(dissenting).
Seventy-seven years ago this court ruled that the escape of gas from a pipeline could not impose liability without negligence on the gas company. Gould v. Winona Gas Co., 100 Minn. 258, 111 N.W. 254 (1907). We are now being asked to reexamine this holding. I conclude that Gould should be reversed.
In adopting a position which will impose liability on the gas company without establishment of negligence, I do not perceive that a significant change in the law is occurring. It was revealed during oral argument that this was the first case in over twenty years where, if the gas company was not solely responsible for an identifiable act of negligence, a third party tort-feasor could not be identified. Thus, we are merely shifting the responsibility for establishing the cause of the explosion from the victim to the party in control of the distribution of the gas. In almost every case, except the occasional fact situation present in this case, the gas company will be able to establish that it is solely responsible for the damage or that it is entitled to reimbursement in whole or in part from third party tortfeasors. Considering the nature of the franchise held by the gas company and its ability to distribute its losses, if any, among a broad group of ratepayers, this result is not only equitable, but is demanded by modern concepts of liability without fault.
The Court of Appeals of the State of Washington in the case of New Meadows Holding Co. v. Washington Water Power Co., 34 Wash.App. 25, 659 P.2d 1113 (1983), rejected a request to impose liability without fault in a similar fact situation.1 The *865dissenting opinion of Judge Mclnturff in New Meadows presents a thorough analysis of the problem and makes, in my opinion, an irrefutable argument for adoption of liability without proof of negligence. Thus, I quote liberally from the opinion of Judge Mclnturff in the examination of this question.2
If an individual is injured, killed or suffers extensive property damage from an explosion caused by the presence of escaped natural gas from an underground line, that person has, under the law, “the very difficult and expensive burden of proving the company which transmits that gas for profit, or a third party, was negligent. In 1983, this seems grossly unfair.” 659 P.2d at 1119 (footnote omitted).
In the words of Judge Mclnturff:
Unless the victim was the wrongdoer, why shouldn’t the one distributing the natural gas for profit pay the resulting damage, then recover from any third party wrongdoer, if those be the circumstances?
‡ ⅜ ⅝ ⅝ ⅝ ⅜:
THE PHILOSOPHY OF RISK ALLOCATION
The choice presented here between the rules of negligence and strict liability is not new. Over the years, proponents for each side have attempted to justify their respective positions by arguments that one legal theory is a more economically efficient tool of resource allocation than the other; one will better serve as a subsidy to spur technical or industrial development, or one is morally more acceptable than the other. Regardless of the arguments posited, the touchstone of any loss allocation scheme must be justice, i.e., the fair balancing of benefits and losses between individuals as well as between individuals and society, as a composite of individuals.
Ordinarily, a fault-based tort system resting on rules of negligence places responsibility for the losses suffered by the accident victim upon the wrongdoer if his violation of an articulable duty has caused the accident. The justice of such an allocation is unquestionable. Likewise, when the victim’s conduct has contributed to his injury, our scheme of comparative negligence attempts to mitigate the harshness of the loss allocation by apportioning the victim’s loss between the victim and the wrongdoer on the basis of how much their respective conduct contributed to the loss. The justice of apportionment is patent.
What is unjust is when a victim must accept the full brunt of the loss because he cannot establish who the wrongdoer was or, if identified, what duty he violated. Hence, the victim who is injured through no fault of his own bears the brunt of the loss. The instant case represents the injustice of what might be termed “the innocent victim’s strict liability.” I say this because unless the innocent victim, first, has the money to retain a lawyer and develop adequate proof in a complicated legal area, and second, proves that the negligénce of the gas transmission company proximately caused the accident, the innocent victim is strictly liable for his damages. Isn’t this strict liability in reverse — liability without fault of the victim?
659 P.2d at 1119-20 (footnotes omitted).
Such a policy was the basis for the decision in Gould v. Winona Gas Co., 100 Minn. 258, 111 N.W. 254 (1907). Gould was decided during a period of great industrial expansion. This was a time when
[d]ams, mills, factories, canals, railroads and other enterprises requiring the collection of dangerous substances on the owner’s premises were long regarded as so necessary to the wants and needs of “civilized mankind” that those who constructed them on their land were not held liable for damages done by their escape *866unless they were nuisances or were maintained in a negligent manner.
2 P. Harper & P. James, The Law of Torts § 14.3, at 793-94 (1956) (footnote omitted).
Gould involved an action for damages when gas escaped from a main causing the destruction of plaintiffs trees. The court refused to extend the doctrine of liability without negligence. It observed that an undertaking by the gas company was permitted by express public authority. The court distinguished this enterprise from a private undertaking for profit by stating that no person can be held responsible for doing that which the law expressly authorizes him to do unless he is guilty of some negligence or misconduct. 100 Minn, at 262, 111 N.W. at 255.
