ANNAPOLIS – A Walkersville church cannot be held strictly liable for essentially scaring to death four of a neighboring dairy farmer’s cows with its lawful fireworks show because such pyrotechnical displays are not an “abnormally dangerous activity,” Maryland’s top court has ruled.
The Court of Appeals’ unanimous decision ended Andrew David Toms’ lawsuit seeking damages against Calvary Assembly of God for having caused a stampede of his cows in which four of them were killed.
Toms had claimed the Frederick County church’s fireworks display, which unsettled the cows, was an inherently hazardous activity for which it can be held strictly liable for any harm caused.
Rejecting that argument, the high court cited the grand American tradition of fireworks and held that the church’s adherence to state law and regulations in conducting the Sept. 9, 2012, show removed any inherent danger created by the loud and colorful display.
“As a symbol of celebration, fireworks play an important role in our society, and are often met with much fanfare,” Judge Clayton Greene Jr. wrote for the court. “The statutory scheme regulating its use minimizes the risk of accidents, thus, reinforcing the popularity of these displays. This court recognizes that not all segments of the population may enjoy fireworks displays, especially those with noise sensitivities, however, we conclude that the social desirability of fireworks appear to outweigh their dangerous attributes.”
Maryland law and regulations restrict the firing radius of fireworks to 250 feet and impose a mere misdemeanor fine of $250 for violations, the court said. The church’s fireworks display was 300 feet from Toms’ farm, the court added.
“We hold that a lawful fireworks display does not pose a high degree of risk, because the statutory scheme in place is designed to significantly reduce the risks associated with fireworks, namely mishandling, misfires and malfunctions,” Greene wrote in the opinion, filed Monday. “If an unlawful fireworks display is only a misdemeanor offense with no possibility of incarceration, why then should strict liability be imposed for risks associated with a lawful fireworks display?”
Calvary Assembly of God held its well-advertised, open-to-the-public, professionally run fireworks display in celebration of its church youth crusade, according to the court’s opinion.
Greene was joined in his opinion by five of the six other judges. Judge Glenn T. Harrell Jr., a retired jurist sitting by special assignment, joined the court’s judgment only.
$13,000 in damages
Toms’ cows were in his barn when the fireworks display started at 8:30 p.m.
Toms arrived after the stampede and found four of his cows lying on the concrete floor. Three were unable to stand up and had to be euthanized. The fourth had lost its utility as a dairy cow and was sold for slaughter, the opinion stated.
In addition to the lost cows, Toms said he sustained property damage to fences and gates, disposal costs and lost milk revenue. He sued Calvary in district court on Dec. 9, 2013, seeking more than $13,000 in damages.
At trial, veterinarians and cattle handlers testified that loud noises can cause stampedes and resulting injuries. Fire marshals countered that Calvary complied with applicable state laws and regulations governing fireworks displays.
The district court ruled for the church, as did Frederick County Circuit Judge Julie S. Solt on Jan. 8, 2015.
Toms then sought review by the Court of Appeals.
Neither Lawrence E. Finegan, Toms’ attorney, nor Sarah N. Koop, the church’s counsel, returned telephone messages seeking comment Tuesday on the court’s decision. Finegan is a Frederick solo practitioner; Koop is with Cipriani & Werner PC in Baltimore.
The case is Andrew David Toms v. Calvary Assembly of God Inc., No. 26, Sept. Term 2015.