MARY SULLIVAN, as Administratrix of ANNIE E. HARTEN, Deceased, Respondent,

v.

CARROLL DUNHAM, THEODORE II. DINKEL and PHILIP JEWELL, Appellants.

161 N.Y. 290

PERSONAL INJURY TO ONE TRAVELING ON A PUBLIC HIGHWAY, OCCASIONED BY EXPLOSION OP BLAST UPON ABUTTING LAND. One who, for a lawful purpose and without negligence or want of skill, explodes a blast upon his own land and thereby causes a piece of wood to fall upon a person lawfully traveling in a public highway, is liable as a trespasser for the injury thus inflicted, and in an action brought against him to recover damages for the death of the person injured, it is not essential for the plaintiff to establish negligence or want of skill in order to make out a cause of action.

Sullivan v. Dunham, 35 App. Div. 342, affirmed.

(Argued December 13, 1899; decided January 9, 1900.)

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 15, 1898, unanimously affirming a judgment entered upon a verdict in favor of the plaintiff.

On the 10th of June, 1895, Annie E. Harten, the plaintiff's intestate, a young lady nineteen years of age, while traveling on a public highway near the village of Irvington, in the county of Westchester, was killed by a blow from a section of a tree which fell upon her, after it had been hurled more than four hundred feet by a blast. The defendants, Dinkel and Jewell, as copartners, had been employed by the defendant Dunham, the owner of a tract of rough land, to blast out certain trees standing upon it. On the south side of the tract, about three hundred feet from the nearest point of [291] the highway in question, there was a large living elm tree, from sixty to seventy feet in height, between which and the highway was some woodland. Dynamite was placed under the roots of this tree and exploded, shattering it and throwing a section of the stump over the intervening forest, a distance of four hundred and twelve feet, to a point in the highway where the plaintiff's intestate was traveling. She was struck by it with such force as to cause her death within a few hours. This action was brought to recover damages for the benefit of the next of kin on account of the death of the plaintiffs intestate, caused, as alleged, by the wrongful act of the defendants. Notwithstanding their objection and exception, the case was submitted to the jury on the theory that it was not essential for the plaintiff to establish negligence in order to make out a cause of action. The judgment rendered in favor of the plaintiff upon the first trial was reversed by the Appellate Division on account of erroneous rulings (10 App. Div. 438), but the judgment rendered in her favor upon the second trial was unanimously affirmed, and the defendants having first obtained leave, now come here.

Isaac N. Mills for appellants. The gravamen of this action is negligence. No recovery can be had against any defendant except upon proof of negligence, for which such defendant is legally responsible. (Donahue v. S. & E. S. Ry. Co.,11 App. Div. 520; Roemer v. Striker, 142 N. Y. 136; Reed v. McConnell, 133 N. Y. 434; Romeyn v. Sickles, 108 N. Y. 650; Martin v. Pettit, 117 N. Y. 122; Berg v. Parsons, 90 Hun, 268; French v. Vix, 143 N. Y. 90; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Herrington v. Vil. of Lansingburgh, 110 N. Y. 145.) The trial court erred in important rulings upon questions of evidence, and in a vital part of his charge, upon the issue of defendant's negligence. (Benoit v. T. & L. R. R. Co., 154 N. Y. 223; McClain v. B. C. R. R. Co., 116 N. Y. 460; Dyer v. E. Ry. Co., 71 N. Y. 228.)

Sumner B. Stiles and Francis L. Wellman for respondent. As it appears by the record that the affirmance by the Appel [292] late Division of the judgment entered upon the verdict of the jury was unanimous, the Court of Appeals is compelled by the Constitution and the statute to presume that there was sufficient evidence to sustain the facts found by the jury, that the relation between the defendant Dunham and the co-defendants Dinkel and Jewell was that of master and servant, and that the plaintiff's intestate was free from contributory negligence and that the injury was produced by the affirmative misfeasance of both Dinkel and Jewell. (Szuchy v. H. C. & I. Co., 150 N. Y. 219; Kaplan v. N. Y. B. Co., 151 N. Y. 171; People ex rel. v. Barker, 152 N. Y. 417; People v. Helmer, 154 N. Y. 596; Ayres v. D., L. & W. R. R. Co., 158 N. Y. 254.) As it was not disputed that the death of the plaintiff's intestate was caused by the blast in question, the trial justice properly excluded from the consideration of the jury the question of the defendants' negligence. The defendants were clearly liable for causing this direct injury and trespass upon the right of the plaintiff's intestate to pass along the public highway without being molested in her enjoyment of her lawful possession thereof for the purpose of traveling thereon. (Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; Losee v. Buchanan, 51 N. Y. 476; Marvin v. B. I. M. Co., 55 N. Y. 538; St. Peter v. Denison, 58 N. Y. 416; Jutte v. Hughes, 67 N. Y. 267; Heeg v. Licht, 80 N. Y. 579; Mairs v. M. R. E. Assn., 89 N. Y. 498; Bohan v. P. J. G. L. Co., 122 N. Y. 18; Benner v. A. D.Co., 134 N. Y. 156.)

