Smith v. Lockheed Propulsion Co.

J.—Plaintiffs appeal from a judgment of non-suit in their action to recover damages to their real property allegedly caused by seismic vibrations activated by a static firing rocket motor test conducted by defendant on adjoining lands pursuant to a contract with the United States. The complaint was framed on theories of negligence and strict liability.

In accordance with the well settled rule governing review of a judgment of nonsuit, the evidence will be viewed in the light most favorable to plaintiffs. (Kopfinger v. Grand Central Public Market, 60 Cal.2d 852 [ 37 Cal.Rptr. 65 , 389 P.2d 529 ] ; Meyer v. Blackman, 59 Cal.2d 668 [ 31 Cal.Rptr. 36 , 381 P.2d 916 ] ; Bristow v. Brinson, 212 Cal.App.2d 168 [ 27 Cal.Rptr. 796 ]; Bedford v. Bosko, 217 Cal.App.2d 346 [ 31 Cal.Rptr. 727 ]).

' In 1961, defendant acquired approximately 9,100 acres in Potrero Valley, one-half' of it from its predecessor, Grand Central Rocket Company, for the purpose of testing rocket motors. A portion of the land bordered plaintiffs’ property on three sides. In early 1962, defendant unsuccessfully sought to acquire plaintiffs’ ranch, at which time defendant’s counsel told plaintiff, “We have to have your land before we can test. ”

On April 25, 1962, the Beaumont News carried a press release issued by defendant announcing a scheduled test firing on May 12, 1962, and stating, “The firing is not expected to produce ground vibrations outside the Potrero1 Valley itself.” Plaintiffs were apprehensive and communicated to defendant their concern for the safety of their well,' structures, and horses. Defendant’s counsel told plaintiffs not to worry and assured them that defendant would take care of any damage caused by the test. Being still concerned, plaintiffs, through their attorney, transmitted a letter, to. defendant again informing it of their anxiety and requested defendant to, desist from proceeding with the test. Defendant’s counsel responded to the communication by informing plaintiffs, “We can’t stop the tests. It wouldn’t be practical,” and reassured them that defendant would take care of any damage.

On May 12, defendant proceeded with the scheduled test firing of a “120 inch solid fuel applied research rocket motor” of three segments, reputedly the largest solid fuel rocket motor to be test fired to that date. The item was manufactured by defendant for the United States Air Force and at the .time of the test the United States was its legal owner. The motor was mounted nose-down on three “thrust collectors” which were affixed to a concrete base imbedded in the ground. The test stand was located approximately 7,800'feet from the boundary of plaintiffs’ property. The firing lasted 132 seconds and created up to a maximum of 350,000 pounds of thrust.

Plaintiff, who was on the sundeck of one of"his buildings at

Immediately following the test, plaintiff inspected his property but found no damage to any structures. Water which was being pumped from the well into the swimming pool was clear throughout the period of the test but at test plus 80 minutes it became muddy. The changed water condition was called to the attention of defendant’s counsel who appeared at the ranch a few hours following the test. Defendant’s counsel stated, “I don’t know how we could have done it, but I can’t argue with 80 minutes.”

Defendant thereafter supplied plaintiffs with bottled water and engaged a contractor to attempt to repair the well. The contractor, however, determined that the casing had been sheared at the 95-foot level and reported that the well was beyond repair. Defendant then engaged a well-digger who drilled a new well within a few yards of the old one but despite extensive tests it failed to produce any consistently potable water.

Plaintiffs’ witness, Dr. Alford, an expert on seismology and structural vibrations, testified that in his opinion the test firing was the “probable cause” of the damage to the well. He found no reported seismic disturbances in Potrero Valley for a period of at least two months before and after the test. In his opinion, despite the low level vibrations at the ranch, the duration of the test increased the amplitude of the vibrations sufficient to cause the damage. He testified that the soil structure in Potrero Valley was porous and that the vibrations probably caused the underground water-filled soil to collapse at some point and that this additional weight on adjoining soil set off an “underground avalanche.” In his opinion, an increase in the mass of the test stand would have decreased the vibrations.

A civil engineer specializing in waterworks testified that the interval of 80 minutes between the test and the time when the .well water became muddy was consistent with the theory that the well damage was caused by a seismic disturbance. He explained the time-lag as “the same phenomena you see in a fresh road-cut, that the dirt continues to ravel after the disturbance occurs.” -

Before we reach the question whether the case should have been submitted to the jury on either theory of liability, we must determine whether there was sufficient evidence from which the jury could have properly found that the test firing was the cause in fact of the damage to the well. It is axiomatic that an essential element of a plaintiff’s cause of action, whether based on negligence or strict liability, is the existence of a causal connection between defendant’s act and the injury which plaintiff suffered. (Prosser, Law of Torts, (2d ed. 1955) p. 218 et seq.).

