Lions and Tigers and … Pipelines?

17 Oct 2011

Cleanup Work along the Talmadge Creek

The Enbridge Pipeline Leak might be joining such “abnormally dangerous activities” as keeping wild animals and storing dynamite.  The pending lawsuit against Enbridge alleged that it was strictly liable under an old common law doctrine.   The benefit to the plaintiffs is that they do not need to prove negligence or a breach of a standard of care to hold the defendant liable.

An activity is deemed abnormally dangerous if:

  • There is a high degree of risk of harm;
  • The harm is likely to be great;
  • The risk cannot be eliminated by reasonable care;
  • The activity is not common;
  • The danger of the activity outweighs its value to the community; and
  • The activity is not appropriate for the location where it is being performed.

In response to Enbridge’s Motion to dismiss the strict liability count of the plaintiffs’ complaint, the judge recently ruled that although courts in many other states have held that transmitting oil by pipeline is not abnormally dangerous, he would not rule that way at this time because here:

  • the factual record needed to be more fully developed; and
  • the type of petroleum here was different in that it was tar sands oil which tends to be highly corrosive raising the question of whether the risk of leakage could  be eliminated by reasonable care.

Whether this ultimately makes new law is yet to be determined (and I suspect unlikely given the number of pipelines crisscrossing the lower third of the state) but certainly, the plaintiffs have kept all three of their liability counts alive for now.

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