VANN, J.

The main question presented by this appeal is whether one who, for a lawful purpose and without negligence or want of skill, explodes a blast upon his own land and thereby causes a piece of wood to fall upon a person lawfully traveling in a public highway, is liable for the injury thus inflicted?

The statute authorizes the personal representative of a decedent to ''maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's [293] death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued." (Code Civ. Pro. § 1902.) It covers any action of trespass upon the person, which the deceased could have maintained if she had survived the accident. Stated in another form, therefore, the question before us is whether the defendants are liable as trespassers.

This is not a new question, for it has been considered, directly or indirectly, so many times by this court that a reference to the earlier authorities is unnecessary. In the leading case upon the subject, the defendant, in order to dig a canal authorized by its charter, necessarily blasted out rocks from its own land with gunpowder, and thus threw fragments against the plaintiff's house, which stood upon the adjoining premises. Although there was no proof of negligence, or want of skill, the defendant was held liable for the injury sustained. All the judges concurred in the opinion of CARDINER, J., who said: "The defendants had the right to dig the canal. The plaintiff the right to the undisturbed possession of his property. If these rights conflict, the former must yield to the latter, as the more important of the two, since, upon grounds of public policy, it is better that one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of his property altogether, which might be the consequence if the privilege of the former should be wholly unrestricted. The case before us illustrates this principle. For if the defendants in excavating their canal, in itself a lawful use of their land, could, in the manner mentioned by the witnesses, demolish the stoop of the plaintiff with impunity, they might, for the same purpose, on the exercise of reasonable care, demolish his house, and thus deprive him of all use of his property. The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property. To this possession the law prohibits all direct injury, without regard to its extent or the motives [294] of the aggressor * * * He may excavate a canal, but he cannot cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that mode of using his property, or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner" (Hay v. Cohoes Co., 2 N. Y. 159.)

This case was followed immediately by Tremain v. Cohoes Co. (2 N. Y. 163), a similar action against the same defendant, which offered to show upon the trial "that the work was done in the best and most careful manner." It was held that the evidence was properly excluded because the manner in which the defendant performed its work was of no consequence, as what it did to the plaintiff's injury was the sole question.

These were cases of trespass upon lands, while the case before us involves trespass upon the person of a human being, when she was where she had the same right to protection from injury as if she had been walking upon her own land. As the safety of the person is more sacred than the safety of property, the cases cited should govern our decision unless they are no longer the law.

The Hay case was reviewed by the Commission of Appeals in Losee v. Buchanan (51 N. Y. 476, 479), where it was held that one who, without negligence and with due care and skill, operates a steam boiler upon his own premises, is not liable to his neighbor for the damages caused by the explosion thereof. That was not a case of intentional but of accidental explosion. A tremendous force escaped, so to speak, from the owner, but was not voluntarily set free. The court, commenting upon the Hay case, said: “It was held that the defendant was liable for the injury, although no negligence or want of skill in executing the work was alleged or proved. This decision was well supported by the clearest principles. The acts of the defendant in casting the rocks upon plaintiff's premises were direct and immediate. The damage was [295] the necessary consequence of just what the defendant was doing, and it was just as much liable as if it had caused the rocks to be taken by hand, or any other means, and thrown directly upon plaintiff's land.”

The Hay case was expressly approved and made the basis of judgment in St. Peter v. Denison (58 N. Y. 416), where a blast, set off by a contractor with the state in the enlargement of the Erie canal, threw a piece of frozen earth against the plaintiff when he was at work upon the adjoining premises for the owner thereof. In holding the contractor liable the court said: "Even if it should be conceded that the defendant had the right, from being a contractor with the state, to do all that which the state might do, in the progress of the work; I do not think that this would justify him, in the state of facts which this case presents, in casting material upon the premises of a private owner, upon which the plaintiff was lawfully engaged. The state could not intrude upon the lawful possession of a citizen, save in accordance with law. Unless authorized by law so to do, the casting of a stone from the bed of the canal upon the land of an adjoining proprietor, either by the state or an individual, was a trespass. (Hay v. Cohoes Co., 2 N. Y. 159.) * * * Nor can the defendant protect himself from liability, for that his act of blasting out the rock with gunpowder was necessary; and hence, that the effects of it upon the adjacent premises were an unavoidable result of a necessary act. The case of Hay v. Cohoes Co. (supra) shows that unless there is a right to the use of the adjacent lands for the purposes of the work, it matters not that the mode adopted of carrying on the work was necessary. * * * It follows, then, that the defendant having no right to invade the premises, which, for the purposes of this case, were the possession of the plaintiff, it matters not whether or no he made his invasion without negligence. (Tremain v. Cohoes Co., 2 N. Y. 163; Pixley v. Clark, 35 id. 520.)"

