New Meadows Holding Co. v. Washington Water Power Co.

Pearson, J.

(concurring) — I concur with the majority. Strict liability may not be imposed under the Restatement (Second) of Torts § 520 (1977) on the basis of factors (a) and (b) alone.

Regarding factor (c), I agree with the majority that it is not present in this case. However, even if factor (c) were present, I would not impose strict liability under section 520. Comment h to section 520 states, in pertinent part:

*504A combination of the factors stated in Clauses (a), (b) and (c), or sometimes any one of them alone, is commonly expressed by saying that the activity is "ultraha-zardous," or "extra-hazardous." Liability for abnormally dangerous activities is not, however, a matter of these three factors alone, and those stated in Clauses (d), (e), and (f) must still be taken into account.

(Italics mine.) Thus, strict liability for abnormally dangerous activities may not be imposed absent the presence of at least one of the factors stated in clauses (d), (e) and (f). None of those three factors justify the imposition of strict liability in this case.