Blasting Claims 101: Typical Causes of Action
March 20, 2017 | Construction Law Blog
Because of the potential costs associated with a claim for blasting damages, it is important to understand the pattern of a routine blasting claim and how to defend against such a claim. This includes a study of the typical causes of action included in the plaintiff’s complaint.
When an owner files a complaint, it will list certain causes of action. Although recovery for blasting damages may be based in contractual provisions, the most common causes of action asserted in an owner’s complaint are negligence and strict liability. It is vital to understand the differences between these two causes of action and their resulting effects on the defense of a blasting damage claim.
When courts attempted to solve the problems arising in blasting operations on the basis of existing tort law, the results were not consistent (Stone, 2015). Instead, the courts developed two conflicting theories of liability because of two conflicting common-law principles: (1) a person may not use his own property to injure the property of another and (2) the owner of property has the right to use it to the fullest extent (Stone, 2015). If the first principle is considered paramount, then absolute liability attaches and negligence need not be established; however, if the second principle is considered paramount, then negligence must generally be established (Whittle, 2012). Thus, when receiving an owner’s complaint, one of the first steps is to determine whether the jurisdiction requires proof of negligence or whether you are in a strict liability state.
There are a fairly substantial number of jurisdictions that still require proof of negligence (Stone, 2015). To establish a claim for negligence, an owner must show the existence of a legal duty, a breach of the duty, and proximate causation resulting in damage (McGuire v. Hodges, 2007). The degree of care required of one engaged in blasting has been considered to be reasonable care and skill with regard to the nature of the work and local conditions (Eclavea & Gustafson, 2015). Generally, in an attempt to establish negligence in blasting, an owner is likely to make allegations similar to the following:
- Failure to use caution upon discovery of conditions likely to cause damage;
- Failure to use a method other than blasting;
- Improper blasting procedures generally;
- Blasting to a greater extent than is reasonably necessary;
- Use of excessive explosives;
- Failure to take proper care with regard to the place and surroundings;
- Failure to take precautions usual to blasting;
- Failure to utilize recognized and available blasting methods;
- Failure to use a different method of blasting than the one used; or
- Continuation of work in the same manner after warning or notice (Whittle, 2012).
In most jurisdictions, liability in a blasting case does not rest on negligence, but blasting with explosives is among the activities in which the risk may be altogether reasonable and still high enough that courts have decided that the party should not undertake the activity without assuming the consequences (Eclavea & Gustafson, 2015). In short, courts have held that even with the exercise of due care, the consequences of blasting rock with dynamite are so unpredictable and uncontrollable that contractors are held strictly liable for them (Stockbridge Cmty. Ass’n v. Star Enter., 1992). Where the rule of strict or absolute liability is applied to blasting, it is not necessary for the owner to prove negligence; instead, the owner may recover simply by proving that the blasting was the proximate cause of any damage (Eclavea & Gustafson, 2015). Consequently, where strict liability is alleged, whether the contractor breached a duty of care will most likely have no consequence on whether they are held liable in the case. As a result, the contractor’s defense will focus on attacking causation and damages, which must be proven by the owner whether the claim is for negligence or strict liability.
In my next post of this series, we will continue to discuss the pattern and defense of a routine blasting claim, including the experts necessary to defend the case and the actions taken by those experts.