This case is analogous to the one before us, because the person injured did not own the land upon which he stood when struck, but he had a right to stand there the same as the [296] plaintiff's intestate had a right to walk in the highway. We see no distinction in principle between the two cases.

In Mairs v. Manhattan Real Estate Association (89 N. Y. 498, 505) the defendant was held liable without proof of negligence for making an excavation upon his own land, through which, during a heavy rain, water found its way into the cellar of the adjoining owner, although the excavation was made under a license from the municipal authorities. RAPALLO, J., speaking for all the judges, said: "The rights of the parties in such a case do not depend upon the same principles as in cases where the wrong complained of consists of an interference with a public highway to the injury of the traveling public, but upon the principle of Hay v. Cohoes Co. (2 N. Y. 159), St. Peter v. Denison (58 N. Y. 416), and Jutte v. Hughes (67 N. Y. 267), in which it is hold that where one is making improvements on his own promises, or without lawful right, trespasses upon or injures his neighbor's property by casting material thereon, he is liable absolutely for the damage, irrespective of any question of care or negligence. A license from the municipal authorities cannot affect the question of responsibility in such cases."

When the injury is not direct, but consequential, such as is caused by concussion, which, by shaking the earth, injures property, there is no liability in the absence of negligence. Thus in Benner v. Atlantic Dredging Co. (134 N. Y. 156) a contractor with the United States government, in doing work required by his contract, injured property by concussion only and without casting any material upon the premises of the plaintiff. It was held that there could be no recovery without proof of negligence. The Second Division of this court in deciding that case said: "This is not a case of taking private property, or of direct, but is of consequential injury. The plaintiff's house was 3,000 feet distant from the place of the explosions. The injuries to it were caused by the shaking of the earth or pulsations of the air, or both, resulting from the explosion. There was no physical invasion of the plaintiff's premises by casting stones or earth or other substances [297] upon them, as in Hay v. Cohoes Co. (2 N. Y. 159), Tremain v. Cohoes Co. (2 N. Y. 163), and St. Peter v. Denison (58 N. Y. 416), and, hence, no going outside of the authority actually conferred and conferrable as in those cases. * * * One cannot confine the vibration of the earth or air within enclosed limits, and hence it must follow that if in any given case they are rightfully caused, their extension to their ultimate and natural limits cannot be unlawful, and the consequential injury, if any, must be remediless."

The facts wore similar in Booth v. R., W. & O. T. R. R. Co. (140 N. Y. 267), where it was "not claimed that any rock or materials were thrown by the blasts upon the plaintiff's lot." While it did not appear in what particular way the injury was produced, it was inferred "that it was caused by the jarring of the ground or the concussion of the atmosphere created by the explosions, or by both causes combined." It was held that the charge of the trial judge, that "it made no difference whether the work was done carefully or negligently," was erroneous, and the judgment was reversed for that reason. All the judges concurred in saying, "We have found no case directly in point upon the interesting and important practical question involved in this appeal. It was held in the leading case of Hay v. Cohoes Co., that the right of property did not justify the owner of land in committing a trespass on the land of his neighbor by casting rocks thereon in blasting for a canal on his own land for the use of his mill, although he exercised all due care in executing the work. In that case there was a physical invasion by the defendant of the land of the plaintiff. This the court held could not be justified by any consideration of convenience or necessity connected with the work in which the defendant was engaged. In the conflict of rights the court considered that public policy required that the right of the defendant to dig the canal on his own land must yield to the superior right of the plaintiff to be protected against an invasion of his possession by the act, of the defendant. * * * The defendant here was engaged in a lawful act. It was done on its own land to fit it for a lawful business. It [298] was not an act which, under all circumstances, would produce injury to his neighbor, as is shown by the fact that other buildings nearby were not injured. The immediate act was confined to its own laud, but the blasts, by setting the air in motion, or in some other unexplained way, caused an injury to the plaintiff's house. * * * The blasting was necessary, was carefully done, and the injury was consequential. There was no technical trespass. Under these circumstances, we think, the plaintiff has no legal ground of complaint."

The Hay case has been repeatedly cited by this court, but has never been overruled or even criticised, so far as we have discovered. (Radcliff v. Mayor, 4 N. Y. 195, 199; Pixley v. Clark, 35 N. Y. 520, 523; Jutte v. Hughes, 67 N. Y. 267, 273; Heeg v. Licht, 80 N. Y. 579, 583; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 26.) It has been several times distinguished from cases to which it clearly did not apply, such as that class where the injury was not direct but consequential, of which illustrations have already been given. It has also been distinguished, if that word may be used to point out differences between cases which rest upon wholly different principles, in that line of authorities which hold that where the work is not bound to produce injury and is done wholly by an independent contractor, with no control by the owner, the former only is liable. We cite, as an example of this class, McCafferty v. Spuyten Duyvil & P. M. R. R. Co. (61 N. Y. 178), where it was held that the defendant was not chargeable with the negligent acts of another in doing work upon his lands unless he stands in the character of employer to the one guilty of the negligence, or unless the work as authorized by him would necessarily produce the injuries complained of, or they are occasioned by the omission of some duty incumbent upon him. It is said in the prevailing opinion that "the case of Hay v. Cohoes Co. (2 Comst. 159), is not an authority, and has never been regarded as an authority upon the questions involved in this case. It was there assumed that the persons who caused the injuries complained of were the agents and servants of the defendants, and the only question [299] considered in the Court of Appeals was, whether the defendants could be made liable without the proof of negligence."

