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socrateaser
socrateaser, Attorney
Category: Personal Injury Law
Satisfied Customers: 33376
Experience:  Retired (mostly)
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I would like some points and authorities on Fireworks being

Resolved Question:

I would like some points and authorities on Fireworks being considered an Abnormally Dangerous Activity subject to Strict Liability. ( Maryland )

I would like points and authorities on Fireworks being a private nuisance.

I would like points and authorities on Negligence concerning the discharging of fireworks without proper care or notice to neighboring properties.
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  socrateaser replied 1 year ago.
There is literally no case law in Maryland reporting anything useful concerning fireworks/pyrotechnics and products liability actions, abnormally dangerous activities, or strict liability.

I have searched every U.S. jurisdiction, and all federal reporters, and the best case that I find is Kline v. Pyrodyne, 117 Wash.2d 1 810 P.2d 91 (1991). The case is fairly exhaustive as a discussion of strict liability re fireworks display.

In Maryland, the case of FLETCHER v. HAVRE DE GRACE FIREWORKS CO., INC., ETC., ET AL., 229 Md. 196, 177 A.2d 908(1962) discusses negligence, nuisance and trespass issues in the context of a fireworks manufacturer.

There really is surprisingly little case law on the subject throughout the USA. I believe that the reason for this may be: (1) fireworks companies generally settle so as to avoid negative publicity, and they are required to carry large insurance policies, so there is no reason to sue; and (2) lawsuits between neighbors for nuisance, trespass and negligence are really very straight forward. The relationship to pyrotechnics is practically irrelevant. If you throw a ball and it inadvertently smashes your neighbor's window, then you're liable for negligent trespass -- not much to discuss. The fact that the "ball" may be a firework is almost a nonissue. If the noise violates the local noise abatement ordinances, you're liable for private nuisance, unless the city/county permits fireworks on a particular date and waives enforcement of the regular nuisance ordinances.

The point is that points and authorities re fires caused by cigarettes, or damage caused by rocks or balls would be just as applicable to the circumstance as would P&As directly on point with fireworks. There's no avoiding liability, and not much to appeal.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.

A little more background: Fireworks were discharged 100 yards from a dairy farm. During the loud explosions, cattle attempted to flee by way of stampede, with the end result of injuries to the cattle, fences and production.


 


The Plaintiff's Counts: 1. Abnormally Dangerous Activity. 2. Private Nuisance 3. Negligence ( I am not sure, but couldn't professional malpractice be added?)


 


The Defendants position is 1. Fails to state a claim upon which relief may be granted 2. Plaintiff Assumed the risk 3. Contributory negligence.


 


Kline V Pyrodyne has the actual firework involved in the accident, as where this case is the noise that caused the problem. So if the noise of the fireworks disturbed the plaintiff's cattle, and inadvertantly caused damages to the cattle, then the defendants are still liable for negligent tresspass?


 


 

Expert:  socrateaser replied 1 year ago.
I need to go to dinner -- I'll get back to you this evening. Thanks for your understanding and patience.
Customer: replied 1 year ago.

No problem.

Expert:  socrateaser replied 1 year ago.
The Plaintiff's Counts: 1. Abnormally Dangerous Activity. 2. Private Nuisance 3. Negligence ( I am not sure, but couldn't professional malpractice be added?)

A: A cause of action (i.e., a "count") must be proved by pleading ultimate facts which if proved at trial would satisfy the elements of the cause of action.

Abnormally Dangerous Activity

"In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others; (b) Whether the gravity of the harm which may result from it is likely to be great; (c) Whether the risk cannot be eliminated by the exercise of reasonable care; (d) Whether the activity is not a matter of common usage; (e) Whether the activity is inappropriate to the place where it is carried on; and (f) The value of the activity to the community.'" Yommer v. McKenzie, 255 Md. 220 224 (1969).

Ignoring, for the purposes of a dismissal motion, the technology that caused the injuries, you must show that the above-quoted elements are satisfied by the facts as part of your complaint, or the court must dismiss the complaint (or grant leave to amend, if you believe you can perfect the pleading by adding the missing facts).

The same analysis applies to each cause of action/count.

Private Nuisance

Section 821D of the Restatement (Second) of Torts (1965) defines a private nuisance as "a [1] nontrespassory invasion of [2] another's interest in the private use and enjoyment of land." In this regard, we have held that "where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner for which an action lies...." [numbers added] Meadowbrook Swimming Club v. Albert, 173 Md. 641, 645, 197 A. 146 (1938) (emphasis added).

Negligence

The basic elements necessary for a cause of action in negligence "are a duty or obligation which the defendant is under to protect plaintiff from injury, a failure to discharge that duty, and actual loss or injury to the plaintiff proximately resulting from that failure." Peroti v. Williams, 258 Md. 663, 669, 267 A.2d 114 (1970).

The Defendants position is 1. Fails to state a claim upon which relief may be granted 2. Plaintiff Assumed the risk 3. Contributory negligence.

 

A: Assumption of Risk and Contributory Negligence are affirmative defenses. They are inapplicable to a motion to dismiss. Failure to state a claim means that the plaintiff has not adequately pleaded the necessary facts to the required elements. Which leads us back to my first answer.

 

BotXXXXX XXXXXne, the defense to a motion to dismiss is that the case is adequately pleaded on the face of the complaint. If not, then the plaintiff must amend the complaint to provide facts sufficient satisfy the required elements.

 

Hope this helps.

socrateaser, Attorney
Satisfied Customers: 33376
Experience: Retired (mostly)
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