RICHMOND, FREDERICKSBURG & POTOMAC RY. CO. v. DAVIS IND. INC.

• Citation: 787 F. Supp. 572
• Decision Date: 17 March 1992
• Docket Number: Civ. No. 90-1619-A.
• Parties: RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY, a Virginia corporation, Plaintiff, v. DAVIS INDUSTRIES, INC., et al., Defendants, v. CARRIER CORPORATION, et al., Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Virginia

787 F. Supp. 572

RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY, a Virginia corporation, Plaintiff, v. DAVIS INDUSTRIES, INC., et al., Defendants, v. CARRIER CORPORATION, et al., Third-Party Defendants.

Civ. No. 90-1619-A.

United States District Court, E.D. Virginia, Alexandria Division.

March 17, 1992.

Steven K. Davidson, Steptoe & Johnson, Washington, D.C., for Richmond, Fredericksburg & Potomac R.R. Co.

Mark D. Cummings, Sher & Cummings, Arlington, Va., John J. Mullenholz, Mullenholz & Brimsek, Washington, D.C., for Davis Ind. and Benjamin Ettleman.

Thomas J. O'Brien, Morgan, Lewis and Bockius, Washington, D.C., for Potomac Elec. Power Co.

Matthew J. Regan, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., Richard Parker, Asst. U.S. Atty., Alexandria, Va., for Department of Defense, Defense Logistics Agency and the U.S.

Thomas J. Curcio, Alexandria, Va., for Fred Bonnett.

John Hardin Young, Porter, Wright, Morris & Arthur, Washington, D.C., for Burton Davis and Marvin Davis.

Robert G. Watt, Watt, Tieder, Killian & Hoffar, McLean, Va., for M.C. Dean Elec. Contracting, Inc. William Gerard McMurtrie, William McMurtrie, Fairfax, Va., for E.C. Ernst Co.

Paul Terrence O'Grady, James Q. Pope, Falls Church, Va., for Seal & Co., Inc.

Roger C. Jones, Braude & Margulies, Washington, D.C., for Singleton Elec. Corp.

Patrick Charles Jordan, Allen, Johnson, Alexander & Karp, Washington, D.C., for Truland Systems Corp.

Brian L. Buniva, Mezzullo & McCandlish, Richmond, Va., for Virginia Elec. and Power Corp.

Andrew Greenleaf Lawrence, Fairfax, Va., for University of Maryland.

Charles Morton English, Jr., Ober, Kaler, Grimes, & Shriver, Washington, D.C., for American Tel. & Tel. Corp. and Western Elect. Co., Inc.

Richard Franklin Neel, Jr., Dewey Ballantine, Ellen Tenenbaum, Washington, D.C., for Chesapeake & Potomac Telephone Company of District of Columbia.

Patrick Michael McSweeney, McSweeney, Burtch and Crump, Richmond, Va., Ara Loris Tramblian, Arlington, Va., for Arlington County of Virginia.

Dennis R. Carluzzo, Montedonico & Mason, Fairfax, Va., for Howard University.

Patricia Fettmann, Fettmann & Tolchin, Fairfax, Va., for the District of Columbia.

Marshal Heindel Brooks, Stohlman, Beuchert, Egan & Smith Chartered, Washington, D.C., for Nat. R.R. Passenger Corp. and Washington Terminal R.R., Inc.

Janet R. Landesberg, Washington Metropolitan Transit Authority, Washington, D.C., for Washington Metro Area Transit Authority.

Douglas Spaulding, Reed, Smith, Shaw, McClay, Washington, D.C., for Carrier Corp.

C. James Williams, III, Morris & Morris, Richmond, Va., for Whirlpool Corp., Arkla Ind. and Monsanto Co.

Arthur Pearlstein, Beltsville, Md., for United Rigging & Hauling.

Ellen R. Lokker, McLean, Va., for Carrier Corp.

Barbara Wahl, Arent, Fox, Kinter, Plotkin & Kahn, Washington, D.C., for Washington Gas & Light.

James Anklam, Jones, Day, Reavis & Pogue, Washington, D.C., for Dynaelectric Co.

MEMORANDUM OPINION

ELLIS, District Judge.

In this case, a landowner, Richmond, Fredericksburg and Potomac Railroad Company ("RF & P") sued numerous defendants for dumping hazardous waste at its scrap recycling and disposal site, claiming the defendants were liable for cleaning up the site under CERCLA, 42 U.S.C. § 9607, and Virginia common law. One of the defendants, Washington Gas, allegedly sent to RF & P's site gas air conditioners that leaked PCBs while being stored, handled, and destroyed for recycling. Washington Gas, as a third-party plaintiff, has now sued Carrier Corporation ("Carrier"),¹ the manufacturer of some of the gas air conditioners that Washington Gas allegedly sent to RF & P's site, claiming contribution or indemnity under the state law theories of negligence and strict liability. The matter is now before the Court on Carrier's motion to dismiss the third-party complaint.