Cause in fact, as well as proximate cause, is ordinarily a fact question for the jury. (Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal.App.2d 578 , 603-604 [ 271 P.2d 122 ]; Ishmael v. Millington, 241 Cal.App.2d 520 , 525 [ 50 Cal.Rptr. 592 ]; Burdette v. Rollefson Constr. Co., 52 Cal.2d 720 , 726 [ 344 P.2d 307 ]; Rest.2d Torts, §434.) It cannot be said that the evidence shows a want of causation as a matter of law unless the only reasonable hypothesis is that such want exists; if '.reasonable minds may differ, it is a jury question. (Thirion v. Fredrickson & Watson Constr. Co., 193 Cal.App.2d 299 , 306 [ 14 Cal.Rptr. 269 ]).

Viewed in the light of those well-established rules, the evidence heretofore summarized was sufficient to entitle plaintiffs to have the issue of causation submitted to the jury. The subject of causation in the circumstances here presented was a proper one for expert opinion. (Bowen v. Sierra Lumber Co., 3 Cal.App. 312 , 320-321 [ 84 P. 1010 ] ; Ryan v. Oakland Gas Light etc. Co., 10 Cal.App. 484 , 493 [ 102 P. 558 ]; See Clark v. Willett, 35 Cal. 534 , 544; Vandermark v. Ford Motor Co., 61 Cal.2d 256 , 260 [ 37 Cal.Rptr. 896 , 391 P.2d 168 ]). In addition, there was circumstantial evidence of sufficient substantiality from which the jury could have reasonably drawn the inference that the test firing was the sine qua non of the damage to the well. Although a finding of causation may not be based on mere speculation or conjecture, such finding may be predicated on reasonable inferences drawn from circumstantial evidence. (Thirion v.

Defendant contends that the testimony of Dr. Alford was discredited on cross-examination when he admittedly had difficulty in explaining the time-lag between the test and when the water from the well ran muddy. In reviewing a judgment of nonsuit, however, it is not the function of the reviewing court to pass on the credibility of a witness or determine whether he has been impeached by his own contradictory statements or by the testimony of other witnesses. (See Michael Distributing Co. v. Tobin, 225 Cal.App.2d 655 , 661 [ 37 Cal.Rptr. 518 ]). Conflicting evidence on behalf of defendant, whether elicited on cross-examination of plaintiffs’ witnesses or elicited by plaintiffs from adverse witnesses under section 2055 of the Code of Civil Procedure, must be disregarded. (Anthony v. Hobbie, 25 Cal.2d 814 [ 155 P.2d 826 ] ; Marchetti v. Southern Pac. Co., 204 Cal. 679 , 686 [ 269 P. 529 ]).

Turning to the issue of negligence, we are in accord with the trial court’s conclusion that there was no evidence from which the jury could have validly found that defendant failed to exercise due care in the selection of the test site, construction of the test stand, or in the manner in which the test was

Plaintiffs are, in effect, contending that the jury should have been permitted to draw an inference of negligence from the fact that the test firing caused damage to plaintiffs’ adjoining property; in other words, to apply the doctrine of res ipsa loquitur. In our opinion, res ipsa is inapplicable to the factual setting of this case. “The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experiences, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.” (Di Mare v. Cresci, 58 Cal.2d 292 , 298 [ 23 Cal.Rptr. 772 , 373 P.2d 860 ], and cases there cited; Seeley v. Combs, 65 Cal.2d 127 , 130 [ 52 Cal.Rptr. 578 , 46 P.2d 810 ]). In the instant case, it cannot be said that from past experience the damage to plaintiff's well was probably the result of defendant’s negligence, either in the manner in which the test was conducted or in the location or construction of the test stand. See Bartholomae Corp. v. United States (1955) 135 F. Supp. 651 , affd. 253 F.2d 716 (Res ipsa loquitur held inapplicable where plaintiff sought to recover for structural damages caused by a nuclear detonation.).

Defendant's attempt to repair the well and the payment of the cost of drilling the new well did not constitute admissions of negligence. An offer to pay, or actual payment, in aid of one who has been injured is not an admission of liability. (Oldenburg v. Sears Roebuck & Co., 152 Cal.App.2d 733 , 748-749 [ 314 P.2d 33 ]). Nor was the statement of defendant’s counsel, “I can’t argue with 80 minutes” an admission of liability; at most it was an admission of a casual connection between the test and damage to the well.

Section 520 of the Restatement of Torts defines ultra-hazardous activity as follows: “An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.” California has apparently accepted the Restatement definition. (Luthringer v. Moore, supra, 31 Cal.2d 489 , 498, 499; Gallin v. Poulou, supra, 140 Cal.App.2d 638 , 645; Beck v. Bel Air Properties, Inc., 134 Cal.App.2d 834 , 841-842 [ 286 P.2d 503 ]).

