 Wn.2d 584] § 520A. Ground Damage From Aircraft

If physical harm to land or to persons or chattels on the ground is caused by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft,

(a) the operator of the aircraft is subject to liability for the harm, even though he has exercised the utmost care to prevent it, and

(b) the owner of the aircraft is subject to similar liability if he has authorized or permitted the operation.

This provision establishing strict liability is said to be a "special application" of §§ 519-20, the Restatement sections governing liability for "abnormally dangerous" activities. (See § 520A, Comment (a)). Sections 519-20 provide:

§ 519. General Principle

(1) 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.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

§ 520. Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(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.

The defendants urge us to reject Restatement § 520A. They contend that aviation can no longer be designated an "abnormally dangerous activity" requiring special rules of liability. We agree.

[746 P.2d 1200] In the early days of aviation, the cases and treatises were [109 Wn.2d 585] replete with references to the hazards of "aeroplanes". The following assessment is typical:

[E]ven the best constructed and maintained aeroplane is so incapable of complete control that flying creates a risk that the plane even though carefully constructed, maintained and operated, may crash to the injury of persons, structures and chattels on the land over which the flight is made.

Restatement (First) of Torts, § 520, Comment b (1938). As colorfully stated in Prosser & Keeton on Torts § 78, at 556 (5th ed. 1984):

Flying was of course regarded at first as a questionable and highly dangerous enterprise, the province exclusively of venturesome fools....

See also Rochester Gas & Elec. Corp. v. Dunlop, 148 Misc. 849, 851-52, 266 N.Y.S. 469 (1933); Baldwin, Liability for Accidents in Aerial Navigation, 9 Mich.L.Rev. 20 (1910); Newman, Damage Liability in Aircraft Cases, 29 Colum.L.Rev. 1039 (1929). In 1922 the Commission on Uniform State Laws proposed a new Uniform Aeronautics Act which, inter alia, made owners of aircraft strictly liable for all ground damage caused by the "ascent, descent or flight of the aircraft." Twenty-three states originally adopted this act by statute. By 1943, however, the Commissioners recognized that the act had become "obsolete", and it was removed from the list of uniform laws. 1 L. Kreindler, Aviation Accident Law § 6.01 at 6-1 to 6-2 (1986).

The number of states imposing strict liability has diminished significantly. At present, only six states retain the rule, and even these states apply it only to the owner of the aircraft. The aircraft operator remains liable only for damages caused by his own negligence. See Del.Code Ann., title 2, § 305 (1985); Hawaii Rev.Stat. § 263-5 (1985); Minn.Stat. § 360.012, subd. 4 (1986); N.J.Stat.Ann. § 6:2-7 (West 1973); S.C.Code § 55-3-60 (1977); Vt.Stat.Ann., title 5, §§ 224-225 (1972).

The modern trend followed by a majority of states is to impose liability only upon a showing of negligence by [109 Wn.2d 586] either the aircraft owner or operator. 1 L. Kreindler, § 6.01 at 6-9. Several states have legislated this rule byproviding that ordinary tort law (or the law applicable to torts on land) applies to aviation accidents. See e.g. Ark.Stat.Ann., § 74-110 (1979); Idaho Code § 21-205 (1977); N.D.Cent.Code § 2-03-05 (1975); Pa.Con.Stat.Ann., title 74, § 5502 (Purdom Supp.1987); Tenn.Code Ann. § 42-1-105 (1980). Other jurisdictions have case law to this effect. See, e.g., Daley v. United States, 792 F.2d 1081, 1085 (11th Cir.1986) (applying Florida law); Brooks v. United States, 695 F.2d 984, 987 (5th Cir.1983) (applying Texas law); Mackey v. Miller, 221 Va. 715, 718, 273 S.E.2d 550 (1981). Moreover, a number of courts have expressly disavowed the notion that aviation is an "ultrahazardous activity" requiring special rules of liability. Boyd v. White, 128 Cal.App.2d 641, 655, 276 P.2d 92 (1954); Wood v. United Air Lines, 32 Misc.2d 955, 960, 223 N.Y.S.2d 692 (1961), aff'd, 16 A.D.2d 659, 226 N.Y.S.2d 1022, appeal dismissed, 11 N.Y.2d 1053, 230 N.Y.S.2d 207, 184 N.E.2d 180 (1962); Little v. McGraw, 250 Ark. 766, 769, 467 S.W.2d 163 (1971). As observed in Boyd, 128 Cal.App.2d at 651, 276 P.2d 92:

"The courts and the law formerly looked upon aviation with the viewpoint still expressed in the American Law Institute, Restatement, Torts, Vol. 3, § 520, holding that aviation is an ultra-hazardous activity, similar to the operation of automobiles in the early days of the horseless carriage, and requiring those who take part in it to observe the highest degree of care. The Uniform Aeronautic Act, adopted in time by twenty-three states, imposed absolute liability on the owner, as well as the operator or lessee, of every aircraft for any damage to person or property caused by its operation provided there was no contributory negligence on the part of him who was thus harmed. With the passage of time, however, this view came to be modified, and the trend of decisions established it to be the general rule that, properly handled [746 P.2d 1201] by a competent pilot exercising reasonable care, an airplane is not an inherently dangerous instrument, so that in the absence of statute the ordinary rules of negligence control, and the owner (or operator) of an [109 Wn.2d 587] airship is only liable for injury inflicted upon another when such damage is caused by a defect in the plane or its negligent operation. By 1945, coincident with the opening of the postwar civilian aviation period, the number of states retaining the portions of the Uniform Aeronautic Act dealing with an owner's liability had dropped to eighteen." (See also 6 Am.Jur. (Rev.), § 60, p. 36.)

Quoting a 1949 annotation in 4 A.L.R.2d 1306.

We have discovered no cases relying on Restatement (Second) of Torts § 520A. That section is said to be a "special application" of § 519 and § 520(a-f), which impose strict liability on persons engaging in abnormally dangerous activities. An analysis of the individual factors listed in § 520 further persuades us that strict liability is inappropriate here.

Factor (a) of § 520 requires that the activity in question contain a "high degree of risk of some harm to the person, land or chattels of others." No such showing has been made. Indeed, statistics indicate that air transportation is far safer than automobile transportation. See, e.g., 3 Harper, James & Gray, The Law of Torts § 14.13 at 309-10 n. 64 (1986); Comment, Aviation Law: Owner-Lessor Liability--The Need for Uniformity, 36 Maine L.Rev. 93, 98-99 (1984). Factor (b) speaks to the gravity of the harm--that is, in the unlikely event that an airplane accident occurs, whether there is a "likelihood that the [resulting harm] will be great." It is apparent that this possibility is present. However, this must be further evaluated in light of factor (c), which speaks of the "inability to eliminate the risk by the exercise of reasonable care." Given the extensive governmental regulation of aviation, see generally 14 CFR Ch. I (1978) (Federal Aviation Administration regulations), and the continuing technological improvements in aircraft manufacture, maintenance and operation, we conclude that the overall risk of serious injury from ground damage can be sufficiently reduced by the exercise of due care. Finally, factors (d), (e), and (f) do not favor the imposition of strict liability. Aviation is an activity of "common usage", it is [109 Wn.2d 588] appropriately conducted over populated areas, and its value to the community outweighs its dangerous attributes. Indeed, aviation is an integral part of modern society.

The causes of aircraft accidents are legion and can come from a myriad of sources. Every aircraft that flies is at risk from every bird, projectile and other aircraft. Accidents may be caused by improper placement of wires or buildings or from failure to properly mark and light such obstructions. The injury to the ground dweller may have been caused by faulty engineering, construction, repair, maintenance, metal fatigue, operation or ground control. Lightning, wind shear and other acts of God may have brought about a crash. Any listing of the causes of such accidents undoubtedly would fall short of the possibilities. In such circumstances the imposition of liability should be upon the blameworthy party who can be shown to be at fault. In King v. United States, 178 F.2d 320 (5th Cir.1949), a United States Army Air Force student pilot got drunk and took off in a training plane at midnight. Shortly thereafter he crashed into the plaintiff's home causing damages. The plaintiff brought suit under the Federal Tort Claims Act against the United States. The court found that the act of the student pilot was without the knowledge or consent of the Air Force, was unauthorized and that the pilot was acting outside of the scope of his duties. The court held that there should be no recovery against the government, stating succinctly:

In a case of this nature, the United States cannot escape liability if a private person under similar circumstances should be held liable.

There are no special statutory provisions that regulate or govern the responsibility of persons owning and operating airplanes. In the absence of such statutes, [746 P.2d 1202] the rules of law applicable generally to torts govern. The ordinary rules of negligence and due care are invoked.

King at 321. See also Dahlstrom v. United States, 228 F.2d 819 (8th Cir.1956); Maitland v. Twin City Aviation Corp., 254 Wis. 541, 37 N.W.2d 74 (1949).

[109 Wn.2d 589] We are not persuaded that we should create a special rule of liability governing only ground damage caused by aircraft accidents. We note, for example, that passengers of airplanes involved in accidents must prove negligence to recover damages. Rathvon v. Columbia P. Airlines, 30 Wash.App. 193, 202-05, 633 P.2d 122 (1981); Baker v. United States, 417 F.Supp. 471, 486-88 (W.D.Wash.1975); 1 L. Kreindler, § 6.01 at 6-3. As stated in Rathvon, 30 Wash.App. at 210-211, 633 P.2d 122:

A carrier's failure to discover a latent defect is not negligence if it exercised the highest degree of care reasonably consistent with the practical operation of its business, and used the best precautions that were in common, practical use in the same business and had proved to be effective in discovering defects. Heggen v. Seattle, 47 Wn.2d 576, 288 P.2d 830 (1955).

We conclude that whether or not CPA failed to exercise the highest degree of care according to the standards expressed above remains a genuine issue of material fact.

This is true even though the likelihood of serious injury to a passenger is at least as great as is the case with persons or property on the ground.

We also emphasize that, although the plaintiff's recovery will depend on a showing of negligence, the plaintiff may of course employ the doctrine of res ipsa loquitur, if appropriate, to establish his negligence claim. Res ipsa is now frequently used in aviation crash cases and is widely recognized as an acceptable means of proving negligence. 1 L. Kreindler, § 3.09 at 3-31. See generally Annot., Res Ipsa Loquitur in Aviation Accidents, 25 A.L.R.4th 1237 (1983).

Finally, the plaintiff raises an alternative argument that we apply the rule of strict liability to ground damages arising out of "test flights" of aircraft. We decline to do so. Plaintiff has cited no authority to support his claim that test flights of aircraft qualify as "abnormally dangerous" under Restatement (Second) of Torts § 519-20. The question is not whether test flights are more dangerous than routine aviation flights, but rather, whether they are [109 Wn.2d 590] so inherently dangerous that a "high degree of risk of harm" cannot be eliminated by the exercise of reasonable care. § 520(a), (c). In light of the extensive government regulation regarding the design, development, and testing of new and modified aircraft, see generally 14 CFR Ch. I, Subchapter C (1978) (Federal Aviation Administration certification procedures and airworthiness standards), we conclude that test flights are not abnormally dangerous.

We hold that owners and operators of flying aircraft are liable for ground damage caused by such aircraft only upon a showing of negligence.

The partial summary judgment entered in favor of the plaintiff is reversed and the cause is remanded for trial.

ANDERSEN, UTTER, DOLLIVER and DURHAM, JJ., concur.

BRACHTENBACH, Justice (dissenting).

What a peculiar, aberrant twist of tort law is created by the majority. Almost a decade ago we held that when a wine glass shatters in the hands of a wine drinker, the seller of the wine, who merely supplied the glass, is strictly liable. The law demanded and gave compensation without proof of fault. Shaffer v. Victoria Station, Inc., 91 Wash.2d 295, 588 P.2d 233 (1978). Today the majority tells the wholly innocent, inactive homeowner into whose home an airplane suddenly crashes "you must prove by a preponderance of the evidence that someone was at fault; never mind that you had no part in this damage, go forth and prove negligence and if you cannot, the loss is all yours." How can that be? The majority's answer is that it cannot fit these [746 P.2d 1203] facts into a magic phrase--abnormally dangerous--which started in an 1868 case from England, Rylands v. Fletcher, 3 L.R.-E. & I. App. 330 (1868).

In fact and theory, it is a policy question whether to impose liability upon the pilot and owner of an airplane which crashes into the person or property of a wholly innocent person on the ground.

Compelling, persuasive policy reasons exist to impose [109 Wn.2d 591] such strict liability. Those reasons should be explored and evaluated rather than simply accepting the pigeonhole conclusion that aviation is not abnormally dangerous as defined by the black letter rule of the Restatement (Second) of Torts, therefore, ipso facto, strict liability cannot be imposed. If the Restatement (Second) of Torts, is to be followed, as the majority proposes, strict liability should result as discussed hereafter.

Unfortunately, the majority totally fulfills the prophecy of one text writer:

It is predictable that some courts will be less likely to impose strict liability as a matter of common law development if the case cannot be fitted into some familiar mold such as trespass or abnormally dangerous activity. While this fact must be recognized, it should be regretted. Surely the step so clearly called for here is a small one as compared with many that courts have taken without aid of statute.

3 F. Harper, F. James & O. Gray, Torts § 14.13, at 311 n. 68 (2d ed. 1986).

My position is summarized by the same text:

As the science of aviation has advanced, there seems to have been increasing reluctance to characterize it as an abnormally dangerous activity. But unwillingness to call aviation abnormally dangerous would not by any means prove that strict liability is inappropriate here. Ample justification for imposing it may be found in frequent difficulties of proof and the fact that these risks are properly allocated to aviation, especially where the victim is no participant in the enterprise.

(Footnote omitted.) 3 F. Harper, F. James & O. Gray, Torts § 14.13, at 311 (2d ed. 1986).

If we assume that the aircraft operator is without legal fault, i.e., is not negligent, the policy issue is then clear. Which of two persons should bear the loss? In this case we have a totally innocent, nonacting homeowner whose property is suddenly invaded and damaged by an airplane--operated by the person who voluntarily chose to fly that airplane, for his own purpose and benefit. The result of the [109 Wn.2d 592] majority is that the wholly innocent, nonactive, nonbenefited, but damaged person must shoulder the burden of proving that the person who set in motion the forces which caused the damage was negligent.

It is apparent that fairness and common sense suggest that the loss should not be allocated to the innocent bystander. Much of the rationale for adopting strict product liability is applicable here and will be discussed hereafter.

The underlying policy which dictates strict liability is put thusly by the late Dean Prosser:

There is "a strong and growing tendency, where there is blame on neither side, to ask, in view of the exigencies of social justice, who can best bear the loss and hence to shift the loss by creating liability where there has been no fault."

(Footnote and citation omitted.) W. Prosser, Torts § 75, at 494 (4th ed. 1971).

The majority ignores this underlying policy question by noting that (1) air transportation is far safer than automobile transportation; (2) extensive governmental regulation and technological improvements reduce the overall risk of serious injury on the ground; (3) aviation is an integral part of society; and (4) the causes of aircraft accidents are legion. Majority, at 1201. Those reasons are rather like consoling the widow by telling her that statistically her husband should have lived another 20 years.

One writer employs an appealing analysis which dictates strict liability. Professor Vold examines the benefits and creation of risks from a particular activity. If there is [746 P.2d 1204] mutuality in the receipt of benefits and the creation of risks to others, the standard of liability is negligence. Thus where each user of a highway receives the direct benefit of such use but whose presence and conduct increases the risk of harm to the other, the law of negligence applies. But one-sidedness in the receipt of benefits and creation of risks should lead to strict liability. Vold, Strict Liability for Aircraft Crashes and Forced Landings on Ground Victims [109 Wn.2d 593] Outside of Established Landing Areas, 5 Hastings L.J. 1 (1953). This analysis is logical and satisfies the demands of justice. Its application here leads to strict liability.

Another factor favoring strict liability is the reality that the plaintiff in an aviation accident case faces difficult and potentially expensive burdens of proof. "Running through aviation cases, and frequently explaining their unusual results, is the frequently overwhelming difficulty and expense of investigation and preparation, and inherent problems and limitations of proof." 1 L. Kreindler, Aviation Accident Law § 1.03, at 1-12 (1986).

It is widely recognized that difficulties of proof may justify imposition of strict liability. Indeed, such fact is described as a common feature of strict liability cases. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash.L.Rev. 225, 240 (1971).