Pack v. City of New York (8 N. Y. 222); Kelly v. City of New York (11 N. Y. 432); Herrington v. Vil. of Lansingburgh (110 N. Y. 145); Roemer v. Striker (142 N. Y. 134); French v. Vix (143 N. Y. 90), and Berg v. Parsons (156 N. Y. 109) were of like character, and turned upon the liability of an independent contractor, as distinguished from that of the owner, and in some of them also the injuries were indirect and consequential, having been caused by concussion or vibration. Driscoll v. Newark, etc., Co. (37 N. Y. 637) was tried and decided on the theory of negligence, and as the recovery was simply sustained on that ground, without considering the subject of trespass, which, for some reason, was kept out of the case, it has no bearing upon the question before us.

Marvin v. Brewster Iron Mining Co. (55 N. Y.538) is also relied upon by the appellants. In that case the plaintiff's grantor had purchased a house standing over a mine, which, with the right to work it, had been reserved. It was held that the plaintiff could not enjoin his grantor from blasting in the mine at night, so as to disturb those sleeping in the house. The Hay case was distinguished, because the plaintiff therein "had the right of undisturbed possession of his property," whereas in the Marvin case his right was subject to that of the defendant to work its mine in the usual way, which was the sole use it could make of its property, and to which use the plaintiff, through his grantor, had expressly assented. When there is a conflict of rights public policy requires one to give up the right of a particular use rather than permit him by such use to destroy his neighbor's property altogether. In the case cited, however, the particular use was the only one possible, and the right to that use was imposed as "a serious servitude" upon the surface land, which was all that belonged to the plaintiff.

We think that the Hay case has-always been recognized by this court as a sound and valuable authority. After standing for fifty years as the law of the state upon the subject it should [300] not be disturbed, and we have no inclination to disturb it. It rests upon the principle, founded in public policy, that the safety of property generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of the property more secure by preventing such a use of one piece by one man as may injure all his neighbors. It makes human life safer by tending to prevent a landowner from casting, either with or without negligence, a part of his land upon the person of one who is where he has a right to be. It so applies the maxim of sic utere tuo as to protect person

and property from direct physical violence, which, although accidental, has the same effect as if it were intentional. It lessens the hardship by placing absolute liability upon the one who causes the injury. The accident in question was a misfortune to the defendants, but it was a greater misfortune to the young woman who was killed. The safety of travelers upon the public highway is more important to the state than the improvement of one piece of property, by a special method, is to its owner. As was said by the Supreme Court of Indiana, in following the Hay case: "The public travel must not be endangered to accommodate the private rights of individuals." (Wright v. Compton, 53 Ind. 337.)

We think the courts below were right in holding the defendants liable as trespassers, regardless of the care they may have used in doing the work. Their action was a direct invasion of the rights of the person injured, who was lawfully in a public highway, which was a safe place until they made it otherwise by throwing into it the section of a tree. We find no reversible error in the record before us. While the complaint suggests negligence as the gravamen of the action, it was tried upon the theory of trespass, and no ruling was made, or exception taken, which raised any question as to the scope of the pleadings, or suggested the propriety of a motion for leave to amend. We can consider no objection unless it was taken upon the trial and saved by an exception. (Hecla Powder Co. v. Signa Iron Co., 157 N. Y. 437.) Moreover, if every allegation relating to negligence were struck [301] from the complaint, it would still set forth a cause of action in trespass.

The question whether the defendants, Dinkel and Jewell, were independent contractors was settled by the jury, and after unanimous affirmance by the Appellate Division, is beyond our power of review. (Szuchy v. Hillside Coal & Iron Co., 150 N. Y. 219.) There is no exception relating to the admission of evidence, or to the charge of the court, which requires a reversal.

The judgment is right and should be affirmed, with costs.

All concur, except CRAY, J., not voting.

Judgment affirmed.

[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."

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.

[272 N.W.2d 423] Daniel T. Cutler of Stewart, Hatfield, Klass & Whicher, Sioux City, for appellant.

Daryl L. Hecht of Crary, Huff, Yates & Clem, P. C., Sioux City, for appellee.