Whether an ativity is ultrahazardous is a question of law to be determined by the court. (Luthringer v. Moore, supra, at page 496; Beck v. Bel Air Properties, Inc., supra, at page 842; Rest., Torts, § 520, com. h).

In our opinion, defendant’s activity must be classed as ultrahazardous. The solid fuel rocket motor was the largest ever tested to that date. Test firing such a device is not a matter of common occurrence. The fact that defendant found it necessary to acquire 9,100 acres for its purposes, and at one time told plaintiffs it needed their property in order to conduct the test, is evidence of its recognition of the risk inherent in the undertaking despite the exercise of due care. In these circumstances, public policy calls for strict liability. (Luthringer v. Moore, supra, 31 Cal.2d 489 , 500; Rest., Torts, § 520). There is no basis, either in reason or justice, for requiring the innocent neighboring landowner to bear the loss. Defendant, who is engaged in the enterprise for profit, is in a position best able to administer the loss so that it will ultimately be borne by the public. As Professor Prosser summarizes the rationale for the imposition of strict liability: ‘ ‘ The problem is dealt with as one of allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, and liability is placed upon the party best able to shoulder it.” (Prosser, Law of Torts, (2d ed. 1955) page 318).

The precise issue before us—whether rocket motor testing constitutes an ultrahazardous activity — was squarely con

The cases above-mentioned which were cited by defendant are not controlling in the instant ease. They, and others like them which have invoked the general rule, did not involve ultrahazardous activity. Moreover, although some of the cases speak in terms of immunity, thus presupposing an otherwise valid cause of action, the contractor in those eases would not have been liable under accepted legal principles relating to liability for trespass without regard to the question of immunity. (Gallin v. Poulou, supra, 140 Cal.App.2d 638 , 645; Rest.2d Torts, §§158, 165, 166; Prosser, Law of Torts, (2d ed. 1955) p. 55).

The only ease cited by defendant applying the general rule to a contractor engaged in an ultrahazardous activity is Pumphrey v. J. A. Jones Constr. Co. (1959) 250 Iowa 559 [ 94 N.W.2d 737 ], There plaintiff sought to recover for damages to his dwelling caused by concussions and vibrations resulting from defendant’s use of explosives in constructing a new lock in the Mississippi River. The parties stipulated that defendant was not negligent, that the work was performed in accordance with the terms of the contract, and that the method used in blasting had been submitted to the government, approved by it, and was a part of the specifications. The court refused to recognize any distinction between ultrahazardous and nonultrahazardous activity and, while noting that some cases find nonliability on the theory of immunity and others because the contractor is doing only what is required by the contract, concluded at 94 N.W.2d, page 743: “The underlying principle in each [theory] is that the state may make improvements for the public good, as in improving navigation, and is not responsible for consequential or incidental damage to private property not amounting to a taking without compensation, in so doing; and that it may do this work through contracts with others, who have the same immunity or non-

Other cases, however, have refused to extend immunity to a contractor engaged in the performance of a contract for the construction of a public improvement where damage to adjoining property resulted from the use of explosives. In Asheville v. Southern Ry. Co. (1927) 19 F.2d 32 , in refusing to extend immunity, the court stated that ”... irrespective of the liability of the district, we think that there can be no doubt that the contractor and the subcontractor are liable for the damage caused.” Similarly, in Scranton v. L. G. De Felice, supra (1951) 137 Conn. 580 [ 79 A.2d 600 ], followed in Whitney v. Ralph Myers Contracting Corp., supra (1961) 146 W.Va. 130 [ 118 S.E.2d 622 ], the court refused to extend immunity to a contractor using explosives in the construction of a state highway. In Whitney, supra, the court concluded that Benner v. Atlantic Dredging Co., 134 N.Y. 156 , 161 [ 31 N.E. 328 , 17 L.R.A. 220 ] and Nelson v. McKenzie-Hague Co., 192 Minn. 180 , 183 [ 256 N.W. 96 , 97 A.L.R. 196 ] upon which Pumphrey v. J. A. Jones Constr. Co., supra, relied were not controlling, stating at page 629: ”. . . it is true that in some jurisdictions it is held that one who acts as the agent of government by virtue of a contract or otherwise is not liable for damages which result indirectly from what the government has commanded him to do. Benner v. Atlantic Dredging Co., 134 N.Y. 156 , 161 [ 31 N.E. 328 , 17 L.R.A. 220 ]; Nelson v McKenzie-Hague Co., 192 Minn. 180 , 183 [ 256 N.W. 96 , 97 A.L.R. 196 ], Although there may be some confusion arising out of dicta, for the most part such cases do not go so far as to grant immunity from liability for damage which is so direct as to constitute something like trespass.” In Smith v. Aldridge (1962 Mo.App.) 356 S.W.2d 532 , the court refused to follow Pumphrey v. J. A. Jones Constr. Co., supra, on the ground that no showing had been made that the manner in which the contractor used the explosives was governed by the contract.

