Nuisance: Hydraulic Fracturing Strict Liability: Ultrahazardous Activities

摘要

Plaintiffs all reside within 2000 feet of a well that Southwestern drilled and hydraulically fractured. They allege that due to insufficient casing in the wellbore pollutants escaped into the ground and contaminated the water supply used by them. They initially bring 6 causes of action including violation of the Pennsylvania Hazardous Sites Cleanup Act (35 P.S. §§ 6020.101-6020.1305), negligence, private nuisance, strict liability, trespass and medical monitoring trust fund. The parties stipulate to dismiss the statutory claim under 35 P.S. §6020.1115. Southwestern then files a motion to dismiss all of the other claims. In this opinion, the court is only dealing with the motion to dismiss the strict liability (ultrahazardous activity) claim and the requested claims for damages based on emotional distress. Pennsylvania generally follows the Restatement (Second) of Torts, §§ 519-520 to determine if an activity is abnormally dangerous so as to trigger strict liability. Because such a determination involves an ad hoc factual analysis of the degree of risk posed and the likelihood that the resulting harm will be great, it is improper to grant Cabot's motion to dismiss. The court does note that showing that hydraulic fracturing activities will be ultrahazardous under the Restatement (Second) test may be difficult, but that plaintiffs should be afforded that opportunity. The court, however, does dismiss any claims for damages for emotional distress because under Pennsylvania law such claims require that plaintiffs suffer an attendant physical injury. The court does deny the motion to dismiss as to one of the plaintiffs who did allege physical ailments. The court allows the plaintiffs to amend their complaint to claim injury for "inconvenience and discomfort caused by intereference with another's peaceful possession of his or her real estate," a claim allowed by Pennsylvania law.