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?
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.
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