In refusing to submit the issue of defendants’ negligence to the jury because of his "determination as a matter of law that the plaintiffs had not made out a case sounding on [sic] negligence as to any of these defendants”, and in submitting the case to the jury on the theory that "each of the defendants was absolutely liable to the plaintiffs upon a finding by the jury that the bulkhead failures were proximately caused by water percolating or seeping into the plaintiffs’ properties as a result of the landfill operation”, the learned Trial Justice, in my opinion, committed fundamental error. I therefore dissent from this court’s affirmance of the trial court’s holding in that regard and vote to reverse the judgment appealed from and for a new trial. However, I *317concur in the result reached by the majority on the other issues in this case.
In effect the majority is adopting the doctrine laid down in the English case of Fletcher v Rylands (1 Exch 265), which held that a trespass resulting from activity on one’s own land would impose strict liability for damage caused to the land of another. That has never been the law in New York (see Losee v Buchanan, 51 NY 476). The strict English rule laid down in Fletcher "appears to have been repudiated in England, where it was born, and it is safe to say that it is almost at its last gasp in the United States” (Prosser, Law of Torts [4th ed], p 64).
It seems to me that the law that we should follow is that suggested in section 519 of the Restatement of Torts, 2d (Tentative Draft, No. 10, p 52), which reads as follows:
"General Principle
"(1) One 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 exercised the utmost care to prevent such harm.
"(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.” Section 520 (Tentative Draft, No. 10, p 56) states that:
"In determining whether an activity is abnormally dangerous, the following factors are to be considered:
"(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;
"(b) Whether the gravity of the. harm which may result from it is likely to be great;
"(c) Whether the risk cannot be eliminated by the exercise of reasonable care;
"(d) Whether the activity is not a matter of common usage; "(e) Whether the activity is inappropriate to the place where it is carried on; and "(f) The value of the activity to the community.”
Considering the facts here in relation to those sections, it seems clear that the activities of the defendants were not "abnormally dangerous” and that therefore the ordinary law of negligence applies because the theory of "strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous”, or at least a jury could so *318determine if it were not directed to find, as it was in this case, that the defendants were "responsible and * * * [bear] the risk of any damage proximately caused by this landfill operation”.
The cases cited in the majority opinion in support of the theory of absolute liability are distinguishable; the thread common to all of them is that the defendants were engaged in activities of an inherently dangerous nature. The basis for liability in that kind of a case was succinctly summed up in . the opinion of Chief Judge Fuld in Spano v Perini Corp. (25 NY2d 11, 18) as follows: "Since blasting involves a substantial risk of harm no matter the degree of care exercised, we perceive no reason for ever permitting a person who engages in such an activity to impose this risk upon nearby persons or property without assuming responsibility therefor” (emphasis supplied).
The rationale of such cases, therefore, is that one who engages in activities "which he realizes are likely to cause injury” (Spano v Perini Corp., supra, p 18), is absolutely responsible for the damage which he causes.
Here we are dealing with a case of dredging—an operation not necessarily accompanied by force and in which there is ordinarily no substantial risk of harm. Whether, under such circumstances, the defendants were engaged in an activity which they should have realized would be "likely to cause injury”, was a fact question for a jury determination and not for a court-directed verdict.
Under an appropriate charge, the jury might have concluded that the fact pattern here is within the ambit of such cases as Kossoff v Rathgeb-Walsh (3 NY2d 583) and Phillips v Sun Oil Co. (307 NY 328). In Kossoif, the defendant, in improving his own land, caused surface water to flow onto the adjoining property. In holding that the defendant was not liable, the Court of Appeals held (pp 589-590): "he [the plaintiff landowner] has acquired no easement against the upper lot giving him the right to insist that the upper owner shall keep his land in its natural state, so that the surface water may percolate into the ground without flowing upon plaintiffs land as it would be more likely to do after being improved. * * * Under the common law * * * Both have equal rights to improve their properties, come what may to the surface water, provided, of course, that the improvements are made in good faith to fit the property to some rational use to which it is *319adapted, and that the water is not drained into the other property by means of pipes or ditches. Where, as here, it is diffused surface water, neither party is prevented from improving his parcel of land regardless of what becomes of the surface water.”
In Phillips, polluting material (gasoline) seeped from a tank located on the defendant’s property into a well on the plaintiff’s property. In refusing to hold the defendant liable unless it had reason to know or expect that the subterranean conditions were such that there would be passage from its land to plaintiff’s land, the Court of Appeals said (p 331): "We hold, as did the courts below, that plaintiff did not make out a case in trespass. Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness (Tonawanda R. R. Co. v. Munger, 5 Denio 255; Rightmire v. Shepard, 59 Hun 620, opinion in 12 N.Y.S. 800; Guille v Swan, 19 Johns. 381; Mairs v. Manhattan Real Estate Assn., 89 N. Y. 498; New York Steam Co. v Foundation Co., 195 N. Y. 43, 52; Restatement, Torts, Vol. 1, §§ 158, 166). To constitute such a trespass, the act done must be such as 'will to a substantial certainty result in the entry of the foreign matter’ (Restatement, Torts, supra, § 158, comment h).”
Therefore, whether what the defendants did was done so "negligently as to amount to willfulness”, should be submitted to a trier of the facts upon a new trial.
There is still another reason for reversal in this case, even if the theory of absolute liability were correctly applied, since the record here makes it quite apparent—or at least the jury could so find—that the bulkheads were in a complete state of deterioration and that any slight intrusion could have caused their destruction. Despite that fact, the trial court charged the jury that:
"/ charge you that regardless of the condition of those bulkheads, that if the intrusion of water from the landfill operation caused proximately any of the damages claimed by the plaintiffs, that the defendants are responsible, for they will take the property of the plaintiffs as it existed at that *320time, whether they knew or did not know of the deficiencies which may have existed in that property.
"To state it another way, if you come to the conclusion that the water entering from the landfill operation was the proximate cause of the injury or the damages claimed, even though the rain or condition of the bulkhead may have contributed to that failure, you will hold in favor of the plaintiffs” (emphasis supplied).
Under that charge, if the bulkheads in this case were about to fall of their own weight, and merely needed a nudge in that direction, the plaintiffs could, and in this case in fact they did, recover for the placement of new bulkheads.