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COUNSEL TO THE GENERL ASSEMBLY

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DEPUTY COUNSEL

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THE ATTORNEY GENERAL OF MARYLAND


OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

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ASSISTNT ATTORNEY GENERAL

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ASSISTANT ATTORNEY GENER,AL

March 18,2015
The Honorable George C. Edwards
323 James Senate Office Building
11 Bladen Street
Annapolis, l\AD 21401

Re.'

Senafe Bill 458 - Civil Actions - Hydraulic Fracturing Liability Act

Dear Senator Edwards


You asked "if 'abnormally dangerous' or'ultrahazardous activity' is another
way of saying 'strict liability' or does it even relate to strict liability"? As I explain
below, strict liability is a tort theory that imposes liability on a party without the need
to show negligence. Maryland, like most if not all states, has adopted the legal
doctrine of strict liability for ultrahazardous or abnormally dangerous activities, The
bill defines hydraulic fracturing as an ultrahazardous or abnormally dangerous
activity, thus imposes liability on a person who holds a permit to conduct hydraulic
fracturing if the injured person proves the activity caused the harm, regardless if the
permit holder exercised reasonable care.
Maryland common law (law derived through court decisions) has long
recognized strict liability for ultrahazardous and abnormally dangerous activities.
Yommer v. McKenzie,255 l\i'd. 220 (1969). The rule is that "[o]ne who carries on an
abnormally dangerous activity is subject to liability for harm to the person, land or
chattels of another resulting from the activity, although he has exercsed the utmost
care to prevent the harm." Gallagher v. H.V. Pierhomes, LLC,182 Md, App. 94, 105
(2008).
Under the current common law, the court would look at the following factors
to determine whether an activity is abnormally dangerous:
(a) existence of a hiEh degree of some harm to the
person, land or chattels of another;
(b) likelihood that the harm that results from it will be
great;
(c) inability to eliminate the risk by the exercise of
reasonable care;

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The Honorable George C.,Edwards


March 18,2015
Page2

(d) extent to which the activity is not a matter of common


usage;
(e) inappropriateness of the activity to the place where it
is carried on; and
(f) extent to which its value to the community is
outweighed by its dangerous attributes.

/d. See also Glenn v. CSX Railroad,2014WL 6065664 (holding that operation of a
railroad is not an ultrazardous and abnormally dangerous activity).
Under the amended bill, in an action for injuries caused by hydraulic
fracturing, the court would skip the step of applying the six factors above to
determine whether hydraulic fracturing is an ultrazardous and abnormally dangerous
activity because the General Assembly has already declared that it is. Nevertheless,
the injured person would still have to show that the injury was caused by the
hydraulic fracturing.

Sincerely,

Sandra Ben son rantley


Counsel to the GeneralAssembly