when Akzo relinquished possession of the property, the property would have a particular value or be suitable for a particular use.
III. Plaintiffs' Other Claims
In addition to their negligence claim, plaintiffs also assert claims for strict liability for conducting an abnormally dangerous activity, nuisance, and trespass.
New York law imposes strict liability on landowners for damage caused from their conduct of activities that are "abnormally dangerous" or "ultrahazardous." Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 448, 398 N.Y.S.2d 401, 368 N.E.2d 24 (1977). Whether an activity falls within this category is an issue for the court to decide. Kowalski v. Goodyear Tire and Rubber Co., 841 F. Supp. 104, 108 (W.D.N.Y. 1994).
The New York Court of Appeals has identified several factors that are indicative of an abnormally dangerous activity: the existence of a high degree of risk of harm to others; the likelihood that the resulting harm will be great; the inability to eliminate the risk by the exercise of reasonable care; the uncommon nature of the activity; the inappropriateness of the activity to the place where it is carried on; and the extent to which its value to the community is outweighed by its dangerous attributes. Doundoulakis, 42 N.Y.2d at 448. No one of these factors is decisive, and their relative importance will depend on the particular facts of the case. Id.
Plaintiffs contend that Akzo's use of "pillar robbing," i.e., removing salt from the pillars supporting the roof of the mine, was an ultrahazardous activity that renders Akzo strictly liable for damages caused by the collapse, which plaintiffs contend resulted from the weakening of the pillars. On the evidence presented, however, I find as a matter of law that Akzo's mining methods, even if they did cause the collapse, were not abnormally dangerous for purposes of strict liability.
The chief difficulty with this claim is that according to plaintiffs, it was Akzo's negligent use of pillar mining that led to the collapse. In other words, plaintiffs' proof does not indicate that the risk of collapse could not have been eliminated through the exercise of reasonable care, e.g., by ceasing the pillar robbing before the pillars become too weak or by putting other supports in place to keep the mine from collapsing. While I recognize that this claim is an alternative to plaintiff's negligence claim, the fact remains that plaintiffs' allegations and evidence do not indicate that this method of mining is so inherently dangerous that the risks associated with it are unavoidable. See German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 570 (S.D.N.Y. 1995) (because plaintiffs implicitly admitted that risk of damage from defendants' activity could be controlled with reasonable care, claims for use of ultrahazardous substances had to be dismissed); National R.R. Passenger Corp. v. New York City Housing Auth., 819 F. Supp. 1271, 1279 (S.D.N.Y. 1993) (dismissing nuisance claim based on ultrahazardous activity because plaintiffs implicitly acknowledged that, had defendants exercised due care in maintenance of structure coated with asbestos-containing material, no nuisance would have occurred); DeFoe Corp. v. Semi-Alloys, Inc., 156 A.D.2d 634, 549 N.Y.S.2d 133 (2d Dep't 1989) (ultrahazardous-activity claim failed where plaintiff made no showing that defendant, by exercise of reasonable care, would have been unable to eliminate risk that caustic chemical would invade neighbor's property).
Furthermore, this claim, like all of plaintiffs' claims, suffers from the same defects concerning proof of damages discussed with respect to the negligence claim. Regardless of the theory of liability advanced by plaintiffs, they simply cannot establish damages with sufficient certainty.
Plaintiffs' nuisance and trespass claims thus fail for this reason as well. In addition, these claims attempt to impose a liability on Akzo that is expressly barred by the Agreement. As noted, the parties agreed that Akzo would not bear the risk of loss to the property by reason of any casualty in the event that it did not take title to the property, and that Akzo would have no "obligation ... to repair or restore the Property or the Option Property or otherwise remedy such a loss." Agreement § 8.01. Plaintiffs have advanced no cogent reason why, having agreed to these terms, they should not now be bound by them.
Furthermore, as explained with reference to the negligence claim, Akzo simply had no duty to return possession of the property in any particular condition. Although the element of duty relates to negligence rather than to nuisance or trespass, the point is that Akzo never had any legal obligation, or reason to believe that it had an obligation, to preserve the mine cavity in a particular condition. This is not like a traditional nuisance or trespass case in which a landowner uses his property in a way that interferes with his neighbor's possession or enjoyment of his property. In general, a landowner cannot reasonably believe that he has a right to engage in an activity that is substantially certain to result in injury to his neighbor's property rights. In the case at bar, however, Akzo took possession of the mine with the correct understanding that it had the right to mine the salt through whatever methods it chose, regardless of the condition in which the mining chambers would be left (if, indeed, they were left at all). Once Akzo permanently ceased mining, possession would revert to the surface owners, but there was never any understanding that the surface owners' possessory rights would include a right to have the property (specifically the sub-surface) returned to them in any particular condition. Plaintiffs' nuisance and trespass claims, then, in effect seek to impose a duty on Akzo where none has ever existed.
The complaint also asserts a claim for surface damage caused by the collapse. As noted, Akzo has stated that it is willing to compensate surface owners, including plaintiffs, for any legitimate, documented claim for surface damages.
No proof of any damage to surface lands owned by plaintiffs has been forthcoming, however. I therefore find that plaintiffs have failed to demonstrate the existence of a genuine issue of material fact on this claim, and that this claim must be dismissed as well.
Defendant's motion for summary judgment (Item # 4) is granted and the complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
April 16, 1996.