Considered by REES, P. J., and UHLENHOPP, HARRIS, McGIVERIN and LARSON, JJ.

LARSON, Justice.

Plaintiff appeals from an adverse judgment of the district court in a claim for personal injuries resulting from bite of a tiger owned by defendant city. We reverse and remand for new trial because of errors of the trial court in its instructions to the jury.

The issues presented for review are: (1) whether the trial court properly instructed the jury as to the defense of assumption of risk; (2) whether the court erred in refusing to grant plaintiff's "pet" instruction to the effect that persons in the vicinity of supposedly tamed animals are entitled to assume they will not revert to their original wild state; and (3) whether the court erred in refusing to submit the issue of future loss of earnings.

Most of the basic facts are not in dispute. Defendant city purchased a 300-pound Bengal tiger, named Stubby, from an owner in Minnesota. During the time the city was preparing permanent quarters for him, he was kept in a small warehouse owned by plaintiff. He was caged there in a steel cage, approximately five feet by six, and six feet high. Everett Franken, who was a brother of the plaintiff, and a city employee, was placed in charge of Stubby and the other animals purchased for the planned zoo.

There was evidence that while the tiger was in the warehouse several people petted him, including the mayor, city manager, Everett Franken, various children and other members of the general public. One person had lifted up his lip and touched a tooth. Plaintiff knew, at the time he was injured, of at least some of these incidents in which people had safely petted Stubby although he had actually seen only Everett pet him. He testified he saw no substantial risk in petting him.

When the tiger was first examined by Everett Franken on behalf of the city, [272 N.W.2d 424] about one year before it was purchased, it was not fully grown and was not caged. He was caged, however, at the time Everett went to Minnesota to pick him up and was fully grown at that time. While in Minnesota, Everett saw the previous owner pet Stubby; he testified Stubby reacted like a house cat and responded to his name. From the date of Stubby's purchase until the time of injury, he was constantly caged by the city.

Stubby was fed by placing food on top of the cage and pushing it through with a stick. He was watered by pouring it through the cage openings into a trough. Plaintiff's brother, Everett, stated he did not open the gate to feed and water Stubby, preferring "to treat it as a dangerous animal" despite the fact he had petted him.

When Stubby was transferred from one cage to another, city employees put the cages door-to-door and chained them together so he could not separate them and escape.

There was evidence by a Des Moines zoo director that, at the time of plaintiff's injury, fecal accumulation and other conditions, including the small size of the cage and proximity to sheep in the same building, could cause the tiger to be "hyper" and aggravated. He testified such animals, when frightened, react instinctively by flight or attack, even if "affection trained."

On the day before his injury, plaintiff had placed some bedding in Stubby's cage by dropping wood shavings through the openings in the top of the cage. Stubby lunged, extended his paw through the opening and grabbed the shavings bag. On the night of the incident, plaintiff and four other men went to the warehouse. When they first arrived Stubby growled and began running around the cage, raising "quite a rumpus." There was evidence that Everett and another man advised plaintiff not to put his hand into the cage. He did, however, and the tiger grabbed it. Plaintiff sustained serious lacerations before the tiger's jaws were forced open with a steel bar and a board with a nail through it.

The law of Iowa, and that in most jurisdictions, imposes strict liability upon owners and harborers of wild animals. Restatement (Second) of Torts § 507(1) states the general rule as follows:

A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.

A "wild animal" is defined in § 506, and there is no dispute here that Stubby qualifies for purposes of applying the Restatement rule of liability.

Comment (c) to the above section states that:

One who keeps a wild animal is required to know the dangerous propensities normal to the class to which it belongs. It is therefore not necessary in order for the rule stated in this section to be applicable that its possessor should have reason to know that the particular animal possesses a dangerous propensity. He may reasonably believe that it has been so tamed as to have lost all of these propensities; nonetheless he takes the risk that at any moment the animal may revert to and exhibit them.

The possessor of a wild animal is subject to strict liability for harm caused by it even though it would not have happened but for the unexpectable innocent, negligent conduct of a third person, action of another animal or operation of a force of nature. Restatement (Second) of Torts § 510.

Such liability may therefore be incurred, even without any negligence on the part of the possessor. The Iowa law is in general accord with that of the Restatement. See, e. g., Wenndt v. Latare, 200 N.W.2d 862, 869 (Iowa 1972); Terpstra v. Schinkel, 235 Iowa 547, 553-4, 17 N.W.2d 106, 109-10 (1944); Parsons v. Manser, 119 Iowa 88, 93 N.W. 86 (1903). (While some of these cases state the standard is absolute liability, the principles stated are consistent with the Restatement's strict liability. See, e. g., [272 N.W.2d 425] Terpstra, 235 Iowa at 554, 17 N.W.2d at p. 110, where it states that "even where the owner or keeper of a wild animal is subjected to absolute liability, he may still defend on the ground that the injured party voluntarily exposed himself to injury.") Other than the label attached, there is no difference between the "absolute" liability of our cases and the "strict" liability of the Restatement, as applied to the present facts.

