(dissenting)—The majority opinion says to me that if one is injured, killed, or suffers extensive property damage from an explosion while performing the common act of igniting one's oil stove (that explosion occurring because of the presence of escaped natural gas from an underground line), one 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.9
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? Washington Water Power should be strictly liable for the damages to Mr. Brown and New Meadows. It should be incumbent upon Washington *36Water Power to collect back against Pacific Northwest Bell (PNB), as in a subrogation claim.
I realize there is no specific case law in the United States10 holding the operators of natural gas transmission lines strictly liable for damages occurring as a consequence of explosions emanating from the gas escaping the confines of those lines. Nonetheless, this dissent offers legal, as well as commonsense, reasons our courts should look beyond yesterday and remove an outworn millstone from the necks of the innocent victims of faulty natural gas transmission lines.
The Philosophy of Risk Allocation
The choice presented here between the rules of negligence and strict liability is not new.11 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.12 Regardless of the arguments posited, the touchstone of any loss allocation scheme must *37be 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.13 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 negligence 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?
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 articula*38ble 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 U.S. Dep't of Transp., Natural Gas Pipeline Safety Act Annual Report (1977), at 3 n.1. 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.
In Snyder v. Moncton Elec. & Gas Co., [1936] 2 D.L.R. 31, a father came home, went to bed, and later a natural gas explosion killed him and seriously injured his wife and child.14 Consequently, it is not merely semantics when we state, though miscarriages on the part of natural gas companies are very infrequent, when a miscarriage does occur, it can be lethal.
When this country was being developed, when today was still in the future, and when industry was in its 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 *39expanding. In Kind v. Seattle, 50 Wn.2d 485, 488, 312 P.2d 811 (1957), although not deciding the case on strict liability, the court quoted from Bridgeman-Russell Co. v. Duluth, 158 Minn. 509, 197 N.W. 971 (1924), in relation to a bursting water main, as follows:
"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 the 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.
(Italics mine.) A convincing statement for the same theory is stated in 2 F. Harper & F. James, Torts § 14.3, at 794 (1956):
When negligence is the sole basis for recovery of damage caused by the conduct of dangerous activities, it must necessarily be that in some cases innocent victims will go uncompensated. The individualistic philosophy of laissez faire sanctions this result on the theory that a person should not be held liable, no matter how innocent the victim, if he has done no "wrong." On the other hand, it is urged that the question is not one of "right or wrong" but who can best bear the loss—the person utilizing the ultrahazardous equipment or facility or the victim. The development of industry and business saw the rise of laissez faire as the dominant economic philosophy and fault as the dominant principle of liability for the casualties of enterprise, each being a ramification in its sphere of the individualism of the age. Fault is still no doubt the dominant principle of liability. There is a growing belief, however, that in this mechanical age the victims of accidents can, as a class, ill afford to bear the loss; that the social consequences of uncompensated loss are of far greater importance than the amount of the loss itself; and that better results will come from distributing such losses among all the beneficiaries of the mechanical process than by letting compensation turn upon an inquiry into fault.16
*40(Italics mine.)
Strict Liability Applied
This all brings us to the determination of whether the transmission of natural gas is an abnormally dangerous activity within the strict liability provisions of Restatement (Second) of Torts § 519 (1977):
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
*41(f) extent to which its value to the community is outweighed by its dangerous attributes.
There are six factors to be considered under section 520 to determine whether section 519 should be applied. The first three factors deal with determining whether an activity is dangerous in itself, and the remainder concern application of section 519 to the activity determined to be dangerous.
The comments to Restatement (Second) of Torts § 520 state in part at page 37:
/. . . . 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 imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
(Italics mine.)
In considering whether Restatement (Second) of Torts § 519 should apply, the majority admits the presence of factors (a) and (b) from Restatement (Second) of Torts § 520, 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.15 It is obvious to me that the risk of fire and explosion that inheres when natural gas escapes cannot be protected against or elimi*42nated 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 section 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 section 519 is appropriate.
The case of McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 635 (1970) recognized the "irreducible minimum of risk" in.the similar activity of blasting. In 255 Or. at 329, 467 P.2d at 638, it quoted the following from *43Harper & James:
"Moreover, while harm to others is neither certain, nor, in many cases, probable, if a high degree of caution and diligence is employed, still there is an irreducible minimum of risk involved even when all precautions are taken, and the possible harm is of such a serious nature that sound social policy demands that the actor assume the risk." 2 Harper and James, The Law of Torts 814, § 14.6 (1956).
