IN RE BOMB DISASTER AT ROSEVILLE, CAL., ON APRIL 28

• Citation: 438 F. Supp. 769
• Decision Date: 19 September 1977
• Docket Number: MDL No. 207.
• Court: U.S. District Court — Eastern District of California
• Parties: In re BOMB DISASTER AT ROSEVILLE, CALIFORNIA, ON APRIL 28, 1973.

438 F. Supp. 769

In re BOMB DISASTER AT ROSEVILLE, CALIFORNIA, ON APRIL 28, 1973.

MDL No. 207.

United States District Court, E. D. California.

September 19, 1977.

Thomas W. Martin, Gerald J. Adler, Crow, Lytle & Gilwee, Sacramento, Cal., Al Levy, Goldstein, Barceloux & Goldstein, San Francisco, Cal., Andrew J. Smolich, Bertolani, Smolich & Tai, Myron Gowan, Sacramento, Cal., Paul Melee, Citrus Heights, Cal., Laurence C. Blunt, James V. Sarro, Sarro & Smith, Jack N. Martin, Martin & Lewis, Lloyd Hinkelman, Kronick, Moskovitz, Tiedemann & Girard, John E. Virga, James L. Mikacich, David A. Tallant, George M. McClarrinon, Jack C. Sevey, O'Connor, Sevey & Gessford, Richard E. Lehrfeld, Lehrfeld, Brand & Jordan, Kenneth B. Cayocca, Richard F. Mills, Thomas J. Vicari, Richard F. Mills Law Corp., Sacramento, Cal., Marvin Brown, Brookman & McCloskey, Oakland, Cal., Dale W. Mahon, John B. Heinrich, Robert A. Perry, John Saldine, Saldine & Perry, Nathaniel S. Colley, Nathaniel S. Colley, Inc., George W. Bullen, Gerald Thomas, Bullen, McKone, McKinley, Gay & Keitges, Sacramento, Cal., Ivor E. Samson, San Francisco, Cal., Philip H. Shedd, Sacramento, Cal., Jeffrey E. Karpel, Los Angeles, Cal., A. Kirk McKenzie, Ronald Mallen, Long & Levit, San Francisco, Cal., John J. Bible, Bible, Corey, Henson & Orton, San Bruno, Cal., Mort Friedman, Friedman, Collard & Kauffman, A Professional Corp., Sacramento, Cal., Robert R. Callan, Cooper, White § Cooper, San Francisco, Cal., Norwood R. Erich, Hardy, Erich & Brown, James H. Schenk, Sacramento, Cal., Julius Kahn, Dodge, Reyes, Brorby, Kahn & Driscoll, San Francisco, Cal., Raymond S. Torkelson, Sacramento, Cal., Gary Hill, Donahue, Gallagher, Thomas & Woods, Oakland, Cal., Ralph Nase, John L. Giordano, Sacramento, Cal., David R. Lane, Rich, Fuidge, Dawson, Marsh, Morris Sanbrook, Grove, Hill & Iverson, Marysville, Cal., James S. Reed, Thomas C. Westley, James E. Harrison, Brennan, Harrison & Yun, D. M. Perkovich, Jerrold B. Braunstein, Rowland & Parker, Sacramento, Cal., Lawrence F. Meyer, Vincent J. Aiken, McClean, Greenwald & Hoffman, Los Angeles, Cal., James Moushegian, Gordon & Rees, San Francisco, Cal., Clark Deichler, John H. Mount, Oakland, Cal., Dale E. Ordas, Sacramento, Cal., Ronald N. Paul, Downey, Brand, Seymour & Rohwer, Sacramento, Cal., John Spencer Stewart, Kobin & Meyer, Portland, Or., David S. Kaplan, William Weniger, Stroud & Weniger, Sacramento, Cal., Frederick L. Nelson, Hildebrand, McLeod & Nelson, Oakland, Cal., for plaintiffs.

Walter E. Gallawa, Hoffman, Mayhew & Gallawa, A Professional Corp., Sacramento, Cal., for plaintiffs and Griffin Wheen Co.

Harry S. Fenton, Michael A. Grob, Sacramento, Cal., for Dept. of Transp.

Patrick Becherer, Raoul D. Kennedy, Crosby, Heafey, Roach & May, Oakland, Cal., Thomas A. Phemister, Asst. Gen. Counsel, Association of American Railroads, Washington, D.C., for Association of American Railroads.

John F. Foran, Rust & Armenis, Sacramento, Cal., for Texas & Pacific Railroad Co., Missouri & Pacific Railroads.

James R. Diepenbrock, Jack V. Lovell, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., for Southern Pacific.

Robert B. Miller, James Joiner, Sacramento, Cal., for Sp. Litigation Unit, Civ. Div., Dept. of Justice.

M. H. Pothoven, Gerald K. Petersen, Bolling, Pothoven, Walter & Gawthrop, Sacramento, Cal., for Abex Corp.

John Coleman, Hoffman, Mayhew & Gallawa, Sacramento, Cal., for Griffin Wheen Co.

Bruce L. Shaffer, Albert B. Norris, Memering, Stumbos, DeMers, Ford & Norris, Sacramento, Cal., for Reybestos-Manhatten Inc.

