Miller v. Civil Constructors, Inc.

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Gerald Miller, appeals from the orders of the circuit court of Stephenson County which dismissed the strict liability counts of his complaint against defendants, Civil Constructors, Inc., d/b/a Civil Constructors (Constructors) (count I), and the City of Freeport (City) (count V). Counts I and V of the complaint filed October 22, 1992, alleged essentially that defendants were strictly liable for injuries to plaintiff arising from purportedly "ultrahazardous" activity for which defendants were legally responsible either because of their control of the premises or their discharge of firearms. In each instance, plaintiff stated that the defendant, through its officers, agents or employees, knew (alternatively in count I, "or in the exercise of reasonable care should have known") that "discharging firearms is an ultrahazardous, highly dangerous activity" which was the proximate cause of plaintiff's injuries. The complaint averred that plaintiff was injured when a stray bullet ricocheted during the course of firearm target practice in a nearby gravel pit and caused him to fall from a truck. There is no legal cause of action available to plaintiff under a theory of strict liability. We affirm the orders of the circuit court.

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The issue before us is whether, consonant with Illinois law, the trial court properly dismissed the counts where plaintiff attempted to state a cause of action premised on a theory of strict liability by asserting that the discharge of firearms in a quarry shooting range is an ultrahazardous activity. Under the circumstances presented, we hold as a matter of law that the discharge of firearms is not an ultrahazardous activity which would support plaintiff's strict liability claims.

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The doctrine of strict liability, sometimes called absolute liability, has its genesis in the English rule of Rylands v. Fletcher . . ., wherein strict liability was imposed on the defendant owners of land for harm resulting from the abnormal or nonnatural use of the defendants' land which arose when water from defendants' reservoir flooded the adjoining mine of the plaintiff. Subsequent decisions interpreted the rule to be confined to things or activities which were "extraordinary," or "exceptional," or "abnormal" so that there was some special use bringing with it increased danger to others. . . . From the decisions of the English courts the "rule" of Rylands which has emerged is that "the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings." . . .

Most jurisdictions in this country have adopted the rule of Rylands to impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities. . . . The best-known applications of the Rylands rule imposing strict liability on a defendant involve the storing and use of explosives and flammable materials. . . .

Illinois has recognized strict liability principally in two instances: (1) when, under certain circumstances, a defendant introduces a product into the community which is unreasonably dangerous to the user, consumer, or to his property . . .; and (2) when a defendant engages in ultrahazardous or abnormally dangerous activity as determined by the courts, giving particular consideration, inter alia, to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings . . .

We are concerned here only with determining as a matter of law whether the use of firearms is an ultrahazardous activity giving rise to strict liability. . . .

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Before we answer the question presented, we first summarize briefly what we believe is the current state of the law in this area. Plaintiff has not cited, nor have we found, any Illinois case holding that the use of a firearm which results in injury to a plaintiff is an ultrahazardous activity requiring the imposition of strict liability. Although the guns or firearms have been labeled dangerous instrumentalities . . ., it does not automatically follow that courts must then charge a defendant with strict liability for the use of firearms which results in harm to a plaintiff. Indeed, the prevailing rule which we have discovered in our own research is that the use of firearms ordinarily does not present a question of strict liability premised on ultrahazardous activity; rather, it ordinarily presents a question of negligence or possibly of wilful and wanton conduct. . . .

The frequently stated standard of care applied in many jurisdictions concerning the use of firearms is the duty to exercise ordinary care commensurate with the peculiar circumstances of the case. . . . This is a negligence standard which is incompatible with the theory of strict liability. One instructive commentary states:

"In determining the degree or measure of care required to avoid injuring another by the use or possession of a particular dangerous instrumentality, much depends upon the nature of the instrumentality, the circumstances which surround its maintenance and use, and the time and place of its use. . . . Ordinary care as applied to use of a dangerous instrumentality, however, generally imports the rule that the care exercised must be proportionate to the danger, and hence ordinary care in regard to a dangerous instrumentality necessarily implies the requirement of a great or high degree, if not the greatest or highest degree, of care." . . .

A similar standard is applied to the use and handling of a firearm. The degree of care to be exercised is often stated as "a high degree of care" and is more often defined as "such care as is commensurate with the dangerous nature of the firearm in the circumstances of the particular case" so that "one who has in his possession or under his control an instrumentally exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury thereby." . . .

In Illinois, the standard of ordinary care in a negligence case is the care which a reasonably careful person would use under the circumstances presented; it is ordinarily a question for the trier of fact. . . . This standard or degree of care is evidently a flexible one which varies according to the particular circumstances. Imposing a duty of ordinary care, even where it may become a high degree of care under the particular circumstances, is quite different from imposing strict or absolute liability by classifying the activity ultrahazardous. Our review of the authorities thus discloses that the discharge of firearms resulting in injury ordinarily presents a question of negligence and that the standard of care is ordinary care--one which may be equated to a high degree of care because of the particular circumstances presented.

We return to the threshold question whether the use of firearms ought to be classified as an ultrahazardous activity. This type of inquiry is a question of law that we believe will be subjected to more rigorous, disciplined, and consistent analysis if we adopt the use of the Restatement principles and factors discussed, or at least implicitly considered, in prior decisions. . . . We expressly adopt the use of the Restatement principles and factors as an aid in deciding this type of question.

Section 519 of the Restatement states the general principle that "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." . . . Section 520 of the Restatement sets forth several factors which we will consider in determining whether an activity is abnormally dangerous (ultrahazardous):

"(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 § 520.

While all of these factors are important and should be considered, ordinarily the presence of more than one factor, but not all of them, will be necessary to declare the activity ultrahazardous as a matter of law so as to hold the actor strictly liable. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care. . . . Considerations of public policy also enter prominently into the decisions by our courts to impose strict liability (at least in product liability cases). . . . Particular consideration is also given to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings under the Rylands rule. . . .

The use of guns or firearms, even though frequently classified as dangerous or even highly dangerous, is not the type of activity that must be deemed ultrahazardous when the above-stated criteria are taken into consideration. First, the risk of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even "utmost" care under the circumstances . . . The doctrine of strict or absolute liability is ordinarily reserved for abnormally dangerous activities for which no degree of care can truly provide safety. There is a clear distinction between requiring a defendant to exercise a high degree of care when involved in a potentially dangerous activity and requiring a defendant to insure absolutely the safety of others when engaging in ultrahazardous activity. . . .

Second, the use of firearms is a matter of common usage and the harm posed comes from their misuse rather than from their inherent nature alone . . . Third, the activity in this case was carried on at a firing range in a quarry located somewhere near the City of Freeport. We assume that the location was appropriate for such activity in the absence of further factual allegations in the complaint particularly describing the area as inappropriate for the target practice. Finally, the target practice is of some social utility to the community; this weighs against declaring it ultrahazardous where the activity was alleged to have been performed by law enforcement officers apparently to improve their skills in the handling of weapons.

In light of the above considerations, we conclude that plaintiff's allegations are legally insufficient to show that the activity should be declared ultrahazardous so as to subject defendants to claims premised on a theory of strict liability. . . .

The judgment of the circuit court of Stephenson County is affirmed.

Affirmed.

RATHJE and HUTCHINSON, JJ., concur.