E-Alert Case Updates

Maryland Court of Appeals Rules Lawful Fireworks Displays are Not an Abnormally Dangerous Activity

Andrew David Toms v. Calvary Assembly of God, Inc.
No. 26, (Maryland Court of Appeals, February 29, 2016)
by Caroline E. Willsey, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/coa/2016/26a15.pdf

In Toms v. Calvary Assembly of God, Inc., No. 26, the Maryland Court of Appeals addressed whether noise emanating from the discharge of a fireworks display constitutes an abnormally dangerous activity, which would warrant the imposition of strict liability. Petitioner, Andrew David Toms (“Toms”), operates a dairy farm in Frederick County, Maryland. Toms owns approximately ninety (90) head of cattle as part of this operation. On September 9, 2012, a fireworks display sponsored by the Calvary Assembly of God, Inc. (“Calvary”) took place on the property adjacent to Toms’ dairy farm. The fireworks display was lawful – Calvary had obtained permits to discharge the fireworks and the event was supervised by a deputy fire marshal. The event was open to the public, and advertised via radio, newspaper ad, and on a banner located on Calvary’s property. During the event, two hundred fifty (250) shells were discharged over a fifteen minute period. No misfires or malfunctions occurred.

Toms alleged that the fireworks display was so loud that it startled his cattle causing them to stampede inside his barn. Toms arrived at the barn a few minutes after the fireworks display began. Because no one was in the barn when the fireworks started, nobody actually witnessed the stampede. According to Toms, the stampede ultimately resulted in the death of four (4) cows, property damage, disposal costs, and lost milk revenue.

Toms filed suit against Calvary, Zambelli Fireworks Manufacturing Co. (“Zambelli”), and Kristopher Lindberg (“Lindberg”), a Zambelli employee (collectively, the “Respondents”) in the District Court for Frederick County, seeking damages of $13,148.20. Toms alleged that the stampede was the result of negligence, nuisance, and strict liability for an abnormally dangerous activity. The District Court entered judgment in favor of the Respondents. It found that although Toms sustained damage, Toms did not establish any basis for liability for the injuries to his property. No evidence established negligence on behalf of the Respondents, because they all had lawfully complied with the statutory requirements for obtaining a permit to discharge fireworks. While the District Court did find that the discharge of fireworks constituted an abnormally dangerous activity, it reasoned that the danger was contained to the area allowed by the permit: in this case, a three hundred (300) foot firing radius. Because Toms’ barn was not located within three hundred (300) feet of the firing location, strict liability for an abnormally dangerous activity could not be imposed.

Toms took an “on the record” appeal to the Circuit Court for Frederick County, which affirmed the district court’s ruling. The Circuit Court agreed with Toms that the use of fireworks was an abnormally dangerous activity. The Circuit Court distinguished the type of harm caused by fireworks, however, noting that the use of fireworks was only abnormally dangerous as to the damage from the explosions – not the damage caused by noise. The Circuit Court also agreed that there was no evidence of negligence because there was no evidence that the Respondents had breached any duty of care. Lastly, the Circuit Court held that the theory of private nuisance was inapplicable, because the fireworks display was a one-time event and therefore did not rise to the level of significant harm needed to create private nuisance.

The Court of Appeals granted certiorari to answer the question of whether the doctrine of strict liability for abnormally dangerous activities applies to the noise of a fireworks discharge. The Court of Appeals held that lawfully discharging fireworks is not an abnormally dangerous activity, and therefore, the imposition of strict liability in this case would be unwarranted.

Maryland has adopted the Restatement (Second) of Torts § 519 definition of strict liability for an abnormally dangerous activity:

One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. . . . This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

To determine whether an activity is abnormally dangerous, Maryland courts consider the following six (6) factors: (1) the existence of a high degree of risk of some harm to the person, land or chattels of others; (2) likelihood that the harm that results from it will be great; (3) inability to eliminate the risk by the exercise of reasonable care; (4) extent to which the activity is not a matter of common usage; (5) inappropriateness of the activity to the place where it is carried on; and (6) extent to which its value to the community is outweighed by its dangerous attributes. In Maryland, the heaviest emphasis is placed on the fifth factor.