While I recognize that a gas company’s activities are expressly authorized by law, I conclude that the policy behind this principle — fostering a struggling industry — no longer is necessary. This argument has eloquently been stated as follows:
During periods of technological or industrial advance which promise great societal benefits, theories of loss allocation which place the risk of serious loss upon the members of society for technological or industrial accidents not attributable to an identifiable person breaching an artic-ulable standard, may be acceptable for the well-being of society and consequently, just. To hold otherwise places unreasonable restraints upon the development of society as a whole that ultimately would be adverse to the well-being of its individual members. But once the promised benefits, such as here — the widespread use of a relatively clean and inexpensive energy source — have become a reality, the risk of serious loss should be spread among the beneficiaries of the advance and not thrust upon a faultless victim.
Just how prevalent are injuries and damage from natural gas explosions? The majority correctly states there are fewer than 25 deaths each year in the United States from this kind of malfunction. Six years ago 466 failures'involving transmission and gathering lines were reported to the Department of Transportation. 10 United States Dep’t of Transp., Natural Gas Pipeline Safety Act Annual Report (1977) at note 1, p. 3. So the possible liability of any natural gas transmission company is not at a level so high as to be economically prohibitive when measured against the cost of insurance to compensate persons injured, or payment for property damaged by a gas explosion. The loss would be spread among its customers.
⅜ * * # # *
When this country was being developed, when today was still in the future, and when industry was in infancy struggling to acquire a foothold, it was understandable that the law would only grant judgment against those at fault — those who were at least negligent. Today, however, the natural gas industry is not struggling, it is thriving and expanding.
659 P.2d at 1120-21.
To impose liability without proof of negligence is consistent with a long line of Minnesota cases involving similar abnormally dangerous activities. See e.g., Sachs v. Chiat, 281 Minn. 540, 162 N.W.2d 243 (1968) (pile driving abnormally dangerous activity that requires liability without fault); Bridgeman-Russell Co. v. City of Duluth, 158 Minn. 509,197 N.W. 971 (1924) (waterworks operated by municipal corporation requires liability without fault); Wiltse v. City of Red Wing, 99 Minn. 255, 109 N.W. 114 (1906) (collapse of reservoir destroying plaintiffs house requires liability without fault); Berger v. Minneapolis Gaslight Co., 60 Minn. 296, 62 N.W. 336 (1895) (petroleum that escaped from gas company’s tanks, damaging wells and cellars, requires liability without fault); Cahill v. Eastman, 18 Minn. 324 (Gil.292) (1871) (tunnel collapse under property lessee's land requires liability without negligence in its construction or maintenance).
Bridgeman-Russell Co. v. City of Duluth, 158 Minn. 509, 197 N.W. 971 (1924), involved waterworks operated by a municipal corporation. A main discharged water *867which damaged plaintiffs premises. This court imposed liability without proof of negligence by stating:
Congestion of population in large cities is on the increase. This calls for water systems on a vast scale either by the cities themselves or by strong corporations. Water in immense quantities must be accumulated and held where none of it existed before. If a break occurs in the reservoir itself, or in the principal mains, the flood may utterly ruin an individual financially. In such a case, even though negligence be absent, natural justice would seem to demand that the enterprise, or what really is the same thing, the whole community benefited by the enterprise, should stand the loss rather than the individual. It is too heavy a burden upon one.
158 Minn. at 511, 197 N.W. at 972 (emphasis added).
Natural gas, like water accumulated in large quantities, has similar inherently destructive capabilities. In 1984, I fail to perceive any logical reason for distinguishing between a ruptured water main and a severed gas line.
We have recognized the applicability of §§ 519-20 of the Restatement (Second) of Torts. See Cairl v. City of St. Paul, 268 N.W.2d 908, 911 (Minn.1978); Ferguson v. Northern States Power Co., 307 Minn. 26, 32, 239 N.W.2d 190, 193-94 (1976); Quigley v. Village of Hibbing, 268 Minn. 541, 543, 129 N.W.2d 765, 767 (1964). I believe those sections are applicable here. Restatement (Second) of Torts § 519 (1977), states: 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 the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Section 520 states:
Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(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.
Judge Mclnturff concluded that the application of sections 519 and 520 is appropriate to the transmission of natural gas. I agree. He stated:
There are six factors to be considered under § 520 to determine whether § 519 should be applied. The first three factors deal with determining whether an activity is dangerous in itself, and the remainder concern application of § 519 to the activity determined to be dangerous.
The comments to Restatement (Second) of Torts § 520 state in part at 37:
(f) ... In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the im*868position of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
* 5ft ⅜! * * *
In considering whether Restatement (Second) of Torts § 519 should apply, * * the presence of factors (a) and (b) from Restatement (Second) of Torts § 520, [is apparent], i.e., that the escape of natural gas from mains represents a high degree of risk and that the likelihood of harm therefrom will be great. Factor (c) is the inability to eliminate the risk by the exercise of ordinary care.7 [Footnote quoted below.] It is obvious * ⅜ * that the risk of fire and explosion that inheres when natural gas escapes cannot be protected against or eliminated by the exercise of reasonable care. The question is not whether the escape of gas can be protected against or eliminated by the exercise of reasonable care, but whether the risk of fire and explosion after the escape of gas (because it will escape) can be eliminated by reasonable care. As long as we, as imperfect human beings, are responsible for the transmission of natural gas, accidents from the escape of that gas will continue to occur, as they have for decades in the past. Hence, there is no doubt that factor (c) is present.
