AMI 1108 Absolute Liability—Ultrahazardous Activities

When punitive damages are in issue, use the bracketed portion of this instruction and also AMI 2218 following other appropriate instructions from Chapter 22.

When negligence is relied on, use AMI 1301, which may be modified if the activity is other than the use of explosives.

When negligence is relied on, use AMI 1301, which may be modified if the activity is other than the use of explosives.

Do not use this instruction where the Arkansas Recreational Use Statute, §§ 18-11-301 et seq., applies and there is no basis for exception to the immunity conferred thereunder.

The rule of absolute liability has been clearly enunciated. Carroll–Boone Water Dist. v. M. & P. Equipment Co., 280 Ark. 560, 661 S.W.2d 345 (1983). Although the court has treated the words “absolute” and “strict” as being synonymous, the Committee has opted for “absolute” in the title to this instruction in order to avoid any confusion with the distinct concept of “strict liability in tort” in product liability cases.

Under Ark. Code Ann. § 18-11-301 et seq., (the “Recreational Use Statute”), an owner owes no duty of care to keep premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure or activity on the premises to persons entering for recreational purposes without charge (admission fee) unless the owner maliciously (but not merely negligently) fails to guard or warn against an ultra-hazardous condition or activity actually known to the owner to be dangerous. Ark. Code Ann. §§ 18-11-301 et seq. Act 1112 of 2015 amended Ark. Code Ann. § 18-11-302 to define “malicious” under the Recreational Use Statute to mean “an intentional act of misconduct that the actor is aware is likely to result in harm,” and it “does not mean negligent or reckless conduct.” This amendment was in apparent response to Roeder v. U.S., 2014 Ark. 156, in which the Arkansas Supreme Court, answering a certified question from federal district court, held that “malicious” conduct includes conduct in reckless disregard of the consequences from which malice may be inferred.

Whether the defendant used an instrumentality justifying the giving of this instruction is a question of law. Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949). In that case the aerial spraying of the poison 2-4-D was held to constitute an ultrahazardous activity, whereas the spraying of the herbicide Roundup Ultra was held not to do so in Mangrum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004). But see, Carr v. Nance, 2010 Ark. 497, in which the court noted that the jury was instructed on the definition of ultra-hazardous and appellees did not object. In Carr the court held that hanging an unmarked cable at a dangerous height in an area in which the landowner knows there are people traveling on four-wheelers constituted an ultra-hazardous activity for which the landowner was held liable and subject to punitive damages.

AMI 1108 adopts the rationale in Chapman, supra, that the court decides as a matter of law whether a product is ultrahazardous in order to invoke absolute liability. Mangrum, supra.

When blasting is conducted on the property damaged with the knowledge and consent of the owner, the rule of absolute liability is not applicable. Carroll–Boone Water Dist., supra. However, the theories of absolute liability and negligence are not mutually exclusive. Western Geophysical Co. of America v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966).