Appeals, Nos. 106, 107 and 108, March T., 1960, from judgment of Court of Common Pleas of Cambria County, June T., 1957, No. 710, in case of Sarah Haddon, a minor, by Dorothy Haddon, her guardian, et al. v. Girolomo J. Lotito, otherwise James Lotito, trading and doing business as Lotito Fireworks Company. Judgment affirmed.
Lawrence L. Davis, with him Davis & Davis, for appellants.
Edward F. Peduzzi, with him Myers, Taylor & Peduzzi, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
The plaintiffs, Sarah Haddon, James Haddon and Andrew Brunnet, were injured while attending and witnessing a public fireworks' display at a public picnicpark on July 4, 1956. An action in trespass against the defendant, producer of the exhibition, resulted at trial in the entry of a compulsory non-suit which the lower court en banc refused to remove. The correctness of this ruling is now before this Court on appeal.
It is well established that a compulsory non-suit should be entered only in a very clear case and that the suing party or parties must be given the benefit of all the evidence and inferences therefrom favorable to their cause: Gift v. Palmer, 392 Pa. 628, 141 A.2d 408
(1958). The record must, therefore, be read in this light.
The defendant, under contract with St. Joseph's Parish, Portage, Pennsylvania, produced the fireworks' display as one of the attractions at a church picnic. The injured plaintiffs visited the park for the purpose of viewing the display. They arrived together at the park about ten minutes after eleven o'clock at night when the exhibition was nearly over, and it was during the climax, or grand finale, of the show that the unfortunate accident occurred. Counsel for the plaintiff-appellants argue that under the evidence the latter are entitled to recover and that the defendant's liability is established on any one of three theories: namely, (1) absolute liability; (2) exclusive control; (3) defendant's negligence.
This is a case of first impression. However, in Pennsylvania it is established that one who carries on an ultrahazardous activity is liable for injury to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity, when the harm results thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent it. This is known as the doctrine of absolute liability: Federoff et ux. v. Harrison Construction Company, 362 Pa. 181, 66 A.2d 817 (1949); Restatement, Torts, §§ 519, 520. This doctrine has been applied in blasting operation cases and in other instances wherein harm was done by parties who so misused some private rights of their own as to have exposed the person or property of others to unreasonable risks of danger. However, a public fireworks' display, handled by a competent operator in a reasonably safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous an activity. Other jurisdictions have so ruled and common experience supports this conclusion.
Where one discharges fireworks illegally or in such a manner as to amount to a nuisance and causes injury to another, some jurisdictions have held that liability follows without more: Gerrard v. Porcheddu, 243 Ill. App. 562 (1927); Doughty v. Atlantic City Business League, 80 Atl. 473 (1911). But the production of a public fireworks' display, under the circumstances presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must be predicated upon proof of negligence: Crowley v. Rochester Fireworks Company, 183 N.Y. 353, 76 N.E. 470 (1906); ...