February 9, 2021
Florida Court Holds HDD Is Not An Abnormally Dangerous Activity; Alleged Damage to Bridge 90 Feet From HDD Bore Held Not Foreseeable As A Matter of Law
A Florida circuit court has rejected a claim by a property owner that HDD is an abnormally dangerous activity, and that the HDD contractor cannot be subjected to strict liability for damage alleged to bridge. In an earlier ruling, the court held that alleged damage to a bridge 90 feet away from the bore path was legally unforeseeable and the HDD contractor was not liable. On September 22, 2020, Judge Edward Nicholas in Manatee County granted a summary judgment in favor of the HDD contractor, T.B. Landmark Construction Co., after 4 ½ years of litigation. In October 2014, T.B. Landmark had carried out a directional bore for a 16” waterline under Longboat Pass for the Town of Longboat Key. The bore path ran approximately 90 feet east of and roughly parallel to the Longboat Pass bridge, approximately 74 feet below the surface. The two-lane drawbridge bridge was built in the 1950s. During the first reamer pass, pulling back to the rig, the drawbridge operator reporter difficulty closing the leaf on the bridge. Florida Department of Transportation engineers and the bridge maintenance company concluded that the bridge had moved, and authorized an emergency repair to install a new crutch bent on piles driven to 105 feet. When SPT bores in the seabed near the bridge were done during the design phase, FDOT’s consultants reported a gray material the claimed was drilling fluid coming up under pressure from the drill casing. Some of the engineers theorized that drilling fluid had escaped from the HDD bore, under pressure, traveled through limestone fissures, and heaved the rest pier onto which the leaf would lower. FDOT’s management contractor, ICA, presented a demand letter to sued T.B. Landmark, the Town of Longboat Key, and others in 2016, alleging that the construction and engineering team had been negligent in conducting the HDD bore. Another count of the complaint alleged all of the construction team were strictly liable to ICA, because HDD was an “abnormally dangerous activity,” and should be treated by the law like using dynamite or pile driving. ICA’s engineer theorized that drilling fluid and gradually escaped into the limestone, travelled through a channel or fissures under pressure, then traveled up through the limestone until it reached an impervious clay bed under the bridge’s rest pier. The pressurized fluid would have created a bubble, lifting the clay layer above it and heaving the rest pier upward so the bridge leaf would not align properly. When the claim was received, T.B. Landmark and its legal team consulted with engineers and professionals. No one had ever heard of an HDD frack out causing a structure of the mass of a bridge to heave, 90 feet away from the bore. The legal team undertook a defense that because there was no history of this type of event ever happening, it was unforeseeable as a matter of law and the court should dismiss the case. T.B. Landmark denied that there had been any negligence or any anomalies in what was a successful bore. The strict liability claim presented particular risk to the HDD industry. Strict liability means the defendant can be held liable for damages it causes, even if it is operating with reasonable or the utmost care. If strict liability is applied, the HDD operator would essentially become an insurer for all damages that anyone could plausibly claim were caused by the HDD work. This ruling would have significantly increased legal risk and cost to the HDD industry and its customers. T.B. Landmark and its insurer, Zurich, called Dr. David Bennett as an expert witness on HDD safety. Dr. Bennett is one of the principal authors of HDD Good Practices Guidelines, an industry accepted standard for safe drilling. Dr. Bennett and his colleagues had conducted a pioneering study in the 90s of the effects of drilling fluid escaping from the bore hole and impact on nearby structures, and how the impact varies by distance. T.B. Landmark presented Dr. Bennett’s testimony that HDD is not abnormally dangerous, and that it was highly improbable that drilling fluid under pressure could have traveled the distance to the bridge and retained the pressure necessary to lift the clay layer carrying the bridge section, estimated to weigh 600 tons. T.B. Landmark’s structural engineer, Sean Burlingham, spend 4 days continuously monitoring the movement of the bridge. He opined that the bridge lock up was the result of an unusual confluence of thermal expansion and contraction on a chilly October morning, at the same time as a full moon flood tide, which acted together to temporarily through the leaf’s lock pins out of alignment with the receivers in the rest pier. He also cited records showing failure to maintain the moveable bearings, which should have better accommodated thermal expansion. During the four years of the litigation, T.B. Landmark’s defense team questioned 13 engineers and bridge maintenance specialists. All testified they had never heard of a structure of the mass of a bridge having been heaved by a frack out, and none would testify that HDD met any of the six legal criteria under the Restatement (Second) of Torts Sec. 519 that lead the courts to impose strict liability because an activity is abnormally dangerous. The material that came up under pressure during the SPT boring was captured in a bottle and sent to a lab, but never tested. The lawyers litigated for access to test the sample, only to discover than the geotech firm had thrown out the sample. Witnesses on the scene and experts disagreed in depositions whether the material was bentonite slurry, or liquefied clay native to the seabed and carried up under pressure. In December 2019, the court granted T.B. Landmark’s motion for summary judgment, finding that because there was no evidence of a structure of this mass having ever been heaved by an HDD bore at this distance, the event was unforeseeable as a matter of law. No one could reasonably foresee drilling fluid travelling under pressure through limestone. It dismissed the negligence count against T.B. Landmark. However, the strict liability claim remained. Only one other court had ever considered whether HDD was abnormally dangerous. In Tri-County Metro v Time Warner Telecommunications, 2008 WL 4572519 (D. Ore. 2008), the Federal district court in Oregon had rejected the transit district ’s claim that the HDD team should be held strictly liable for HDD placement of fiber optic lines under its rail lines during an extensive project. In July 2020, the court heard final arguments on the abnormal danger claim. Judge Nicholas gave credence to Dr. Bennett’s affidavit and deposition testimony, and held that the HDD operation did not satisfy the six part test for imposition of strict liability. ICA has appealed the summary judgments in the case. T.B. Landmark was represented by Andrew Showen, a board certified construction lawyer who was a Zurich staff attorney, and is now with Hill Rugh Keller & Main P.L. in Orlando, Florida.