The doctrine of strict liability, sometimes called absolute liability, has its genesis in the English rule of Rylands v. Fletcher (1868), L.R. 3 H.L. 330, wherein strict liability was imposed on the defendant owners of land for harm resulting from the abnormal or nonnatural use of the defendants' land which arose when water from defendants' reservoir flooded the adjoining mine of the plaintiff. Subsequent decisions interpreted the rule to be confined to things or activities which were 'extraordinary,' or 'exceptional,' or 'abnormal' so that there was some special use bringing with it increased danger to others. (W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on the Law of Torts § 78, at 545-46 (5th ed. 1984).)
From the decisions of the English courts the 'rule' of Rylands which has emerged is that 'the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.' Prosser, § 78, at 547-48. Most jurisdictions in this country have adopted the rule of Rylands to impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities. (Ruggeri v. Minnesota Mining & Manufacturing Co. (1978), 63 Ill. App. 3d 525, 528, 20 Ill. Dec. 467, 380 N.E.2d 445.)
The best-known applications of the Rylands rule imposing strict liability on a defendant involve the storing and use of explosives and flammable materials. See Continental Building Corp. v. Union Oil Co. (1987), 152 Ill. App. 3d 513, 515-16, 105 Ill. Dec. 502, 504 N.E.2d 787 (cases cited); Opal v. Material Service Corp. (1956), 9 Ill. App. 2d 433, 133 N.E.2d 733 (use of explosive such as dynamite in residential area was intrinsically dangerous and gave rise to strict liability for the blaster regardless of degree of care or skill exercised in using the explosive).Illinois has recognized strict liability principally in two instances: (1) when, under certain circumstances, a defendant introduces a product into the community which is unreasonably dangerous to the user, consumer, or to his property (product liability cases) (Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200, 1202); and (2) when a defendant engages in ultrahazardous or abnormally dangerous activity as determined by the courts, giving particular consideration, inter alia, to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings (Continental, 152 Ill. App. 3d at 516-17). See Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 87 Ill. Dec. 765, 477 N.E.2d 1293 (distinguishing product liability from ultrahazardous activity liability); see also Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (N.D. Ill. 1981), 517 F. Supp. 314 (concluding that transporting acrylonitrile, a dangerous and toxic substance, was inherently dangerous or ultrahazardous activity so that complaint stated cause of action in strict liability under Illinois law).
The question arises whether the use of firearms is an ultrahazardous activity giving rise to strict liability. (Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931, 102 Ill. Dec. 479, 500 N.E.2d 101 (holding as a matter of law that use of trampoline is not abnormally dangerous instrumentality); Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 763-64, 43 Ill. Dec. 892, 410 N.E.2d 1025 (demolition held ultrahazardous as a matter of law).) Ordinarily the manufacture or the sale of nondefective handguns has been held not to be an ultrahazardous activity. (Riordan, 132 Ill. App. 3d at 649-50, citing with approval Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200.) There is dictum in Martin which suggests that the use of handguns might be considered an ultrahazardous activity. However, that court actually decided that, under Illinois law, the sale of a nondefective handgun was not an ultrahazardous activity and to decide otherwise would be unprecedented. (Martin, 743 F.2d at 1203 (where court stated in dictum, 'If plaintiffs were claiming that the use of a handgun was an ultrahazardous activity the argument would clearly fit within the parameters of Illinois law') (emphasis in original).)
Although guns or firearms have been labeled dangerous instrumentalities (see Teter v. Clemens (1985), 131 Ill. App. 3d 434, 438, 86 Ill. Dec. 684, 475 N E.2d 1063; Mikula v. Duliba (1983), 94 A.D.2d 503, , 464 N.Y.S.2d 910, 913), it does not automatically follow that courts must then charge a defendant with strict liability for the use of firearms which results in harm to a plaintiff. Indeed, the prevailing rule is that the use of firearms ordinarily does not present a question of strict liability premised on ultrahazardous activity; rather, it ordinarily presents a question of negligence or possibly of willful and wanton conduct. See Junker v. Ziegler (1986), 113 Ill. 2d 332, 101 Ill. Dec. 627, 498 N.E.2d 1135; Washington v. Williams (1991), 215 Ill. App. 3d 607, 159 Ill. Dec. 83, 575 N.E.2d 581 (willful and wanton conduct); Harrison v. Allen (1913), 179 Ill. App. 520 (negligence); Jacoves v. United Merchandising Corp. (1992), 9 Cal. App. 4th 88, 11 Cal. Rptr. 2d 468 (no ultrahazardous activity warranting imposition of absolute liability, but highest standard of due care applied); Reida v. Lund (1971), 18 Cal. App. 3d 698, 96 Cal. Rptr. 102 (leaving rifle accessible was issue of negligence; use of firearms not ultrahazardous activity resulting in imposition of absolute liability); Mikula v. Duliba (1983), 94 A.D.2d 503, 464 N. Y.S.2d 910, 913 (although firearms are dangerous instrumentalities, their use while hunting is not abnormally dangerous activity requiring imposition of strict liability); see also Moore v. R.G. Industries, Inc. (9th Cir. 1986), 789 F.2d 1326, 1328 (under California law, use of handguns is not ultrahazardous activity for which strict liability may be imposed).