The essence of Washington Gas's third-party complaint is that if Washington Gas is liable to RF & P for property damage at the site caused by the leakage of hazardous substances contained in the gas air conditioners, then Carrier is liable to Washington Gas for Carrier's portion of the damage. Specifically, the third-party complaint alleges that, under the Virginia common law theories of negligence and strict liability, Carrier must either contribute to any amount Washington Gas pays RF & P for the clean-up of the site, or indemnify Washington Gas for the amount of damage caused by Carrier's air conditioners. After hearing oral argument on this matter the Court denied Carrier's Rule 14(a) motion to strike the third-party complaint² and took the Rule 12(b)(6) motion to dismiss under advisement. Having now fully reviewed the parties' briefs on the motion to dismiss, and for the reasons set forth below, the Court grants in part and denies in part Carrier's motion to dismiss.

Analysis

A. Strict Liability

Washington Gas invokes two strict liability theories in Count IV of its third-party complaint. Both theories fail. First, Washington Gas relies on § 402A of the Restatement (Second) of Torts in alleging that Carrier's equipment was defective in design and/or construction and that Carrier failed to provide adequate warnings about the risks involved in storing, handling, and destroying the air conditioners. This theory fails because "Virginia law has not adopted § 402A of the Restatement (Second) of Torts and does not permit tort recovery on a strict-liability theory in products-liability cases." Sensenbrenner v. Rust, Orling & Neale, 236 Va. 419, 374 S.E.2d 55, 57-58 n. 4 (1988). Therefore, Washington Gas's claim of strict liability based on § 402A must be dismissed.

Second, Washington Gas alleges that Carrier is strictly liable to it for any damages that may be awarded to RF & P because PCBs are "abnormally dangerous substances". See Restatement (Second) of Torts § 519. This theory is also fatally defective. Under § 519, which is applicable in Virginia, "strict liability attaches only to abnormally dangerous activities", not substances. Arlington Forest Assoc. v. Exxon Corp., 774 F.Supp. 387, 389 (E.D.Va.1991) (concluding that the Virginia Supreme Court would apply §§ 519 and 520 as the liability standard for whether the leakage of gasoline from underground storage tanks warrants the imposition of common law strict liability). See also Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1181 (7th Cir. 1990) ("ultrahazardousness or abnormal dangerousness is, in the contemplation of the law at least, a property not of substances, but of activities"). Importantly, "if the rule were otherwise, virtually any commercial or industrial activity involving substances which are dangerous only in the abstract automatically would be deemed as abnormally dangerous. This result would be intolerable." City of Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611, 615-17 (7th Cir.1989) (citation omitted).

Nor is the § 519 claim saved by shifting the focus from the toxic substances contained in Carrier's gas air conditioners to Carrier's activity — manufacturing gas air conditioners containing PCBs. Strict liability for use of a product cannot be imposed on the manufacturer. To hold otherwise converts the manufacturer into an insurer. See City of Bloomington, 891 F.2d at 614 ("Cases requiring strict liability impose liability for the ultrahazardous activity as a result of the use of the product. To recognize liability of a manufacturer ... would virtually make them the insurer for such products containing ... hazardous chemicals .. even though such products are not negligently made nor contain any defects."). And even if Carrier could be held liable for the storing and disposing of the air conditioners, § 519 is inapplicable to that activity for it is not ultrahazardous. While Virginia courts deem some activities ultrahazardous,³ it is also well-settled that an activity is not ultrahazardous if the high degree of risk of injury from the activity can be reduced with the exercise of reasonable care. See Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268 (1988) Thus, the Supreme Court of Virginia has held that handling and disposal of pentaborane, a highly toxic chemical,⁴ was not an occasion for the application of § 519 strict liability because the activity could have been conducted safely had reasonable precautions been taken. Id. 368 S.E.2d at 282. So, too, here the high risk of injury associated with the handling, storage and disposal of products containing PCBs could have been eliminated through the exercise of reasonable care. Thus, the Court is satisfied that the Supreme Court of Virginia would hold that the manufacture, storage and disposal of air conditioners containing PCBs are not abnormally dangerous or ultrahazardous activities.⁵ Accordingly, Washington Gas's claim of strict liability on the basis of § 519 must be dismissed.

B. Negligence

Washington Gas alleges in Count I of the third-party complaint that Carrier (i) negligently manufactured the air conditioners that released hazardous substances, (ii) negligently failed to ensure proper disposal of the equipment to prevent the discharge of hazardous substances and (iii) negligently failed to warn recipients of the air conditioners of the presence of such hazardous substances. As the parties' arguments reflect, the essence of this claim is Carrier's alleged negligent failure to warn. Before addressing the merits of Washington Gas's negligent failure to warn claim, however, the Court must first address the threshold issue of privity. If privity is required, but lacking, Washington Gas has no cause of action against Carrier.

Virginia has now provided by statute that lack of privity between plaintiff and defendant is no defense in any action brought against the manufacturer or seller of goods to recover damages for negligence if the plaintiff was a person whom the manufacturer or seller might reasonably have...