I. The assumption of risk defense.

Plaintiff pled his claim in the alternative, alleging negligence and strict liability in separate divisions. The defenses available to the city were different under each theory. Contributory negligence is a defense to a claim of negligence but not to a claim of strict liability. Hawkeye Security Ins. Co. v. Ford Motor Co., 199 N.W.2d 373, 380-81 (Iowa 1972); Restatement (Second) of Torts § 515, Comment (b). Assumption of risk is a defense to a claim of strict liability, Restatement, Supra, § 515(3), but is not available as a separate defense in a negligence case if contributory negligence is available. Rosenau v. City of Estherville, 199 N.W.2d 125, 133 (Iowa 1972). It was therefore critical for the trial court to make these matters clear to the jury in this case, in which both theories of recovery were submitted.

The trial court, in part following the Restatement principles stated above, instructed the jury regarding these divergent theories of recovery and the respective defenses available as to each, as follows:

In Instruction 1, the statement of the case, it correctly stated that plaintiff claimed damages under both negligence and strict liability. In the following instruction it stated defendant "alleges as an affirmative defense that any injury sustained by plaintiff was the result of contributory negligence on his part . . . and defendant further alleges that it is excused from any absolute liability in harboring the Bengal tiger by reason of the fact that plaintiff himself unreasonably and knowingly placed himself in a position of danger. . . ."

"Ordinary care" and "negligence" were defined as the care of an ordinary, careful and prudent person and the want of such care, respectively, in Instruction 5.

Instruction 8 stated the defense of contributory negligence, and applied it to defendant's theory of this case by stating defendant asserts contributory negligence of the plaintiff "in placing himself in close proximity to the cage" and placing his hand inside of it. The court listed the elements of the defense necessary to establish it here, i. e., negligence of plaintiff and proximate cause. It then stated "if the defendant has so proved both of the foregoing propositions, then the plaintiff is not entitled to recover and your verdict should be for the defendant." The court did not limit the application of this defense to plaintiff's negligence division. It did go on to state in this instruction that if defendant failed to prove contributory negligence, "then you may proceed to consider whether or not the plaintiff is entitled to recover against the defendant In accordance with other instructions." (Emphasis added.) It did not clearly state in this instruction, nor in any other that the jury could consider the alternative claim under strict liability without regard to contributory negligence, although requested to do so by plaintiff's attorney. The trial court stated this was unnecessary since that was implicit in reading and comparing the different bases for liability as to each division.

Instruction 9 listed the elements for recovery under the negligence theory, and stated that if they were established, plaintiff should recover, unless defendant established the defense of contributory negligence, in which case "plaintiff cannot recover and your verdict will be for the defendant." The trial court failed to state plaintiff would in such event still not be precluded from recovery under his alternative strict liability theory. It would be particularly confusing to a lay jury in view of the fact that there was only one verdict form for plaintiff and one for defendant, and no special interrogatories were propounded to it. It was merely instructed that if it found contributory negligence [272 N.W.2d 426] "your verdict will be for the defendant." Such likely confusion could have been avoided by a simple instruction, as requested by plaintiff, limiting the defense of contributory negligence or, of course, by submission of special interrogatories.

Instruction 11, as to which plaintiff raised his most strenuous objections, followed the Restatement, § 515, Comment (c), stating that:

Although one harmed by a wild animal is not barred from recovery because he has not exercised ordinary care, either to observe the presence of the animal or to escape from its attack, he is barred from recovery if he intentionally and unreasonably subjected himself to the risk of harm by the animal. Thus one who without any necessity for so doing that is commensurate with the risk involved Knowingly puts himself in reach of an animal that is effectively caged, cannot recover against the possessor or harborer of the animal. (Emphasis added.)

Plaintiff objected to the quoted part of the instruction on the basis that it "applies to a wild or abnormally dangerous domestic animal that has escaped from control of its possessor . . . and therefore the statements in (it) have no bearing to the evidence introduced in this case."

Plaintiff contends on appeal that the emphasized portion was defective in that assumption of risk should correctly be applied only where plaintiff has acted knowing the risk involved not knowingly doing an act, such as here placing himself in close proximity to the cage. This basis for plaintiff's objection to Instruction 11 was not, however, made to the trial court and may not be considered on appeal. Rule of Civil Procedure 196; Froman v. Perrin, 213 N.W.2d 684, 689-90 (Iowa 1973). We do give consideration to the emphasized portion of this instruction, however, only to determine whether the instructions, when taken as a whole, adequately informed the jury as to the nature and application of the defense of assumption of risk as requested by plaintiff. See Robeson v. Dilts, 170 N.W.2d 408, 414 (Iowa 1969).