The majority's holding is an extreme example of the unfairness of its conclusion and the denial of the realities of litigation. The plaintiff's only claim is for property damage of $3,199.89. The defendant aircraft owner denies negligence in maintenance or operation of the airplane. The defendant denies strict liability application. The defendant joined the manufacturer/distributor of a part used in the fuel system, alleging defective design or manufacture. The defendant joined six other property owners who may have been damaged. The hapless plaintiff, seeking a maximum of $3,199.89 is now, under the majority's holding, faced with the formidable task of proving negligence and is in the midst of a third-party fight over the very cause of the crash, plus an anticipated battle of experts over design and manufacture of an integral part of a fuel system in a plane being test flown for FAA certification. It takes no great insight to recognize that the expense of litigation amounts to a denial of plaintiff's right to damages.

The majority emphasizes that "although the plaintiff's recovery will depend on a showing of negligence, the plaintiff may of course employ the doctrine of res ipsa loquitur, if appropriate, to establish his negligence claim." Majority, [109 Wn.2d 594] at 1202. The majority cites 1 L. Kreindler, Aviation Accident Law § 3.09, at 3-31 (1986), to support its assertion that res ipsa is now frequently used in aviation cases and is widely recognized as an acceptable means of proving negligence. Majority, at 9. That same author, in the same volume, states: "Suffice it to say that the use of res ipsa loquitur has been notoriously unsuccessful in airline crash cases." 1 L. Kreindler, § 1.03, at 1-14. Nor does the majority cite the same author, same volume, § 3.09[f], at 3-41: "Thus where the specified purpose of the given flight is to test new or unproven aircraft, and an accident happens, a passenger may not have the benefit of res ipsa loquitur even though the defendant is an airline."

The only other authority cited by the majority is Annot., Res Ipsa Loquitur in Aviation Accidents, 25 A.L.R.4th 1237 (1983). That annotation contains this conclusion, at page 1244: "Accidents occurring as a result of emergency or forced landings have resulted in a fairly even split on the issue of a defendant's liability under res ipsa loquitur ..."

Despite the declaration of the majority, there is no certainty of the application of res ipsa loquitur nor the giving of a jury instruction thereon. Zukowsky v. Brown, 79 Wash.2d 586, 600, 488 P.2d 269 (1971): "In summary, the procedural effect of a res ipsa inference will in each case be a consequence of its strength which, in turn, depends upon the degree of probability of its truth together with the appropriate, stated policy considerations." Zukowsky, at 602, 488 P.2d 269, concluded that a so- [746 P.2d 1205] called "res ipsa instruction" should not be given. The question of res ipsa was not briefed and the gratuitous comments of the majority may prove to be only an illusory assist to the plaintiff.

Another policy reason favoring strict liability is the ability of the offending activity to spread the financial risk through its enterprise or through liability insurance. Again, this is a judicially accepted rationale. Restatement (Second) of Torts § 402A, comment c (1965); Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969); Peck, 46 Wash.L.Rev. at 241.

[109 Wn.2d 595] Turning to the Restatement (Second) of Torts, the majority's result is exactly contrary to § 520A:

If physical harm to land or to persons or chattels on the ground is caused by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft,

(a) the operator of the aircraft is subject to liability for the harm, even though he has exercised the utmost care to prevent it, and

(b) the owner of the aircraft is subject to similar liability if he has authorized or permitted the operation.

Restatement (Second) of Torts § 520A (1976).

To justify its rejection of the clear rule of § 520A, the majority holds that § 520A can have validity only if aviation can be denominated an abnormally dangerous activity. Majority, at 1199. The majority then analyzes the factors set forth in § 520 to conclude that this particular activity did not meet the criteria of § 520, therefore § 520A does not apply. It relies upon comment a to § 520A: "This Section is a special application of the rule stated in § 519, together with that stated in § 520."

This result ignores the very scheme of these interrelated sections. Section 519 declares the general principle of liability; § 520 lists the factors to be considered in determining whether an activity is abnormally dangerous. Section 520A declares a special rule to ground damage. What the majority overlooks is that the authors of the Restatement (Second) of Torts in 1977 expressly intended that § 520A stand on its own, i.e., that it in fact was a special rule, quite distinct from § 520 requirements.

The majority, instead, rejects the very judgment and conclusion which led to the insertion of § 520A. This is proved by comment a to § 519 which states that it must be read together with various sections, including § 520A. This is highlighted by the comment to clause (c) under § 520 which clearly indicates that § 520A was a separate rule, quite apart from the factors of § 520, i.e., § 520A was in fact a separate and distinct rule of liability. It states: "As to strict liability for ground damage resulting from aviation, [109 Wn.2d 596] see § 520A." (Italics mine.) Restatement (Second) of Torts § 520, at 39 (1977).

It is crystal clear that § 520A was not intended to be dependent upon a separate analysis under § 520 as the majority holds.

When § 520A was introduced into the Restatement of Torts, the Advisers and the Council of The American Law Institute all agreed that there should be a separate section on ground damage from aircraft. The proposed section would have imposed no liability unless the harm was intentional or caused by negligence except for abnormally dangerous operation. Nine of the thirteen advisers rejected the proposal, wishing to retain strict liability. Those advisers included such illuminaries as Fleming, Keeton, Seavey, Traynor and Wade. The Council accepted the new section as written. The Reporter, William L. Prosser, was not free from doubt. Restatement (Second) of Torts (Tent. Draft No. 10, 1964) and Reporter's Notes to Institute, at 69. Eventually the Institute disapproved the distinction between "normal" and "abnormal" flight and adopted the present strict liability contained in § 520A. Restatement (Second) of Torts, at 1 (Tent. Draft No. 12, 1966). It was published in volume 3 in 1977. Section 520A remains in existence today, but the majority does not adopt it, preferring to reach a result contrary to that of eminent scholars and practitioners who fought out the very battle which the majority now resurrects.

[746 P.2d 1206] The majority attempts to buttress its result by an analysis of each factor listed in § 520, finding most to be lacking. Such analysis is irrelevant in light of the language in the comments and of the history of § 520A. Nonetheless I will review the majority's conclusions. First, it is not necessary that each of the factors in § 520 be present to meet the test. Comment f states that ordinarily several of the six elements will be required for strict liability, but that it is not necessary that each of them be present, especially if others weigh heavily.

The heart of § 520 is contained in this language: "The [109 Wn.2d 597] 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, comment f, at 37-38 (1977).

The first factor in § 520(a) is a high degree of risk of harm. The majority asserts that no such showing has been made, relying on statistics cited in several footnotes. Majority, at 1201. This conclusion misses the point. The question is not whether it is statistically more safe to fly in an airplane than ride in a car, which is all the majority states. The question rather is whether there is a high degree of risk of some harm when an airplane lands on someone's house. Comment g makes it perfectly clear that if the potential harm is sufficiently great, the likelihood that it will take place may be comparatively slight and yet the activity be regarded as abnormally dangerous.

This comment is perfectly logical. The actor cannot hide behind relative statistics; if serious potential harm exists, that is enough. The harm need not occur in 51 percent of the activities. Any other interpretation, such as the majority's, would allow the defendant to escape by proving "while our dynamite leveled 3 square city blocks, it doesn't happen very often."

The majority acknowledges that the likelihood of great harm exists, factor (b). Majority, at 1201. Factor (c) speaks of the inability to eliminate the risk by the exercise of reasonable care. The majority concludes that because of extensive governmental regulation and continuing technological improvements in aircraft manufacture, maintenance, and operation the overall risk of serious injury from ground damage can be "sufficiently reduced by the exercise of due care." Majority, at 1201. Where the majority gets its technical information escapes me, although I know for certain that it is not from the record.

The comment makes clear that what is referred to is the unavoidable risk remaining even though the actor has taken [109 Wn.2d 598] reasonable care. It is interesting to note that after asserting that due care "sufficiently" (whatever that means) reduces the risk of serious injuries, the majority immediately states that the causes of aircraft accidents are legion, and can come from a myriad of sources including lightning, wind shear and acts of God. Indeed the majority speculates that any listing of accident causes undoubtedly would fall short of the possibilities. Majority, at 1201.

Thus the majority's reasoning is that regulation and technology prove that aircraft can be operated with minimal risk, but the causes of accidents, including acts of God, are so legion that the possibilities cannot be listed.

The majority manipulates its own statistics about aviation safety by including statistics for regularly scheduled commercial airlines. Majority, at 1201. To the extent that it is relevant, it is significant to note that the accident rate for general aviation is more than 6 1/2 times greater than for scheduled commercial airlines. National Transportation Safety Board, Annual Report app. A (1985). Further casting doubt upon the validity of the majority's conclusory statements that regulation and improved technology has "sufficiently reduced" the risk of harm are the actual statistics. The accident rate per 100,000 hours for general aviation in 1980 was 9.86 whereas in 1984 it had only reduced to 9.56. National Transportation Safety Board, Annual Report app. G, (1985). In any event, such statistics [746 P.2d 1207] are of little consolation to this losing plaintiff.

The majority in five lines concludes that factors (d), (e), and (f) do not favor imposition of strict liability. Factor (d) is the extent to which the activity is not a matter of common usage. The majority simply says it is a matter of common usage. Once again the majority ignores the expressed thrust of the Restatement. Comment i indicates that an activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. The majority likewise ignores the reasoning of our holding in Langan v. Valicopters, Inc., 88 Wash.2d 855, 864, 567 P.2d 218 (1977) where we recognized [109 Wn.2d 599] that crop dusting is prevalent and done in large portions of the Yakima Valley, but was not of common usage when carried on by 287 aircraft. An analogy makes clear the faulty premise in the majority's reasoning. Elevators are in common usage and are used by many. That does not make the operation of elevators a matter of common usage.

While there are relatively significant numbers of private pilots, such flying is hardly customarily carried on by the great mass of mankind or by many people in the community. "Many people in the community" is necessarily a relative term. How many people in the community carry on the activity in relation to the size of the community? Using the very statistics cited by the majority (Comment, Aviation Law: Owner-Lessor Liability--The Need for Uniformity, 36 Me.L.Rev. 93 (1984) the percentage of private pilots in the United States is .0003 percent of the population. When three people out of 10,000 are private pilots it is readily apparent that flying of private aircraft is not carried on by "many people in the community." To a certainty, private flying of a plane to test a noncertified fuel system is not of common usage, the majority's contrary bald assertion notwithstanding. I agree, as a general proposition, that flying over populated areas is not an inappropriate activity, factor (e). However, attempting to land in a populated area where there is no airport is not appropriate. The locale of the particular incident is what is important, e.g., oil drilling in a residential area is not an appropriate activity. Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952 (1928).

The last factor, (f), value to the community is marginally relevant and does not outweigh those factors which favor strict liability.

The drafters of the Restatement (Second) of Torts rejected the very points relied upon by the majority. They recognized the great improvement in safety, but found that the risk of harm to anyone on the ground is obvious, that it cannot be said that danger of ground damage has been so eliminated or reduced that ordinary rules of negligence would apply, and that the gravity of the harm is still a factor [109 Wn.2d 600] even though there may be relatively few cases where it occurs. Further, there was the obvious fact that those on the ground are quite helpless to select any locality in which they will not be exposed to the risk, however minimized it may be. Finally they note that while thousands participate in aviation, those who actually carry on the activity itself are relatively few. Restatement (Second) of Torts, at 1 (Tent. Draft No. 12, 1966).

Thus, if this court feels bound to meet some of the factors set forth in § 520 before applying the clear principle of § 520A, it can do so by the above analysis.

In 1969 this court did not hesitate to adopt Restatement (Second) of Torts § 402A (1965) to impose strict liability upon product manufacturers. Ulmer v. Ford Motor Co., 75 Wash.2d 522, 532, 452 P.2d 729 (1969). In Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 149, 542 P.2d 774 (1975) we extended application to others within the chain of distribution. We have held that pile driving and crop dusting necessitate application of strict liability. Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wash.2d 72, 569 P.2d 1141 (1977); Langan v. Valicopters, Inc., 88 Wash.2d 855, 567 P.2d 218 (1977). We have forcefully recognized that policy may require the defendant to bear the cost of injury rather than the innocent plaintiff. [746 P.2d 1208] Martin v. Abbott Labs., 102 Wash.2d 581, 604, 689 P.2d 368 (1984).

Now in this case the majority casts aside the principles and rationale of these enlightened decisions and places upon the innocent plaintiff a burden of proof which as a practical matter closes the courthouse door to this plaintiff.

Comment c to Restatement (Second) of Torts § 402A sets forth the justification for strict product liability. The seller of the product, by marketing it, has assumed a special responsibility to any member of the consuming public who may be injured by it. Should not a pilot, especially on a test flight, have a similar responsibility to innocent persons on the ground? The public has a right to expect that sellers will stand behind their goods. Persons on the ground expect aircraft to not crash into their homes. Public policy [109 Wn.2d 601] demands that the burden of accidental injuries caused by products be placed upon those who market them. Is it not equally logical that such burden be placed on persons who fly airplanes? The cost to sellers can be treated as a cost of production and insured against. Consumers are entitled to maximum protection at the hands of someone and the proper persons to afford it are those who market the products. Similarly, innocent persons on the ground are entitled to protection. Who better to provide it than the enterprise for whose purpose and benefit the danger was created.

I suggest that were it not for the historical development of the concept of abnormally dangerous activity, there would be no reason or justification for denying strict liability for aircraft damage to persons or property on the ground. The philosophy which led to strict product liability should be and is equally relevant to aircraft liability.

In summary, I would affirm the trial court which held that strict liability applies. The able trial judge saw the obvious policy reasons for strict liability which the majority rejects.^[1]

Adoption of strict liability for ground damage from aircraft is justified on either of the two theories set forth, i.e., (1) policy reasons and (2) the literal language of Restatement (Second) of Torts § 520A (1977). Under either theory liability would apply to the operator and to the owner of the aircraft if the owner authorized or permitted the operation. Section 520A(b).

[109 Wn.2d 602] I would affirm.

PEARSON, C.J., and DORE and GOODLOE, JJ., concur.

[1] In his oral ruling, incorporated into his order, the trial judge said, in part: "Also, the Court believes it would be highly inequitable and unfair and against public policy to require an innocent third party in the situation outlined here to undergo a trial involving the owner of the plane, the pilot, the manufacturer and possibly distributor or maybe even the retail seller of the alleged defective part in order to recover property damage to his home, the reason being that in this particular case the Court will opine that the attorney's fees and costs involved to the innocent third party would greatly exceed the requested amount of recovery and obviously there would be no legal provision for the third party to recover his attorney's fees in such a situation." Verbatim Report of Proceedings, at 4.

[95 N.J. 44] William J. Brennan, III, Princeton, for defendant-appellant (Smith, Stratton, Wise, Heher & Brennan, Princeton, attorneys; Alexander P. Waugh, Jr., Princeton, on brief).

Richard D. Schibell, Asbury Park, for plaintiffs-respondents John Torchia, et al. (Shebell & Schibell, Asbury Park, attorneys; Sandra DeSarno Hlatky, Asbury Park, on brief).

Harry V. Osborne, II, Red Bank, for defendant-respondent Wall Herald Corp. (Evans, Koelzer, Marriott, Osborne, Kreizman & Bassler, Red Bank, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

At issue is the interpretation and the constitutionality of N.J.S.A. 6:2-7, which imposes absolute liability on airplane owners for damage caused by their planes to persons and property on the ground. Although this Court upheld the constitutionality [468 A.2d 1062] of the statute in Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 159 A.2d 97 (1960), that case did not raise the specific issue presented here, whether an airplane owner is absolutely liable under the statute if the plane is used without the owner's permission. In this case, the owner contends that the plane was stolen and that the statute does not apply because the imposition of absolute liability on an owner of a stolen plane would violate the due process clauses of the fourteenth amendment to the United States Constitution and of the New Jersey Constitution.

The trial court granted summary judgment on liability for plaintiffs, who suffered personal injuries and property damage from the crash of the plane. In an unreported opinion, the Appellate Division affirmed. We granted the owner's motion for leave to appeal, 93 N.J. 254, 460 A.2d 661 (1983), and now affirm the judgment of the Appellate Division.

I

Garden State Aviation, Inc. (Garden State), which is engaged in the business of training pilots to fly small aircraft, owned a Piper Aztec airplane. The airplane was stored in Garden State's facility at Monmouth County airport, owned by Wall Herald Corporation.

