Kaczmarek v. Allied Chemical Corp., 86-2840

Decision Date10 March 1988
Docket NumberNo. 86-2840,86-2840
Parties24 Fed. R. Evid. Serv. 449 Walter KACZMAREK and Theresa Kaczmarek, Plaintiffs-Appellants, v. ALLIED CHEMICAL CORPORATION, United States Steel Corporation, and Ever-Tite Coupling Company, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Alfred Y. Kirkland, Jr., Brady, McQueen, Martin, Collins & Jensen, Elgin, Ill., for plaintiffs-appellants.

James E. McHie, Hammond, Ind., Timothy M. Swan, Merrillville, Ind., Thomas H. Fegan, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs in this diversity suit, Walter Kaczmarek and his wife, appeal from a judgment entered on a jury verdict for the three defendants, Allied Chemical Corporation, United States Steel Corporation, and Ever-Tite Coupling Company.

In 1979 Kaczmarek was employed by Willett Transports, an Indiana company, as a driver of tanker trucks that transport acid or other hazardous chemicals. He had been driving such trucks for nine years and had been working for Willett for a year and a half. On the day of the accident, he first drove to Indiana from his home in Illinois to pick up the tractor part of the truck, and then drove the tractor back to an Allied Chemical plant in Illinois. Allied had a contract to supply sulphuric acid to a U.S. Steel plant in Indiana. At the Allied plant, Kaczmarek hitched his tractor to one of Allied's tank trailers and filled the tank with sulphuric acid. Then he drove to the U.S. Steel plant in Indiana, where the accident occurred while he was unloading the acid: the hose connecting the tank trailer to U.S. Steel's receiving tank broke loose from the intake valve in which it was inserted and squirted acid on his leg and groin. The parties disagree over whether the accident occurred because a coupling at the end of the hose, allegedly manufactured by Ever-Tite, was defective or because Kaczmarek disengaged the hose from the intake valve without realizing that the hose still contained acid under pressure. What is clear, however, is that Kaczmarek was not wearing his "acid suit" (a rubber or plastic acid-resistant suit supplied him by Willett)--he had left the pants and boots in his car and the jacket in the cab of the truck--and that if he had been wearing it he would not have been injured.

Every facility where hazardous chemicals are handled has a shower in case a worker is sprayed, and as soon as the accident occurred Kaczmarek ran for the shower on U.S. Steel's premises. But the ground in the area of the truck was heavily littered--the photographs placed in evidence made it look, in his counsel's words, like a "lunar landscape"--and Kaczmarek fell while running for the shower, which, moreover, he had difficulty finding because (he says) its location was poorly marked. By the time he reached the shower he was, in the words of one witness, "melting like a candle," having sustained serious acid burns which injured his sexual organs.

Joined by his wife, who claims a loss of consortium, Kaczmarek initially filed a negligence action against Allied and U.S. Steel in the federal district court in Chicago. The suit was transferred to the federal district court in Hammond, Indiana, for the convenience of the parties. See 28 U.S.C. Sec. 1404(a). Kaczmarek then filed a separate suit in that court against Ever-Tite for negligence and strict products liability. The cases were consolidated. The magistrate, who presided at trial by consent of the parties under 28 U.S.C. Sec. 636(c), ruled that the tort law of Indiana was applicable to Kaczmarek's claims against all three defendants. Under the law of Indiana when the accident occurred, contributory negligence was a complete defense to negligence. The jury was so instructed and returned a verdict for all three defendants.

Kaczmarek's first argument is that the district court should have applied Illinois tort law, under which the victim's negligence reduces the damages to which he is entitled ("comparative negligence") but is not a complete defense, rather than the law of Indiana. We agree with him as far as Allied is concerned. Since the suit against Allied was filed in a federal court in Illinois, and is a diversity suit, the conflict of laws rules of Illinois apply, see Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941), regardless of the subsequent transfer, see Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 820, 11 L.Ed.2d 945 (1964). The question is therefore whether the courts of Illinois would apply Illinois tort law or Indiana tort law in a case such as this.