In our state, Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972) discussed the dangers of gasoline by saying at page 454 that it was "dangerous in itself" and that n[g]asoline is always dangerous whether kept in large or small quantities because of its volatility, inflammability and explosiveness." Natural gas may be even more dangerous than gasoline because (a) it is not as containable, and (b) its presence can only be ascertained by smell, not sight. And if one recognizes the odor, it may be too late, because one is already encased in the explosive potential.
Later, the Siegler court conveyed at page 455 the philosophic approach that strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, but also upon the maxim that where 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.
The question of third party interference as causation of the loss which troubled the majority in Siegler and troubles also my colleagues in the majority here can be solved by analogy to the field of insurance and the subrogation rights of the insurance company. Furthermore, this recognizes a proof problem that the majority in Siegler used as an alternative basis for its decision, i.e., the strictly liable injuror is in the best position to know why and to prove *44how the accident occurred, particularly in gas explosion cases.
Conclusion
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 Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 68-69, 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.
I would hold the Washington Water Power Company strictly liable for the injuries caused Mr. Brown and New Meadows, but permit Washington Water Power to recover against Pacific Northwest Bell and its agent on a theory of negligence. Washington Water Power would be able to pass any unreimbursed liability on to each of its gas consumers.
Reconsideration denied April 18, 1983.
Review granted by Supreme Court July 22, 1983.
In 1943 and 1931, our Supreme Court held that the test for the liability of gas companies transmitting natural gas is that of negligence. Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wn.2d 631, 134 P.2d 444 (1943); Senske v. Washington Gas & Elec. Co., 165 Wash. 1, 4 P.2d 523 (1931).
In Canada, it appears that strict liability may be a proper theory upon which to ground an action for injuries caused by natural gas escaping from a main. See London Guar. & Acc. Co. v. Northwestern Utils. Ltd., [1935] 4 D.L.R. 737; Raffan v. Canadian W. Nat. Gas, Light, Heat & Power Co., 8 W.W.R. 676 (1915); Fenn v. Peterborough, 73 D.L.R.3d 177 (1976). From 1915 to 1935, the appellate courts of Canada had grounded their strict liability approach on the basis of the natural gas companies' charters that contained language similar to that found in RCW 80.28.210: "every company shall construct and maintain such facilities [transporting natural gas by pipelines] as will be safe and efficient." Comment, Liability of Natural Gas Transmission Line Operators: United States and Canadian Theories of Liability for Gas Transmission Line Accidents, 3 Hastings Int'l & Comp. L. Rev. 455 (1980).
In 1907, the Minnesota Supreme Court considered the choice question in Gould v. Winona Gas Co., 100 Minn. 258, 111 N.W. 254 (1907), and decided in favor of negligence.
See, e.g., Epstein, The Social Consequences of Common Law Rules, 95 Harv. L. Rev. 1717 (1982); Coleman, The Morality of Strict Tort Liability, 18 Wm. & Mary L. Rev. 259 (1976).
See Clift v. Nelson, 25 Wn. App. 607, 608 P.2d 647 (1980). There, a policeman brought a civil action for assault and battery against 10 members of an unruly crowd at a tavern. Someone in the crowd had kicked the policeman in the back of his head while he was subduing an abusive patron. Because the plaintiff could not identify the person or persons who kicked him from the rear, he was unable to prove his case against a particular person or persons.
Numerous other examples of serious consequences of natural gas explosions could be described.
See James, Accident Liability, Some Wartime Develqpments, 55 Yale L.J. 365 (1946). See also Feezer, *40Capacity to Bear Loss as a Factor in the decision of Certain Types of Tort Cases, 78 U. Pa. L. Rev. 805 (1930), 79 id. 742 (1931); Takayanaye, Liability Without Fault in the Modern Civil and Common Law, 16 Ill. L. Rev. 163, 268 (1921), 17 id. 185, 416 (1923); Friedmann, Social Insurance and the Principles of Tort Liability, 2 Stan. L. Rev. 259 (1951); Comment, Loss Shifting and Quasi Negligence; A New Interpretation of the Palsgraf Case, 8 U. Chi. L. Rev. 729 (1941); Pound, The End of the Law as Developed in Legal Rules and Doctrines, 27 Harv. L. Rev. 195 (1914). For further treatment of risk-bearing capacity on this problem, see Morris, Hazardous Enterprises and Risk Bearing Capacity, 61 Yale L.J. 1172 (1952).
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."