I. (§16.36) Causes of Action Under § 519 of the Restatement (Second) of Torts Apply Only to Activities and Not to Products
A cause of action under Restatement (Second) of Torts § 519 (1977) is based on a party’s activities and not a party’s product. In 2005, the U.S. District Court for the District of Nebraska concluded that such a cause of action applies only to activities and not to products. The court stated:
That hydrogen sulfide is viewed as a pollutant or hazardous substance under some federal laws is not sufficient to overcome this motion for partial summary judgment. I am persuaded by the logic of the Seventh Circuit Court of Appeals in Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1181 (7th Cir. 1990) which emphasized that "ultrahazardousness or abnormal dangerousness is, in the contemplation of the law at least, a property not of substances, but of activities." The Seventh Circuit Court has also stated that "[i]f the rule were otherwise, virtually any commercial or industrial activity involving substances which are dangerous only in the abstract automatically would be deemed as abnormally dangerous. This result would be intolerable." City of Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611, 615–17 (7th Cir. 1989) (citation omitted).
Marmo v. IBP, Inc., 362 F. Supp. 2d 1129, 1134 (D. Neb. 2005); see also Richmond, Fredericksburg & Potomac R.R. Co. v. Davis Indus., Inc., 787 F. Supp. 572, 575 (E.D. Va. 1992)...
