Miller v. Civil Constructors

272 Ill. App. 3d 263, 209 Ill. Dec. 311, 651 N.E.2d 239 (1995)



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.


Plaintiff alleged that the city and construction company knew or should have known that discharging firearms was an ultra-hazardous, highly dangerous activity, an activity that was the proximate cause of the injuries. The complaint averred that he was injured when a stray bullet ricocheted during the course of firearm target practice in a nearby gravel pit and caused him to fall from a truck. The court held that there was no legal cause of action available to plaintiff under a theory of strict liability, and affirmed the trial court orders. 


In consonance with Illinois law, did the trial court properly dismiss the counts where plaintiff attempted to state a cause of action premised on a theory of strict liability by asserting that the discharge of firearms in a quarry shooting range is an ultrahazardous activity?




Admittedly, 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. (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).) Yet, there is no basis for the dictum in Martin, and of course this court is not bound by that decision. Equally unavailing to plaintiff is his improvident citation to matters out of context from an old negligence case. In commenting on the instructions used at that time in the case of the negligent firing of a hunting weapon, the Harrison court noted in passing that it had been stated that firearms were "extraordinarily" dangerous and required "extraordinary" care to prevent injury. The court actually held that it was reversible error to instruct that the burden of proof throughout the case was the plaintiff's and to refuse instructions correctly stating the law as to the burden on defendant to prove that the gun was not negligently discharged by him.

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