The blasting in those cases was intentional, but the mere storage of highly explosive gas vapors in a populated area sufficed to impose strict liability for wrongful death from a nonnegligent explosion. McLane v. Northwest Natural Gas, 255 Or. 324, 467 P.2d 635 (1970). In 1961, Loe v. Lenhardt, supra, found an "extra hazardous" activity in aerial cropdusting with a chemical defoliant which damaged a neighbor's crops, a decision followed in Bella v. Aurora Air, Inc., 279 Or. 13, 566 P.2d 489 (1977).
..." 3 Restatement (Second), supra, ยง 520, comment (g), p. 38. Similarly, the plaintiffs point to McLane v. Northwest Natural Gas Co ., 255 Or. 324, 327โ28, 467 P.2d 635 (1970), for the proposition that the inherent volatility of natural gas renders its use abnormally dangerous. In that case, natural gas escaped from a storage unit on the defendant's property, causing an explosion that killed the decedent.
The test the courts are to apply in determining whether an activity is ultrahazardous has been variously defined. In McLane v. Northwest Natural Gas, 255 Or. 324, 467 P.2d 635 (1970), the court stated: The court explained that "to leave the question to the jury would result in a 'wilderness of single instances.' "
Defendants moved for summary judgment, and plaintiff cross-moved for partial summary judgment on the strict liability claim. The trial court granted plaintiffs motion on the ground that, based on McLane v. Northwest Natural Gas Co., 255 Or 324, 467 P2d 635 (1970), defendants' activity in furnishing the propane constituted an abnormally dangerous activity as a matter of law, resulting in strict liability. The case went to trial on the issue of damages, and plaintiff filed a motion in limine to strike defendants' comparative fault defense, which the trial court granted.
It is a "social policy [that] requires the defendant to make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activity." McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 635, 637 (1970). "The basis of the liability is the intentional behavior [that exposes] the community to the abnormal risk [s]." Id.
"Whether an activity is abnormally dangerous is a question for the court." McLane v. Northwest Natural Gas Co., 255 Or. 324, 327, 467 P.2d 635 (1970). In Oregon, an activity is abnormally dangerous only where it is "extraordinary, exceptional, or unusual, considering the locality in which it is carried on; when there is a risk of grave harm from such abnormality; and when the risk cannot be eliminated by the exercise of reasonable care."
Whether an activity is abnormally dangerous is a question of law for the court. McLane v. Northwest Natural Gas Co., 255 Or. 324, 327 (1970). An activity is abnormally dangerous in Oregon:
The Restatement (Second) of Torts classifies such activities as abnormally dangerous, and it lists several factors to be used in making the determination of abnormal dangerousness. Restatement (Second) of Torts ยง 520. Our cases have adopted the approach of the Restatement (Second). See, e.g., McLane v. Northwest Natural Gas, 255 Or. 324, 467 P.2d 635 (1970); Nicolai v. Day, 264 Or. 354, 506 P.2d 483 (1973). Contrary to the assertion of plaintiff in this case, the issue of abnormal dangerousness vel non is a question of law for the court.
This court has stated that whether an activity is "ultrahazardous," or to use the later term, "abnormally dangerous," so as to impose liability without negligence, is to be determined not in the abstract but in the locality and circumstances where it is done; and it is to be determined by the court. Loe v. Lenhardt, supra, 227 Or at 251; McLane v. Northwest Natural Gas Co., 255 Or. 324, 328, 467 P.2d 635 (1970); Nicolai v. Day, 264 Or. 354, 358, 506 P.2d 483 (1973). The terms "hazard," "risk," or "danger" are themselves some hazard to clarity, since they combine in a single conclusion the two distinct variables of the probability of the threatened harm, a judgment about facts, and its gravity, which is a value judgment.
Whether an activity is extrahazardous under the particular circumstances is a question of law for the court. Loe v. Lenhardt, supra at 249; McLane v. Northwest Natural Gas, 255 Or. 324, 327, 467 P.2d 635 (1970). In McLane we discussed in some detail the concept of strict liability for damages arising out of an extrahazardous, or abnormally dangerous, activity.