“Abnormally dangerous activities” are subject to special legal principles. According to the doctrine of abnormally dangerous activities, some activities, under certain conditions, may be so hazardous they result in strict liability.

Though one who carries on an abnormally dangerous activity does so with the utmost care, they are liable for any injury or damage resulting from the activity to anyone whose person or property they should recognize as likely to be harmed by a mishap. Generally, an activity is deemed abnormally dangerous if it involves a risk of serious harm to others that cannot be eliminated by the exercise of the utmost care, and includes activities such as blasting, the testing of rockets, and the keeping of wild or vicious animals.

“Assumption of the risk” is a different legal doctrine that applies to bar or limit a plaintiff’s recovery. Though most cases in which the doctrine of assumption of risk exists involve recreational sports, the doctrine has been applied to dangerous activities in other situations involving an inherent risk of injury to voluntary participants. In Montana, these two doctrines intersected in a recent blasting case.

[To see the "In Court" section in our digital edition, click here.]

In Patterson Enterprises, Inc. v. Johnson (Feb. 24, 2012), the Montana Supreme Court held that a road contractor and its employees assumed the risk for an excavator that was crushed as part of a blasting operation by its blasting subcontractor. In fall 2006, Patterson was hired to construct a road approximately 20 miles west of Missoula. Since the road was to be constructed in mountainous terrain, a significant amount of blasting was required. Patterson hired Archie Johnson Contracting (AJC) to perform all blasting on the project.

On January 2, 2007, Patterson and AJC entered into an agreement for the blasting, requiring AJC to drill and blast various rock outcroppings. Patterson’s superintendent’s job was to work with AJC’s crews to remove blasted material. AJC was in charge of blasting while Patterson was in charge of excavating.

During the project, Patterson used its equipment to clear or build a flat pad for AJC’s drilling equipment. AJC would place its drilling equipment on the pad, drill holes in the rock, and fill the holes with explosives. Before detonating the explosives, AJC would clear the area. The explosions fractured the rock and allowed Patterson to excavate the blasted material. AJC and Patterson repeated this process as they constructed the road.

On February 26, 2007, AJC detonated explosives along 500 yards of rock. This blast created a rock overhang that caused concern. On February 28, 2007, AJC and the project owners met on site to discuss how to deal with the overhang. One idea was for AJC’s crews to come in from above using ropes and drills so they could safely get to the overhang and bring it down. However, since this would take several days, the owners opposed this idea.