Bar Exam — MBE (Multistate Bar Exam)TortsHard
A developer purchased a large tract of land adjacent to a residential neighborhood with the intention of building a new shopping mall. During the excavation phase, the developer's contractors used heavy machinery that caused significant vibrations. These vibrations led to cracks in the foundations and walls of several nearby homes. The homeowners sued the developer for damages to their property. The developer argued that the construction was conducted with all necessary permits and followed industry best practices. Which of the following is the most likely basis for the homeowners' claim?
- ANegligence, as the developer failed to prevent the damage.
- BTrespass to land, as the vibrations physically invaded their property.
- CPrivate nuisance, due to unreasonable interference with the use and enjoyment of their land.
- DStrict liability for abnormally dangerous activities.
Show answer & explanationAnswer & explanation
Correct answer: D. Strict liability for abnormally dangerous activities.
Excavation work, especially when involving heavy machinery that causes vibrations impacting adjacent properties, can be classified as an abnormally dangerous activity. Even if conducted with due care, strict liability applies because of the high risk of harm that cannot be eliminated by reasonable care.
Why the other options are wrong
- A. The developer explicitly followed best practices, making a negligence claim difficult to prove, as there would be no breach of duty.
- B. While vibrations can be a form of physical invasion, strict liability for abnormally dangerous activities is a stronger and more direct theory when the activity itself is the source of the non-negligent harm.
- C. Private nuisance requires an unreasonable interference with the use and enjoyment of land. While the vibrations caused this, strict liability is a more direct and often preferred theory for physical damage resulting from abnormally dangerous activities, regardless of reasonableness of interference.
Abnormally Dangerous Activities
Activities that, by their nature, present a high risk of serious harm even when reasonable care is exercised, leading to strict liability for any resulting damage.
- Activity creates a foreseeable and highly significant risk of harm.
- Harm cannot be eliminated by the exercise of reasonable care.
- Activity is not a matter of common usage in the community.
- Examples: blasting, keeping wild animals, storing explosives.
Memory trick: Animals, Blasting, Products: Strict Liability's Three Pillars.