The frequently stated standard of care applied in many jurisdictions concerning the use of firearms is the duty to exercise ordinary care commensurate with the peculiar circumstances of the case. (Annot., 26 A.L.R.3d 561, 567 (1969).) This is a negligence standard which is incompatible with the theory of strict liability. One instructive commentary states: 'In determining the degree or measure of care required to avoid injuring another by the use or possession of a particular dangerous instrumentality, much depends upon the nature of the instrumentality, the circumstances which surround its maintenance and use, and the time and place of its use. *** Ordinary care as applied to use of a dangerous instrumentality, however, generally imports the rule that the care exercised must be proportionate to the danger, and hence ordinary care in regard to a dangerous instrumentality necessarily implies the requirement of a great or high degree, if not the greatest or highest degree, of care.' 57A Am. Jur. 2d Negligence § 313 (1989).
A similar standard is applied to the use and handling of a firearm. The degree of care to be exercised is often stated as 'a high degree of care' and is more often defined as 'such care as is commensurate with the dangerous nature of the firearm in the circumstances of the particular case' so that 'one who has in his possession or under his control an instrumentally exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury thereby.' 79 Am. Jur. 2d Weapons & Firearms § 36 (1975); see, e.g., Seabolt v. Cheesborough (1972), 127 Ga. App. 254, 193 S.E.2d 238 (in hunting rifle accident, ordinary care is care and diligence which every prudent man would exercise under similar circumstances and like surroundings); Riste v. Helton (1984), 139 Mich. App. 404, 362 N.W.2d 300 (owner of dangerous instrumentality such as gun must exercise high degree of care when using gun or authorizing use); Hatfield v. Gracen (1977), 279 Ore. 303, 567 P.2d 546 (standard of due care in firing gun at suspected robber); Everette v. City of New Kensington (1978), 262 Pa. Super. 28, 396 A.2d 467 (extraordinary care is reasonable care when person is in possession of loaded firearm).In Illinois, the standard of ordinary care in a negligence case is the care which a reasonably careful person would use under the circumstances presented; it is ordinarily a question for the trier of fact. (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 670, 299 N.E.2d 108.)
This standard or degree of care is evidently a flexible one which varies according to the particular circumstances. Imposing a duty of ordinary care, even where it may become a high degree of care under the particular circumstances, is quite different from imposing strict or absolute liability by classifying the activity ultrahazardous. A review of authorities discloses that the discharge of firearms resulting in injury ordinarily presents a question of negligence and that the standard of care is ordinary care--one which may be equated to a high degree of care because of the particular circumstances presented.
Many courts have adopted the use of the Restatement principles and factors discussed, or at least implicitly considered, in prior decisions. See Continental Building Corp. v. Union Oil Co. (1987), 152 Ill. App. 3d 513, 516, 105 Ill. Dec. 502, 504 N.E.2d 787; Fallon, 148 Ill. App. 3d at 934; Restatement (Second) of Torts (1977) §§ 519, 520 (1977); see also Martin v. Harrington & Richardson, 743 F.2d at 1203.) Section 519 of the Restatement states the general principle that '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.' (Restatement § 519.) Section 520 of the Restatement sets forth several factors which courts will consider in determining whether an activity is abnormally dangerous (ultrahazardous): '(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.' Restatement § 520. 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 even though the activity is carried on with all reasonable care. (Restatement § 520, comment f, at 37-38.)
Considerations of public policy also enter prominently into the decisions by our courts to impose strict liability (at least in product liability cases). (See Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (N.D. Ill. 1981), 517 F. Supp. 314, 318, citing Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 619, 210 N.E.2d 182.) Particular consideration is also given to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings under the Rylands rule. Continental Building, 152 Ill. App. 3d at 517. The use of guns or firearms, even though frequently classified as dangerous or even highly dangerous, is not the type of activity that must be deemed ultrahazardous when the above-stated criteria are taken into consideration. First, the risk of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even 'utmost' care under the circumstances (see Mikula v. Duliba, 464 N.Y.S.2d at 912-13).
The doctrine of strict or absolute liability is ordinarily reserved for abnormally dangerous activities for which no degree of care can truly provide safety. There is a clear distinction between requiring a defendant to exercise a high degree of care when involved in a potentially dangerous activity and requiring a defendant to insure absolutely the safety of others when engaging in ultrahazardous activity. Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 667, 80 Ill. Dec. 401, 465 N.E.2d 513.Second, the use of firearms is a matter of common usage and the harm posed comes from their misuse rather than from their inherent nature alone (see Moore, 789 F.2d at 1328). Third, the activity in this case was carried on at a firing range in a quarry located somewhere near the City of Freeport. Target practice is of some social utility to the community; this weighs against declaring it ultrahazardous where the activity was alleged to have been performed by law enforcement officers apparently to improve their skills in the handling of weapons. See Continental, 152 Ill. App. 3d at 517-18; Fallon, 148 Ill. App. 3d at 934-35.