A federal court in Pennsylvania has refused to dismiss a strict liability claim in a lawsuit seeking to hold a company using hydraulic fracturing to drill for natural gas liable for chemical releases that contaminate a drinking water supply. Berish v. Sw. Energy Prod. Co., No. 101981 (M.D. Pa. 2/3/11). Several Susquehanna County, Pennsylvania, residents alleged that defendants’ drilling operations caused large quantities of toxic chemicals to leach into the ground water and water supply surrounding their homes. The complaint alleged, among other claims, strict liability for conducting an abnormally dangerous activity. The defendant moved to dismiss the strict liability count.

Denying defendants’ motion, the court noted that in a number of cases the state’s courts have adopted section 520 of the Restatement (Second) of Torts in determining whether an activity is abnormally dangerous. Section 520 identifies the factors to be considered: (i) a high degree of risk of harm to other people or their property, (ii) a likelihood that the harm will be great, (iii) an inability to eliminate the risk by exercising reasonable care, (iv) the extent to which the activity is not a matter of common usage, (v) the inappropriateness of the activity to the place where it is carried out, and (vi) the extent to which its dangerousness outweighs its value to the community. The court specifically rejected defendants’ argument that factors (v) and (vi) did not apply to hydraulic fracturing.