The Court of Appeals noted that currently, there is a jurisdictional split among other states as to whether fireworks discharge constitutes an abnormally dangerous activity. In virtually every other case discussing whether fireworks discharge is an abnormally dangerous activity, however, courts were faced with a situation in which a fireworks display had malfunctioned or misfired, resulting in spectator injuries. This case was different, the Court of Appeals noted, because it was being asked to expand the doctrine of strict liability and hold that noise emanating from a fireworks discharge is abnormally dangerous to livestock.

In support of his argument that fireworks discharge is abnormally dangerous to livestock, Toms argued that (1) there is no way to eliminate the risk other than by choosing an alternative location to host the fireworks display, (2) fireworks displays at public parks are common, but fireworks adjacent to a dairy farm are not, (3) discharging fireworks three hundred (300) to five hundred (500) feet from cattle is a “disaster waiting to happen” and is not an appropriate location, and (4) a local church activity provides little benefit to the community and does not outweigh the risks associated with the fireworks display adjacent to a dairy farm.

Respondents argued that (1) there is not a high degree of risk associated with the discharge of fireworks, because the use of fireworks is already heavily regulated by statute, (2) the most common risks associated with a fireworks display – mishandling, misfires, and malfunctions – did not occur in the instant case, (3) Toms was aware of the event prior to its occurrence, (4) fireworks displays are a frequent event and this fireworks display was open to the public, and (5) applicable laws were not violated.

The Court of Appeals rejected Toms’ argument that the analysis should be so narrow as to only focus on the noise produced by a fireworks display. By definition, under Maryland law, fireworks “are prepared to produce a visible and audible effect.” Therefore, the Court of Appeals deliberately considered all the characteristics and the nature of the risks associated with discharging fireworks. The Court of Appeals then proceeded to analyze and apply each of the six (6) Restatement factors to the facts of the instant case.

As for the existence of a high degree of risk of some harm to the person, land or chattels of others, the Court of Appeals noted that fireworks displays are heavily regulated in Maryland. The Court of Appeals therefore unanimously held that a lawful fireworks display does not pose a high degree of risk, because the statutory scheme already in place is designed to significantly reduce the risks associated with the fireworks – such as mishandling, misfires, and malfunctions. The Court of Appeals relied in its analysis on the fact that the Maryland General Assembly did not regulate the audible effects of fireworks displays, which the Court understood to indicate that any such risk was minimal or non-existent.

The Court of Appeals also concluded that the second Restatement factor – the likelihood that the harm that results will be great – weighed against imposing strict liability. In reaching this conclusion, the Court of Appeals reasoned that the purpose of a three hundred (300) foot perimeter surrounding the firing location was to mitigate the likelihood of harm. Because Toms’ barn was not located within the three hundred (300) foot firing radius, the likelihood of harm to the public and property was significantly reduced.

With regard to the third Restatement factor – the inability to eliminate the risk by the exercise of reasonable care – the Court disagreed with Toms’ argument that reasonable care could not reduce the risk of harm to livestock to acceptable levels. The Court of Appeals again turned to the statutory precautions already in place. The statute allows only qualified professional fireworks companies and their agents to apply for fireworks display permits, mandates insurance coverage, and requires a physical site inspection and event supervision by the State Fire Marshal – all of which the Court of Appeals found to be evidence of reasonable care that reduces the risk of harm.

The Court of Appeals quickly disposed of the fourth Restatement factor – the extent to which the activity is not a matter of common usage. The Court of Appeals cited to a letter from John Adams describing fireworks as a national tradition in recognition that lawful fireworks displays are a matter of common usage.

The Court of Appeals recognized the fifth Restatement factor – the inappropriateness of the activity to the place where it is carried on as being the “most crucial.” The Court of Appeals noted that the “thrust of the doctrine” is that the activity be abnormally dangerous in relation to the area where it occurs. At trial, two deputy fire marshals had testified about the procedures involved in the permitting process – specifically that a physical site inspection showing the proposed firing location was conducted. Given the degree of care exercised in selecting the location of the fireworks display, the Court of Appeals concluded that the lawful fireworks display was not subject to strict liability.

As for the sixth and final factor – the extent to which the activity’s value to the community is outweighed by dangerous attributes – the Court concluded that the social desirability of fireworks outweighed their dangerous attributes.

Ultimately the Court of Appeals affirmed the judgment of the Circuit Court. The Court held that lawful fireworks displays are not an abnormally dangerous activity, because the statutory scheme regulating the use of fireworks significantly reduces the risk of harm associated with the discharge of fireworks.