Assumption of risk was not the subject of a separate instruction by the court, although plaintiff, in his requested "pet" instruction discussed later, did request such instruction be given, as follows:

The standards by which the plaintiff was required to conduct himself and which the defendant has the burden of proof to show is that the plaintiff had actual knowledge and full appreciation of the risk of harm from the tiger at the time he received his injuries.

The reason given by the trial court for refusal of that instruction was that "knowingly" was covered in the emphasized portion of Instruction 11. Knowingly placing oneself in a position where he may be harmed, however, without requiring a showing he "accepted certain inherent dangers with full realization of the hazards involved" would not sufficiently inform the jury on the matter of assumption of risk. Froman v. Perrin, supra, 213 N.W.2d at p. 689.

The defendant here also felt the matter was inadequately covered by the court's instruction defining assumption of risk, and requested an instruction defining it. It was refused, but of course, this is not assigned here as error by defendant, who was successful at trial.

Even though plaintiff's requested instruction may not be fully correct in all details, it did alert the trial court to the need to define assumption of risk, which was not otherwise done by it. Even a defective requested instruction is sufficient to preserve error if it alerted the trial court to the claimed error. Froman v. Perrin, supra, at pp. 689-90.

The need for specific instructions on assumption of risk is especially critical in this case, because of the separate theories of negligence and strict liability and the applicability of divergent defenses as to each. Without any specific guidance by the court as to what constituted the defense of assumption of risk and without any specific prohibition from doing so, it is very likely that a lay jury, in seeking to give meaning [272 N.W.2d 427] to this theory, would improperly, but understandably, stray into the definition of contributory negligence, which has no application to the strict liability claim of plaintiff. This is particularly true when the instructions are considered as a whole, as the jury was instructed to do.

In addition to those parts of the instructions set out above, an additional statement was added to Instruction 11, as follows:

This kind of contributory negligence, which consists of voluntarily and unreasonably encountering a known danger is frequently called either contributory negligence or assumption of risk, or both.

There is no claim that this does not correctly state the law, and was in fact requested by the plaintiff, who claimed it clarified the preceding paragraph of Instruction 11 as to which the court had overruled his objections. The mischief in such statement, however, is not that it is an incorrect statement of law, but that it would tend, without limitation by the court, to merge the two defenses. If the trial court had clearly stated to the jury which defense applied to each theory of liability, and made it clear that this is not the conventional "contributory negligence" previously discussed by it, this confusion could be eliminated. What constitutes "unreasonable" here? Without directions it is very likely the jury looked to the definition of ordinary care in the following instruction. "Unreasonably" standing alone would appear to insert an element of objective, as opposed to subjective, evaluation as required by assumption of risk. See Froman v. Perrin, 213 N.W.2d 684, 689 (Iowa 1973). "Knowingly" is not defined as requested by the parties. This term, standing alone, could as claimed by plaintiff, convey the idea to the jury that knowingly Placing oneself in proximity to the cage would amount to assumption of risk, whereas the proper application of the doctrine is placing oneself in a position knowing the risk. Id.

Without such distinctions being made clear, Instruction 8 would also be confusing in the jury's attempting to understand assumption of risk. That instruction stated that plaintiff's placing himself in close proximity to the cage was relied upon by defendant as one of the bases for contributory negligence. The jury was instructed to decide the issue of contributory negligence by comparing plaintiff's conduct to the acts of a reasonably prudent man under the circumstances. This is a correct application of the contributory negligence defense, but how was the jury to know the basis for application of the objective standard of ordinary care under the circumstances, applicable to Instruction 8, was different from the subjective measure of what plaintiff actually knew of the risk under the defense of assumption of risk unless the court pointed it out? This would be especially true here where both defenses are premised upon the same physical act of the plaintiff, i. e., placing himself in close proximity to the cage. See King v. Barrett, 185 N.W.2d 210, 213-14 (Iowa 1971).

The totality of the circumstances here, therefore, dictate that some guidance be given regarding this defense; that the court's one sentence reference to "knowingly" placing oneself in a position of danger did not adequately or correctly define its terms.

We hold it was reversible error to refuse an instruction on assumption of risk as requested. Because the matter will be remanded to the district court, other claimed errors should be dealt with for guidance upon any retrial of the case.

II. Plaintiff's requested "pet" instruction.

Plaintiff on appeal complains of the failure of the trial court to give his requested "pet" instruction. This closely followed the wording of Restatement (Second) of Torts § 515, Comment (f), and would have told the jury, in part, that:

If you find . . . that the City of Sioux Center, acting through its agents, officers and employees, believed the tiger was thoroughly tame, the defendant . . . took the risk that the tiger might revert to its original wild habits and that such risk is that of the City and not the plaintiff in this case.

[272 N.W.2d 428] Those in whose vicinity the animal is kept are entitled to assume that the animal will not so revert if the possessor or harborer deals with it in such a way as to give them reason to believe that the defendant regards it as so tamed as to be no longer dangerous.