Early in the morning of June 4, 1980, William R. Fisher, a student of Garden State, took the airplane without permission from Garden State's facilities at the Monmouth County Airport. During the ensuing flight, Fisher crashed the plane into the residence of John and Edna Torchia, in Neptune, New Jersey. The crash destroyed the Torchias' house and damaged the adjacent home where their daughter, Karen Woolley, and her son, [95 N.J. 46] Ryan Woolley, lived. Fisher, who was acquainted socially with Karen Woolley, was killed in the crash. The Torchias and the Woolleys instituted this action seeking to recover for property damage to the two homes, and the Woolleys also sought to recover for personal injuries.

II

We first examine the Legislature's intent in enacting the statute. Originally promulgated in 1929 as L. 1929, c. 311, § 5, N.J.S.A. 6:2-7 was virtually identical to the Model Uniform Aeronautics Act drafted by the Commission on Uniform State Laws in 1922.^[1] The only difference is that the Commission refers to a pilot as an "aeronaut," while the statute uses the term "airman." See Bogert, Recent Developments in the Law of Aeronautics, 8 Cornell L.Q. 26, 33 (1922-23). Soon after the creation of the Uniform Act, twenty-three states adopted it. See Elliot, Liability of the Owner of an Aircraft Under the Federal Aviation Act of 1958, 38 J. Air L. & Com. 547, 555 n. 39 (1972) (Elliot).

In 1943, however, the act was eliminated from the list of Uniform Laws. See Handbook of The National Conference of [95 N.J. 47] Commissioners on Uniform State Laws and Proceedings of the Fifty-Third Annual Conference 66-67 (1943). Soon thereafter the number of states retaining the act dropped to eighteen. Elliot at 555 & n. 39. By 1957, [468 A.2d 1063] New Jersey was one of only six states retaining the Uniform Act. See Wolff, Liability of Aircraft Owners and Operators for Ground Injury, 1957 Ins. L.J. 629, 638. At present, only Delaware, Hawaii, and South Carolina join New Jersey in imposing statutory absolute liability on aircraft owners. See Del.Code Ann. tit. 2, § 305 (1974); Hawaii Rev.Stat. § 263-5 (1976); S.C.Code Ann. § 55-3-60 (Law Co-op. 1976).

Although inaction is a questionable device for construing legislative intent, that the Legislature has retained the statute in face of rejection elsewhere underscores the conclusion that all airplane owners, even owners of stolen aircraft, should be absolutely liable for ground damage caused by airplane crashes. We do not suggest that the Legislature must continue that policy, only that the exclusion of the owners of stolen aircraft from the statute should be accomplished by the Legislature, not the judiciary. See Vt.Stat.Ann. tit. 5, § 224 (1972) (statute expressly exempts from liability owners or lessees of aircraft taken without their knowledge or permission).

Furthermore, including the owner of a stolen aircraft within the word "owner" in N.J.S.A. 6:2-7 is consistent with the apparent legislative intention. That the Legislature contemplated a broad definition of "owner" is confirmed by a 1946 amendment to the statute, L. 1946, c. 237, § 1, which exempts certain airplane financiers such as a chattel mortgagee, a conditional vendor, or a trustee under an equipment trust from the definition of "owner." This exemption reflects the Legislature's conclusion that a statutory amendment was necessary to exempt certain airplane financiers from the definition of "owner." Accordingly, the inclusion of owners of stolen aircraft within the statutory definition comports with the apparent legislative intent when the statute was enacted. Having determined that [95 N.J. 48] the scope of N.J.S.A. 6:2-7 applies to owners of stolen airplanes, we now turn to the constitutionality of that application of the statute.

III

In Adler's Quality Bakery, Inc. v. Gaseteria, Inc., supra, 32 N.J. 55, 159 A.2d 97, a plane flown with the owner's permission collided with a television tower, causing ground damage. Relying on N.J.S.A. 6:2-7, the trial court granted summary judgment on liability in favor of the property owners. On appeal, the airplane owner challenged the imposition of statutory absolute liability as constituting an unconstitutional deprivation of property without due process. As viewed by this Court in Adler's, "the question is whether the law is reasonable, not arbitrary or capricious, and whether it bears a real and substantial relation to the end sought to be attained." Adler's, supra, 32 N.J. at 68-69, 159 A.2d 97.

This Court also found in Adler's that the imposition of absolute liability upon an airplane owner did not constitute an unconstitutional deprivation of property in violation of the fourteenth amendment of the United States Constitution, or art. I, para. 1 or 20 of the New Jersey Constitution, without due process of law. Adler's, supra, 32 N.J. at 67-70, 159 A.2d 97. In reaching that conclusion, the Court noted the difficulty and expense frequently encountered by a victim in proving negligence in an airplane crash and the practical advantage to the victim of placing the risk of loss of ground damage on the aircraft owner. Id. at 69, 159 A.2d 97. The Court stated that it is within the legislative prerogative to shift the risk from the victim to the owner, and that the statute bears a reasonable relation to its purpose. Id. at 70, 159 A.2d 97.

In affirming the summary judgment, this Court further found that one of the goals of the statute was to shift the risk associated with ground damages from the victim to the plane owner, which the Court found to be a better risk bearer. Id. at 69-70, 159 A.2d 97; see also Prentiss v. National Airlines, 112 F.Supp. 306, [95 N.J. 49] 310 (D.N.J.1953). The same reasoning applies to the owner of a stolen airplane, who will in many cases be the better risk bearer than the injured victim. Furthermore, the owner [468 A.2d 1064] derives profit or pleasure from ownership of the airplane. Although the injured parties receive no benefits from ownership of the airplane, they suffer the entire burden of ground damage and personal injuries without the ability to protect themselves or their property. See Vold, Strict Liability for Aircraft Crashes and Forced Landings on Ground Victims Outside of Established Landing Areas, 5 Hastings L.J. 1, 1 (1953).

As between an unsuspecting homeowner or person on the ground and the plane's owner, the Legislature could rationally decide to place the loss on the owner, for whom the plane served some purpose. Compare Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974) (questioning whether legitimate purpose underlying forfeiture statute would be served by applying it to an owner of a stolen yacht). In addition, from the perspective of the victim, it is of no moment whether the rightful owner or a thief injures his person or property. Even if aviation is no longer an ultrahazardous activity, these other considerations support the constitutionality of the statutory imposition of absolute liability upon the owner of a stolen airplane. See Vold at 19-20 (citing one-sidedness of benefits of aviation and "loss spreading" capacity of owners as two factors that, even if flying is not "ultrahazardous," support imposition of absolute liability). When applied to the owner of a stolen airplane, N.J.S.A. 6:2-7 serves the legitimate purpose of shifting the loss caused by airplane crashes from the innocent victims on the ground to the owner of the plane.

The judgment of the Appellate Division is affirmed.

For affirmance--Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK, O'HERN and GARIBALDI--7.

For reversal--None.

[1] As enacted in New Jersey, the statute provides:

The owner of every aircraft which is operated over the land or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An airman who is not the owner or lessee shall be liable only for the consequences of his own negligence. The injured person, or owner or bailee of the injured property, shall have a lien on the aircraft causing the injury to the extent of the damage caused by the aircraft or object falling from it. A chattel mortgagee, conditional vendor or trustee under an equipment trust, of any aircraft, not in possession of such aircraft, shall not be deemed an owner within the provisions of this section.

Page 239

Page 240

        [272 Ill.App.3d 264] [209 Ill.Dec. 312] James D. Sparkman, Vella, Sparkman & Altamore, P.C., Rockford, for Gerald Miller.

        D. Kendall Griffith, Bruce L. Carmen, Thomas H. Boswell, Hinshaw & Culbertson, Chicago, for Civil Constructors, Inc.

        Christopher J. Cocoma, Donald Q. Manning, McGreevy, Johnson & Williams, P.C., Rockford, for City of Freeport.

        Justice BOWMAN delivered the opinion of the court:

        Plaintiff, Gerald Miller, appeals from the orders of the circuit court of Stephenson County which dismissed the strict liability counts of his complaint against defendants, Civil Constructors, Inc., d/b/a Civil Constructors (Constructors) (count I), and the City of Freeport (City) (count V). Counts I and V of the complaint filed October 22, 1992, alleged essentially that defendants were strictly liable for injuries to plaintiff arising from purportedly "ultrahazardous" activity for which defendants were legally responsible either because of their control of the premises or their discharge of firearms. In each instance, plaintiff stated that the defendant,

Page 241

        The record shows that the court struck from the complaint references to the defendant Freeport police department and granted summary judgment, without opposition, to Sam Volkert and the Stephenson County sheriff's department; none of these defendants are parties to the appeal. Count IV, alleging negligence by the City, remained pending. We have appellate jurisdiction under Supreme Court Rule 304(a). Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(a), eff. February 1, 1994; see Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill.App.3d 884, 891, 38 Ill.Dec. 264, 403 N.E.2d 495.

        [272 Ill.App.3d 265] The issue before us is whether, consonant with Illinois law, the trial court properly dismissed the counts where plaintiff attempted to state a cause of action premised on a theory of strict liability by asserting that the discharge of firearms in a quarry shooting range is an ultrahazardous activity. Under the circumstances presented, we hold as a matter of law that the discharge of firearms is not an ultrahazardous activity which would support plaintiff's strict liability claims.

        A section 2-615 motion to dismiss for failure to state a cause of action (735 ILCS 5/2-615 (West 1992)) attacks the legal sufficiency of the complaint, and the relevant inquiry is whether sufficient facts are contained in the pleadings which, if proved, could entitle the plaintiff to relief. (OnTap Premium Quality Waters, Inc. v. Bank of Northern Illinois (1994), 262 Ill.App.3d 254, 258, 199 Ill.Dec. 586, 634 N.E.2d 425.) Plaintiff's complaint is legally insufficient to state a cause of action on the basis of strict liability.

        The precise issue raised appears to be one of first impression for this court. Unfortunately, plaintiff's counsel has failed to provide much in the way of legal authority or even persuasive legal analysis to show that the discharge or use of firearms must be classified as an ultrahazardous activity (sometimes called abnormally dangerous activity) which demands the imposition of strict liability on a defendant. Plaintiff's counsel relies either on obiter dictum or he quotes matters out of context from the cases cited. In view of the dearth of authority on the subject, the importance of the issue, and the adequacy of defendants' briefs, we will fully address the question presented.

        The doctrine of strict liability, sometimes called absolute liability, has its genesis in the English rule of Rylands v. Fletcher (1868), 3 H.L. 330, wherein strict liability was imposed on the defendant owners of land for harm resulting from the abnormal or nonnatural use of the defendants' land which arose when water from defendants' reservoir flooded the adjoining mine of the plaintiff. Subsequent decisions interpreted the rule to be confined to things or activities which were "extraordinary," or "exceptional" or "abnormal" so that there was some special use bringing with it increased danger to others. (W. Keeton, Prosser & Keeton Torts § 78, at 545-46 (5th ed. 1984) (hereinafter Prosser).) From the decisions of the English courts, the "rule" of Rylands which has emerged is that "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, § 78, at 547-48.

        [272 Ill.App.3d 266] Most jurisdictions in this country have adopted the rule of Rylands to impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities. (Ruggeri v. Minnesota Mining & Manufacturing Co. (1978), 63 Ill.App.3d 525, 528, 20 Ill.Dec. 467, 380 N.E.2d 445.) The best-known applications of the Rylands rule imposing strict liability on a defendant involve the storing and use of explosives

Page 242

        Illinois has recognized strict liability principally in two instances: (1) when, under certain circumstances, a defendant introduces a product into the community which is unreasonably dangerous to the user, consumer, or to his property (product liability cases) (Martin v. Harrington & Richardson, Inc. (7th Cir.1984), 743 F.2d 1200, 1202); and (2) when a defendant engages in ultrahazardous or abnormally dangerous activity as determined by the courts, giving particular consideration, inter alia, to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings (Continental, 152 Ill.App.3d at 516-17, 105 Ill.Dec. 502, 504 N.E.2d 787). See Riordan v. International Armament Corp. (1985), 132 Ill.App.3d 642, 87 Ill.Dec. 765, 477 N.E.2d 1293 (distinguishing product liability from ultrahazardous activity liability); see also Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (N.D.Ill.1981), 517 F.Supp. 314 (concluding that transporting acrylonitrile, a dangerous and toxic substance, was inherently dangerous or ultrahazardous activity so that complaint stated cause of action in strict liability under Illinois law).

        We are concerned here only with determining as a matter of law whether the use of firearms is an ultrahazardous activity giving rise to strict liability. (Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill.App.3d 931, 102 Ill.Dec. 479, 500 N.E.2d 101 (holding as a matter of law that use of trampoline is not abnormally dangerous instrumentality); Clark v. City of Chicago (1980), 88 Ill.App.3d 760, 763-64, 43 Ill.Dec. 892, 410 N.E.2d 1025 (demolition held ultrahazardous as a matter of law).) Plaintiff concedes that ordinarily the manufacture or the sale of nondefective handguns has been held not to be an ultrahazardous activity. (Riordan, 132 Ill.App.3d at 649-50, 87 Ill.Dec. 765, 477 N.E.2d 1293, citing with approval Martin v. Harrington & Richardson, Inc. (7th Cir.1984), 743 F.2d 1200.) Nevertheless, in a misleading argument, plaintiff quotes out of context a fragment of a sentence from Riordan (italicized in the quotation below) in urging this court to find the use of firearms is ultrahazardous. The complete quotation of the sentence is this:

        [272 Ill.App.3d 267] "As it is not the manufacture and sale of handguns that is ultrahazardous, but their use or misuse that is alleged in plaintiffs' claim here, the plaintiffs have no grounds for recovery under the doctrine of strict liability for engaging in ultrahazardous activities. To accept plaintiffs' contention, we would be considerably extending the ultrahazardous activity theory far beyond its accepted meaning." (Emphasis added.) Riordan, 132 Ill.App.3d at 649, 87 Ill.Dec. 765, 477 N.E.2d 1293.

        The statement from Riordan clearly contradicts plaintiff's position.

        Admittedly, there is dictum in Martin which suggests that the use of handguns might be considered an ultrahazardous activity. However, that court actually decided that, under Illinois law, the sale of a nondefective handgun was not an ultrahazardous activity and to decide otherwise would be unprecedented. (Martin, 743 F.2d at 1203 (where court stated in dictum, "If plaintiffs were claiming that the use of a handgun was an ultrahazardous activity the argument would clearly fit within the parameters of Illinois law") (emphasis in original).) Yet, there is no basis for the dictum in Martin, and of course this court is not bound by that decision. Equally unavailing to plaintiff is his improvident citation to matters out of context from an old negligence case, Harrison v. Allen (1913), 179 Ill.App. 520. In commenting on the instructions used at that time in the case of the negligent firing of a hunting weapon, the Harrison court noted in passing that it had been stated that firearms were "extraordinarily" dangerous and required "extraordinary" care to prevent injury. The court actually held that it was reversible

Page 243

        Before we answer the question presented, we first summarize briefly what we believe is the current state of the law in this area. Plaintiff has not cited, nor have we found, any Illinois case holding that the use of a firearm which results in injury to a plaintiff is an ultrahazardous activity requiring the imposition of strict liability. Although the guns or firearms have been labeled dangerous instrumentalities (see Teter v. Clemens (1985), 131 Ill.App.3d 434, 438, 86 Ill.Dec. 684, 475 N.E.2d 1063; Mikula v. Duliba (1983), 94 A.D.2d 503, 507-08, 464 N.Y.S.2d 910, 913), it does not automatically follow that courts must then charge a defendant with strict liability for the use of firearms which results in harm to a plaintiff. Indeed, the prevailing rule which we have discovered in our own research is that the use of firearms ordinarily [272 Ill.App.3d 268] does not present a question of strict liability premised on ultrahazardous activity; rather, it ordinarily presents a question of negligence or possibly of wilful and wanton conduct. See Junker v. Ziegler (1986), 113 Ill.2d 332, 101 Ill.Dec. 627, 498 N.E.2d 1135; Washington v. Williams (1991), 215 Ill.App.3d 607, 159 Ill.Dec. 83, 575 N.E.2d 581 (wilful and wanton conduct); Harrison v. Allen (1913), 179 Ill.App. 520 (negligence); Jacoves v. United Merchandising Corp. (1992), 9 Cal.App.4th 88, 11 Cal.Rptr.2d 468 (no ultrahazardous activity warranting imposition of absolute liability, but highest standard of due care applied); Reida v. Lund (1971), 18 Cal.App.3d 698, 96 Cal.Rptr. 102 (leaving rifle accessible was issue of negligence; use of firearms not ultrahazardous activity resulting in imposition of absolute liability); Mikula v. Duliba (1983), 94 A.D.2d 503, 507-08, 464 N.Y.S.2d 910, 913 (although firearms are dangerous instrumentalities, their use while hunting is not abnormally dangerous activity requiring imposition of strict liability); see also Moore v. R.G. Industries, Inc. (9th Cir.1986), 789 F.2d 1326, 1328 (under California law, use of handguns is not ultrahazardous activity for which strict liability may be imposed).

