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An activity is a matter of common usage for purposes of determining whether an activity is an abnormally dangerous activity warranting strict liability if it is customarily carried on by the great mass of mankind, or by many people in the community. The discharging of lawful fireworks displays is a matter of common usage. As stated in Md. Code Ann., Pub. Safety § 10-101, fireworks are designed to produce a visible or audible effect for the benefit of spectators. Therefore, courts define "common usage" broadly to include not only the professionals who discharge fireworks, but also the spectators who partake in the fireworks display. Almost by definition, lawful fireworks displays involve two parties: the shooter and the audience. Lawful fireworks displays are a matter of common usage.
Petitioner, Andrew David Toms (Toms), operates a dairy farm in Frederick County, Maryland, and maintains a herd of approximately 90 head of cattle. On September 9, 2012, a church-sponsored fireworks display took place on property adjacent to Toms' dairy operation. A permit to discharge fireworks had been obtained, and the event was supervised by a deputy fire marshal. No misfires or malfunctions took place. According to Toms, the fireworks display was so loud that it startled his cattle, and caused a stampede inside his dairy barn. The stampede resulted in the death of four dairy cows, property damage, disposal costs, and lost milk revenue.
Toms filed suit against the respondents, collectively, Calvary Assembly of God, Inc. (Calvary), Zambelli Fireworks Manufacturing Co. (Zambelli), Zambelli employee Kristopher Lindberg (Lindberg), and Auburn Farms, Inc. in the District Court of Maryland sitting in Frederick County. Toms alleged that the stampede was the result of negligence, nuisance, and strict liability for an abnormally dangerous activity. After a bench trial, the district court entered judgment in favor of the respondents. Toms appealed to the Circuit Court for Frederick County, which affirmed the lower court's ruling. The Court of Appeals of Maryland granted Toms' petition for certiorari review.
Does noise emanating from the discharge of a fireworks display constitute an abnormally dangerous activity, which would warrant the imposition of strict liability?
The Court of Appeals of Maryland held that the noise emanating from the discharge of a fireworks display was not subject to strict liability because the fireworks were lawfully discharged under Md. Code Ann., Pub. Safety § 10-103, and it was not an abnormally dangerous activity upon consideration of the six-factor test. Lawful fireworks displays were not an abnormally dangerous activity because the statutory scheme regulating the use of fireworks under Md. Code Ann., Pub. Safety § 10-101 et seq., significantly reduced the risk of harm associated with the discharge of fireworks.