Claire H. Greve, Johnson, Greve, Clifford & Diepenbrock, Sacramento, Cal., for Johns-Manville Sales Co., Railroad Friction Products, & Westinghouse Air Brake Co. James C. Brown, Barrett, Newlan & Matheny, Sacramento, Cal., for Pullman, Inc.

Jack L. Koblin, Detroit, Mich., for Chrysler Corporation.

J. D. Burdick, David Crawford, Carroll, Burdick & McDonough, San Francisco, Cal., for Kinney Vacuum.

OPINION

MacBRIDE, Chief Judge.

The United States has moved the court in the referenced cases to dismiss for lack of jurisdiction plaintiffs' claims which are premised on absolute liability for the miscarriage of an ultrahazardous activity and strict liability in tort. These cases are now consolidated for pretrial purposes pursuant to 28 U.S.C. § 1407(a) as Multidistrict Docket Litigation (MDL) Number 207.

All of these cases arise out of the explosion of eighteen bomb laden boxcars in Southern Pacific Transportation Company's Antelope Yard in Roseville, California. The bombs had been manufactured at the United States' Naval Ammunition Depot at Hawthorne, Nevada, were loaded into government DODX boxcars by the government in Nevada, and the loaded boxcars were thereafter turned over to the Southern Pacific Transportation Company (hereinafter Southern Pacific) in Nevada. Southern Pacific received the boxcars and bombs for shipment to Port Chicago, California, under a contract with the Department of the Navy. The explosion of the boxcars enroute to Port Chicago has resulted in the filing of over a hundred cases against the United States in Nevada and California federal courts. Three of the cases which are the subject of these motions were originally filed in the District of Nevada and were transferred to this district for pretrial purposes pursuant to 28 U.S.C. § 1407(a): Civ. S-75-558, Civ. S-559, and Civ. S-560.

Plaintiffs, in the cases which are the subject of these motions to dismiss, are individuals, insurance companies, businesses, and the State of California. Some but not all the plaintiffs have alleged claims against the United States on a theory of absolute liability for the miscarriage of an ultrahazardous activity. In these claims the plaintiffs allege that the ultrahazardous activity involved, inter alia, the loading and bracing of bombs or the shipping of bombs. Also, some but not all the plaintiffs have alleged claims against the United States on a theory of strict liability in tort. In support of these strict liability claims, plaintiffs allege, inter alia, that the United States manufactured defective bombs, caused to be manufactured and thereafter used defective boxcars, and failed to warn the plaintiffs and others of the dangerous condition of the bombs and boxcars.

The claims based on the miscarriage of an ultrahazardous activity may be summarily dismissed. On two occasions the Supreme Court has held that the United States may not be held absolutely liable on such a theory. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972).

Plaintiffs' claims premised on strict liability in tort are more troublesome. A review of the authorities cited by the parties and the court's own research reveals a paucity of judicial opinion on this question. While Dalehite v. United States, supra, and Laird v. Nelms, supra, provide considerable guidance in resolving this issue, only a handful of cases have discussed, even in passing, the propriety of holding the United States strictly liable in tort under the Federal Tort Claims Act (FTCA).

In United States v. Page, 350 F.2d 28 (10th Cir. 1965), plaintiff sought to recover from the government on a theory of absolute liability for the miscarriage of an ultrahazardous activity, and the district court entered judgment for the plaintiff on this theory. Reversing plaintiff's judgment on the ultrahazardous activity theory, the court stated:

"In any event as to the dangerous chattel issue, the Tort Claims Act contemplates circumstances where there is negligence of a Government employee either by act or omission. It does not by its terms include liability imposed by other doctrines having their origin in warranties, in product liability, or in absolute liability."

Clearly, the Page court's statement regarding products liability is pure dicta, although its broad reading of the statutory language may be significant.

Additional dicta disapproving strict liability in tort appears in Allison v. United States, 264 F.Supp. 1021 (Ill.1967), a case in which the plaintiff sought to recover only on a theory of negligence of the United States' agents or employees. Plaintiff had purchased, as scrap, a number of hydraulic shock absorbers that had once been a part of an Air Force airplane. The scrap was sold "as is" by the government—without any warranty. As plaintiff was cutting a shock absorber with an acetylene torch, the absorber exploded, injuring him. The district court rejected the plaintiff's contention that the government had been negligent in failing to warn the plaintiff-purchaser of the dangers involved in cutting the absorbers, finding that the dangers involved were obvious. In conclusion, the Allison court noted:

"7. To establish liability for personal injuries against the United States under the Federal Tort Claims Act, plaintiff must prove a negligent act or omission by a Government employee and cannot base liability on a theory that has its origin in warranties, product liability, or absolute liability. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); United States v. Page, 350 F.2d 28 (C.A. 10 1965)." 264 F.Supp. at 1023.

Mann v. United States, 294 F.Supp. 691 (Tenn.1968), the case the government argues is most closely akin to the instant cases, does appear to reject strict liability in tort, although the published record is not clear. The plaintiff sought to recover for injuries he suffered when the federally owned auto he was driving crashed due to the unsafe condition of the tires. According to plaintiff, the federal employees had been negligent and the government should be held liable because of its:

". . . failing to take necessary and adequate precautions to prevent mischievous consequences which could be expected to occur from a condition of which such employees knew, or should have known." 294 F.Supp. at 694.

The Mann cou...