Sufuryl Fluoride Poisoning

SUBSEQUENT HISTORY:

 [**1] 

Released for Publication September 24, 1992.

PRIOR HISTORY: An Appeal from a nonfinal order of the Circuit Court for Monroe County, J.
Jefferson Overby, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Kenney Burd Knutson
& Markowitz and Madelyn Simon Lozano, for appellant.

 

Leesfield and Blackburn and Ira H. Leesfield and Mycki L. Kirn, for appellees.

JUDGES: Before NESBITT, JORGENSON, and GODERICH, JJ.

OPINIONBY: PER CURIAM

OPINION:

 [*1247]  PER CURIAM.

Old Island Fumigation, Inc., appeals from an order of summary judgment holding
it strictly liable for damages to occupants of a building adjacent to the
building fumigated. We affirm.

Old Island fumigated buildings A and B of a condominium complex. Buildings A
and B, together with
building C, form a U-shape; buildings B and C have between them an atrium and
were thought to be separated by an impenetrable fire wall. Although Old Island
evacuated occupants of buildings A and B before the fumigation, the company
advised the occupants of building C that they could remain in their dwellings
while the other buildings were treated.

Several residents of building C became ill shortly after the Vikane gas was
released into the adjacent buildings. The hospital admission forms indicate
 [**2]  that the cause of their illnesses was sulfuryl
fluoride poisoning. Sulfuryl
fluoride is the active chemical ingredient of Vikane. n1

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n1 The
record is uncontroverted that the plaintiffs were poisoned by the Vikane gas
used by the fumigator.

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

Several months after this incident, an architect hired by the fumigation
company discovered that the fire wall between buildings B and C was defective
and contained a four-foot-by-eighteen-inch open space through which the gas had entered building C. The defect was
only visible from a vantage point within the crawl space and had been missed by
various building inspectors and by the fumigation company itself during an
earlier inspection.

The occupants of building C who had been felled by the Vikane
fumes sued the fumigator for damages, alleging that they had suffered damages
that resulted from the fumigator’s acts. The fumigator defended on the ground
that third parties–the architect and contractors–had actually caused
plaintiffs’ injuries by failing to construct properly the
 [**3]  fire wall between buildings B and C. The plaintiffs moved for
summary judgment arguing, inter alia, that the fumigator was strictly liable
for damages caused by its performance of an ultrahazardous activity. The trial
court granted the motion; the fumigator appeals.

Old Island Fumigation, Inc., is strictly liable for damages caused to the
plaintiffs by its fumigation of the condominium complex.
Fumigation is an ultrahazardous activity as it
“necessarily involves a risk of serious harm to the person, land, or chattels of
others which cannot be eliminated by the exercise of the utmost care, and is
not a matter of common usage.”
Cities Serv. Co. v. State, 312 So. 2d 799 (Fla. 2d
 [*1248]  DCA 1975) (applying Restatement of Torts
§ 520 (1938) and Restatement (Second) of Torts
§ 520 (Tentative Draft No. 10, 1964) (factors to be considered in determining
whether activity is ultrahazardous activity are: whether activity involves high
degree of risk of harm to property of others; whether potential harm is likely
to be
great; whether risk can be eliminated by exercise of reasonable care; whether
activity is matter of common usage; whether activity is appropriate to
 [**4]  place where conducted; whether activity has substantial value to community);
Great Lakes Dredging & Dock Co. v. Sea Gull Operating Corp., 460 So. 2d 510 (1984) (same);
see also
Luthringer v. Moore, 31 Cal. 2d 489, 190 P.2d 1 (1948) (fumigation is ultrahazardous activity). Old Island Fumigation is thus liable
regardless of the level of care exercised in carrying out this activity.

Any alleged negligence by a third party does not
free the fumigation company from liability. In a case involving blasting, an
ultrahazardous activity, this court held that
“under Florida law, a defendant is still liable for the consequences of his
conduct even though some other cause contributed to the same damage.”
Poole v. Lowell Dunn Co., 573 So. 2d 51, 53 (Fla. 3d DCA 1990). See also Restatement (Second) of Torts
§ 522 (Tent. Draft 1968) (“One carrying on an abnormally dangerous activity is subject to strict liability
for the resulting harm although it is caused by the unexpectable innocent,
negligent or reckless
conduct of a third person . . .”).

 

“The reason for imposing strict liability upon those who carry on abnormally
 [**5]  dangerous activities is that they have for their own purposes created a risk
that is not a usual incident of the ordinary life of a community. If the risk
ripens into injury, it is immaterial that the harm occurs through the
unexpectable action of a human being. . . . This is true irrespective of
whether the action of the human being which makes the abnormally dangerous
activity harmful is innocent, negligent or even reckless.”

 

Restatement (Second) of Torts
§ 522 cmt.a (Tentative Draft No. 10 1968).

In sum, the trial court
properly entered summary judgment against Old Island Fumigation on the issue of
liability.

AFFIRMED.

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