BnrN E. FnosrTTORNEY GENERAL

ErrznerrH F, HanrusCHIEF DEI'UTY TTORNEY GENERAL

THrnuvr,Npne{ VrcleneenDEPUTY ATTORNEY GENERAL

SnNn, BNsoN BnnqrryCOUNSEL TO THE GENERL ASSEMBLY

K,lrlrnvN M. RorvpDEPUTY COUNSEL

Jnnnruv M. McCoyASSISTNT ATTORNEY GENERAL

Devro'W SrnupnnASSISTANT ATTORNEY GENER,AL

THE ATTORNEY GENERAL OF MARYLANDOFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

March 18,2015

The Honorable George C. Edwards323 James Senate Office Building11 Bladen StreetAnnapolis, l\AD 21401

Re.' Senafe Bill 458 - Civil Actions - Hydraulic Fracturing Liability ActDear Senator Edwards

You asked "if 'abnormally dangerous' or'ultrahazardous activity' is anotherway of saying 'strict liability' or does it even relate to strict liability"? As I explainbelow, strict liability is a tort theory that imposes liability on a party without the needto show negligence. Maryland, like most if not all states, has adopted the legaldoctrine of strict liability for ultrahazardous or abnormally dangerous activities, Thebill defines hydraulic fracturing as an ultrahazardous or abnormally dangerousactivity, thus imposes liability on a person who holds a permit to conduct hydraulicfracturing if the injured person proves the activity caused the harm, regardless if thepermit holder exercised reasonable care.

Maryland common law (law derived through court decisions) has longrecognized 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 anabnormally dangerous activity is subject to liability for harm to the person, land orchattels of another resulting from the activity, although he has exercsed the utmostcare 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 factorsto determine whether an activity is abnormally dangerous:

(a) existence of a hiEh degree of some harm to theperson, land or chattels of another;(b) likelihood that the harm that results from it will begreat;(c) inability to eliminate the risk by the exercise ofreasonable care;

IO4 LEGISLTIVE SERVICES BUILDING . 90 STATE CIRCLE . ANNAPOLIS, MARYI.AND 2T4OI-I99I4ro-946-56oo .3ot-97o-56oo .rtx 4ro-946-560r . TTy 4to-946-54ot. 3or-97o-j4or

The Honorable George C.,EdwardsMarch 18,2015Page2

(d) extent to which the activity is not a matter of commonusage;(e) inappropriateness of the activity to the place where itis carried on; and(f) extent to which its value to the community isoutweighed by its dangerous attributes.

/d. See also Glenn v. CSX Railroad,2014WL 6065664 (holding that operation of arailroad is not an ultrazardous and abnormally dangerous activity).

Under the amended bill, in an action for injuries caused by hydraulicfracturing, the court would skip the step of applying the six factors above todetermine whether hydraulic fracturing is an ultrazardous and abnormally dangerousactivity 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 thehydraulic fracturing.

Sincerely,

Sandra Benson rantleyCounsel to the GeneralAssembly