Chavez v. Southern Pacific Transp. Co.

• Decision Date: 12 May 1976
• Docket Number: S-74-166,S-74-148,S-74-163,S-74-168,Civ. No. S-74-78,S-74-124,S-74-172 and S-74-632.,S-74-146
• Court: U.S. District Court — Eastern District of California
• Parties: Margarito CHAVEZ, Plaintiff, v. SOUTHERN PACIFIC TRANSPORTATION CO., et al., Defendants. Robert A. DURGIN et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. Herman L. PERKINS et al., Plaintiffs, v. SOUTHERN PACIFIC RAILROAD CO. et al., Defendants. John BELCHE et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. Doyle B. JAMES et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. Leota F. ODLE et al., Plaintiffs, v. SOUTHERN PACIFIC RAILROAD CO. et al., Defendants. Oscar B. WILLIAMS et al., Plaintiffs, v. SOUTHERN PACIFIC RAILROAD CO. et al., Defendants. Pedro AYALA et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. NATIONAL AMERICAN INSUR. CO. OF OMAHA et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

413 F. Supp. 1203

Margarito CHAVEZ, Plaintiff, v. SOUTHERN PACIFIC TRANSPORTATION CO., et al., Defendants.

Robert A. DURGIN et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Herman L. PERKINS et al., Plaintiffs, v. SOUTHERN PACIFIC RAILROAD CO. et al., Defendants.

John BELCHE et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Doyle B. JAMES et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Leota F. ODLE et al., Plaintiffs, v. SOUTHERN PACIFIC RAILROAD CO. et al., Defendants.

Oscar B. WILLIAMS et al., Plaintiffs, v. SOUTHERN PACIFIC RAILROAD CO. et al., Defendants.

Pedro AYALA et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

NATIONAL AMERICAN INSUR. CO. OF OMAHA et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Civ. Nos. S-74-78, S-74-124, S-74-146, S-74-148, S-74-163, S-74-166, S-74-168, S-74-172 and S-74-632.

United States District Court, E. D. California.

May 12, 1976.

Lloyd Hinkelman, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for Margarito Chavez.

James L. Mikacich, Sacramento, Cal., for Robert A. Durgin, et al.

George M. McClarrinon, Sacramento, Cal., for Herman Perkins, Doyle B. James, Leota Odle, Oscar Williams et al. Jack C. Sevey, O'Connor, Sevey & Gessford, and Lloyd Hinkelman, Sacramento, Cal., for John Belche et al.

Gerald J. Adler, Crow, Lytle & Gilwee, Sacramento, Cal., for Pedro Ayala et al.

A. Kirk McKenzie, Long & Levit, San Francisco, Cal., for Nat. Am. Ins. Co. et al.

James R. Diepenbrock, Jack V. Lovell, Sacramento, Cal., for Southern Pacific.

A. Theodore Giattina, Asst. U. S. Atty., Sacramento, Cal., for U. S.

OPINION

MacBRIDE, Chief Judge.

On April 28, 1973, approximately eighteen bomb loaded boxcars exploded in Southern Pacific Transportation Company's Antelope Yard in Roseville, California. These boxcars and bombs, both the property of the United States, were being hauled by the Southern Pacific Transportation Company (hereinafter Southern Pacific), under a contract with the Department of the Navy, from Hawthorne, Nevada, to Port Chicago, California. Plaintiffs in the above entitled cases seek to recover damages for personal injuries and property destruction allegedly caused by the Roseville explosions.

Southern Pacific has moved this court in the above entitled cases, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the plaintiffs' claims against Southern Pacific which are premised on a theory of strict liability for the miscarriage of an ultrahazardous activity. Although plaintiffs have not designated these strict liability claims in their complaints as state or federal in origin, the court will treat them as state claims since there is no judicially recognized federal common law or statute which would permit these plaintiffs to recover on an ultrahazardous activity theory.

Plaintiffs seek to bring their state claims within this court's jurisdiction either on the basis of diversity between the litigants (28 U.S.C. § 1332), or on the basis of the judicially created doctrine of pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), requires this court to apply the substantive law of the forum state when adjudicating state claims before it under its diversity jurisdiction:

"Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state." 304 U.S. at 78, 58 S.Ct. at 822, 82 L.Ed. at 1194.