        The frequently stated standard of care applied in many jurisdictions concerning the use of firearms is the duty to exercise ordinary care commensurate with the peculiar circumstances of the case. (Annot., 26 A.L.R.3d 561, 567 (1969).) This is a negligence standard which is incompatible with the theory of strict liability. One instructive commentary states:

        "In determining the degree or measure of care required to avoid injuring another by the use or possession of a particular dangerous instrumentality, much depends upon the nature of the instrumentality, the circumstances which surround its maintenance and use, and the time and place of its use. * * * Ordinary care as applied to use of a dangerous instrumentality, however, generally imports the rule that the care exercised must be proportionate to the danger, and hence ordinary care in regard to a dangerous instrumentality necessarily implies the requirement of a great or high degree, if not the greatest or highest degree, of care." 57A Am.Jur.2d Negligence § 313 (1989).

        A similar standard is applied to the use and handling of a firearm. The degree of care to be exercised is often stated as "a high degree of care" and is more often defined as "such care as is commensurate with the dangerous nature of the firearm in the circumstances of the particular case" so that "one who has in his possession or under his control an instrumentally exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury thereby." 79 Am.Jur.2d Weapons & Firearms § 36 (1975); see, [272 Ill.App.3d 269] e.g., Seabolt v. Cheesborough (1972), 127 Ga.App. 254, 193 S.E.2d 238 (in hunting rifle accident, ordinary care is care and diligence which every prudent man would exercise under similar circumstances and like surroundings); Riste v. Helton (1984), 139 Mich.App. 404, 362 N.W.2d 300 (owner of dangerous instrumentality such as gun must exercise high degree of care when using gun or authorizing use); Hatfield v. Gracen (1977), 279 Or. 303, 567 P.2d 546[209 Ill.Dec. 316]

Page 244

        In Illinois, the standard of ordinary care in a negligence case is the care which a reasonably careful person would use under the circumstances presented; it is ordinarily a question for the trier of fact. (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill.App.3d 656, 670, 299 N.E.2d 108.) This standard or degree of care is evidently a flexible one which varies according to the particular circumstances. Imposing a duty of ordinary care, even where it may become a high degree of care under the particular circumstances, is quite different from imposing strict or absolute liability by classifying the activity ultrahazardous. Our review of the authorities thus discloses that the discharge of firearms resulting in injury ordinarily presents a question of negligence and that the standard of care is ordinary care--one which may be equated to a high degree of care because of the particular circumstances presented.

        We return to the threshold question whether the use of firearms ought to be classified as an ultrahazardous activity. This type of inquiry is a question of law that we believe will be subjected to more rigorous, disciplined, and consistent analysis if we adopt the use of the Restatement principles and factors discussed, or at least implicitly considered, in prior decisions. See Continental Building Corp. v. Union Oil Co. (1987), 152 Ill.App.3d 513, 516, 105 Ill.Dec. 502, 504 N.E.2d 787; Fallon, 148 Ill.App.3d at 934, 102 Ill.Dec. 479, 500 N.E.2d 101; Restatement (Second) of Torts §§ 519, 520 (1977); see also Martin v. Harrington & Richardson, 743 F.2d at 1203.) We expressly adopt the use of the Restatement principles and factors as an aid in deciding this type of question.

        Section 519 of the Restatement states the general principle that "[o]ne 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 (1977).) Section 520 of the Restatement sets forth several factors which we will consider in determining whether an activity is abnormally dangerous (ultrahazardous):

        [272 Ill.App.3d 270] "(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 (1977).

        While all of these factors are important and should be considered, ordinarily the presence of more than one factor, but not all of them, will be necessary to declare the activity ultrahazardous as a matter of law so as to hold the actor strictly liable. 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 even though the activity is carried on with all reasonable care. (Restatement (Second) of Torts § 520, Comment f, at 37-38 (1977).) Considerations of public policy also enter prominently into the decisions by our courts to impose strict liability (at least in product liability cases). (See Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (N.D.Ill.1981), 517 F.Supp. 314, 318, citing Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 619, 210 N.E.2d 182.) Particular consideration is also given to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings under the Rylands rule. Continental Building, 152 Ill.App.3d at 517, 105 Ill.Dec. 502, 504 N.E.2d 787.

Page 245

        [209 Ill.Dec. 317] The use of guns or firearms, even though frequently classified as dangerous or even highly dangerous, is not the type of activity that must be deemed ultrahazardous when the above-stated criteria are taken into consideration. First, the risk of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even "utmost" care under the circumstances (see Mikula v. Duliba, 94 A.D.2d at 506-08, 464 N.Y.S.2d at 912-13). The doctrine of strict or absolute liability is ordinarily reserved for abnormally dangerous activities for which no degree of care can truly provide safety. There is a clear distinction between requiring a defendant to exercise a high degree of care when involved in a potentially dangerous activity and requiring a defendant to insure absolutely the safety of others when engaging in ultrahazardous activity. Nelson v. Commonwealth Edison Co. (1984), 124 Ill.App.3d 655, 667, 80 Ill.Dec. 401, 465 N.E.2d 513.

        [272 Ill.App.3d 271] Second, the use of firearms is a matter of common usage and the harm posed comes from their misuse rather than from their inherent nature alone (see Moore, 789 F.2d at 1328). Third, the activity in this case was carried on at a firing range in a quarry located somewhere near the City of Freeport. We assume that the location was appropriate for such activity in the absence of further factual allegations in the complaint particularly describing the area as inappropriate for the target practice. Finally, the target practice is of some social utility to the community; this weighs against declaring it ultrahazardous where the activity was alleged to have been performed by law enforcement officers apparently to improve their skills in the handling of weapons.

        In light of the above considerations, we conclude that plaintiff's allegations are legally insufficient to show that the activity should be declared ultrahazardous so as to subject defendants to claims premised on a theory of strict liability. See Continental, 152 Ill.App.3d at 517-18, 105 Ill.Dec. 502, 504 N.E.2d 787; Fallon, 148 Ill.App.3d at 934-35, 102 Ill.Dec. 479, 500 N.E.2d 101.

        The judgment of the circuit court of Stephenson County is affirmed.

        Affirmed.

        RATHJE and HUTCHINSON, JJ., concur.

[1957] 2 Q.B. 1

BEHRENS AND ANOTHER
v.
BERTRAM MILLS CIRCUS LTD

QUEEN’S BENCH DIVISION
OF THE
HIGH COURT OF JUSTICE
AND BY THE
COURT OF APPEAL
ON APPEAL THEREFROM OR FROM COUNTY COURTS
AND BY THE
COURT OF CRIMINAL APPEAL

The plaintiffs, husband and wife, were both midgets and during the Christmas season beginning in December, 1953, were on exhibition in a booth in the funfair adjoining the defendants’ [2] circus at Olympia, which they and their manager occupied under licence from the defendants. At the far end of the funfair the defendants kept six female Burmese elephants which performed in the circus. The plaintiffs' booth was in a passageway leading from the funfair to the circus ring along which the elephants, escorted by their trainer and grooms, passed several times a day on their way to and from the circus ring. On January 2, 1954, the plaintiffs' manager had in the pay box of their booth a small dog which had been introduced into the premises contrary to the defendants’ rules. As the elephants were passing the booth, the dog ran out barking and snapping at one of them. The elephant turned and went after the dog, followed by some of the other elephants, and the plaintiffs' booth was knocked down, the female plaintiff being seriously injured by falling parts of the booth. None of the elephants directly attacked either of the plaintiffs.

The plaintiffs' custom was to work together touring fairgrounds and music halls where they appeared together, either on exhibition or on the stage, but the part played by the female plaintiff was only subsidiary to that of her husband who could have obtained work without her. The plaintiffs, as was normal in the case of married midgets, were utterly dependent upon each other and during the period of his wife's incapacity the male plaintiff, whose earning capacity was not affected by her injuries, did not take any work; and, although he could have taken work and gone away on tour without her, it was found reasonable for him not to do so.

The plaintiffs, alleging, inter alia, breach by the defendants of the absolute duty laid upon the keeper of a dangerous animal to confine or control it, claimed damages. On the following pleas raised, inter alia, by the defendants: (1) that the elephants in question were not animals ferae naturae within the meaning of the rule relating to strict liability; (2) that liability was only imposed in respect of injury resulting from the acts of an animal due to its vicious and savage nature; (3) that the maxim volenti non fit injuria applied to the plaintiffs; and (4) that the act of the elephant was caused by the wrongful act of the plaintiff's manager in introducing the dog into the funfair: —

Held, (1) that, as a matter of law, all elephants were dangerous, and that it made no difference that the particular elephant in question was a highly trained Burmese elephant and in fact tame, for the harmfulness of an offending animal was to be judged, not by reference to its particular training and habits, but by reference to the general habits of the species to which it belonged.

Filburn v.People's Palace and Aquarium Co. Ltd. (1890) 25 Q.B.D. 258; 6 T.L.R. 402 followed.

(2) That the keeper of a dangerous animal was under an absolute duty to confine and control it so that it should do no harm, and where injury was caused by such an animal whilst out of control the rule of absolute liability applied whether or not the injury resulted from the animal's vicious or savage propensity. [3] Conceptions of mens rea and malevolence could not be introduced in the case of animals, nor could animals that were feraenaturae by virtue of their genus be put upon the same footing as those which became so by exhibition of a particular habit.

Dicta of Lord Macmillan in Read v. J. Lyons & Co. Ltd. [1947] A.C. 156, 171; 62 T.L.R. 646; [1946] 2 All E.R. 471 applied.

Wormald v. Cole [1954] 1 Q.B. 614; [1954] 1 All E.R. 683 considered.

(3) That the plea of volenti non fit injuria did not avail the defendants, for the passing of the elephants did not create an obvious danger, and the plaintiffs' decision, made after they had discovered that the elephants passed their booth, to continue to exercise the right which they had paid for to use the booth was not foolhardy or reckless.

Clayards v. Dethick and Davis (1848) 12 Q.B. 439 followed.

(4) That the wrongful act of a third party afforded no defence to liability for injury done by a savage animal, and, therefore, although the status of the plaintiffs' manager as a licensee was irrelevant (since liability depended not upon occupation of land but upon possession of the animal) and he must be deemed to be a stranger for the purposes of the rule in Rylands v. Fletcher, the defendants could not rely upon the act of the manager in introducing the dog. It followed, therefore, that the defendants were liable to the plaintiffs for all the injury caused while the elephant was out of control.

Baker v. Snell [1908] 2 K.B. 825; 24 T.L.R. 811 applied.

If a judge gives two reasons for his decision both are binding.

Held, further, on the question of damages, that in the exceptional circumstances of the case and since in choosing to remain at home rather than go on tour he was acting reasonably, the male plaintiff was entitled to recover as damages his loss of earnings during the time when he was fit for work and his wife was in capacitated.

Burgess v. Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349; [1955] 1 All E.R. 511 distinguished.

ACTION.

The following statement of facts is taken substantially from the judgment of Devlin J.: The plaintiffs, Johannes Heinrich Wilhelm Behrens and his wife, Emmie Behrens, were midgets. The male plaintiff was 30 inches high and claimed to be the smallest man in the world; he was uncommon among midgets in that he was perfectly proportioned. His wife was 36 inches high and was not perfectly proportioned; she was trained to play a number of musical instruments, such as an accordion and a saxophone of a special size, well enough to enable her to contribute to the entertainment with some form of musical act when she was on the stage. The plaintiffs were married in 1932 and from 1937 to 1949 appeared together in South America, mostly [4] in music halls. From 1949 to 1953 they were with a troupe of midgets which one Lester was taking round this country; subsequently they toured the west country with one Whitehead as their manager or impresario. There were no animals involved in this, and no stage or musical act; the plaintiffs were simply exhibited in a booth and members of the public paid their entrance money and walked into the booth to see the plaintiffs and then walked out again.

The defendant company, Bertram Mills Circus Ltd., well-known circus proprietors, held a circus at Olympia in London every Christmas season, and for that purpose rented the Grand Hall at Olympia and the annexe behind it. The circus ring and theatre surrounding it were built in the half of the Grand Hall nearest the main entrance, and in, the other half of the hall and the annexe behind it there was a funfair; a space underneath a gallery running round the main hall was left outside the theatre and formed a corridor, with small booths on either side, giving access to the funfair. Beyond the funfair the defendants had a menagerie where they kept animals for show, some of the animals being those which performed in the circus, among them six Burmese elephants. Every time there was a circus performance the elephants were twice taken from the elephant house to the circus ring and back, once for the parade at the beginning of the circus and once for their act.

The defendants operated the circus themselves, but not the funfair; having rented the whole of the Grand Hall and the annexe they let out concessions to different amusement caterers, giving them the right to set up their various forms of entertainment, but they retained general control or the funfair and had two funfair managers for that purpose.

In August, 1953, Whitehead, the plaintiffs' manager, obtained from the defendants a licence for a booth in the funfair for the Christmas season beginning on December 18, 1953. He paid the defendants £172 10s. for the licence, and he and the plaintiffs in return took the whole of the money paid by members of the public for seeing their show. The terms on which they worked were that the plaintiffs put up half the money and got half the takings; they regarded themselves as partners with Whitehead, as in a commercial sense they were, although it was not admitted that they were partners in law.

The space which the plaintiffs obtained in the funfair was in a passageway underneath the gallery of the Grand Hall, with a frontage of about 20 feet. There was a front advertising [5] “the smallest man on earth,” an entrance and an exit and between them a paybox at which Whitehead sat taking the money and attracting visitors. There were booths on both sides of the passageway, which was 13 feet wide and primarily intended for the use of the public. When the elephants left their elephant house and crossed the funfair to the circus ring they came down that passageway, in single file, the trainer walking beside the leading elephant and five other grooms walking beside the other elephants. The camels which performed in the circus came that way, too.

The plaintiffs and the Whitehead family for the duration of the show lived in two caravans which were parked at or near Earls Court. Mr. and Mrs. Behrens had a cat to which they were greatly attached and which had featured in their show and which they took every day to Olympia in one of those shopping baskets that are on wheels. Their custom was to go to Olympia in a taxi with Whitehead and the cat every morning about 11 o'clock, going to the entrance for the staff and standholders, in Blythe Road at the back of the premises. Whitehead had a daughter, Santa, then aged 11 or 12, who had a little Pomeranian dog about 12 inches long called Simba, which she kept in the caravan as a pet. On Saturday, January 2, 1954, the circus and funfair having then been going on for about a fortnight, it was arranged that Whitehead's two children should go to Olympia in the afternoon and Whitehead would try to get tickets for them for the circus show, and it was arranged that Whitehead should meet them in the foyer at the main entrance.

The children arrived in the main entrance about 2 o'clock and Whitehead was there to meet them. Santa had brought with her the dog Simba. Whitehead had not succeeded in getting them tickets for the circus and he took them round to the funfair, going first of all to his own booth, which one of the other conces¬sionaires had been looking after for him; he then sent the two children to look around the funfair while he resumed his place at the pay box. He kept the dog. The pay box was semi-circular and had a space underneath the desk or counter so that whoever was sitting there had room for his knees. The dog was put in this space; it had a lead attached to it, and Whitehead fastened the end of this lead to one of the legs of his chair.

The circus performance had begun at 1.45. The elephants had already been out for the opening parade and back again to their house. In due course they came out again in order to do their act. As the third elephant in the procession, Bullu, was [6] passing opposite Whitehead the dog, Simba, ran out snapping and barking. It is a fact well known to those who have to do with elephants that they are easily frightened by small dogs running out at them in this way. Bullu trumpeted with fright, Simba turned back and made to go into the booth and Bullu went after her. The elephant in front of Bullu went too. The trainer and grooms followed the elephants. The male plaintiff was got out of the booth and then Mrs. Behrens. The dog was killed. None of the elephants touched either of the plaintiffs, but the front of the booth and other parts of it were knocked down and some part fell on Mrs. Behrens, causing her serious Injuries. The trainer got the elephants back into line again very quickly—the whole thing was over in a few seconds—and the procession went on and they performed their act.

