Avoidable 'Fraccident': An Argument Against Strict Liability for Hydraulic Fracturing

Abstract

Whether fracking is an abnormally dangerous activity for purposes of strict liability appears to be an issue of first impression. That larger issue primarily turns on a smaller one: whether fracking accidents—or “fraccidents”—are avoidable or unavoidable. To that end, this Comment argues that when practiced with reasonable care and in the vicinity of other petroleum production, fraccidents are avoidable, and thus, fracking is not abnormally dangerous. Instead of strict liability, courts should combine a negligence standard with res ipsa loquitur to determine liability of fracking companies that contaminate water sources.

First, this Comment will present background on the process and known environmental impact of fracking.Then it will survey the development and current laws of strict liability for abnormally dangerous activities, negligence, and res ipsa loquitur. The article will then apply the Second Restatement of Torts’ factors of strict liability to fracking. Finally, it concludes with recommendations for courts to apply res ipsa loquitur in fracking cases.