The rule of Erie applies with equal force to pendent state claims before the federal courts; and the law of the forum state must govern substantive issues. Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774 (2nd Cir. 1964), cert. denied 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965); Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (N.Y.1973); Saylor v. Lindsley, 302 F.Supp. 1174 (N.Y.1969); Briskin v. Glickman, 267 F.Supp. 600 (N.Y.1967); Mintz v. Allen, 254 F.Supp. 1012 (N.Y.1966). See also Maternally Yours v. Your Maternity Shop, 234 F.2d 538 (2nd Cir. 1956). Therefore, this court must apply California law in adjudicating Southern Pacific's motion to dismiss the plaintiffs' state strict liability claims.

While applying the law of the forum state, this court must also apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under California choice of law analysis, the forum always applies its own law; but where a litigant has timely invoked the law of a foreign state, a California court may look to the law of other jurisdictions for the appropriate rule to be applied in the case before it. Hurtado v. Superior Court, 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 (1974). Since no party has invoked the law of any state other than that of California, this court must follow the substantive law of California.

California has adopted the rule that where one is engaged in an activity so dangerous as to be characterized "ultrahazardous," strict liability for damages resulting from such activity may befall the actor. Luthringer v. Moore, 31 Cal.2d 489, 190 P.2d 1 (1948). Plaintiffs argue that Southern Pacific's conduct in carrying bombs constituted ultrahazardous activity, and that the railroad should be held strictly liable for all the damages caused by the explosions in Roseville, California.

Although California courts of appeal have not yet had occasion to carve such an exception, Southern Pacific argues that under California law a common carrier may not be held strictly liable for damages resulting from the carriage of explosives insofar as it has a duty to carry them, and that Southern Pacific may not be held strictly liable in the above entitled cases because it had a duty to carry the explosives which caused plaintiffs' injuries.¹ In rebuttal, the plaintiffs make the following arguments:²

(1) that California would not adopt the common carrier exception argued for by Southern Pacific;

(2) that the common carried exception should not absolve Southern Pacific because the bombs were effectively being stored in the Antelope Yard;

(3) that the common carrier exception should not absolve Southern Pacific from strict liability because common carriers have no duty under California or federal law to transport explosives; and

(4) that even if California adopted the common carrier exception, and there did exist a general common carrier duty to accept bombs for transportation, Southern Pacific may still be strictly liable if it had no duty to accept for shipment the bombs which exploded in Roseville.³

Having found that the plaintiff must prevail on their first argument noted above, for the reasons set forth below, this court does not reach the merits of plaintiffs' other contentions.

In adjudicating this motion to dismiss, the court begins with the proposition that it must ascertain and apply the existing law of California, and that it must not predict that California may change its law and then apply this court's "notion of what that change might or ought to be." Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345 (9th Cir. 1974). This court must follow the decisions of the Supreme Court of California, and where no such decisions exist, it must follow the decisions of the California Court of Appeals unless there is convincing evidence that the Supreme Court of California would decide differently. Klingebiel v. Lockheed Aircraft Corp., supra. When the question has not been decided in California, this court has the "doubtful privilege of `first guessing' what the California courts might do." Klingebiel v. Lockheed Aircraft Corp., supra at 347.

Here, the court has the doubtful privilege of trying to "guess" whether the California courts would except Southern Pacific from the general standard of strict liability imposed on those engaged in ultrahazardous activity. While performing this task, the court will be guided by the words of Judge Johnsen in Yoder v. Nu-Enamel Corp., 117 F.2d 488 (8th Cir. 1941):

"(W)here direct expression by an authorized state tribunal is lacking, it is the duty of the federal court, in dealing with matters of either common law or statute, to have regard for any persuasive date that is available, such as compelling inferences or logical implications from other related adjudications and considered pronouncements. The responsibility of the federal courts, in matters of local law, is not to formulate the legal mind of the state, but merely to ascertain and apply it. Any convincing manifestation of local law, having a clear root in judicial conscience and responsibility, whether resting in direct expression or obvious implication and inference, should accordingly be given appropriate heed." 117 F.2d at 489.

The notion that one engaged in unusual activity should be held strictly liable for resulting damages was popularized by the English case of Rylands v. Fletcher, 3 H. & C. 774 (1865), reversed L.R. 1 Ex. 265 (1866), affirmed L.R. 3 H.L. 330 (1868). The rule of that case, as it has developed from subsequent English cases, has been succinctly stated by the late Professor Prosser to be:

"(T)hat the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings." W. Prosser, Law of Torts 508, § 78 (4th ed. 1971).

This theory of liability, now known as the Doctrine of Rylands v. Fletcher, was first utilized by the California judiciary in Colton v. Onderdonk, 69 Cal. 155, 10 P. 395 (1886). In Colton, the Supreme Court of California cited the Rylands case while holding that one engaged in blasting within a populated area should be held strictly liable for property damage caused by the...