Recent Local Law Shows that the Law’s Understanding of Blasting is not Improving

In 2003, I published an article in The Journal of Explosives Engineering entitled “The Laws Governing Blasting,” in which I explained that, despite the fact that blasting is the most widely used method for rock removal on construction projects, court decisions pertaining to blasting damage claims often wrongfully hold blasters liable for alleged damage their blasting could not have possibly caused.  As my article explains, these decisions reach the wrong conclusion because of a general misunderstanding of the science governing blasting.  By citing technical and legal sources, the article demonstrates that courts often ignore scientific evidence in favor of lay testimony that the blasting caused damage because cracks were noticed after the building shook.  However, years of research by the United States Bureau of Mines (“USBM”) demonstrates that such anecdotal evidence is not reliable or accurate.

A fundamental principle from the USBM research stated in USBM Bulletin 8507 is that blast generated vibrations that are measured at the nearest structure at less than 2 inches per second at 40 Hz are not likely to cause damage to typical residential construction.  (For a full discussion of the scientific information pertaining to the USBM research, see my earlier article). 

Construction Claims May Come From A Variety of Sources

Most construction claims arise out of the contractual relationship between the parties.  Some arise out of claims of negligence.  There are other situations where a contractor may be held liable for damages that stem from nothing more than having engaged in certain activities.  Such claims are based upon the idea that “strict liability” applies to “ultra-hazardous activities.”  In both situations, i.e. claims based upon negligence and claims based upon strict liability, the first party performs an act or omission that results in damage to the life or property of the second party.  With a negligence claim, in order to be held liable, the first party must owe the second party a duty that is breached by the first party’s act or omission.  For example, if a contractor is working on scaffolding above a sidewalk, the contractor must use reasonable care to make sure that nothing falls on the people below and, in that situation, the contractor would only be held liable if something fell due to the failure to exercise reasonable care and not solely because something fell.  With a strict liability claim, however, all that is required is for the contractor to be held liable is for the contractor to be engaged in the activity that caused the harm.