Mrs. Behrens was seriously injured and was incapacitated until the middle of June, 1954, when she was fit to do light work. After her recovery she was. unable to play her musical instruments as well as she had done before the accident, but was not completely incapacitated from taking part in any musical act and could play well enough to afford supplementary interest while her husband was on the stage. Although they received offers of work in May or June, 1954, and in 1955, the plaintiffs did not take work again until April 2, 1956, two and a quarter years after the accident, when they resumed exhibition or fairground work. They justified that long period of inactivity on the ground that their occupation consisted of a joint act of entertainment and that Mrs. Behrens was by the accident rendered unfit to play her musical instruments, the playing of which formed an essential part of the joint act. In fact the act was not a joint act, for the part played by Mrs. Behrens was only subsidiary, the main attraction being the advertisement of Mr. Behrens as the smallest man on earth, and Mr. Behrens could have obtained work without her and her injuries did not put an end to his professional livelihood. The plaintiffs, when on tour, lived in a caravan, and there was evidence that married midgets were exceptionally dependent upon each other and that it would not even be considered that one should go away to work without the other. No diminution in joint earning power after a period of eight months from the accident was proved.

One of the clauses in the licence granted by the defendants to Whitehead purported to prohibit the introduction of any cat, dog or any other animal on the stand, but, owing to a misprint, did not in fact do so; this clause was one of a very large number [7] in one of three schedules to the licence and, although it was unlikely that Whitehead had read the clause, he did in fact know that dogs were not allowed into Olympia.

The plaintiffs, alleging, inter alia, that the defendants wrongfully kept the elephants, which were wild animals and of a dangerous, mischievous and/or vicious nature, and that the injuries and loss which they had suffered were the result of the failure of the defendants, their servants or agents, to control certain of their elephants, claimed damages; they also alleged trespass, negligence, and breach of duty by the defendants.

The defendants denied liability; they denied that the elephants were wild or of a dangerous, vicious or mischievous nature, or that they were wrongfully kept on the premises at Olympia. They contended, inter alia, that the plaintiffs by their occupation and their manner of life were well acquainted with the risks involved in their presence near to circus elephants, and well knew and understood that there was a small risk that tame elephants, such as their elephants, however carefully kept and well looked after, might on occasion while being escorted at large, through fright or other similar cause act in a manner such as to cause damage to persons in their vicinity, and that the plaintiffs had voluntarily accepted the risk.

The defendants further contended that the matters complained of were caused by the wrongful act of a third party in causing or permitting the dog to be on the premises. The allegations of trespass, negligence and breach of duty were denied.

Harold Brown Q.C. and F. B. Purchas for the plaintiffs. The keeper of an animal ferae naturae is under an absolute duty to confine or control it so that it shall not do injury to others: per Lord Macmillan in Bead v. J. Lyons & Co. Ltd.^[1]: and is liable for all the injury which it does if it escapes out of control. In Filburn v. People's Palace and Aquarium Co. Ltd.^[2] it was held that elephants are animals ferae naturae. The class of an animal is a matter of law, and it makes no difference that an animal is in fact tame: see McQuaker v. Goddard.^[3] The defendants, therefore, as the keepers of animals ferae naturae are liable to the plaintiffs for all the injury caused by the elephants while out of control.

[8] If, as a matter of law, the defendants' elephants are not animals ferae naturae, the plaintiffs will rely on their cause of action in trespass.

M. Dunbar Van Oss and John Griffiths for the defendants. Elephants are not animals ferae naturae as a matter of law. The question whether or not a particular animal is wild is a matter of law for the judge in each case; judicial notice is taken of the ordinary course of nature and evidence is admissible to assist the judge in that respect: see McQuaker v. Goddard,^[3] in particular the judgment of Clauson L.J.^[4] In Filburn v. People's Palace and Aquarium Co. Ltd.^[5] no attempt was made to inform the court that the elephant there in question came under any particular species. The defendants' elephants are highly trained Burmese elephants and in fact tame. It has never been suggested that African elephants are tame, but the court is not being asked to say that elephants as a whole are tame, and, therefore, is not precluded by the decision in Filburn v. People's Palace and Aquarium Co. Ltd.^[5] from taking judicial notice of special facts relating to Burmese elephants; in this respect the decision of a Burmese court in Maung Kyow (Maney Kyaw) v. Ma Kyin ^[6] that Burmese elephants are not ferae naturae is significant.

The liability imposed by law on the keeper of a wild animal is of a high order; the rule must be limited to its proper scope and it is submitted that the keeper is only liable for damage due to the vicious or savage propensity of the animal. The keeper of a domestic animal which is known to have dangerous proclivities is in the same position as the keeper of a wild animal, but he is not liable for injury caused by the animal which is not due to its dangerous proclivity. The extent of liability in the case of an animal ferae naturae has still to be investigated by the courts, but it is submitted that the principles are the same as in the case of a domestic animal. In all cases where the scienter rule has been applied the injury was due to the mischievous, vicious or other quality of the animals nature; regard must be had to whether the damage is relevant to its nature: see Hadwell v. Righton.^[7] It would be harsh to extend the rule of strict liability in the case of animals ferae naturae to remoter matters, and where the damage is accidental and unrelated to the fact that the animal is wild it is too remote. If a wild animal attacks, [9] liability follows, but if the injury arises not because the animal is wild but because it is, for example, a moving object, it is not within the scope of the rule. Here there was no attack. The elephant simply turned aside to drive off the dog and in doing so knocked down the booth. The damage occurred because the elephant was a moving object and the defendants, therefore, are not liable.

Wormald V. Cole^[8] was a case of cattle trespass. There is no analogy between the action of cattle trespass and the scienter action. In cattle trespass the wrong flows from the trespass; in the case of wild animals, in the absence of negligence, there is no wrong until the animal does the kind of damage which its wild nature leads it to do. There is no wrong in harbouring a wild animal. The owner's duty is to confine and control it so that it will not do that sort of injury: Read v. J. Lyons & Co. Ltd.^[9] As to the kind of mischief to be expected of elephants, see Vedapurratti v. Koppan Nair.^[10]

Where the injury caused by a wild animal is due to the voluntary act of a third party, that affords a defence in a scienter action. Animals are no longer to be regarded as dangerous things within the rule in Rylands v. Fletcher,^[11] but are in a class by themselves: see the observations of Lord Macmillan and Lord Simonds in Read v. J. Lyons & Co. Ltd.^[12] The act of Whitehead in introducing the dog when he knew that it was wrong to do so is relied on. Baker v. Snell^[13] is not an authority to the contrary. That decision has been the subject of much criticism: see Charlesworth on Negligence, 3rd ed., p. 346; Winfield on Tort, 6th ed., p. 647; Salmond on the Law of Torts, 11th ed., p. 657; see also Knott v. London County Council^[14] in particular the observation of Lord Wright.^[15] In Fleeming v. Orr^[16] a Scottish case turning on a slightly different point, the court held that the act of a third party was material, and exonerated the owner of a dog. [Reference was also made to Arneil v. Paterson.^[17]] In Baker v. Snell,^[18] in the Divisional Court, Channell J.^[19] considered that the act of a third party was a defence; Sutton J.^[20] did not, and the Court of Appeal^[21] was [10] divided on that point. Cozens-Hardy M.R.^[22] and Farwell L.J.^[23] agreed with Sutton J.,^[24] but Kennedy L.J.^[25] dissented on that point. It is submitted that, as the order of the Divisional Court was affirmed on another ground on which all three judges in the Court of Appeal were in agreement, the observations of Cozens-Hardy M.R.^[26] and Farwell L.J.^[27] as to the act of a third party were obiter and are not binding on this court.

The maxim volenti non fit injuria applies to the plaintiffs. It is conceded that as licensees they were entitled to have the premises made reasonably safe for them, but it is their knowledge at the time of the accident which is material. They knew then that the elephants passed their booth and that there was a danger of them bumping into the booth; by choosing to remain they accepted that risk. [Reference was also made to Sylvester v. G. B. Chapman Ltd.^[28] and Murray v. Harringay Arena Ltd.^[29]]

The plaintiffs' claim for damages must be considered separately in relation to each of them. Their act was not a joint act, and, further, the claim by the male plaintiff for damages in respect of loss of livelihood because of the injuries sustained by his wife is not tenable: Burgess v. Florence Nightingale Hospital for Gentlewomen,^[30] applying the principle in Best v. Samuel Fox & Co. Ltd.^[31]

[DEVLIN J. That principle applies so far as the female plaintiff's musical talent is concerned, but if she had a special value as a wife to her husband is he not entitled to compensation for loss of her services as a wife?]

What is in fact a business loss cannot be claimed under that head. [Reference was made to Lee v. Sheard^[32] and Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.).^[33]] The male plaintiff suffered fright but no physical injury; he cannot recover damages for fright alone. Damages may be recoverable for illness resulting from shock, but the shock must be physical and ascertainable by a physician: Owens v. Liverpool Corporation.^[34] Fear is not physical, but is a preliminary to shock. [Reference was also made to Victorian Railways Commissioners [11] v. Coultas^[35]; Hambrook v. Stokes Brothers^[36]; Mitchell v. Rochester Railway Co.,^[37] and Dulieu v. White & Sons Ltd.^[38]]

Harold Brown Q.C. in reply. Filburn v. People's Palace and Aquarium Co. Ltd.^[39] establishes as a matter of law that elephants are animals ferae naturae; that decision cannot be distinguished and is binding in this court. Further, the elephant in that case, as here, was a performing animal in a circus.

Liability for damage done by a wild animal while out of control cannot be limited, as suggested by the defendants, to the damage flowing from its vicious or wicked propensities. Wild animals are not in the same category as domestic animals; the owner of a wild animal keeps it at his peril and is liable for all the damage which it does if it escapes from control. The statement of the law by Lord Macmillan in Read v. J. Lyons & Co. Ltd.^[40] is relied on. In any event, the danger from escaping elephants comes not only from their mouths or teeth but from their momentum and natural quality of bulk. A frightened stampeding elephant does not stop to reason but bulldozes its way through whatever lies in its path.

The maxim volenti non fit injuria has no application in this case. This is not a case of a plaintiff having approached a wild animal, but of plaintiffs who were acting not recklessly but reasonably in remaining where they had a right to be. The fact that they knew that the elephants passed the booth is immaterial because there was no obvious danger; in any event the defendants never informed Whitehead or the plaintiffs of the elephants before the grant of the licence. [Reference was also made to Smith v. Baker & Sons^[41], McQuaker v. Goddard^[42] and Bowater v. Rowley Regis Corporation.^[43]] Before defendants can rely on the maxim volenti non fit injuria the court must be satisfied that there was a clear and obvious danger: Clayards v. Dethick and Davis.^[44] The question is whether the plaintiffs, in choosing to remain in the booth, were acting reasonably. [Reference was also made to Dann v. Hamilton.^[45]] 

The introduction of the dog by Whitehead affords no defence to this action. Liability in respect of a save animal has long [12]been considered to be based on the rule in  Rylands v. Fletcher,^[46] and there is  nothing to  the  contrary in  Read v. J. Lyons & Co. Ltd.^[47] The rule in Rylands v. Fletcher^[48] allows as a defence the act of a third   party only if the third party was a stranger, and, therefore, the   defendants can only escape liability if they prove that the   damage was due to the act of one who was a stranger within the  authorities relating to that defence. Whitehead was not a stranger, but a licensee of the defendants; they were in control of the funfair and are responsible for his acts. Reliance is placed on  Hale v. Jennings Brothers,^[49] and see Lawrence v. Jenkins,^[50] Black v.   Christchurch Finance Co. Ltd.^[51] and Balfour v. Barty King.^[52]        It is submitted, further, that Baker v. Snell^[53] is conclusive on this point; the decision of the Court of Appeal was given on two grounds, and the observations of Cozens-Hardy M.R.^[54] and Farwell L.J.^[55] are not obiter but binding. [Reference was also made to Box v. Jubb^[56]; Rands v. McNeil^[57]; Sutcliffe v. Holmes ^[58];   Rickards v. Lothian^[59]; Northwestern Utilities Ltd. v. London  Guarantee and Accident Co. Ltd.,^[60] and the essay by Professor Goodhart in Current Legal Problems (1951), p.186.]

As to damages, the matter must be approached with regard to the physical peculiarities of the plaintiffs and of their limited sphere of employment and enjoyment. The male plaintiff, in the circumstances of this case, is entitled to damages in respect of the fright which he suffered. Fright is similar to physical injury, and the only difference is that it results in mental instead of physical pain: reliance is placed on the observations of Kennedy J. in Dulieu v. White & Sons.^[61] It is difficult to see why damages may   be awarded for physical pain and not for mental pain caused by fright. [Reference was also made to Victorian Railways Commissioners v. Coultas^[62]; Wilkinson v. Downton^[63]; Mitchell v. Rochester Railway Co.^[64]; Hambrook v. Stokes Brothers^[65]; Owens v. Liverpool Corporation^[66]; Hay (or

Bourhill) v. Young,^[67]and King v. Phillips.^[68]] The female plaintiff is entitled to damages for her physical injuries as such and also for the consequent limitation of her power to play musical instruments and inability ever to be part of a joint act with her husband. In addition to his damages for shock and fright the male   plaintiff is entitled to damages for loss of earnings during his wife's incapacity, as she was part of his joint act and necessary to his existence as a performer or exhibitor.

Cur. adv. vult.

January 30, 1957. DEVLIN J. read the following judgment: This is a claim for damages by the plaintiffs, who are husband and wife, in respect of injuries they sustained on January 2, 1954, as the result of the behaviour of an elephant belonging to the defendants and used in their circus. The elephant knocked down a booth in a funfair adjoining the circus and a part of the booth fell on the female plaintiff causing her serious physical injuries; the male plaintiff, while outwardly uninjured, claims to have suffered from shock.

[His Lordship stated the facts substantially as  set  out  above and continued:} These being the facts, the plaintiffs rely upon three causes of action, trespass, breach of the absolute dusty laid upon the keeper of a dangerous animal to confine and control it, and negligence. Mr. Brown has not pursued before me the cause of action in trespass, while reserving his right to do so in a higher court.

The second cause of action, generally known as the scienter action, is the one on which Mr. Brown chiefly relied. Since one of the defendants’ submissions goes to the root of that form of action, I propose to begin by stating just what I take its basis to be. Before doint this I must acknowledge my indebtedness to Professor Glanville Williams, who in his book on Liability for Animals (1939) has dealt with the whole subject in such detail and with such clarity as to make it possible for me at least to hope that I can successfully grapple with the antiquated branch of the law and also to omit from this judgment much of the elaboration that would otherwise have to be there.

A person who keeps an animal with knowledge (scienter of its tendency to do harm is strictly liable for damage does if it escapes; he is under an absolute duty to confine

or control it so that it shall not do injury to others. All animals ferae naturae, that is, all animals which are not by nature harmless, such as a rabbit, or have not been tamed by man and domesticated, such as a horse, are conclusively presumed to have such a tendency, so that the scienter need not in their case be proved. All animals in the second class mansuetae naturae are conclusively presumed to be harmless until they have manifested a savage or vicious propensity; proof of such a manifestation is proof of scienter and serves to transfer the animal, so to speak, out of its natural class into the class of ferae naturae. Professor Williams has traced at p.265 the origin of this “primitive rule,” as Lord Macmillan described it in Read v. J. Lyons & Co. Ltd.^[1] No doubt in its time it was a great improvement on the still more primitive notion that only the animal was “liable” for the harm it did. But now this sort of doctrine with all its rigidity - its conclusive pre­ sumptions and categorisations - is outmoded and the law favours a flexible and circumstantial approach to problems of this sort. Four years ago a committee^[2]  appointed by the Lord Chancellor and presided over by Lord Goddard C.J. recommended that the scienter action should be abolished and that liability for harm done by an animal should be the same as in the case of any other chattel; it should depend on the failure to exercise the appropriate degree of care; which might in the case of very dangerous animals be “so stringent as to amount practically to a guarantee of safety”: per Lord Macmillan in Donoghue v. Stevenson.^[3] I wish to express the hope that Parliament may find some time to consider this recommendation, for this branch of the law is badly in need of simplification.

