Chapter 70: Strict Liability

§70.1 Ultra-Hazardous Activities

The Case: Leatherwood v. Wadley , 121 S.W.3d 682 (Tenn. Ct. App. 2003).

The Basic Facts: Male Plaintiff, a spectator at a automobile race track, was seriously injured after he was struck by a wheel that came off of a vehicle involved in a race on that the track. Suit was filed asserting several causes of action, including a claim that the track owner was engaged in an ultrahazardous activity and therefore was strictly liable for the injury.

The Bottom Line:

• "In Tennessee, defendants engaged in ultrahazardous activities are held strictly liable for injuries caused to the person or property of another by defendant's participation in the activity. England v. Burns Stone Co., Inc., 874 S.W.2d 32, 37 (Tenn. Ct. App. 1993). The negligence or care exercised by the defendant in carrying out said activity is irrelevant. Miller v. Alman Constr. Co., 666 S.W.2d 466, 468 (Tenn. Ct. App. 1983) (citations omitted)." 121 S.W.3d at 699.
• "This is a case of first impression in the State of Tennessee. Courts in this state have traditionally classified ultrahazardous activities as those presenting an abnormally dangerous risk of injury to persons or their property, including the carrying out of blasting operations, the storage of explosives or harmful chemicals, and the harboring of wild animals. Our Supreme Court has determined that automobiles are not considered 'dangerous instrument[s], so as to be classed with locomotive engines, dangerous animals, explosives, and the like....' [166 S.W.2d 752, 753 (Tenn. 1914)]. From this statement, one can naturally infer that the operation of an automobile is not an ultrahazardous activity." Id.
• "Plaintiffs cite to the [RESTATEMENT (SECOND) OF TORTS § 520, Abnormally Dangerous Activities], as authority for the argument that automobile racing is an ultrahazardous activity, whereby a defendant is subject to strict liability for any harm resulting from defendant's engagement in said activity. Section 520 sets out the following factors for determining whether an activity is abnormally dangerous:

  (a) existence of a high degree of risk of some harm to the person, land or chattels of others;
  
  (b) likelihood that the harm that results from it will be great;
  
  (c) inability to eliminate the risk by the exercise of reasonable care;
  
  (d) extent to which the activity is not a matter of common usage;
  
  (e) inappropriateness of the activity to the place where it is carried on; and
  
  (f) extent to which its value to the community is outweighed by its dangerous attributes.

  [RESTATEMENT (SECOND) OF TORTS § 520 (1977)]." Id. at 699-700 (footnote omitted).
• "Applying these factors to the circumstances before us, we note that although automobile racing, as with many other sporting activities, carries with it a potential risk of injury to participants and spectators voluntarily situated among the cars, competitors, and action of the pit area, such risk of injury is incomparable to the high degree of risk normally associated with such ultrahazardous activities as blasting and the storage of highly toxic chemicals. The potential risks are not sufficient to impose the operator or participants with the duty of an insurer." Id. at 700.
• "We note that the racing of automobiles on a track constructed specifically for this purpose has become a matter of common usage in the State of Tennessee and throughout the nation. Comment (I) is particularly relevant to this point:

  Certain activities, notwithstanding their recognizable danger, are so generally carried on as to be regarded as customary. Thus automobiles have come into such general use that their operation is a matter of common usage. This, notwithstanding the residue of unavoidable risk of serious harm that may result even from their careful operation, is sufficient to prevent their use from being regarded as an abnormally dangerous activity. On the other hand, the operation of a tank or any other motor vehicle of such size and weight as to be unusually difficult to control safely, or to be likely to damage the ground over which it is driven, is not yet a usual activity for many people, and therefore the operation of such a vehicle may be abnormally dangerous. [RESTATEMENT (SECOND) OF TORTS § 520, cmt. (I) (1977)].

  Id.
• "Although comment (I) does not specifically address the act of driving a motor vehicle in a competitive context, we are persuaded that the operation of a racing vehicle on a surface or track specifically engineered and constructed for said operation, is more logically equated with the normal, everyday use of a consumer vehicle, as compared to the rare and often destructive operation of a tank. Further, this court is not convinced that stock cars and racing vehicles such as the one built and operated by defendant Moore, are 'of such size and weight as to be unusually difficult to control safely....' Therefore, factor (d), in light of comment (I), weighs against a holding that automobile racing is an ultrahazardous activity." Id.
• "Recognizing that automobile racing is a matter of common usage in the State of Tennessee, we further note that Garnertown Speedway was an appropriate venue for this activity. Despite plaintiffs' suggestion to the contrary, the fact that Garnertown Speedway was an unlicensed racetrack at the time of Leatherwood's injury is irrelevant to the question of whether Garnertown Speedway was an appropriate venue for automobile racing. Although Garnertown Speedway was not licensed as of August 28, it was specifically constructed and recognized as a racing speedway, and therefore the hosting of races at this location could not be deemed to create an abnormal risk of danger - especially considering the fact that Garnertown Speedway was unlicensed only because defendant Wadley inadvertently neglected to pay the required $100.00 operating fee, and not for the reason that Garnertown Speedway was constructed in an abnormally dangerous or unsafe manner. Factor (e) therefore argues against a finding that automobile racing, in the context of this case, was an ultrahazardous activity." Id. at 700-01.
• "Factor (f) requires a court to weigh the benefits of the activity to the community against the dangerous attributes of the conduct. Plaintiffs suggest that the racing of automobiles on an unlicensed track 'where inadequate safety measures were taken,' holds 'no social value whatsoever' to the community. We are unpersuaded by plaintiffs' argument for reasons already discussed. First, plaintiffs have produced no evidence to demonstrate that a genuine issue of material fact exists as to whether appropriate safety measures were implemented at Garnertown Speedway. Second, Garnertown Speedway was an unlicensed racetrack on August 28 solely because of defendant Wadley's inadvertent failure to pay a statutorily mandated operating fee, and not because the speedway contained inadequate safety barriers or warnings. Therefore, § 502 (f) does not necessitate a finding that automobile racing is an ultrahazardous activity." Id. at 701.
• "Based on our analysis and weighing of the § 502 factors, we conclude that Wadley's operation and promotion of automobile racing at Garnertown Speedway, and Moore's participation in the August 28 race, do not constitute abnormally dangerous activities to which strict liability attaches." Id.

Other Sources of Note: Isabel v. Velsicol Chemical Co., 327 F. Supp. 915 (W.D. Tenn. 2004) (discharge of chemicals alleged to cause long-term, serious injuries may be an ultrahazardous activity); Thrasher v. Riverbend Stables, No. M2007-01237-COA-R3-CV, 2008 WL 2165194 (Tenn. Ct. App. May 21, 2008) (use of a equine exercise machine known as a "hot walker" to train a horse is not actionable in case involving horse who died while using machine); Concklin v. Holland, 138 S.W.3d 215 (Tenn. Ct. App. 2003) (use of alcohol and illicit drugs is not an ultrahazardous activity such that visitor who consumed drugs and alcohol with property owner and another could be held strictly liable); Bohanon v. Jones Bros., Inc., No. M1998-00954-COA-R3-CV, 2002 WL 256798 (Tenn. Ct. App. Feb. 22, 2002) (blasting is an ultra-hazardous activity); Rymer v. Wilson, 1989 WL 118392 (Tenn. Ct. App. Oct. 6, 1989) (shooting fireworks is not an ultrahazardous activity); Simpson v. Allied Van Lines, Inc., 612 S.W.2d 172 (Tenn. Ct. App. 1980) (use of acetylene torch to repair trailer was not an ultrahazardous activity).

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