Spano v. Perini Corp.

25 N.Y.2d 11,250 N.E.2d 31 (1969)

CHIEF JUDGE FULD. The principal question posed on this appeal is whether a person who has sustained

property damage caused by blasting on nearby property can maintain an action for damages without a showing

that the blaster was negligent. Since 1893, it has been the law of this State that proof of negligence was required unless the blast was accompanied by an actual physical invasion of the damaged property-for example, by rocks or other material being cast upon the premises. We are now asked to reconsider that rule.

The plaintiff Spano is the owner of a garage in Brooklyn which was wrecked by a blast occurring on

November 27, 1962. There was then in that garage, for repairs, an automobile owned by the plaintiff Davis

which he also claims was damaged by the blasting. Each of the plaintiffs brought suit against the two defendants who, as joint venturers, were engaged in constructing a tunnel in the vicinity pursuant to a contract with the City of New York. The two cases were tried together, without a jury, in the Civil Court of the City of New York, New York County, and judgments were rendered in favor of the plaintiffs. The judgments were reversed by the Appellate Term and the Appellate Division affirmed that order, granting leave to appeal to this court.

It is undisputed that, on the day in question (November 27, 1962), the defendants had set off a total of 194 sticks of dynamite at a construction site which was only 125 feet away from the damaged premises. Although both plaintiffs alleged negligence in their complaints, no attempt was made to show that the defendants had failed to exercise reasonable care or to take necessary precautions when they were blasting. Instead, they chose to rely, upon the trial, solely on the principle of absolute liability either on a tort theory or on the basis of their being

third-party beneficiaries of the defendants' contract with the city. At the close of the plaintiff Spano's case, when defendants' attorney moved to dismiss the action on the ground, among others, that no negligence had been proved, the trial judge expressed the view that the defendants could be held liable even though they were not shown to have been careless. The case then proceeded, with evidence being introduced solely on the question of damages and proximate cause. Following the trial, the court awarded damages of some $4,400 to Spano and of $329 to Davis.

On appeal, a divided Appellate Term reversed that judgment, declaring that it deemed itself concluded by the established rule in this State requiring proof of negligence. .

. .

The Appellate Division affirmed; it called attention to a decision in the Third Department in which the court observed that "[if [the establishment rule] is to be overruled, 'the announcement thereof should come

from the authoritative source and not in the form

of interpretation or prediction by an intermediate appellate court."

In our view, the time has come for this court to make that "announcement" and declare that one who engages

in blasting must assume responsibility, and be liable without fault, for any injury he causes to neighboring property.

The concept of absolute liability in blasting cases is hardly a novel one. The overwhelming majority of

American jurisdictions have adopted such a rule. . . .

We need not rely solely, however, upon out-of-state decisions in order to attain our result. Not only has the rationale of the [established rule] been rejected elsewhere but it appears to be fundamentally inconsistent with earlier cases in our own court which had held . . . that a party was absolutely liable for damages to neighboring property caused by explosions.

[I]t is clear that the court, in the earlier cases, was not concerned,,, with the particular manner by which the damage was caused but by the simple fact that any explosion in a built-up area was likely to cause damage.

Such reasoning should, we venture, have led to the conclusion that the intentional setting off of explosives that is, blasting-in an area in which it was likely to cause harm to neighboring property similarly results in absolute liability. However,' the court [later] rejected such an extension of the rule for the reason that "[to exclude the defendant from blasting to adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a compromise between conflicting rights, but an

extinguishment of the right of the one for the benefit of the other." The court expanded on this by stating,

"This sacrifice, we think, the law does not exact. Public policy is promoted by the building up of towns and cities and the improvement of property. Any

unnecessary restraint on freedom of action of a property owner hinders this."

This rationale cannot withstand analysis. The question, in other words, was not whether it was lawful or proper to engage in blasting but who should bear the cost of any resulting damage-the person who engaged in the dangerous activity or the innocent neighbor injured thereby. Viewed in such a light, it clearly appears that [the 1893 case] was wrongly decided and should be forthrightly overruled.

The order appealed from should be reversed, with costs, and the matter remitted to the Appellate Division for further proceedings in accordance with this opinion.