Gilstrap v. Amtrak

• Decision Date: 02 July 1993
• Docket Number: No. 92-2698,92-2698
• Citation: 998 F.2d 559
• Parties: Linda GILSTRAP, Appellant, v. AMTRAK, also known as The National Passenger Railroad Corporation; Michael Stallworth, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 559

998 F.2d 559

Linda GILSTRAP, Appellant, v. AMTRAK, also known as The National Passenger Railroad

Corporation; Michael Stallworth, Appellees.

No. 92-2698.

United States Court of Appeals,

Eighth Circuit.

Submitted March 17, 1993.

Decided July 2, 1993.

Paul W. Jacobson, Williston, ND, argued (William E. McKechnie, Grand Forks, ND, on the brief), for appellant.

James S. Hill, Bismarck, ND, argued (Rebecca S. Thiem, on the brief), for appellees.

Before MAGILL, Circuit Judge, and LAY and HEANEY, Senior Circuit Judges.

HEANEY, Senior Circuit Judge.

Linda Gilstrap alleges that while traveling from California to North Dakota on a train operated by Amtrak, she was sexually assaulted by Michael Stallworth, an Amtrak employee. Gilstrap brought suit against Stallworth and Amtrak in the district court for the District of North Dakota, asserting various theories of liability. Stallworth failed to appear and a default judgment has been entered against him, but Amtrak did appear and moved for summary judgment. Applying the appropriate state's laws to each of the claims, the district court dismissed all but one of the claims against Amtrak. ¹ Gilstrap's appeal presents us with a narrow question of Washington state law: is a common carrier liable for tortious acts committed by its employee against a passenger when the employee acts outside the scope of his or her employment? Gilstrap relies on a 1912 decision of the Washington Supreme Court, Marks v. Alaska S.S. Co., 71 Wash. 167, 127 P. 1101 (1912), which was not presented to the district court. Amtrak argues that Marks is no longer the law in Washington and that the district court's determination of Washington law is correct.

I

This appeal presents a question of state law. "In a diversity case, decisions of the state's highest court are to be accepted as defining state law unless the state court 'has later given clear and persuasive indication that its pronouncement will be modified, limited, or restricted.' " Taylor v. Arkansas Louisiana Gas Co., 793 F.2d 189, 191 (8th Cir.1986) (citation omitted). "Where neither the legislature nor the highest court in a state has addressed an issue, the federal court must determine what the highest state court would probably hold were it called upon to decide the issue." Hazen v. Pasley, 768 F.2d 226, 228 (8th Cir.1985). "In making this determination, a federal court may 'consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.' " Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325, 1329-30 (8th Cir.1985) (quoting McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980)). Reliable data that a federal court may consider include "scholarly treatises, the Restatement of Law, and germane law review articles." McKenna, 622 F.2d at 662.

II

Were we to find that the Marks decision controls, Amtrak does not dispute that the district court must be reversed and this action must be remanded. Amtrak argues instead that the Washington Supreme Court would no longer consider Marks controlling precedent because it is an eighty-year-old case that has been rarely cited (not at all by the Washington appellate courts) and because it is out of step with modern tort law.

Our task is fairly simple: if we find clear evidence that the Washington Supreme Court would not uphold Marks, we shall not apply it to this case; but if instead we find no clear evidence that Washington's highest court would overrule Marks, we shall then consider it binding precedent.

We understand Marks to hold the following: because of the special relationship between common carrier and passenger, a common carrier is subject to strict vicarious liability for tortious acts committed by an employee against a passenger. The Marks court first recognized the rule that employers are not usually liable for actions of their employees that occur outside of the scope of the employment. 127 P. at 1101. The court continued, however, to hold that

[a]s long as respondent was a passenger on appellant's ship, appellant owed him a duty of absolute protection from the assaults and aggressions of its servants, and the rule is well-nigh universal that the carrier cannot plead as a defense that the servant acted outside of the scope of his employment.

Id.

Amtrak argues that Marks "is simply one of those proverbial derelicts floating on the sea of the law, and should be treated accordingly." Armijo v. Wesselius, 73 Wash.2d 716, 440 P.2d 471, 473 (1968) (en banc). Amtrak cites a number of more recent opinions from Washington's appellate courts as evidence that Washington has moved away from strict liability of employers for employees acting outside the scope of employment. See Kyreacos v. Smith, 89 Wash.2d 425, 572 P.2d 723, 725 (1977) (en banc); Blenheim v. Dawson & Hall Ltd., 35 Wash.App. 435, 667 P.2d 125, 129 (1983); Kuehn v. White, 24 Wash.App. 274, 600 P.2d 679, 681-82 (1979). The problem with Amtrak's argument is its premise: that Washington held all employers liable for their employees' actions outside the scope of the employment at the time Marks was decided. There is no trend away from such liability generally because there is no evidence that Washington recognized such liability in 1912. The Marks opinion amply indicates that the holding in that case turned on the special relationship between common carrier and passenger, and the Washington courts have recognized that special relationship in recent years. See, e.g., Youngblood v. Schireman, 53 Wash.App. 95, 765 P.2d 1312, 1314 (1988).

Two judicial pronouncements relied on by Amtrak are particularly noteworthy for their failure to undermine liability in this case. In Blenheim, the Court of Appeals of Washington dealt with a number of theories of liability. In addressing vicarious liability, the court held that the employees' tortious conduct at issue had occurred outside of the scope of employment. 667 P.2d at 129. The plaintiff alleged no special relationship in this context. In later addressing the employer's alleged negligence, the court held that the employer did not owe the plaintiff any duty. As an aside, the court noted that a duty might arise under certain circumstances: "[t]hus, a common carrier has been found to have a duty to provide security for patrons against foreseeable criminal acts." Id. at 130. Were the alleged liability for negligence, foreseeability would be an issue, but as Gilstrap alleges vicarious liability due to the special relationship, the dictum in Blenheim is of no assistance.

A second misleading citation is to Hoops v. Burlington Northern, Inc., 83 Wash.2d 396, 518 P.2d 707, 712 (1974). Amtrak summarizes that case's holding as follows: "railroad not strictly liable for passenger injury." Amtrak Brief at 23. The case actually dealt with an automobile-train collision and held that the railroad was not strictly liable for injury to the automobile driver.

Although Amtrak has failed to cast any real doubt on the current validity of the Marks holding, ² we shall not leave our analysis at that point. Gilstrap directs us to the Washington Pattern Jury Instructions and to the Restatement of Agency. Though neither are binding on the Washington courts, both provide further evidence of how a contemporary court might view the holding in Marks. Under the heading "Common Carrier--Duty to Protect Passengers from Assault or Intentional Harm by Employees," pattern jury instruction 100.04 provides the following: "The defendant is liable for any injury proximately caused to its passengers by any [assault upon] [intentional harm to] them by any employee of the defendant [then on duty]." Washington Pattern Jury Instructions--Civil 3d 100.04 (West 1989). The comment to this instruction indicates that an employer may not escape liability for an assault committed by an employee against a passenger by...