Gaines-Tabb v. Ici Explosives Usa, Inc., CIV-95-719-R.

CourtUnited States District Courts. 10th Circuit. Western District of Oklahoma
Citation995 F.Supp. 1304
Docket NumberNo. CIV-95-719-R.,CIV-95-719-R.
PartiesLena R. GAINES-TABB, et al., Plaintiffs, v. ICI EXPLOSIVES USA, INC., a Delaware corporation; Imperial Chemical Industries, PLC, a foreign corporation; ICI Canada Inc., a foreign corporation; Doe Corporations 1 through 99; Doe Companies 1 through 99; John Does 1 through 99, and Jane Does 1 through 99, Defendants.
Decision Date02 July 1996

Michael M. Blue, John M. Merritt, Merritt & Rooney, Oklahoma City, OK, Johnnie L. Cochran, Jr., Law Offices of Johnnie Cochran Jr., Los Angeles, CA, Sydney Irmas, Los Angeles, CA, for Plaintiffs.

Earl D. Mills, Mills & Whitten, Oklahoma City, OK, Joe B. Harrisson, Gardere & Wynne, Dallas, TX, Mary C. Coulson, Steven J. Adams, Gardere & Wynnne, Tuls, OK, Carl Arthur Henlein, Hollis E. Wright, Brown Todd & Heyburn, Louisville, KY, Katherine K. Yunker, Lexington, KY, for Defendants.


DAVID L. RUSSELL, Chief Judge.

Before the Court is the motion of Defendant ICI Explosives U.S.A. Inc. ("ICI") to dismiss Plaintiffs' Third Amended Complaint pursuant to Rule 12(b)(6), F.R.Civ.P.1 As grounds for its motion, Defendant ICI asserts that Plaintiffs have not and cannot allege facts showing that any action or inaction of ICI was the proximate cause of the Plaintiffs' injuries; that the sole or supervening cause of the Plaintiffs' injuries was a criminal act committed by terrorists which ICI had no duty to anticipate or prevent; that Plaintiffs have failed to allege facts showing that ammonium nitrate is defective and unreasonably dangerous and/or that ammonium nitrate (AN) is not unreasonably dangerous as a matter of law; and that absolute liability for ultrahazardous activity is applicable only to users, not to manufacturers or distributors, of explosives. Plaintiffs2 in response assert that the criminal act was not independent of Defendant's negligence because it could not have been accomplished unless the perpetrators had access to low density explosive grade AN.3 Alternatively, even if the AN was fertilizer grade, the intervening criminal act was not independent, Plaintiffs assert, because the injuries and damages would not have occurred had the AN contained additives known to the industry and to Defendant.4 Alternatively, Plaintiffs assert that the intervening act was not independent because AN should not have been marketed as a fertilizer at all due to its dangers outweighing societal benefits. Plaintiffs additionally assert that they have alleged facts showing that the intervening acts were reasonably foreseeable or that Defendant should have realized that a situation would be created which would provide a third party an opportunity to commit a crime of which he might avail himself. In any event, Plaintiffs assert, the question of the reasonable foreseeability of an intervening act is a question for the trier of fact, citing Jackson v. Jones, 907 P.2d 1067 (Okla.1995). Plaintiffs assert that at a minimum a jury could permissibly find, based upon the facts alleged, that the intervening criminal act was reasonably foreseeable. With respect to their claims for negligence per se, Plaintiffs assert that their allegations of a violation of certain statutes also ipso facto establish proximate cause.

In reply, Defendant ICI asserts that Plaintiffs' allegation that ammonium nitrate distributed by ICI to a farm cooperative is an explosive, subject to the regulations which Plaintiffs contend ICI violated, is conclusory and contrary to law. Defendant ICI reiterates its arguments that the terrorists' act was the sole and supervening cause of the Plaintiffs' injuries and that Defendant ICI had no duty to anticipate and prevent the bombing. In particular, Defendant takes issue with Plaintiffs' allegations and arguments that the alleged acts of McVeigh and Nichols and/or others5 were not independent and were not adequate of themselves to bring about the injuries in question, asserting that Plaintiffs' bare characterization of ICI's action as an invitation is insufficient to show that the terrorists' acts were not independent. Moreover, Defendant ICI asserts that the mere potential for intentional misuse of a product or object is insufficient, under Oklahoma law, to show that a criminal act is reasonably foreseeable, citing Henry v. Merck & Co., Inc., 877 F.2d 1489, 1491, 1495-96 (10th Cir.1989); Joyce v. M & M Gas Co., 672 P.2d 1172, 1174 (Okla.1983); Felty v. City of Lawton, 578 P.2d 757, 760 (Okla. 1977); and Runyon v. Reid, 510 P.2d 943, 950 (Okla.1973). Defendant also emphasizes that allegations of a regulatory violation do not render the concept of supervening cause any less relevant or the bombing any more (or less) foreseeable. Defendant contrasts cases like Lay v. Dworman, 732 P.2d 455 (Okla.1986); Order, Larkin v. Withrop Financial Co., No. CIV-92-2461 (W.D.Okla. August 31, 1994) and Henry v. Merck & Co. Inc., 877 F.2d 1489, arguing that there was no "special relationship" or special circumstances, like any affirmative act by ICI, which created a recognizable high degree of risk, giving rise to a duty on the part of ICI to anticipate and prevent the bombing of the A.P. Murrah Federal Building. Plaintiffs employ the manufacturers' products liability theory, Defendant ICI asserts, to argue that a duty to manufacture a product that is not unreasonably dangerous extends to and includes a duty to prevent any danger that the product would be put to criminal ends, in contravention of Oklahoma law. Finally, Defendant ICI asserts that there is no causal link between the alleged defect in ICI's ammonium nitrate fertilizer — that it posed a danger of explosion beyond that contemplated by its ordinary consumers, farmers — and the Plaintiffs' injuries because the Plaintiffs were not hurt by an uncontemplated explosion occurring while a farmer was using ICI's ammonium nitrate fertilizer.

