94-S-A.SA Professor DeWolf Fall 1995Torts I July 28, 2002MINI-EXAM SAMPLE ANSWER[This case is based upon Williams v. Amoco Production Co., 734 P.2d 1113 (Kan.1987). In that case the court found that drilling and operation of natural gas wellswas not an abnormally dangerous activity; and that the farmers could not recoverfrom the gas company on a nuisance theory.]I would tell the Williamses ("Ws") that they should consider an action against MajorOilbased upon several theories. Nothing in the facts reveals any claim against Weber, but we shouldperhaps investigate further.Action Against MajorOilThe first thing we would have to prove in our case against MajorOil is that it breached a dutyowed to the Williamses. A breach of duty could be predicated either upon negligence or upon astrict liability theory.1. Negligence. Negligence is the failure to use reasonable care. Reasonable care is whata reasonably prudent person would do under the same or similar circumstances. One way tomeasure reasonable care is to find out what is customary in the industry. It may be that in theprocess of drilling or maintaining the gas well some customary precaution was omitted that wouldhave prevented the leakage of natural gas into the Ws' water well. That would be good evidence ofnegligence. On the other hand, even if MajorOil complied with all of the customary procedures wecould still argue that some additional precaution would be worthwhile based upon an analysis of thecost/benefit ratio. Experts are often willing to testify concerning their belief that a reasonable personwould have used greater caution.Another technique to prove negligence is res ipsa loquitur—the thing "speaks for itself."That doctrine applies where the happening of the accident itself suggests negligence. To apply thatdoctrine we would have to show that this is the type of injury that doesn't normally occur in theabsence of negligence—that might be difficult here—plus, we would have to show that the gas wellwas under the defendants' (easy to show) and that no other plausible explanation for the harm exists.I don't have much confidence in this argument because we pretty much know what caused theleakage of natural gas; the only question is whether it was negligent.If a statute or regulation governing the production of natural gas was violated, we could usethat violation as evidence of negligence, or even in some jurisdictions we could ask the judge to rulethat it was negligence per se—negligence as a matter of law. Although the defendants' conduct in trying to repair the Ws' water well might appear to begood evidence that they thought they were at fault, most courts will exclude evidence of post-accident repairs on the ground that it would be contrary to public policy, since it would discouragedefendants from doing the right thing after an injury has occurred. On the other hand, I wonder ifwe could use that as evidence that they were "owners" of the natural gas in question. If there is adenial that they in fact were the origin of the natural gas, we could use their subsequent conduct toestablish they thought they owned the gas that was infiltrating the Ws' well.2. Strict Liability. Another way of establishing a breach of duty is to show that the94-S-A.SA defendants engaged in an activity subject to strict liability. Two forms might apply here:abnormally dangerous activities and nuisance. a. Abnormally Dangerous Activities. One who engages in an abnormallydangerous activity is subject to strict liability if the characteristic that makes it abnormally dangerousresults in harm to another. In this case one might argue that natural gas production is abnormallydangerous activity, but it would probably fail the six-part test articulated in the Restatement. Evenif it were abnormally dangerous, the harm in this case did not result from that which made it so (therisk of explosion); rather, the harm arose from the fact that the gas kept infiltrating the water pump.b. Nuisance. A nuisance is an invasion of the plaintiff's reasonable expectationto enjoy his property. In this case the defendants' natural gas invaded the plaintiffs' well. That mightbe considered an invasion, but we would have to find out what is common to this area. It might bethat the area is generally used for the production of natural gas, that escape is common, and thatwater wells are essentially subject to this risk. That sounds unusual, but again the question will bewhether or not the Ws would have a reasonable expectation of being free from this problem.Weber SupplyAlthough the dropping of a match into the well caused an explosion, it's not clear that thishad anything to do with the accident, or that it was negligent. As discussed above, we'd have toknow what was customary in that circumstance. Considering that natural gas is colorless andodorless, there would be no advance warning of the presence of natural gas. If, however, the riskwas sufficiently great that it would have been known to a reasonable person and avoided, then wemight find Jack negligent. His negligence in turn would be attributed to Weber Supply via theprinciple of vicarious liability, since his negligent act occurred during the course and scope ofemployment.94-S-A.SA CHECKLISTG OverviewG Claim v. MajorOilG Breach of DutyG Negligence Claim G Standard of NegligenceG Neg. Defined as Failure to use RCG Custom of the industryG Custom is the floor, not the ceilingG Learned Hand test?G Res ipsa loquiturG Are the criteria met?G Statutory violation?G Post-Accident Repair evidence inadmissibleG Will "ownership" be in dispute?G Strict LiabilityG Abnormally dangerous activity?G Restatement criteriaG Injury didn't result from what which makes itabnormally dangerousG NuisanceG What are Ws' reasonable expectations?G Timing of the different wellsG Question about Weber SupplyG Jack doesn't appear to be negligentG Explosion revealed rather than caused injuryG Vicarious Liability would apply to WeberSupplyG Further investigation is needed.Exam Number