The conflict of laws rule in tort cases used to be simple. It was lex loci delicti--the law of the place where the tort occurred was the law applicable to the case; here that would be Indiana. This approach was criticized, and eventually in most states abandoned, because it sometimes resulted in the application of the law of a state that had little connection with the events giving rise to the suit. Kaczmarek's suit against Allied illustrates the type of case that troubled the opponents of lex loci delicti. Filed in Illinois by an Illinois resident against a firm that is not an Indiana firm and has a plant in Illinois, the suit complains about conduct--Allied's provision of an allegedly defective coupling--that occurred in Illinois. And whatever interest Indiana might have in enforcing its rule of contributory negligence in such a case is diminished by the fact that Indiana has abrogated the rule and replaced it by comparative negligence, see Ind.Code Secs. 34-4-33-3, 34-4-33-4 (1983), albeit not for claims accruing, as did Kaczmarek's, before January 1, 1985, see Ind.Pub.L. 317-1983, Sec. 9.

The opponents of mechanical rules of conflict of laws may have given too little weight to the virtues of simplicity. The new, flexible standards, such as "interest analysis," have caused pervasive uncertainty, higher cost of litigation, more forum shopping (a court has a natural inclination to apply the law it is most familiar with--the forum's law--and will find it easier to go with this inclination if the conflict of laws rules are uncertain), and an uncritical drift in favor of plaintiffs. See, e.g., Brilmayer, Governmental Interest Analysis: A House Without Foundations, 46 Ohio St.L.J. 459 (1985), and Interest Analysis and the Myth of Legislative Intent, 78 Mich.L.Rev. 392 (1980). Nevertheless the Illinois Appellate Court has embraced a form of "interest analysis": it tries to figure out which state has the strongest interest in the application of its law to the particular case; that state's law governs. See, e.g., Estate of Barnes, 133 Ill.App.3d 361, 88 Ill.Dec. 438, 478 N.E.2d 1046 (1985); Mitchell v. United Asbestos Corp., 100 Ill.App.3d 485, 491-99, 55 Ill.Dec. 375, 379-85, 426 N.E.2d 350, 354-60 (1981). The place of the accident retains presumptive weight in a tort case, but the presumption is easily overcome. See Fleet Management Systems, Inc. v. Archer-Daniels-Midland Co., 627 F.Supp. 550, 562-64 (C.D.Ill.1986). Although the Supreme Court of Illinois has not dealt with conflicts questions for many years, we have no reason to believe that it would reject the approach of the intermediate court, and our personal discomfort with the vagaries of interest analysis is no ground for our refusing in this diversity case to follow the established approach of that court. See Palmer v. Beverly Enterprises, 823 F.2d 1105, 1113-14 (7th Cir.1987) (concurring opinion).

In the case of Kaczmarek's claim against Allied, the approach tilts decisively in favor of the tort law of Illinois. The only connection between that claim and Indiana is that the accident occurred there. Although this connection is, as we have noted, entitled to weight, it happens in this case to be fortuitous. The accident--if it really was due to Allied's failure to replace the allegedly defective coupling--could just as well have occurred in Illinois, when Kaczmarek was making a delivery there or when he was loading the truck with Allied's acid. The common sense of lex loci delicti is that the tort law of the state where the accident occurs is likely to be the law most closely attuned to conditions in the state affecting safety, such as climate, terrain, and attitudes toward safety. This insight is not irrelevant to the present case, because the condition of the ground, and the directions to the shower, in the U.S. Steel plant may have been factors in the accident. But the relationship between these factors and the liability of Allied Chemical is tenuous. The factors in question were in the control of U.S. Steel, and Kaczmarek's claim against U.S. Steel is governed by Indiana law, as we shall see.

What is not true, however, is that just because the victim and the injurer were out-of-staters Indiana could not be affected by the accident and therefore has no interest at all in the application of its law (law presumably designed, in part anyway, to minimize such accidents). The accident resulted in a workers' compensation award against Willett and thus imposed a cost on an Indiana firm, though Willett may be able to recoup the award by an action for indemnity against one or more of the defendants in Kaczmarek's tort case--should any of those defendants ever be held liable to him. If contributory negligence were a stronger deterrent to negligence by potential accident victims than comparative negligence, an argument could be made that Indiana has an interest in applying its rule of contributory negligence to accidents that involve employees of Indiana employers even if the employer is not a defendant in the tort suit arising from the accident and the employee is not a resident of Indiana. But such an argument would founder on two shoals. First, comparative...

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