The Kansas Supreme Court has held that for strict liability to apply in the state to groundwater contamination, the contamination must result from abnormally dangerous activity. City of Neodesha v. BP Corp. N. Am. Inc. No. 101,183 (Kan. 8/31/2012).

The city of Neodesha and a class of surrounding landowners sued BP Corp. asserting that it was liable for groundwater contamination in the vicinity of an oil refinery that ceased operations in 1980. Because the statute of limitations had expired with respect to refinery operations, plaintiffs asserted that BP was liable because of the company’s ongoing remediation efforts at the former refinery site.

The case was tried to a jury on the plaintiffs’ strict liability claims. BP asserted that familiar legal standards impose strict liability on “abnormally dangerous activities,” and that its actions did not give rise to strict liability. Under Kansas law, which follows the Restatement (Second) of Torts, an activity may be deemed abnormally dangerous by considering a number of factors. Plaintiffs asserted that under Kansas law, liability for groundwater contamination is strict without regard to whether the cause was an abnormally dangerous activity. The jury instructions recited the Restatement’s abnormally dangerous activity provisions and also included the instruction that “Kansas law provides that strict liability applies to conduct involving contamination of water resources, because of the importance of clean, safe water.”

After the jury returned a defense verdict, the trial court determined that the plaintiffs were entitled to judgment as a matter of law, holding that BP was strictly liable for groundwater contamination and conditionally ordering a new trial on damages. BP filed an interlocutory appeal, and the Kansas Supreme Court held that cases on which plaintiffs relied for their strict liability per se argument were inapposite because they were decided before Kansas adopted its current strict liability rules. The court also faulted the trial court’s strict liability analysis and held that the Restatement’s abnormally dangerous activities tests “were the appropriate standards to apply to the claims, and the jury decided the question.” Accordingly, the court ordered the reinstatement of the jury’s verdict and final judgment for the defendants.