In Court
InCourt
By Brian Morrow
Road Contractor’s Excavator
Crushed
after
Blasting.
“A
bnormally dangerous activities” are
subject to special legal principles.
According to the doctrine of abnormally
dangerous activities, some activities, under certain conditions, may be so hazardous they result
in strict liability. Though one who carries on an
abnormally dangerous activity does so with the
utmost care, they are liable for any injury or damage resulting from the activity to anyone whose
person or property they should recognize as likely
to be harmed by a mishap. Generally, an activity is
deemed abnormally dangerous if it involves a risk
of serious harm to others that cannot be eliminated by the exercise of the utmost care, and includes
activities such as blasting, the testing of rockets,
and the keeping of wild or vicious animals.
“Assumption of the risk” is a different legal
doctrine that applies to bar or limit a plaintiff’s
recovery. Though most cases in which the doctrine
of assumption of risk exists involve recreational
sports, the doctrine has been applied to dangerous
activities in other situations involving an inherent risk of injury to voluntary participants. In
Montana, these two doctrines intersected in a recent blasting case.
In Patterson Enterprises, Inc. v. Johnson (Feb. 24, 2012),
the Montana Supreme Court held that a road
15a April 2012 Better Roads
contractor and its employees assumed the risk for
an excavator that was crushed as part of a blasting
operation by its blasting subcontractor. In fall 2006,
Patterson was hired to construct a road approximately 20 miles west of Missoula. Since the road was to
be constructed in mountainous terrain, a significant
amount of blasting was required. Patterson hired
Archie Johnson Contracting (AJC) to perform all
blasting on the project.
On January 2, 2007, Patterson and AJC entered
into an agreement for the blasting, requiring AJC to
drill and blast various rock outcroppings. Patterson’s
superintendent’s job was to work with AJC’s crews
to remove blasted material. AJC was in charge of
blasting while Patterson was in charge of
excavating.
During the project, Patterson used its equipment
to clear or build a flat pad for AJC’s drilling equipment. AJC would place its drilling equipment on
the pad, drill holes in the rock, and fill the holes
with explosives. Before detonating the explosives,
AJC would clear the area. The explosions fractured
the rock and allowed Patterson to excavate the blasted material. AJC and Patterson repeated this process
as they constructed the road.
On February 26, 2007, AJC detonated explosives
along 500 yards of rock. This blast created a rock
Better Roads February 2012 35