The particular rigidity in the scienter action which is involved in this case – there are many others which are not - is the rule that requires the harmfulness of the offending animal to be judged not by  reference to the general habits of the species to which it belongs. The law ignore the world of difference between the wild elephant in the jungle and the trained elephant in the circus. The elephant Bullu is in fact no more dangerous than a cow; she reacted in the same way as a cow would do to the irritation of a small dog; if perhaps her bulk made her capable of doing more damage, her higher training enabled her to be more swiftly checked. But I am compelled to assess the defendants’ liability in this case in just the same was as I would assess it if they had loosed a wild elephant in the fun-fair. This is a branch of law, which, as Lord Goddard C. J. (quoting Blackburn J.^[4]) said recently in Wormald v. Cole,^[5] has been settled by the authority rather than by reason. But once the fundamental irrationality is acceptedof treating circus elephants as if they were wild, I think it is possible to determine sensibility in the light of the scienter rule the other points on liability that arise in this case.

The defendants submit five answers to the scienter action. They are: First, that the elephants are not ferae naturae within the meaning of the rule. Secondly, that the rule does not impose liability for every act that an animal does if it escapes control, but only for those act which are vicious and savage, which the actions of Bullu was not. Thirdly, that the plaintiffs’ injuries were caused by their own fault. Fourthly, that the maxim volenti non fit injuria – that is that the plaintiffs accepted the risk – applies to them. Fifthly, that it is a good defense to liability under the rule if the action of the animal is caused by the wrongful act of a third party, in this case Whitehead and his dog.

The first submission, is in my judgment, concluded so far as this court is concerned by the decision of the Court of Appeal in Filburn v. People’s Palace and Aquarium Co. Ltd.,^[6] which held that as a matter of law an elephant is an animal ferae naturae. Mr. Van Oss has sought to distinguish this case on the ground that the elephants belonging to the defendants are Burmese elephants and he submits that it is open to me to hold that while elephants generally are ferae naturae, Burmese are not. In my judgment, it is not open to me to consider this submission. It is not stated in Filburn v. People’s Palace^[6] what the nationality of the elephant was with which the court was there dealing, and the case must be regarded as an authority for the legal proposition that all elephants are dangerous. The reason why this is a question of law and not a question of fact is because it is a matter of which judicial notice has to be taken. The doctrine has from its formulation proceeded upon the supposition that the knowledge of what kinds of animals are tame and what are savage is common knowledge. Evidence is receivable, if at all, only on the basis that the judge may wish to inform himself. This was clearly settled by the Court of Appeal in McQuaker v. Goddard,^[7] where Clauson L.J.^[8] said: “The reason why the evidence was given was for the assistance of the judge in forming his view as to what the ordinary course of nature in this regard in fact is, a matter of which he is supposed to have complete knowledge.” Common knowledge about the ordinary course of nature will extend to a knowledge of the propensities of animals according to their different genera, but cannot be supposed to extend to the manner of behavior of animals of the same genus in different parts of the world. Nor can one begin a process of inquiry which might lead in many directions (for example, I am told that female elephants are more docile than male, and that that is why circus elephants are usually female) and be productive of minute sub-divisions which would destroy the generality of the rule.

The defendants’ second contention raises a point of doubt and difficulty. It may be approached this way. The reason for imposing a specially stringent degree of liability upon the keeper of a savage animal is that such an animal has a propensity to attack mankind and, if left unrestrained, would be likely to do so. The keeper has, therefore, in the words of Lord Macmillan in Read v. J. Lyons & Co. Ltd.^[9] “an absolute duty to conifer or control it so that it shall not do injury.” But if it escapes from his control, is he liable (subject, of course, to the rules on remoteness of damage) for any injury which it causes, or only for such injury as flows naturally from its vicious or savage propensity?

Mr. Van Oss submits that it is the latter part of this question which suggests the correct answer and that the rule of absolute liability applies only when an animal is acting savagely and attacking human beings. On the facts of this case, he submits that Bullu was not acting viciously but out of fright; she was seeking to drive off the small dog rather than to attack it; maybe she or another elephant trampled on the dog (there is no conclusive evidence of that, and it might have been crushed by the falling timber) but there is nothing to show that she trampled it deliberately. Certainly she never attached Mrs. Behrens who was injured only indirectly. In short, if Bullu could be treated as a human being, her conduct would not be described as vicious but as quite excusable.

It does not, to my mind, necessarily follow that the scope of the rule is co-extensive with the reason for making it. It may equally well be argued that once the rule is made, the reason for making it is dissolved and all that then matters are the terms of the rule. That would certainly be the right approach in the case of any statutory rule of absolute liability. Is it so in the case of this rule of common low? There appears to be no authority directly in point. Mr. Van Oss derives the chief support for his contention form an argument which may be summarized as follows. If an animal mansuetae naturae manifests a vicious tendency, the scienter rule applies to it as if it were ferae naturae. The law has often been put in that way; for example, by Lord Wright in Knott v. London County Council.^[10] How is the principle applied? Suppose a large dag collides with a child and knocks him down, that is an accident and not a manifestation of a vicious propensity and the scienter rule does not apply at all; if it bites a child, it becomes ferae naturae, and the strict rule thereafter applies. But it would seem to be unreasonable that the strict rule should require it to be kept under complete restraint. Suppose that its keeper muzzles it and that while muzzled it playfully or accidentally knocks a child down, ought the keeper to be liable? There is a good deal of authority, referred to by Professor Williams, to show that the keeper is not liable; and the learned author considers that the damages must have in some way been intended by the animal, that its benevolence or its mens rea is relevant and that at least in the case of harmless animals the rule is that the injury must be the result of a vicious propensity.

This is an impressive argument. But it does not seem to me that the logic of the matter necessarily requires that an animal that is savage by disposition should be put on exactly the same footing as one that is savage by nature. Certainly practical considerations would seem to demand that they should be treated differently. It may be unreasonable to hold the owner of a biting dog responsible thereafter for everything it does: but it may also be unreasonable to limit the liability for a tiger. If a person wakes up in the middle of the night and finds an escaping tiger on top of his bed and suffers a heart attack, it would be nothing to the point that the intentions of the tiger were quite amiable. If a tiger is let loose in a funfair, it seems to me to be irrelevant whether a person is injured as the result of a direct attack or because on seeing it he runs away and falls over. The feature of this present case which is constantly arising to blur the reasoning is the fact that this particular elephant Bullu was tame. But that, as I have said, is a fact which must be ignored. She is to be treated as if she were a wild elephant; and if a wile elephant were let loose in the funfair and stampeding around, I do not think there would be much difficulty in holding that a person who was injure by falling timber had a right of redress. It is not, in my judgment, practicable to introduce conceptions of mens rea and malevolence in the case of animals.

The distinction between those animals which are ferae naturae by virtue of their genus and those which become so by the exhibition of a particular habit seems to me to be this: that in the case of the former it is assumed (and the assumption is true of a really dangerous animal such as a tiger) that whenever they get out of control they are practically bound to do injury, while in the case of the latter the assumption is that they will only do injury to the extent of the propensity which they have peculiarly manifested. It would not be at all irrational if the law were to recognize a limited distinction of this sort while holding that both classes of animals are governed by the same scienter rule. In the case of the dangerous chattels, for example, the lase has recognized, though it is not perhaps now of much importance, the distinction between chattels that are dangerous in themselves and chattels that are dangerous when used for certain purposes; and animals ferae naturae have frequently been compared with chattels in the former class: see, for example, per Hilbery J. in Parker v. Oloxo Ltd.^[11] and per Lord Wright in Glasgow Corporation v. Muir.^[12]

As I have said, there is really no authority on this point. There are indeed not many cases which have dealt with an animal that is ferae naturae by genus as distinct from disposition. In such cases as there are – Besozzi v. Harris^[13] and Filburn v. People’s Palace^[14] – the rule was stated in the wildest terms; but in these cases the court was dealing with an attacking animal, so that the point did not arise. Nevertheless, in my judgment, they laid down the principle that I should follow and I think that the statement of the law by Lord Macmillan in Read v. J. Lyons & Co. Ltd.,^[15] which I have quoted, namely, that there is “an absolute duty to confine or control it so that it shall not do injury” needs no qualification.

This conclusion is supported by the Wormald v. Cole.^[16] I do not rely on that decision as an authority directly in point because it concerned the rule of absolute liability for cattle trespass, and these rules of absolute liability, while similar in effect, have different origins. But it furnishes strong support by way of analogy. In that case, the plaintiff, when she was trying to get straying cattle out of her garden, was injured not because they attacked her but because in blundering about they had knocked her down. It was argued that the plaintiff could not recover because her injuries were not the result of any vicious action the part of the cattle. This argument was rejected by the Court of Appeal. Lord Goddard C.J.^[17] pointed out that in many cases it would be impossible to say with certainty whether the injuries were caused by vice or playfulness or by mere accident.

It follows that, subject to any special defence, the defendants are liable for any injury done while the elephant was out of control. It does not follow (I say this because of a point that was raised in the argument) that if an elephant slips or stumbles its keeper is responsible for the consequences. There must be a failure of control. But here there was such a failure, albeit a very temporary one. It follows also that the ordinary rule on remoteness of damage applies. It was not suggested that if an animal which is out of control knocks over a structure and injures a person the other side of it, that is not under the ordinary rule a consequence of the failure of control.

The third point taken by the defence is that the injuries were due to the plaintiffs’ own fault. This defence is of a nature well recognized in this class of case and there are many cases in which liability has been successfully contested on the ground that the savage animal was teased or provoked by the plaintiff. I see no reason why the same sort of defence should not prevail where the fault of the plaintiff does not amount to recklessness of this sort, but is failure of due diligence to look after his own safety. The facts said to constitute the defence in this case are pleaded in paragraph 6A of the re-amended defence: “Further or in the alternative the matters complained of were caused or contributed by the negligence of the plaintiffs and each of them in that they permitted the said dog to be in or near to the said booth well knowing that dogs were not permitted upon the circus premises and/or that dogs were likely to alarm or excite the elephants.” In my judgment, this plea breaks down completely upon the allegation that the plaintiffs were permitted the dog to be in or near the booth. Even if I were to assume that the plaintiffs knew of the presence of the dog and to assume likewise the other allegations in the paragraph, there is nothing at all to sustain the allegation of permission. Whitehead was not in their employ and they had no power to control him in any way. Conceivably, it might be said that if the presence of the dog amounted to an obvious danger, anyone who knew of it, whether he had power to order it off or not, ought in the interests of his own safety to have reported it to someone who had the necessary authority. But no one puts the danger as high as that.

The fourth contention of the defence is a plea of volenti non fit injuria based on the allegation that the plaintiffs accepted any risk inherent in the passage of elephants past their booth. There is no evidence that either the plaintiffs or Whitehead knew or head any reason to suspect when the licence was granted that the elephants would come anywhere near their booth. Mr. Van Oss, however, submits that the time when the licence was entered into is not the decisive time, or not the only decisive time. He submits that when the plaintiffs discovered, as of course they did at the beginning, that the elephants passed the booth, their decision to remain amounted to an assumption of the risk. The situation at this later point of time raises quite different considerations. The plaintiffs had not then to decide, in the light of their knowledge of the conditions under which it would have to be exercised, whether they would acquire a right; but whether they would continue to exercise a right for which they had already paid. It is not per se a defence that the plaintiffs were engaged in exercising a right. The pursuit of one’s own rights may sometimes be so foolhardy that the reasonable man should desist and seek another remedy. If a man is on the highway and he sees elephants approaching in procession, the law does not require him to elect between turning down a side street or accepting the risk of their misbehavior if he goes on; but if he sees them stampeding and remains where he is because he considers that he has as much right to the highway as they have, he might fail to recover. I take the law on this point as laid down in Clayards v. Dethick and Davis.^[18] In that case the defendants made an open trench outside the plaintiff’s stable and told him that he must put up with it. The plaintiff attempted to get his horse out by means of planks over the trench, and was advised by the defendants not to do so because it was dangerous. An accident occurred and the plaintiff was held entitled to recover. He was not bound to refrain from exercising his rights because there was some danger. As Patteson J. put it^[19]: “The whole question was, whether the danger was so obvious that the plaintiff could not with common prudence make the attempt.” The same principle has recently been considered in the Privy Council in Reardon Smith Line Ltd. v. Australian Wheat Board.^[20] It cannot here be contended that the passing of the elephants created an obvious danger; indeed, the case as pleaded for the defence is that the risk was very small. This plea fails.

The last of the defendants’ contentions is that they are freed from liability by the wrongful act of a third party. This point appears to be concluded against them by the decision of the Court of Appeal in Baker v. Snell,^[21] in which it was held by a majority that the intervening act of a third party was no defence. But Mr. Brown, perhaps because he had his eye on a place where Baker v. Snell^[22] would naught avail him, or perhaps because he feared that I might be deterred from following the decision by the volume of criticism that has since flowed over it, gave it no place in the van of his argument. Non tali auxilio, except, of course, in the alternative.

He preferred to rely on general principles, rather that on any specific authority, for his chief submission on this point. He submitted that the liability in respect of a savage animal was based on the rule in Rylands v. Fletcher.^[23] That rule allows as a defence the act of a third party only if it is the act of a stranger; and a licensee is not, he submitted to be regarded as a stranger. Whitehead was a licensee and, therefore, his intervention afforded no excuse.

There are in the authorities numerous dicta to suggest that the liability for savage animals is a branch of the rule in Rylands v. Fletcher.^[23] Professor Glanville Williams (p. 352, note 4) has collected the cases. These dicta may have to be reconsidered in light of what was said in Read v. J. Lyons & Co. Ltd.,^[24] particularly per  Viscount Simon.^[25] Whether or not the two rules  stem from a common principle, it would no doubt be legitimate in the formulating the exception, if any, to the liability for savage animals to look at exception that have already been established under other rules of strict liability. But, whether the process be one of analogy or one of derivation, it must be remembered that the underlying condition for the two kinds of liability are different. One is based on the possession of an animal and the other on the occupation of the land. If in relation to the former the holding of a license is to have any materiality, it must refer to some licensed custodian of the animal, such as the potman in Baker v. Snell.^[26] The fact that in this particular case the defendants not one were the keepers of the elephant but had also rented the premises on which the animal was at the time of the accident and licensed the third party to be on them is wholly irrelevant to any question of liability in this scienter action. If the defendants had granted a concession for the performance of the circus or the keeping of a menagerie as well as for the fun-fair, and, accordingly, the elephant had been kept by some other defendant, it could not possibly be relevant in an action against him to show that the defendant and a third party were both concessionaires or licensees of the same licensor. It cannot make any difference in principle if the keeper of the animal happens also to be the licensor. In my judgment, therefore, if the rule in Rylands v. Fletcher^[27] is to be applied, Whitehead must be deemed for its purposes to be a stranger.

Mr. Brown relied upon Hale v. Jennings Brothers,^[28] particularly the observations of Slesser L.J.^[29] If in this case I were dealing with liability which arose out of the occupation of land, these dicta would be in point. For the reasons I have given, I think that they are here irrelevant in determining the status of Whitehead. I do not mean that the relationship of licensor and licensee is necessarily irrelevant or consequential issues of fact. Accepting Whitehead as a stranger, it would still be necessary for the defendants to show that they took all reasonable precautions to prevent him or any other stranger from interfering with their animals; and it might well be that reasonable precautions would include, since they happened incidentally to be licensors, using their powers under the licence, to control his conduct, for example by forbidding dogs. But that would raise another point which would go to an issue of negligence. That is an answer to the third party defence which could arise on the facts, and in that light I shall refer to it again, but in my judgment, Whitehead’s status as a licensee does not of itself dispose of that defence as a matter of law.

