Explosives


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Explosives

The law of explosives covers dangerously volatile substances, including gasoline, oil, dynamite, and blasting caps filled with highly explosive compounds. Under the Police Power given to the states through the Tenth Amendment to the U.S. Constitution, state and local governments may regulate the storing, handling, transportation, and use of explosive substances.

All states require a person or business to obtain a permit before using explosives, such as for a fireworks display or the demolition of a building. State laws and local ordinances criminalize the unlicensed use, storage, sale, and transportation of explosives. Most states provide that unlicensed explosives may be subject to Forfeiture, and their possessors subject to fines or incarceration, or both.

States delegate some explosives regulation to municipalities. A Municipal Corporation may enact provisions for the inspection of explosives and their storage spaces. It may also prescribe the maximum quantity of particular explosives that are allowed to be kept in a particular location.

The U.S. Congress has the authority to regulate explosives in interstate commerce. Under 18U.S.C.A. § 841 et seq., Congress requires a license to import, manufacture, distribute, or store explosive materials that cross state lines. The bureau of alcohol, tobacco, firearms, and explosives, a division of the U.S. Justice Department, is charged with primary enforcement of the federal laws and regulations regarding explosives.

Explosives are a necessity in a developing world. They allow building contractors to excavate land and clear pathways for road building. However, explosives are inherently dangerous, and, despite strict government regulation, even the authorized use of explosives may cause injuries or property damage. When injury or damage occurs, an aggrieved person may seek redress in civil court.

Under Tort Law, explosives are considered abnormally hazardous and are subject to Strict Liability standards. Under strict liability, an explosives operator may be liable for injuries resulting from an explosion regardless of Negligence. Not all explosions give rise to this standard. Strict liability may be mandated by statute for injuries resulting from unlicensed explosions. For licensed explosions and accidental explosions, strict liability will be applied where the activity was exceptionally dangerous. For example, a landowner who stores gasoline in a densely populated residential neighborhood may be subject to strict liability, but a business that stores gasoline in an industrial area may not.

Strict liability is not imposed on most licensed explosions. A plaintiff suing for damages resulting from a licensed explosion must prove that the operator did not observe a standard of care commensurate with the danger. This can be proved by showing that the operator failed to comply with statutes or regulations. The plaintiff must also show that the explosion was the proximate dominant, producing, or moving cause for the injury or property damage.

A seller of explosives may be held liable for damage or injury resulting from their use. Manufacturers are held to a higher standard of care than wholesalers or retailers because they are usually more familiar with the formula of the explosive compound and are thus more capable of giving instructions needed for the safe handling, storage, and use of the product. Manufacturers, wholesalers, and retailers must warn buyers of an explosive's dangerous nature by labeling the packaging and including instructions. A manufacturer, wholesaler, or retailer that sells explosives in violation of a statute may be liable to subsequent purchasers of the explosives. For example, a manufacturer or merchant that sells to a minor will be responsible for any injuries resulting from the explosives.

Transporters of explosives may be held liable for damage or injury caused in transit, if they are negligent. Carriers must exercise utmost caution in transporting explosives and follow regulations established by the states. A shipper who hires a carrier for transport may be liable for damage and injury caused by the shipment if the damage and injury were the result of the shipper's negligence. The chain of manufacturer, seller, shipper, and carrier often leads to civil court battles in which each defendant seeks to prove that the others were negligent.

As in any civil case, a defendant in an explosives case may use the defense of "contributory negligence" if the injured party was negligent in some way. For instance, a defendant may invoke contributory negligence if an operator has been adequately instructed but mishandles the explosives. In a small minority of states, contributory negligence by a plaintiff precludes any recovery. In most states," comparative negligence" statutes allow an amount of recovery reduced by a measure of the plaintiff's negligence. For example, if the plaintiff and defendant were equally at fault, the plaintiff may recover 50 percent of the claim.

A defendant may also seek to argue "assumption of the risk." This means that the injured party was informed of risks but chose to disregard the warnings. For example, a licensed explosives operator who posted notices and warnings according to regulations may escape liability if the plaintiff ignored the signs and entered the explosion site and was subsequently injured in an explosion on the site.

Fireworks are a popular, colorful form of low-impact explosives whose regulation varies from state to state. Minnesota, for example, bans all fireworks except for licensed displays and toy pistols and toy guns containing a negligible amount of explosive compound (Minn. Stat. Ann. §624.20 [West]). Other states are more permissive. Alabama, for example, allows fireworks containing up to 130 milligrams of explosive composition for aerial devices and 50 milligrams for nonaerial devices. Sparklers containing chlorate or perchlorate salts may not exceed a weight of five grams (Ala. Code § 8-17-217).

Cross-references

Assumption of Risk; Dominant Cause; Producing Cause; Proximate Cause.

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