In surreply, Plaintiffs explain that they rely on the "traditional balancing approach," i.e., the calculus of risk, to establish ICI's duty, for purposes of common law negligence; that they rely on proof of a reasonable alternative design to raise a genuine issue as to the existence of a design defect and assert that Defendant ICI has ignored the fact that manufacturers' products liability extends to abnormal uses that are reasonably foreseeable. Responding to Defendant's arguments addressed to proximate cause, generally, Plaintiffs stress that eight sets of specific factual allegations6 in their Third Amended Complaint "show the real foreseeability of a third-party intervention," thus requiring under Jackson v. Jones, 907 P.2d 1067, 1073 (Okla.1995) that an evaluative determination be made by the jury. Surreply Memorandum in Support of Plaintiffs' Response to Defendant's Rule 12(b)(6) Motion to Dismiss at p. 4. Plaintiffs also point to three 1996 decisions of the Oklahoma Supreme Court which they contend emphasize the "factual nature of the proximate cause issue and the broad discretion assigned to the jury," in deciding the issue in Oklahoma: Delbrel v. Doenges Brothers Ford, Inc., 913 P.2d 1318 (Okla.1996); Byus v. Mid-Century Insurance Co., 912 P.2d 845 (Okla.1996); Dirickson v. Mings, 910 P.2d 1015 (Okla. 1996). With respect to the issue of duty, Plaintiffs assert that "since the standards for supervening cause and duty are closely related, it can be assumed that Oklahoma law assigns to the jury on the issue of duty about the same broad role the jury enjoys over the issue of supervening cause." Surreply Memorandum at p. 8.

Responding to Defendant's Reply Brief arguments directed to Plaintiffs' negligence per se claims, Plaintiffs assert that they have alleged that Defendant's ammonium nitrate was "explosive grade" and have established by reference to U.N. test results that explosive grade ammonium nitrate is a Class I explosive. The fact that ammonium nitrate is not included in the BATF Annual Lists of Explosive Materials or does not fall within the definition of an explosive in 18 U.S.C. § 841 is not determinative of whether it is an explosive under NFPA 495 and under the HazMat Regulations or the U.N. Recommendations and its Tests and Criteria Manual, Plaintiffs maintain. And the very fact that NFPA 495 adopted the definitions and classifications of explosives contained in the HazMat Regulations and the U.N. Recommendations in addition to the definitions in 18 U.S.C. § 841 indicates that the National Fire Protection Association considered that the BATF list and the Section 841 definitions were not wholly adequate. Plaintiffs assert that violations of a regulation designed to protect a particular class of persons ipso facto furnishes proximate cause without further proof of foreseeability.

In determining whether Defendant's ammonium nitrate is an explosive under NFPA 495, HazMat Regulations and U.N. Recommendations, Plaintiffs assert that their expert's affidavit should be considered. Finally, they argue that 18 U.S.C. § 841 et seq. should be read to include explosive grade ammonium nitrate because it may reasonably be inferred or necessarily follows that the primary or common purpose of explosive grade ammonium nitrate is to function by explosion.


Defendant ICI argues that Plaintiffs have failed to state a claim on which relief can be granted because they have failed to allege facts showing that any action or inaction of Defendant ICI was the proximate cause of Plaintiffs' injuries or that Plaintiffs' complaint shows that the alleged criminal acts of McVeigh and Nichols or others were the supervening cause of Plaintiffs' injuries.

Under Oklahoma law, proximate cause is an essential element of a claim for relief based on negligence, see, e.g., Jackson v. Jones, 907 P.2d 1067, 1072 (Okla.1995); Thompson v. Presbyterian Hospital, Inc., 652 P.2d 260, 263 (Okla.1982); negligence per se, see, e.g., Tomlinson v. Love's Country Stores,...

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