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JAMES Q. ALBIG AND AGNES C. ALBIG v. MUNICIPAL AUTHORITY WESTMORELAND COUNTY (12/20/85)

filed: December 20, 1985.

JAMES Q. ALBIG AND AGNES C. ALBIG, HIS WIFE,
v.
MUNICIPAL AUTHORITY OF WESTMORELAND COUNTY, APPELLANT, V. REPUBLIC STEEL CORPORATION (TWO CASES). JOSEPH D. DONATELLI AND DOLORES C. DONATELLI, HIS WIFE, V. MUNICIPAL AUTHORITY OF WESTMORELAND COUNTY, APPELLANT, V. REPUBLIC STEEL CORPORATION (TWO CASES)



Appeal from Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 5656 of 1979. Appeal from Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 3613 of 1978. Appeal from Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 3613 of 1978. Appeal from Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 5656 of 1979.

COUNSEL

Rabe F. Marsh, III, Greensburg, for appellant in Nos. 653 and 654 and for appellee in Nos. 655 and 656.

J. Frank McKenna, III, Pittsburgh, for appellant in Nos. 655 and 656 and for appellee in Nos. 653 and 654.

George W. Lamproplos, Greensburg, for Donatelli and Albig, appellees.

Spaeth, President Judge, and Cavanaugh, Wieand, McEwen, Cirillo, Olszewski, Del Sole, Johnson and Cercone, JJ. McEwen, J., files a dissenting opinion in which Spaeth, President Judge, joins. Cercone, J., did not participate in the consideration or decision of this case.

Author: Wieand

[ 348 Pa. Super. Page 509]

James and Agnes Albig and Joseph and Dolores Donatelli sustained property damage when water escaped from a reservoir owned by The Municipal Authority of Westmoreland

[ 348 Pa. Super. Page 510]

County (MAWC). A jury found that MAWC had been negligent by failing to make adequate inspections but that MAWC's negligence had not been the cause of the damage to neighboring properties. The escaping water had occurred, rather, as a result of subsidence caused by mining operations conducted beneath the reservoir by Republic Steel Corporation (Republic Steel). The jury found that the Albigs had sustained damages of $28,000.00 and that the Donatelli damages were in an amount of $32,500.00. The trial court rejected the jury's finding that MAWC had not caused the property damage, determined that MAWC was absolutely liable therefor, and molded a verdict in favor of the property owners and against MAWC. The verdict was further molded to allow recovery over by MAWC against Republic Steel. Post-verdict motions were denied, and judgments were entered on the verdict. MAWC and Republic Steel appealed.

MAWC was incorporated in 1942 by the Commissioners of Westmoreland County to provide municipal services to the people and communities of Westmoreland County. In 1956, MAWC purchased a cylindrical reservoir situated on the side of a hill overlooking the Borough of West Newton. The reservoir had been built in 1906 and had a capacity of one million gallons.*fn1 The Albig and Donatelli properties were downhill from the reservoir. On May 16, 1976, Mrs. Donatelli discovered that water was running into her basement from a flue in the basement wall. MAWC was notified and investigated. It was then discovered that surrounding land areas had become saturated with water. The reservoir was thereafter drained. This revealed that the floor had cracked and pulled away from the sides. The Albigs and Donatellis brought an action against MAWC. Republic Steel was then joined as an additional defendant. Republic Steel had recently conducted mining operations beneath the floor of the reservoir and also in surrounding

[ 348 Pa. Super. Page 511]

    areas, leaving a series of tunnels immediately beneath the reservoir. MAWC contended and the jury found that Republic Steel's mining operations had produced a subsidence which had caused the floor of the reservoir to crack and allow water to escape into the surrounding land.

MAWC contends on appeal that it was error for the trial court to hold that it was absolutely liable for damages caused by escaping water and to mold the verdict so as to impose liability upon it. Because the jury found that MAWC's negligence in failing to inspect the reservoir regularly was not a legal cause of the damages to surrounding land, MAWC argues further, its negligence does not support the action of the trial court.

The issue of absolute liability, if not entirely novel, is less than fully settled in the law of this Commonwealth. Absolute liability for injury caused by an abnormally dangerous activity had its genesis in England in the case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). There, the water from defendants' reservoir had escaped into an abandoned mine, from where it had spread through connecting passages to flood plaintiff's mine. Liability was imposed even though the defendants were found to be free of fault. The court said that a person who for his own purposes uses his land unnaturally to keep and store thereon anything likely to do mischief if it escapes, must keep it at his peril, and if he fails to do so, he is absolutely liable for damages which are the natural consequence of its escape. Id. at 338.

The rule of Rylands v. Fletcher was not immediately accepted in Pennsylvania, where the better rule was held to be "that those who engage in an undertaking attended with risks to their neighbors are answerable for the conduct of the undertaking with diligence proportioned to the apparent risk . . . ." Abraham v. Yardum, 64 Pa. Super. 225, 229 (1916). See also: Prosser and Keaton, The Law of Torts § 78, at 548-549 (5th ed. 1984). In 1938, however, the doctrine of Rylands v. Fletcher was incorporated into and

[ 348 Pa. Super. Page 512]

    articulated by the American Law Institute's Restatement of Torts. Section 519 thereof provided in part as follows:

[O]ne who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent harm.

Restatement of Torts § 519 (1938). An ultrahazardous activity was defined as one which (1) necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of utmost care, and (2) is not a matter of common usage. Id. § 520.

Sections 519 and 520 of the Restatement of Torts were adopted as the law of Pennsylvania by the Supreme Court in Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160 (1960). There, the Supreme Court, speaking through Justice (later Chief Justice) Eagen, said:

[I]n 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.

Id., 399 Pa. at 523, 161 A.2d at 162 (citations omitted). The doctrine of absolute liability has been applied in Pennsylvania primarily to cases in which damages have been caused by blasting. See: Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817 (1949); Bumbarger v. Walker, 193 Pa. Super. 301, 164 A.2d 144 (1960). Similarly, the doctrine has long been applied to the keeping of wild animals. See: Prosser and Keaton, The Law of Torts § 77, at 541-543 (5th ed. 1984). The doctrine, however, has not been limited to cases involving blasting and wild animals. In general, it will be applied to ultrahazardous activities which cannot be

[ 348 Pa. Super. Page 513]

    made safe by the exercise of utmost care. Dambacher v. Mallis, 336 Pa. Super. 22, 52-53, 485 A.2d 408, 424 (1984).*fn2

The Restatement (Second) of Torts has adopted a modified version of the Rylands v. Fletcher rule. Thus, Section 519 provides:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Restatement (Second) of Torts § 519 (1977). In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or ...


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