998 F.2d 559 (8th Cir. 1993), 92-2698, Gilstrap v. Amtrak

Docket Nº:92-2698.
Citation:998 F.2d 559
Party Name:Linda GILSTRAP, Appellant, v. AMTRAK, also known as The National Passenger Railroad Corporation; Michael Stallworth, Appellees.
Case Date:July 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 559

998 F.2d 559 (8th Cir. 1993)

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

July 2, 1993

Submitted March 17, 1993.

Page 560

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...

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