A few months ago, we discussed the Fiorentino case where Pennsylvania plaintiffs alleged an oil and gas company improperly conducted hydraulic fracturing, which allowed the release of toxic chemicals on their land and into their groundwater. At the time, the Fiorentino court was unwilling to dismiss the plaintiffs' claims until the record was more fully developed. Among those claims was a claim for strict liability whereby the plaintiffs claimed that hydraulic fracturing is an abnormally dangerous activity under Pennsylvania law. Fiorentino v. Cabot Oil & Gas Corp., 750 F. Supp. 2d 506 (M.D. Pa. 2010). Recently, the Fiorentino court rendered a decision declining to "take a step which no court in the United States has chosen to take, and declare hydraulic fracturing to be an ultra-hazardous activity that gives rise to strict tort liability." Fiorentino, No. 3:09-cv-02284, Doc. 489 at 1.

The court, adopting the magistrate judge's report and recommendation, went through the six factors set forth in the Restatement (Second) of Torts § 520 to determine whether hydraulic fracturing legally qualifies as an ultra-hazardous activity giving rise to strict liability. Id. at 23. These are the same six factors that California courts use when evaluating whether strict liability should apply to individual cases without precedent. Edwards v. Post Transp. Co., 228 Cal. App. 3d 980, 985 (1991).

In short, Fiorentino found that the plaintiffs failed to meet any of the six factors because they had presented no evidence that a properly constructed and completed gas well would still lead to water contamination or fluid migration. Fiorentino, Doc. 489 at 29. Instead, the plaintiffs' limited evidence consisted only of an expert report describing the possible negligence of the defendants (i.e., that fluid migration from the wells was "likely" due to a lack of due care relating to "faulty well design and/or construction"). Id. The court was also persuaded by the "surplus of evidence not only attesting to the relative safety of natural gas drilling operations, but also to the fact that such operations are a common, growing, and important part of a modern, highly industrial society . . . ." Id. at 10. Accordingly, the court granted the defendants' motion for summary judgment on the plaintiffs' claims for strict liability. Id. at 37.

That said, although strict liability may be an uphill battle for plaintiffs, other causes of action still remain viable. In April, a Texas family was awarded 2.9 million in the first toxic tort jury verdict over fracking. They succeeded on an intentional nuisance claim. Parr v Aruba Petroleum Inc., Tex. County Ct., No. CC-11-01650-E. Whether causes of action alleging intentional nuisance or strict liability can be successful in California courts has yet to be tested for fracking. However, when coupling the increased use of hydro-fracturing and other well stimulation techniques in California along with the rising tide of community opposition to such operations, upstream developers and landowners need to closely monitor the litigation risks associated with these activities.

This article is presented for informational purposes only and is not intended to constitute legal advice.