
    CIRCUIT COURT OF FAIRFAX COUNTY
    David Taylor v. Central Fiber Corp. et al.
    September 26, 1990
    Case No. (Law) 98484
    
   By JUDGE MICHAEL P. McWEENY

This case came before the Court on September 21, 1990, «pon defendants* Demurrer to Counts III, VI, IX, and XII of the Motion for Judgment. After oral argument, the Court took the case under advisement

Defendants demur to the respective counts assarting that Virginia does not recognize strict liability in tort. To support their position, they offer the Federal cases of Lust v. Clark Equipment Co., Inc., 792 F.2d 436 (4th Cir. 1986), Wilks v. F. L. Smithe Mach. Co., Inc., 704 F. Supp. 680 (W.D. Va. 1989), and Matthews v. Ford Motor Company, 479 F.2d 399 (4th Cir. 1973). Lust, supra, only notes that Virginia has never expressly adopted the Restatement of Torts, Second, 6 402A. Wilks, supra, rules "Virginia never has recognized a claim for strict liability in tort" while citing Lust as its authority. Lastly, Matthews, supra, says in a footnote that the Virginia Supreme Court has indicated that recovery for breach of warranty should be based upon contract, "not on the doctrine of strict liability in tort”; however, this statement is based upon Brockett v. Harrell Bros., Inc., 206 Va. 457 (1965), which never mentions strict liability in tort. These cases do not offer much in the way of guidance.

The plaintiff, on the other hand, offers Judge Swersky’s letter opinion in Steingazner v. Paramount Termite Control, 5 Va. Cir. 309 (1985) where he notes the similar!ty between the implied ,warranty theory for unreasonably dangerous goods and strict liability in tort (the former of which was recognized in Logan v. Montgomery Ward, 216 Va. 425 (1975)). Again, the authorities submitted fail to persuade.

All of the authorities seem to indicate that Virginia has no reported decisions on strict liability in tort (see 63 Am. Jur. 2d, Products Liability, S 536); yet, that statement is not true. Virginia has adopted the theory of absolute or strict liability in tort in cases involving "an intrinsically dangerous and ultrahazardous activity," such as blasting. M. W. Worley Construction Co. v. Hungerford, Inc., 215 Va. 377 (1974); Langhorn & Johnson, Inc. v. Burch, 222 Va. 200 (1981). It is clear that, at this point, the Supreme Court is reluctant to extend this cause of action beyond those where there is an inability "to eliminate the risk of injury by exercising reasonable care." Philip Morris, Inc. v. Emerson, 235 Va. 380, 406 (1988) (involving disposal of toxic waste). Taking the reasoning of Worley, supra, the Supreme Court has based its adoption of strict liability upon the impossibility of prediction, "with certainty, the extent of severity of the blast." Id.

Applying the same reasoning to the case at bar, the Court finds this not to be a case falling within the parameters of Worley and Philip Morris for strict liability. The demurrer is sustained without leave to amend.  