I turn to Baker v. Snell.^[30] In that case the defendant was a publican who owned a dog known by him to be savage. It was the duty of his potman to let the dog out early in the morning and then chain it up again. On the occasion in question the potman brought the dog into the kitchen where the plaintiff, who was a housemaid in the employment of the defendant, was at breakfast and saying: “I will bet the dog will not bite anyone in the room,” let it go, saying: “Go it, Bob.” The dog then flew at the plaintiff and bit her. In the county court the judge held that the act of the potman was an assault for which the defendant was not liable and he non-suited the plaintiff. The non-suit was attacked on two grounds. It was contended^[31] that the defendant was liable as the keeper of the dog, and that the intervening act of the potman, even if he had been a stranger, would be no defence. Secondly, it was contended that, if the intervention did provide a good ground of defence, nevertheless since in this case the intervener was the defendant’s servant and acting within the scope of his employment, the defendant must be liable on that ground. A new trial was ordered both in the Divisional Court^[31] and on appeal by the Court of Appeal,^[32] and in both courts the judges were unanimous. But they were not unanimous in their reasons. In the Court of Appeal, all three of the Lords Justices agreed that the question whether or not the potman was acting in the course of his employment was one of fact which ought to have been left to the jury, and that a new trial must be ordered on that score. But Cozens-Hardy M.R. and Farwell L.J. considered also, as had Sutton J. in the court below, that the defendant was liable as the keeper of the animal and that the intervention of the potman, even if not acting in the course of his employment, created no defence. Even on this view a new trial was necessary as it was not open to the Court of Appeal to assess the damages. On this point Kennedy L.J. disagreed, sharing the view expressed by Channell J. in the Divisiononal Court. It is not, I think, disputed that if the reasoning of the Master of the Rolls and Farwell L.J. is binding upon me, I must dismiss without further inquiry a defence based on the act of Whitehead. Mr. Van Oss submits that the gist of the decision was the order [24] for a new trial on the grounds on which the Lord Justices were unanimous, and that the observations of Cozens-Hardy M.R. and Farwell L.J. on the other point should be treated as obiter. The question depends, I think on the language used by the Master of the Rolls. It is well established that if a judge gives two reasons for his decision, both are binding. It is not permissible to pick out one as being supposedly the better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second. But the practice of making judicial observations obiter is also well established. A judge may often given additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is a matter which the judge himself is alone capable of deciding, and any judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference.

Cozens-Hardy M.R. first dealt with the judgment of Channell J.,^[33] and agreed with his view that the scope of the potman’s employment out to have been left to the jury. He said^[34]: “I entirely adopt that view, and that, no doubt, is in itself a sufficient reason for affirming the decision of the court below, but as a matter of wider interest has been raised, and as it has been dealt with by both Channell and Sutton JJ., I think it is right to state, shortly, my view on the point.” If the passage had stood by itself, I think that I should have probably construed it as signifying that the Master of the Rolls did not wish – as would be quite natural in a case where there was a considerable conflict of judicial opinion – to give the force of precedent to views which were not necessary to the decision in the case. But after he had considered the other point and expressed his view about it, he said this^[35]: “On these authorities, and in accordance with what in my judgment is settled law, I think that the matter ought to go down for a new trial, not merely on the ground stated by Channell J., thought I agreed that is sufficient, but also on the ground as to which he expressed some doubt, but on which Sutton J. appears to have based his decision.” In this final sentence of his judgment I think that the Master of the rolls was clearly basing his decision [25] on the two grounds, and that it is not open to me to choose between them. I have said that this point depends upon the language of the Master of the Rolls, because I think that it is plain from the language used by Farwell L.J.^[36] that he gave as the principal ground for his judgment that the wrongful act of a third person was no defence.

Accordingly, I hold this contention, that is the last of the defendants’ contentions, to be concluded against the defendants by authority which binds me. The result is, therefore, that the rule of strict liability applies, and the defendants must compensate the plaintiffs for their injuries.

I have reached this conclusion on the law without having to go very deeply into the facts and, indeed, on the basis of facts which were almost all undisputed. There was, however, a good deal of dispute on other questions of fact which may become relevant if different conclusion are reaching on the law. I shall, by way of an appendix to this judgment, set out my findings on these points in case they may be material hereafter. But before I do that I must deal with the assessment of damages, which also raises some difficult questions about fact and law.

The item in the claim for damages which gives rise to most difficulty, both on the facts and on the law, is the claim for loss of earnings. The husband and wife were paid jointly. The takings and expenses were all dealt with jointly, and no part of the net earnings was appropriated as the special property of one or the other. I cannot, however, give joint damages and it will be necessary for me to consider how far each of the two individually has suffered a financial loss as a result of his or her injuries respectively. It will also be necessary for me to consider whether the husband is entitled in law to recover for financial loss caused to him as a result of the injuries which his wife sustained. But before I do this, I think it would be convenient, in order to get at the true facts about the loss of earnings, to put these matters momentarily on one side and consider how far the accident affected there joint earning power.

[His Lordship referred to the facts relevant to this part of the case set out above, and continued:] On the evidence I have heard I do not think the act can really be regarded as a joint one, and I accept Mr. Van Oss’s submission that the act was not a joint act, and that other diversions could be arranged for Mr. Behrens.

But I am also satisfied that it would not be reasonable to expect the male plaintiff to go touring or to go round fairgrounds [26] and exhibitions by himself and without the company of his wife. The two of them in the witness-box made it very manifest how exceptionally dependent they are upon each other, and he in particular upon her. It is very understandable that it should be so. They live in a strange world and the bond between them must be much stronger even than the ordinary tie of matrimony. This impression that I received of their interdependence was much fortified later by the evidence of Mrs. Lester when she went into the witness-box. She has long experience of working with midgets. She said that is was well known that “little people” were devoted to each other, that he would not be much good without her, and that it was reasonable for him to say that he could not work alone, that in this respect midgets were different from ordinary people. She would not necessarily expect his wife to be on the stage while the male plaintiff was performing, but at any rate in the auditorium. It must be remembered, too, that, even if he felt at home with ordinary people, the male plaintiff could not when he was on tour mingle with them; if the public are to pay to see him, he must, except when on the stage or in the booth, keep out of sight. It is customary for the plaintiffs to go round in a caravan, which is parked as near as possible to his place of work, and in which they have to spend most of their time. It would not be reasonable to expect the male plaintiff to live there in solitude and with no one to look after him.

But was Mrs. Behrens unfit to accompany her husband and to play the sort of part I have indicated, looking after him, being with him, and perhaps doing a little on the stage?  [His Lordship referred to the evidence, and continued:] In the face of the evidence that Mrs. Behrens was fit for light work in the middle of June, 1954, and in the absence of any evidence that she was unfit to go with her husband on tour, I find it impossible to say that the defendants’ liability for loss of earnings can extend much beyond that date. I think that it is reasonable to feel that the offer of work in 1954 came rather before the plaintiffs could be expected to be ready for it, and that they were entitled to some period after recovery to look around for work; but if I fix the total period of incapacity at eight months, I think that that is as much as I can do. I assess the joint loss of earnings for that period at £360.

I must now proceed to consider in what proportion this special damage is recoverable as between the two plaintiffs, and whether the husband has a good cause of action in respect of the whole [27] of his proportion and what sums of general damage should be awarded to each plaintiff individually.

I shall take Mrs. Behrens first. She received half the benefit of the joint earnings and may therefore be taken to have been paid half. It is in my judgment nothing to the point to submit that as her part of the act was much smaller than that of her husband she was, commercially speaking, worth less than half. So long as the arrangement was a genuine one and husband and wife, rightly or wrongly, regarded their contributions as being of equal value, the loss to the wife is a loss of what she was getting and not of what she would have got it her husband had been disposed to drive a harder bargain. This approach to the subject affects Mrs. Behrens’ general damage as well as her special, and in the case of the general damage it works for the advantage of the defendants. I am satisfied that in the future as in the past her husband will continue to rate the support her gets from her as being worth half the joint earnings; therefore so long as he is alive and working the wife’s disablement will not cause her any professional loss. I think that her damages, both special and general, must be assessed on this basis. Accordingly, I award £180 as special damage to Mrs. Behrens.

Her general damage must be substantial. Her injuries were considerable and they have left some permanent side effects of pain and discomfort. I have to take into account that the discomfort, if not pain, which the injuries continue to cause her may well make her work with her husband more arduous, and I have to assess her damages in the light of the arduous work which she has to do if by her support of her husband she is to earn her share of the joint takings. I have also to consider that her ability to earn her own living, if her husband should die has been diminished by her inability to perform a musical act on her own. I assess her general damage at £2,750.

I turn now to the male plaintiff’s claim. Can he be compensated for the loss of half the joint earnings? That raises one question of law and another is raised in the assessment of the general damage. I shall take the latter first. The real claim presented by Mr. Brown is for fright. An elephant coming over the top of a booth would be a terrifying thing even for an ordinary man, and although the male plaintiff asserts that he was not frightened, I am satisfied that the shock must have been considerable. I should like to award him a substantial sum under this head, but I am satisfied that I cannot do so except to the extremely limited extent that the shock resulted in physical [28] or mental harm. I think that that is clearly the effect of the authorities. When the word “shock” is used in them, it is not in the sense of a mental reaction but in the medical senses as the equivalent of a nervous shock; MacKinnon L.J. in Owens v. Liverpool Corporation^[37] refers to it as being “ascertainable by the physician” and as “the form of ill-health which is known as shock.” I appreciate that it is now becoming increasingly difficult to define the boundaries of mental ill-health. But without infringing on the general principle embedded in the common law that mental suffering cause by grief, fear, anguish and the like is not assessable, Owens v. Liverpool Corporation^[37] goes as far as any court can go and I cannot accept Mr. Brown’s invitation to attempt an extension of what is there said.

The medical history in relation to the male plaintiff is almost negligible. He went to the hospital with his wife after the accident, but was not admitted; and in fact the first time he was seen by a doctor was nearly three years later for the purposes of this action. He returned to Olympia the day after the accident in order to look for his cat. He was then obviously very distressed and upset, but that may well have been largely due to his feeling for his wife. It is said in the medical report that thereafter he went to bed for a week. I think it would not be unreasonable if I were to treat that as some form of nervous prostration which amounted to ill-health. He was thus unable to earn money during that period, though that would probably have been impossible anyway owing to the destruction of the booth; the defendants were not, however concerned to explore this minutely. I assess the damage under this head at £25.

The other form of ill-health that is relied on is some detrimental effect on an existing chest condition. It does not appear that his chest was ever examined, but his statement that before the accident he suffered from minor chess trouble and that since the accident he has been more prone to chronic bronchitis is accepted in the medical report; and the opinion is expressed that it is probable that the shock had some detrimental effect on his chest condition. Apart from shock, I should have thought it likely that in the case of a man over 60 minor chest troubles might begin in any event to get slightly worse. But here again the defendants have not been disposed to niggle, and I assess the damage under this head at £50.

There is, therefore, left only the male plaintiff’s claim for loss of half the joint earnings. I take £10 of this loss as being [29] included in the figure of £25 which I have already awarded in respect of his own physical incapacity. The balance of £170 depends on whether he is entitled to compensation in respect of the period when he was fit to work and his wife was not. If the male plaintiff’s loss consisted simply of the fact that the loss of his wife’s musical talent made the joint act less valuable to him, I should hold that he could not recover. I decided that way in Burgess v. Florence Nightingale Hospital for Gentlewomen^[38] where a similar point arose under the Fatal Accidents Acts. But that is not the point here: I have found as a fact that the male plaintiff has proved no loss under that head. His loss lies in the fact that Mrs. Behrens would, if her husband had gone on tour, have been unable to give him the society and domestic help which only she as a wife could give. In Burgess v. Florence Nightingale Hospital for Gentlewomen^[38] it was not suggested that the arrangement between the parties in that case depended in any way on the relationship between husband and wife.

If Mr. Behrens during his wife’s incapacity had gone on tour, he might have had to have paid someone to take his wife’s place on the stage and he would also have had to have paid someone to look after him in the caravan. The first payment he could not have recovered from the defendants; on the facts that he would have sustained no loss, since he would he would not have had to have paid his wife her share of the earnings and she would have her own independent claim for the loss of that share; in law the loss, if he had sustained it, would not be recoverable. But the second payment he could have recovered, and, I think, have added to it a claim for compensation for the loss of his wife’s society which no substitute domestic help could give. If she could not be with him in her customary place, it would not to my mind matter that that place was a caravan and not the ordinary matrimonial home. It would not be merely an impairment of consortium, but a total, though temporary, loss of it.

But in fact he did not go on tour. He preferred to stay at home and accept the loss of earnings; and in the very peculiar circumstances of this case I have held that his choice was a reasonable one. Can he then recover his loss of earnings as damages? To hold that he can may be breaking new ground in this type of action, but I can see no reason in principle why he should not be thus compensated. The assessment of damage must be governed by those principles which apply generally in the law of tort and, provided he acts reasonably, he must be put [80] in as good a position, so far as money can do it, as if the wrong had not been done to him. I repeat that on the facts this is a most exceptional case, turning on the exceptional need which this husband had for the support of his wife. Because of that I think that he is entitled to recover.

The result is that there will be judgment for the male plaintiff for sums totalling £480, and for the female plaintiff for £2,930.

I shall now deal with the issues of fact, whose determination is not necessary for my judgment but may be material hereafter. Evidence was called on both sides about the behavior of the elephants. There was evidence to show how elephants behave in Burma and how they behave in circuses in England. I admitted this evidence de bene esse at the request of both sides, but in this court it is immaterial, since I am bound by the decision in Filburn v. People’s Palace and Aquarium Co. Ltd.^[39]; “it is not competent to the courts to reconsider the classification of former times,” per Neville J. in Heath’s Garage Ltd. v. Hodges.^[40] If, however, it was open to me to answer the question as one of fact, I should answer it on the evidence before me by saying that some elephants are dangerous and some are not and that this one is not.

The next issue is an allegation of negligence against the defendants. That would arise for consideration either as an alternative cause of action, if I am wrong in holding that the rule of strict liability applies; alternatively, as a possible answer to a defence based upon the act of a third party, if I am wrong in holding that such a defence is not arguable at all in law.

The negligence alleged falls under three heads, namely, (1) that no sufficient precautions were taken to exclude dogs from Olympia; (20 that the elephants in their passage to and from the circus ring were not properly controlled; and (3) that there were no posts or fencing on either side of the route which the elephants took to the circus ring. The first of these charges raised an issue on which much evidence was called and which I must deal with in some detail. The second and third can be disposed of shortly and I shall take them first.

It was argued that the elephants should not have been in the funfair at all, thought it may seem at first sight a dangerous manoeuvre to lead a procession of elephants along a route, 13 feet wide, which may be thronged by the public, and which has booths on either side which an elephant would very easily knock down [31] if it deviated. But in fact that manoeuvre happens many hundred of times every season in which the defendants hold their circus, and I dare say the same sort of manoeuvre happens many hundreds of times elsewhere, and I accept the evidence that is happens without incident. Subjects to strict precautions being taken to see that there is nothing on the route that is likely to startle the elephants, I find that there is no lack of proper care in this. Mr. Brown submitted that the elephant ought to be controlled, either by a man riding on her with a goad or else leading her by a rope attached by a hook to her ear, as is apparently the practice in Burma. It is not, however, the practice with circus elephants who, manifestly, if they are trained to a higher standard of obedience for circus tricks must also be trained to be more obedient than traction elephants. I find that there was no lack of proper control. I was in fact very much impressed by the trainer in the witness-box; and also by the way in which the elephants were brought so speedily under control after the accident. On the other point, namely, the allegation that there should have been posts or a fence, I was not offered any evidence from people experienced in handling of elephants, but Mr. Brown invited me to conclude that such a precaution was a matter of common sense. I cannot draw that conclusion. It seems to me that, granted, that the route was a proper one, any posts and fence which it would be reasonable to erect, bearing in mind that the public cannot be fenced off from access to the booths, would be quite useless.

[The following is a summary of the further findings of fact made by his Lordship: The defendants gave strict instructions to all their employees on the premises, and particularly to those stationed at the main entrance, that among other things dogs and other animals were not to be admitted and those instructions were reasonably well executed. Although there was some evidence to suggest that the defendants were resigned to the possibility of small animals occasionally getting into the funfair, a standard of care, reasonable in the circumstances, was employed to lay down and enforce instruction for those who guarded the public entrance. The omission to put up any notice at the public entrance was not in itself sufficient evidence of negligence.

The rule prohibiting animals was not merely one made by the defendants for their circus but was made also by Olympia Ltd. and applied to the whole building at all times, and instructions were given to their gatekeepers; there was no evidence to show [32] in what way those instructions were carried out. There was no prohibitive notice at the staff and standholders’ entrance, and a standholder might quite properly have thought that there would be no objection to his bringing a pet animal into his booth provided he kept it under control when he got there. The clause purporting to prohibit animals contained in Whitehead’s licence would, even if it had been correctly printed, have been insufficient notice to the standholder of the prohibition, for it was not in a place where the standholder’s attention might reasonably have been expected to be caught by it, and, as against a third party, reasonable steps had not been taken to notify the standholder of the prohibition. His Lordship was not satisfied on the evidence that the defendants took all reasonable steps to see that small animals were not brought into the funfair by a standholder such as Whitehead. Whitehead did, however, know of the prohibition. His Lordship continued:]

The next issue relates to a contention, based on the fact that I have just found, that Whitehead’s act was wrongful. The term “wrongful” is taken for this purpose because it is the widest of the many epithets (others are malicious, criminal, deliberate, voluntary, conscious) that are to be found in the authorities as characterizing the sort of intervention by a third party which (if the minority view in Baker v. Snell^[41] was right) would afford a ground of defence. This is largely a question of law; but, as it raised some question of fact, I shall deal with it.