The value of a dangerous activity may be such to a community that making the actor strictly liable for injuries flowing from the activity regardless of fault would not be appropriate because the community would lose the activity, to its detriment. To avoid the misuse of § 519, the last three criteria, (d), (e), and (f), focus a court’s attention on the effect strict liability will have on the valuable activity. In particular, subsection (d) addresses whether the activity is a matter of common usage. If it is, then its value to the community is patent. Subsection (e) addresses whether the activity should be moved to another location or not. If it cannot, then strict liability could threaten the valuable activity. Subsection (f) addresses whether the value of the activity to the community makes the activity acceptable notwithstanding the dangerousness. If the answer to (f) is yes, then the valuable activity is going to continue unless the imposition of strict liability will make it economically unwise. Hence, when the court considers the three criteria, (d), (e) and (f), the imposition of strict liability to an abnormally dangerous valuable activity is warranted only if the activity will continue. Applying the three factors to the instant case, natural gas is here to stay regardless of strict liability. Therefore, the application of § 519 is appropriate.
sis sfc * * ⅜ *
[W]here one of two innocent parties must suffer, the party which instigated or made the harm possible should be initially liable. In the instant case, obviously the natural gas transmission company made the loss possible by its ownership of and responsibility for the natural gas lines. * * * [T]he strictly liable injuror is in the best position to know why and to prove how the accident occurred, particularly in gas explosion cases.
⅝: ⅜ ⅝ ¾: sfc ⅜
A natural gas transmission company serves society at a profit, which is good — not bad — but nonetheless a fact. When neither the company nor its customer is at fault, and an explosion kills or severely burns or injures the plaintiff or damages his property, we must again ask: Who is in the best position to make the innocent injured victim as whole as possible? The natural gas company should bear that burden because it can then be spread among its thousands of customers. The innocent injured person should not alone bear the weight of the burden. It is too heavy. Imposing the strict liability burden on the natural gas company is fair; it is humane. At a minimal cost per consumer, a neighbor can be returned, as much as possible, to his productive place in the community.
This is an opportunity to, in the words of the dissent in Pacific Northwest Bell *869Telephone Co. v. Port of Seattle, 80 Wash.2d 59, 68-9, 491 P.2d 1037 (1971): develop and to expand the law to fill an existing void as to legal remedies, and to meet a social need in a limited category of uniquely appropriate cases.
I do not think it would open any Pandora’s Box — certainly not to any alarming or objectionable extent — if strict liability were applied in the instant case.
7 The comment on Restatement (Second) of Torts § 520(c) states in regard to “Risk not eliminated by reasonable care": "The utility of his conduct may be such that he is socially justified in proceeding with his activity, but the unavoidable risk of harm that is inherent in it requires that it be carried on at his peril, rather than at the expense of the innocent person who suffers harm as a result of it.”
659 P.2d at 1122-24 (emphasis in original).
The majority opinion here concludes that absolute liability is unnecessary because “what we would be doing in a great majority of cases would be allowing, in substance, subrogation insurers to shift the risk for which they have collected premiums to the gas company and its ratepayers, notwithstanding the gas company may be free of negligence.” There is no evidence to support this conclusion. On the contrary, the record and oral argument disclose that this is the first case in more than 20 years that this defendant could not pinpoint the cause of the explosion. Consequently, this particular fact situation is the rare exception and not the majority of cases. The gas company has the information, expertise and resources to allocate fault. The innocent victim should not be faced with the expense of protracted litigation. If the negligence of the victim contributed to his damage, the fault still can be compared under our decision in Busch v. Busch Construction, Inc., 262 N.W.2d 377, 394 (Minn.1977).
The majority opinion, when confronted with the obvious failure of the doctrine enunciated in Gould, attempts to carve out a “half of the loaf” type of relief. The label “res ipsa loquitur” is used. The majority opinion candidly acknowledges the mental gymnastics involved in its new found relief; namely, that lack of exclusive control was the basis for rejecting strict liability, but that there is a different kind of exclusive control which permits the use of a res ipsa loquitur instruction. I find this attempt to redefine res ipsa loquitur to be illogical and confusing. If we are creating a new modified form of relief in these cases, say so. We should not try to bootstrap this fact situation into the doctrine of res ipsa loquitur. Even more disturbing is the admission in the majority opinion that the doctrine being created is ineffective.
I would prefer that we directly face the problem, impose strict liability, and let the gas company have the responsibility of distributing the loss among those who are responsible for the injury. In the rare case, such as this one, the gas company would have to assume the loss as a cost of doing business. That result is better than the alternative: saddling an innocent victim with substantial property and personal injury losses which, for the most part, are not covered by insurance.
. In New Meadows, the plaintiff attempted to light his oil stove and unknowingly ignited natural gas leaking into his home underground from a damaged gas line several blocks away. The gas leak was alleged to have been caused by a firm laying underground telephone cable for the telephone company.
. It should be noted that while the court in New Meadows declined to adopt liability without negligence, it agreed that it may have decided differently had the cause of the leakage been unknown and the plaintiff left without a remedy. 659 P.2d at 1118.