McLane v. Northwest Natural Gas Company

McALLISTEE, J.,

concurring in part; dissenting in part.

I agree with the majority that defendant’s demurrer should have been overruled and that the judgment of the trial court must be reversed. I disagree, however, with the majority’s holding that defendant, as a matter of law, was engaged in an abnormally dangerous activity.

In her complaint plaintiff has alleged that defendant was engaged in an ultra hazardous activity, which consisted of the maintenance of “certain facilities including pipes and storage units wherein it collected, and controlled large amounts of natural gas.” Since the only question before this court is the sufficiency of the complaint, we must hold for the plaintiff, if a *340 case of strict liability could be made out within the scope of the allegations of the complaint.

This holding, however, should not decide whether the doctrine of strict liability is applicable in this case. When the case is tried plaintiff should be required to prove that defendant was in fact engaged in an abnormally dangerous activity which caused the death of plaintiff’s decedent. The decision is one for the court, but should be made on the basis of the evidence introduced by the plaintiff at the trial. As was said in Loe et ux v. Lenhard et al, 227 Or 242, 249 , 362 P2d 312 (1961):

“When a question of this character is presented, it is the duty of the court to decide as a matter of law whether a given activity, in a given factual setting, is or is not extra hazardous. # * *” (Emphasis added.)

Some of the characteristics of natural gas are within the realm of general knowledge or can be judicially noticed. Natural gas is lighter than air. It is composed principally of methane, which presents a fire and explosion hazard when exposed to heat or flame. Sax, Dangerous Properties of Industrial Materials, 976, 1025 (1963). Its explosive properties are described as follows in Bureau of Mines Information Circular No. 6009:

“* * * Any combustible gas or vapor, when mixed with air or oxygen within certain limiting proportions, will explode on ignition. The violence of the explosion varies with respective proportions of air and gas, and with the degree of confinement of the mixture. For example: Mixtures of natural gas and air containing between 4.5 and 12 per cent natural gas will explode, or propagate flame throughout the mixture without the continual pres *341 ence of the source of ignition that started the inflammation. * * *”

What cannot be so readily ascertained are the hazards of storage of this material in different forms and quantities. Legislative judgment has given no clear guidance. Congress has concluded that the transmission of natural gas in pipelines presents hazards requiring uniform federal safety legislation. 49 TTSCA 1671-1684 (Natural Gras Pipeline Safety Act, August 12, 1968). The Oregon Public Utility Commissioner has adopted safety regulations governing the pipeline transmission and distribution of natural gas (Buie 24-005) and the storage of liquefied natural gas (Buie 24-006), but I have found none governing the storage of natural gas in its vapor form. If such rules exist they are, of course, a proper matter for judicial notice, and should be called to the trial court’s attention if they would be of assistance in its determination of the legal issue.

Without information as to the exact nature of defendant’s activity, and the circumstances under which it was carried on, the court cannot know that defendant was engaged as a matter of law in an abnormally dangerous activity. That should be a question for the trial court after hearing proof about defendant’s activities and the characteristics of natural gas which might make its storage dangerous in the “given factual setting” established by the evidence.