Another Fourth of July has passed and we all enjoyed the colorful fireworks displays put on by municipalities, corporations and, in some cases, our neighbors. It is easy to forget that fireworks are dangerous and that substantial liability can arise when a fireworks display goes wrong.
Operator Liability
In Washington, setting off fireworks is considered an abnormally dangerous activity, subjecting commercial enterprises to strict tort liability. Klein v. Pyrodyne Corp. 1 is the leading Washington case in this area. In Klein, the plaintiffs were injured when an aerial shell at a public fireworks exhibition at the fairgrounds in Puyallup went astray and exploded near them. Pyrodyne was the pyrotechnic company hired to set up and set off the fireworks.
On cross motions for summary judgment, the trial court found Pyrodyne strictly liable for the Kleins’ injuries. The Court of Appeals certified the question of strict liability — an issue of first impression — to the Washington Supreme Court, which affirmed.
The court agreed with the Kleins that fireworks displays are abnormally dangerous activities under the Restate-ment test adopted by Washington courts. 2 The court found support for its conclusion in an “elaborate” regulatory and statutory scheme. 3 Under various regulations, a pyrotechnician must:
- Be licensed to conduct public displays of special fireworks; 4
- Take and pass a written examination administered by the director of fire protection; 5
- Be investigated by the director of fire protection, who confirms that the applicant is competent and experienced; 6 and
- Ensure that the display is set up in accordance with the rules and regulations.7
The court then held that following the regulations was not enough to escape liability:
Setting off powerful fireworks near large crowds remains a highly risky activity even when the safety precautions mandated by statutes and regulations are followed. The Legislature appears to agree, for it has declared that in order to obtain a license to conduct a public fireworks display, a pyrotechnician must first obtain a surety bond or a certificate of insurance, the amount of which must be at least $1 million for each event. … The fact that the Legislature has mandated a $1 million liability policy for pyrotechnicians … does suggest that the Legislature views public fireworks displays as involving a high risk even when the appropriate safety precautions are taken. 8
And beyond supporting common law strict liability, the court said the statute itself imposes strict liability: “The statute, which mandates insurance coverage to pay for all damages resulting from fireworks displays, establishes strict liability for any ensuing injuries.” 9
The court also cited public policy reasons for imposing strict liability on pyrotechnicians for damages caused during public fireworks displays:
Most basic is the question as to who should bear the loss when an innocent person suffers injury through the nonculpable but abnormally dangerous activities of another. In the case of public fireworks displays, fairness weighs in favor of requiring the pyrotechnicians who present the displays to bear the loss rather than the unfortunate spectators who suffer the injuries. 10
Manufacturer Liability
When a manufacturer is aware of the danger inherent in its fireworks, but gives neither a warning of the danger of premature explosion nor instruction on the proper method of handling and firing the bombs, the manufacturer is liable.11 This liability is based both on the common law and the Washington Products Liability Act.
User Liability
Little case law exists in Washington discussing this issue. However, other states have allowed cases to proceed against those who discharge fireworks and cause injuries. In a New York case, a 14-year-old was injured after a private display when he was hit by a “missile” rocket allegedly fired by the homeowners’ adult son. The court allowed the case to proceed to trial because there was evidence that another defendant provided some of the fireworks discharged by his brother and the victim during the evening. 12 The court reasoned that as “sponsor” of the display and custodian of a large supply of dangerous fireworks, the defendant was obliged to exercise a high degree of care to see to it that they did not fall into the hands of irresponsible parties.
Fireworks have the ability to cause significant injuries to both participants and observers. It is crucial to understand the potentially liable parties when accidents occur.
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- 1 117 Wn.2d 1, 810 P.2d 917 (1991).
- 2 117 Wn.2d at 5–7 (citing Restatement (Second) of Torts, §§ 519, 520 (1977); New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 500, 687 P.2d 212 (1984); Langan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973)).
- 3 Id. at 7–8.
- 4 WAC 212-17-220.
- 5 WAC 212-17-225.
- 6 WAC 212-17-230.
- 7 WAC 212-17-235.
- 8 117 Wn.2d at 8 & n.3 (citing RCW §§ 70.77. 285, .295).
- 9 Id. at 12.
- 10 Id. at 11.
- 11 Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 826-827, 435 P.2d 626, 629–30 (1967). Callahan was the only other Wash-ington case to discuss liability for fireworks display injuries prior to Klein. See Klein, 117 Wn.2d at 5.
- 12 Morang by Morang v. Burnett, 628 N.Y.S.2d 863 (3d Dep’t 1995).
