30. In an action by one of the affected residents against the chemical company, will the resident be likely to prevail?

An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even when reasonable care is exercised. For an activity to be considered abnormally dangerous, two requirements must be met: (i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity must not be a matter of common usage in the community. In most states, the defendant is liable only to foreseeable plaintiffs, meaning persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the «normally dangerous propensity» of the condition or thing involved.

D is correct. The resident will prevail in an action against the chemical company because all of the elements of strict liability for an abnormally dangerous activity are satisfied. The activity (storage of toxic chemicals) created a substantial risk of serious harm even with the company's exercise of reasonable care. The risk to neighbors of the plant was foreseeable given the fact that the toxic chemicals produce fumes that may affect the surrounding areas. There are also no facts offered to indicate that the activity was a matter of common usage in the community.

A is incorrect. Even though the chemical company conformed to the requirements of reasonable care and to the applicable government regulations, it remains liable for conducting an abnormally dangerous activity under strict liability, which is imposed even when reasonable care is exercised.

B is incorrect. As stated above, the company is still liable for foreseeable injuries caused by its abnormally dangerous activity even if it took all reasonable precautions, which includes using a state-of-the-art storage tank. Strict liability may be imposed despite the exercise of such diligent care.

C is incorrect. This is a misstatement of the law. While the resident is likely to prevail, it is not because the chemical company is strictly liable in tort for any harm caused by the toxic chemicals it produced. Abnormally dangerous activities do not come with blanket liability for any harm caused whatsoever. Rather, the chemical company is strictly liable in tort only for injuries to foreseeable plaintiffs caused by the abnormally dangerous activity, which involved a substantial risk of serious harm despite exercising reasonable care.