In Berg v. Reaction Motors Div., supra (1962) 37 N.J. 396 [ 181 A.2d 487 ], the court, although ultimately concluding that the immunity issue was not properly before it, nevertheless carefully considered the question and expressed its disapproval of extending immunity to the contractor. ”... Extension of the Government’s immunity to independent contractors would run counter to recent trends and expressions which emphasize the need for restricting the immunity and

The court distinguished Pumphrey v. J. A. Jones Constr. Co., supra, on the ground that the parties had there stipulated that the blasting was performed under the supervision of government inspectors and in strict accordance with the specifications whereas in Berg there was no evidence “. . . to indicate that the Government had prescribed the site of the tests, or the location of the test stands, or the manner of conducting the tests.” (Berg v. Reaction Motors Div., supra, 181 A.2d at p. 498).

It is our conclusion that immunity should not be extended to the contractor in the instant case. Pumphrey may be distinguished, as it was in Berg, because in the present state of the record there is no evidence that the Government selected the test site, prescribed the specifications for the construction of the test stand or its location, or specified the manner of conducting the test. This is a valid ground of distinction. (See McGrath v. Basich Bros. Constr. Co., supra, 7 Cal.App.2d 573 , 578; Smith v. Aldridge, supra (1962, Mo. App.) 356 S.W.2d 532 ). But even assuming that the defendant would be able to show that its activities were all in strict accordance with the contract and plans and specifications, it is our opinion that defendant may not escape liability on the ground of shared governmental immunity.

We believe that a valid distinction exists in this regard as between one engaged in an ultrahazardous activity and one performing activities not so classed. (See Rector v. Tobin Constr. Co. (1964, Mo.) 377 S.W.2d 409 ). Where nonultrahazardous activity is involved, the ordinary rules governing liability for indirect trespass fairly define the rights and duties of the affected parties without regard to immunity. Where

In Pumphrey v. J. A. Jones Constr. Co., supra (1959) 250 Iowa 559 [ 94 N.W.2d 737 ], the court questioned whether a sound distinction could be drawn between a contract calling for the use of a dangerous instrumentality and a nonultrahazardous activity by saying: “ [D]redging may cause changes in the current of rivers, or the building of dams may cause overflows, also damaging to adjacent property owners or possibly others. In that sense, any of these works may be ‘ dangerous instrumentalities’. We see no reason for applying a different rule in explosives cases than in others which in themselves may cause harm without negligence, so far as the extension of the principle of governmental immunity to one who contracts to do what the government requires and does it as agreed and with due care is concerned. ’ ’ The quoted statements fail to consider the fact that even with respect to work not classified as ultrahazardous, the contractor would be liable if he knew, or should have known, that the plans and specifications were inherently dangerous. See (Hamilton v. Harkins, 146 Cal.App.2d 566 , 572-573 [ 304 P.2d 82 ]; De Baker v. Southern Cal. Ry. Co., supra, 106 Cal. 257 , 281 [ 39 P. 610 , 46 Am.St.Rep. 237 ]). The same considerations justify imposition of strict liability where one contracts to perform an activity which involves inherent risks to adjacent properties because it is ultrahazardous.

In Pumphrey, supra (1959) 250 Iowa 559 [ 94 N.W.2d 737 ], the court also, without deciding the issue, suggested that if the

For the foregoing reasons we conclude that the judgment must be reversed with respect to plaintiffs' causes of action (on the theory of negligence and strict liability) for the devaluation of their ranch resulting from the injury to or destruction of their water well.

With respect to the causes of action for damages caused by the contractors engaged by defendant to restore the water supply—damage to the cement block wall, shrubbery, paving, and a skip loader-—the judgment of nonsuit must be affirmed. There is no evidence that the contractors were trespassers or that they were other than independent contractors. Thus a verdict against the defendant for damages to the items mentioned could not be upheld. (McDonald v. Shell Oil Co., 44 Cal.2d 785 , 788 [ 285 P.2d 902 ]; Green v. Soule, 145 Cal. 96 , 100 [ 78 P. 337 ]).

For the foregoing reasons the judgment of nonsuit is affirmed as to the 5th, 6th and 7th causes of action but reversed as to the remaining causes of action.

McCabe, P. J., and Kerrigan, J., concurred.

A petition for a rehearing was denied February 9, 1967, and respondent’s petition for a hearing by the Supreme Court was denied March 15, 1967.