holding that the controlling factor in applying strict liability is the relationship of the activity to its surroundings
How later courts described this case
- holding that the controlling factor in applying strict liability is the relationship of the activity to its surroundings
- gasoline storage in a filling station is a “natural use of the land” and is not unduly dangerous for purposes of strict liability
- “the employer of an independent contractor cannot insulate himself from liability to third parties for the consequences of the use of abnormally dangerous instrumentalities by employing an independent contractor.”
- noting the common carrier exception “does not grant total immunity, but, rather, liability still arises if negligence is proven.”
Written by the judges who cited it.
The opinion
McGRAW, Justice,
dissenting:
I do not quarrel with the majority’s holding which adopts Rylands v. Fletcher strict liability as articulated in the Restatement (Second) of Torts into the common law of this jurisdiction. I also agree that assumption of the risk may be a valid defense in a strict liability situation. However, I dissent from that portion of the majority opinion which holds that the plaintiff herein assumed the risk of injury, as a matter of law, by virtue of his employer’s contract with National Steel.
The defense of assumption of risk is narrowly confined and restricted by two requirements: “[FJirst, ... the plaintiff must know and understand the risk he is incurring, and second, ... his choice to incur it must be entirely free and voluntary.” W. Prosser, The Law of Torts § 68 at 447 (4th ed. 1971). Thus, “before participation in the work will bar plaintiff’s recovery, such participation must have been with the full realization ... of the risks ... and [the plaintiff] must have voluntarily incurred *526 them.” McLane v. Northwest Natural Gas Co., 255 Or. 324, 338 , 467 P.2d 635, 641 (1970). These issues are questions for the jury. See, e.g., Lancaster v. Potomac Edison Co. of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); W. Prosser, supra § 79 at 524. They are not to be decided on appeal as a matter of law.
If, as a matter of policy, the majority wishes to relieve employers of independent contractors from strict liability for injuries to employees of the contractor caused by an abnormally dangerous instrumentality, they should simply say so, rather than attempting to justify their position by the misapplication of common law principles.