If Whitehead was right in thinking that he was forbidden to bring a dog into Olympia, his introduction of it was a trespass. But was he in fact forbidden? That depends on the terms of his licence. If he had erroneously thought that he was permitted to bring in a dog when in fact his licence forbade it, it would be no answer for him to say that he had not read or had misconstrued his licence. But if the licence erroneously contains no prohibition, and perhaps by implication a permission, does it avail the defendants to say that Whitehead, not having read the licence, thought that there was a prohibition, which was in fact what they intended? I can leave that point for argument, if necessary, elsewhere, and also the question whether a trespass is a wrongful act within the meaning of the principle. Mr. Van Oss rested his submission that the act was wrongful chiefly on the contention that the introduction to the dog was wrongful, not as being deliberate or malicious (there is no evidence of that) but as being reckless or negligent. Whitehead denied that he [33] appreciated the danger, and I can find no sufficient reason either for rejecting his denial or for holding that he ought to have appreciated it. Most people probably know that a small dog may disturb cattle, but I do not believe that there is the same general knowledge about elephants. A man might reasonably think that an elephant would ignore so small an irritation and that, at least if the dog was securely tied up, it would be no danger.

The last issue of fact that I have to determine is whether the plaintiffs or either of them knew that the dog was there.

[His Lordship having considered the evidence on this issue, said that he was not satisfied that the plaintiffs knew of the presence of the dog in the funfair.]

Judgment for the plaintiffs.

Solicitors: Charlton Hubbard & Co. for Marsh & Ferriman, Worthing; William Charles Crocker.

J.F.L

[1] [1947] A.C. 156, 171; 62 T.L.R. 646.; [1946] 2 All E.R. 471.

[2] (1890) 25 Q.B.D. 258; 6 T.L.R. 402.

[3] [1940] 1 K.B. 687.

[4] Ibid. 700.

[5] 25 Q.B.D. 258.

[6] [1900] 7 Bur.L.B. 73; 2 Upper Burma Rulings 570.

[7] [1907] 2 KB. 345; 23 T.L.R. 548 (sub nom. Hadwell v. Rightson).

[8] [1954] 1 Q.B. 614; [1954] 1 All E.R. 683.

[9] [1947] A.C. 156.

[10] [1911] I.L.R. 35 Mad. 708.

[11] [1868] L.R. 3 H.L. 330.

[12] [1947] A.C. 156, 171, 172.

[13] [1908] 2 K.B. 825; 24 T.L.R. 811.

[14] [1934] 1 K.B. 126; 50 T.L.R. 55.

[15] [1934] 1 K.B. 126, 139.

[16] [1855] 2 Macq. 14.

[17] 1931 S.C.(H.L.) 117.

[18] [1908] 2 K.B. 352.

[19] Ibid. 354.

[20] Ibid. 355.

[21] [1908] 2 KB. 825.

[22] [1908] 2 K.B. 825, 828, 832.

[23] Ibid. 833.

[24] Ibid. 355.

[25] Ibid. 834, 835.

[26] Ibid. 828, 832.

[27] Ibid. 833.

[28] (1935) 79 S.J. 777.

[29] [1951] 2 K.B. 529; [1951] 2 All E.R. 320n.

[30] [1955] 1 Q.B. 349; [1955] 1 All E.R. 511.

[31] [1952] A.C. 716; [1952] 2 T.L.R. 246; [1952] 2 All E.R. 394.

[32] [1956] 1 Q.B. 192; [1955] 3 All E.R. 777.

[33] [1955] A.C. 457; [1955] 1 All E.R. 846.

[34] [1939] 1 K.B. 394. 55 T.L.R. 246; [1938] 4 All E.R. 727.

[35] (1888) 13 App.Cas. 222; 4 T.L.R. 286.

[36] [1925] 1 K.B. 141; 41 T.L.R. 125.

[37] (1896) 151 N.Y. 107.

[38] [1901] 2 K.B. 669; 17 T.L.R. 555.

[39] 25 Q.B.D. 258.

[40] [1947] A.C. 156, 171.

[41] [1891] A.C. 325; 7 T.L.R. 679.

[42] [1940] 1 K.B. 687.

[43] [1944] K.B. 476; 60 T.L.R. 356; [1944] 1 All E.R. 465.

[44] (1848) 12 Q.B.D. 439.

[45] [1939] 1 K.B. 509; 55 T.L.R. 297; [1939] 1 All E.R. 59.

[46]L.R. 3 H.L. 330.

[47] [1947] A.C. 156.

[48] L.R. 3 H.L. 330.

[49] [1938] 1 All E.R. 579.

[50] (1873) L.R. 8 Q.B. 274.

[51] [1894] A.C. 48.

[52] [1957] 2 W.L.R. 84; [1957] 1 All E.R. 156.

[53] [1908] 2 K.B. 825.

[54] Ibid. 828, 832.

[55] Ibid. 833.

[56] (1879) 4 Ex.D. 76.

[57] [1955] 1 Q.B. 253; [1954] 3 All E.R. 593.

[58] [1947] K.B.147; 62 T.L.R. 733; [1946] 2 All E.R. 599.

[59] [1913] A.C. 263; 29 T.L.R. 281.

[60] [1936] A.C. 108; 52 T.L.R. 93.

[61] [1901] 2 K.B. 669, 670.

[62] 13 App.Cas. 222.

[63] [1897] 2 Q.B. 57; 13 T.L.R.  388.

[64] 151 N.Y. 107.

[65] [1925] 1 K.B. 141.

[66] [1939] 1  K.B. 394.

[67] [1943] A.C. 92; [1942] 2 All E.R. 396.

[68] [1953] 1 K.B. 429; [1953] 1 All E.R. 61

[1] [1947] A.C. 156, 171; 62 T.L.R. 646; [1946] 2 All E.R. 471.

[2] The Committee appointed to consider the law of Civil Liability for damage done by Animals. Report presented January, 1953. Cmd. 8746.

[3] [1932] A.C. 562, 612; 48 T.L.R. 494.

[4] In Smith v. Cook (1875) 1 Q.B.D. 79,82.

[5] All E. R. 683.

[6] (1890) 25 Q.B.D. 258; 6 T.L.R. 402.

[7] [1940] 1 K.B. 687, 56 T.L.R. 409, [1940] 1 All E.R. 471.

[8] [1940] 1 K.B. 687, 700.

[9] [1947] A.C. 156, 171.  

[10] [1934] 1 K.B. 126, 139; 50 T.L.R. 55.

[11] [1937] 3 All E.R. 524, 528.

[12] [1943] A.C. 448, 464; 59 T.L.R. 266; [1943] 2 All E.R. 44.

[13] (1858) 1F.&F. 92.

[14] 25 Q.B.D. 258.

[15] [1947] A.C. 156, 171.

[16] [1954] 1 Q.B. 614.

[17] Ibid. 625.

[18] (1848) 12 Q.B. 439.

[19] 12 Q.B. 439, 446.

[20] [1956] A.C. 266, 281-282; [1956] 1 All E.R. 456.

[21] [1908] 2 K.B. 825; 24 T.L.R. 811.

[22] [1908] 2 K.B. 825.

[23] (1868) A.C. 156.

[24] [1947] A.C. 156.

[25] Ibid. 167.

[26] [1908] 2 K.B. 825.

[27] L.R. 3 H.L. 330.

[28] 1 All E.R. 579.

[29] Ibid. 583.

[30] [1908] 2 K.B. 825.

[31] [1908] 2 K.B. 352.

[32] Ibid. 825.

[33] [1908] 2 K.B. 352, 353.

[34] Ibid. 825, 828.

[35] Ibid. 832, 833.

[36] [1908] 2 K.B. 833, 834.

[37] [1939] 1 K.B. 394, 400; 55 T.L.R. 246; [1938] 4 All E.R. 727.

[38] [1955] 1 Q.B. 349; [1955] 1 All E.R. 511.

[39] 25 Q.B.D. 258.

[40] [1916] 2 K.B. 370, 383; 32 T.L.R. 570.

[41] [1908] 2 K.B. 825.

[529] COUNSEL

Hurley & Hurley and Joseph G. Hurley for Plaintiffs and Appellants.

LaFollette, Johnson, Horgan & Robinson, Patrick J. Hast, Horvitz & Minikes, Ellis J. Horvitz and Morton Minikes for Defendant and Respondent.

OPINION

LILLIE, J.

Plaintiffs Maxine Hammontree and her husband sued defendant for personal injuries and property damage arising out of an automobile [530] accident. The cause was tried to a jury. Plaintiffs appeal from judgment entered on a jury verdict returned against them and in favor of defendant.

The evidence shows that on the afternoon of April 25, 1967, defendant was driving his 1959 Chevrolet home from work; at the same time plaintiff Maxine Hammontree was working in a bicycle shop owned and operated by her and her husband; without warning defendant's car crashed through the wall of the shop, struck Maxine and caused personal injuries and damage to the shop.

Defendant claimed he became unconscious during an epileptic seizure losing control of his car. He did not recall the accident but his last recollection before it, was leaving a stop light after his last stop, and his first recollection after the accident was being taken out of his car in plaintiffs' shop. Defendant testified he has a medical history of epilepsy and knows of no other reason for his loss of consciousness except an epileptic seizure; prior to 1952 he had been examined by several neurologists whose conclusion was that the condition could be controlled and who placed him on medication; in 1952 he suffered a seizure while fishing; several days later he went to Dr. Benson Hyatt who diagnosed his condition as petit mal seizure and kept him on the same medication; thereafter he saw Dr. Hyatt every six months and then on a yearly basis several years prior to 1967; in 1953 he had another seizure, was told he was an epileptic and continued his medication; in 1954 Dr. Kershner prescribed dilantin and in 1955 Dr. Hyatt prescribed phelantin; from 1955 until the accident occurred (1967) defendant had used phelantin on a regular basis which controlled his condition; defendant has continued to take medication as prescribed by his physician and has done everything his doctors told him to do to avoid a seizure; he had no inkling or warning that he was about to have a seizure prior to the occurrence of the accident.

In 1955 or 1956 the Department of Motor Vehicles was advised that defendant was an epileptic and placed him on probation under which every six months he had to report to the doctor who was required to advise it in writing of defendant's condition. In 1960 his probation was changed to a once-a-year report.

Dr. Hyatt testified that during the times he saw defendant, and according to his history, defendant "was doing normally" and that he continued to take phelantin; that "[t]he purpose of the [phelantin] would be to react on the nervous system in such a way that where, without the medication, I would say to raise the threshold so that he would not be as subject to these episodes without the medication, so as not to have the seizures. He would not be having the seizures with the medication as he would without [531] the medication compared to taking medication"; in a seizure it would be impossible for a person to drive and control an automobile; he believed it was safe for defendant to drive.

Appellants' contentions that the trial court erred in refusing to grant their motion for summary judgment on the issue of liability and their motion for directed verdict on the pleadings and counsel's opening argument are answered by the disposition of their third claim that the trial court committed prejudicial error in refusing to give their jury instruction on absolute liability.^[1]

Under the present state of the law found in appellate authorities beginning with Waters v. Pacific Coast Dairy, Inc., 55 Cal. App.2d 789, 791-793 [131 P.2d 588] (driver rendered unconscious from sharp pain in left arm and shoulder) through Ford v. Carew & English, 89 Cal. App.2d 199, 203-204 [200 P.2d 828] (fainting spells from strained heart muscles), Zabunoff v. Walker, 192 Cal. App.2d 8, 11 [13 Cal. Rptr. 463] (sudden sneeze), and Tannyhill v. Pacific Motor Trans. Co., 227 Cal. App.2d 512, 520 [38 Cal. Rptr. 774] (heart attack), the trial judge properly refused the instruction. The foregoing cases generally hold that liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence. However, herein during the trial plaintiffs withdrew their claim of negligence and, after both parties rested and before jury argument, objected to the giving of any instructions on negligence electing to stand solely on the theory of absolute liability. The objection was overruled and the court refused plaintiffs' requested instruction after which plaintiffs waived both opening and closing jury arguments. Defendant argued the cause to the jury after which the judge read a series of negligence instructions and, on his own motion, BAJI 4.02 (res ipsa loquitur).

Appellants seek to have this court override the established law of this state which is dispositive of the issue before us as outmoded in today's social and economic structure, particularly in the light of the now recognized principles imposing liability upon the manufacturer, retailer and all distributive and vending elements and activities which bring a product to the consumer to his injury, on the basis of strict liability in tort expressed first in Justice Traynor's concurring opinion in Escola v. Coca Cola Bottling [532] Co., 24 Cal.2d 453, 461-468 [150 P.2d 436]; and then in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]; Vandermark v. Ford Motor Co., 61 Cal.2d 256 [37 Cal. Rptr. 896, 391 P.2d 168]; and Elmore v. American Motors Corp., 70 Cal.2d 578 [75 Cal. Rptr. 652, 451 P.2d 84]. These authorities hold that "A manufacturer [or retailer] is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62; Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 260-261.) Drawing a parallel with these products liability cases, appellants argue, with some degree of logic, that only the driver affected by a physical condition which could suddenly render him unconscious and who is aware of that condition can anticipate the hazards and foresee the dangers involved in his operation of a motor vehicle, and that the liability of those who by reason of seizure or heart failure or some other physical condition lose the ability to safely operate and control a motor vehicle resulting in injury to an innocent person should be predicated on strict liability.

We decline to superimpose the absolute liability of products liability cases upon drivers under the circumstances here. The theory on which those cases are predicated is that manufacturers, retailers and distributors of products are engaged in the business of distributing goods to the public and are an integral part of the over-all producing and marketing enterprise that should bear the cost of injuries from defective parts. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262 [37 Cal. Rptr. 896, 391 P.2d 168]; Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049].) This policy hardly applies here and it is not enough to simply say, as do appellants, that the insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis. In Maloney v. Rath, 69 Cal.2d 442 [71 Cal. Rptr. 897, 445 P.2d 513], followed by Clark v. Dziabas, 69 Cal.2d 449 [71 Cal. Rptr. 901, 445 P.2d 517], appellant urged that defendant's violation of a safety provision (defective brakes) of the Vehicle Code makes the violator strictly liable for damages caused by the violation. While reversing the judgment for defendant upon another ground, the California Supreme Court refused to apply the doctrine of strict liability to automobile drivers. The situation involved two users of the highway but the problems of fixing responsibility under a system of strict liability are as complicated in the instant case as those in Maloney v. Rath (p. 447), and could only create uncertainty in the area of its concern. As stated in Maloney, at page 446: "To invoke a rule of strict liability on users of the streets and highways, however, without also establishing in substantial detail how the [533] new rule should operate would only contribute confusion to the automobile accident problem. Settlement and claims adjustment procedures would become chaotic until the new rules were worked out on a case-by-case basis, and the hardships of delayed compensation would be seriously intensified. Only the Legislature, if it deems it wise to do so, can avoid such difficulties by enacting a comprehensive plan for the compensation of automobile accident victims in place of or in addition to the law of negligence."

The instruction tendered by appellants was properly refused for still another reason. Even assuming the merit of appellants' position under the facts of this case in which defendant knew he had a history of epilepsy, previously had suffered seizures and at the time of the accident was attempting to control the condition by medication, the instruction does not except from its ambit the driver who suddenly is stricken by an illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge.

The judgment is affirmed.

Wood, P.J., and Thompson, J., concurred.

Appellants' petition for a hearing by the Supreme Court was denied December 16, 1971.

[1] "When the evidence shows that a driver of a motor vehicle on a public street or highway loses his ability to safely operate and control such vehicle because of some seizure or health failure, that driver is nevertheless legally liable for all injuries and property damage which an innocent person may suffer as a proximate result of the defendant's inability to so control or operate his motor vehicle.

"This is true even if you find the defendant driver had no warning of any such impending seizure or health failure."