(As part of this instruction, plaintiff also requested that the court submit his definition of assumption of risk, as discussed above.)

An example given in the Restatement comment to illustrate this concept is an elephant offered by its owner for rides by children. If the elephant became suddenly savage, the owner would become liable, the parents being entitled to assume that the elephant is tamed as represented. Another example is a chimpanzee, made accessible to an audience, reverting to a savage state.

To warrant giving an instruction to the jury on an issue, there must be substantial support for it in the record, and a mere scintilla of evidence is not sufficient. Walker v. Sedrel, 260 Iowa 625, 632, 149 N.W.2d 874, 878 (1967). To determine sufficiency of the evidence, it must be given the most favorable construction it will bear in favor of the requesting party. Miller v. International Harvester Co., 246 N.W.2d 298, 301 (Iowa 1976). When so viewed, we hold the evidence in this case did not warrant giving this instruction and the trial court properly refused it.

There is nothing in the record from which the jury could reasonably find that the City, through its employees, believed the tiger was "thoroughly tamed" or that they dealt with it "in such a way as to give them reason to believe that the defendant regards it as so tamed as to be no longer dangerous." The City's full-time caging of the animal, its careful method of transferring it from one cage to another, the method of feeding, watering and bedding of it, and the other facts outlined above clearly show that the City did not regard it as tame. Even though several persons had petted him through the cage and had not been injured, including city employees, this evidence falls far short of creating a submissible issue of its claimed "complete tameness" required to support plaintiff's theory.

III. Loss of future earnings.

Plaintiff also contends the trial court erred in refusing to submit the issue of loss of future income. In his amended and substituted petition, he stated that as a result of his injury, "plaintiff has suffered great pain and fear, loss of earnings and medical expenses . . . ." Plaintiff testified he had difficulty using the tools of his electrical business; his doctor testified he was suffering a 15 to 20 percent disability of his body as a whole. Plaintiff proffered his own testimony of lost speed and efficiency and testimony of an economics professor upon the effect of the injury on his future earnings. These proffers were denied. The reasons given for exclusion by the court were that plaintiff had testified that he was back in full-time employment within a year of the injury, and further that no prayer for future loss of income was specifically made in his petition.

No specific demand was made for Future loss of income, only a general demand for "loss of earnings." We have consistently recognized that claims for loss of past earnings and loss of future earning capacity (or "loss of future earnings") are separate and distinct elements of recovery and should be submitted as such to the jury. See, e. g., Trushcheff v. Abell-Howe Co., 239 N.W.2d 116, 122 (Iowa 1976).

The issue though is whether the words "loss of earnings" are sufficient to submit loss of future earning capacity where, as here, there is evidence to support it, or whether the recovery must be limited to loss of past earnings.

We recognize that prudence, as well as prior procedural rules and cases indicate a better practice would be to state the bases separately, i.e., loss of earnings "past and future" (or perhaps more correctly loss of earnings and impairment of future earning capacity). The words used obviously do not include "future" but neither [272 N.W.2d 429] do they say "past." By the use of this phrase, plaintiff has in effect, advised the defendant that "my injury affects my ability to do my job." It is doubtful that a defendant's attorney could claim he has been surprised or misled by an attempt to submit loss of future earning capacity under that wording. That is especially so here, where plaintiff specifically alleged that his condition was "permanent" and discovery well in advance of trial indicated that this basis of recovery did in fact exist in this case.

Our court in a similar case involving failure of the plaintiff to allege future pain and suffering stated that: "We think plaintiff's pleadings and evidence were both sufficient to warrant recovery for future pain and suffering. An express allegation of future pain and suffering is not required where it is alleged the injury is permanent, it is such that future pain is reasonably certain to follow and there is a general allegation of damages." Arenson v. Butterworth, 243 Iowa 880, 890, 54 N.W.2d 557, 563 (1952).

Our rules have been recently liberalized as to pleading requirements in general. See, e. g., Rule 67 which provides that the sufficiency of pleading shall be "construed and enforced to secure a just, speedy and inexpensive determination of all controversies on the merits" and Rule 69, providing for a "short and plain statement of the claim" showing entitlement to relief, and "judgment for the relief to which he deems himself entitled."

Also see Rule 95 which indicates a relaxation as to the details required in the prayer of the petition by prohibiting any orders requiring separate valuations of the individual elements of recovery.

We find under the facts of this case, and in light of the recent liberalization of our pleading practices, that the issue of loss of future earnings or loss of earning capacity should have been submitted under the petition as originally amended.

Here plaintiff requested leave to amend the prayer to conform to the proof and the trial court refused. Because we hold the issue of future loss of income should have been submitted under the pleadings as they existed, without amendment, it is unnecessary to determine whether the trial court abused its discretion in refusing leave to amend under Rule of Civil Procedure 88. This case is reversed and remanded for new trial in compliance with these holdings.

REVERSED AND REMANDED.