Ind. Harbor Belt R. Co. v. Am. Cyanamid Co.

• Decision Date: 12 June 1981
• Docket Number: No. 80 C 1857,80 C 2190 and 80 C 6762.,80 C 1857
• Citation: 517 F. Supp. 314
• Court: U.S. District Court — Northern District of Illinois
• Parties: INDIANA HARBOR BELT RAILROAD COMPANY, Plaintiff, v. AMERICAN CYANAMID COMPANY and Missouri Pacific Railroad Company, Defendants. James SANDERS, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant. James SANDERS, Plaintiff, v. NORTH AMERICAN CAR CORP., a Delaware Corp.; American Cyanamid Co., a Maine Corp.; Missouri Pacific Railroad Co., a Delaware Corp.; and Indiana Harbor Belt Railroad Co., an Indiana Corp., Defendants.

517 F. Supp. 314

INDIANA HARBOR BELT RAILROAD COMPANY, Plaintiff, v. AMERICAN CYANAMID COMPANY and Missouri Pacific Railroad Company, Defendants.

James SANDERS, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant.

James SANDERS, Plaintiff, v. NORTH AMERICAN CAR CORP., a Delaware Corp.; American Cyanamid Co., a Maine Corp.; Missouri Pacific Railroad Co., a Delaware Corp.; and Indiana Harbor Belt Railroad Co., an Indiana Corp., Defendants.

Nos. 80 C 1857, 80 C 2190 and 80 C 6762.

United States District Court, N. D. Illinois.

June 12, 1981.

Anna M. Kelly, Chicago, Ill., for Indiana Harbor Belt Railroad.

Ann Peterson, Wildman, Harold Allen & Dixon, Chicago, Ill., for American Cyanamid.

James Teykl, Anthony Scariano & Associates, Chicago Heights, Ill., for James Sanders.

MEMORANDUM AND ORDER

MORAN, District Judge.

These diversity actions involve allegations of negligence and strict liability in tort as a result of an accident involving spillage of acrylonitrile, a hazardous and toxic substance. Defendant American Cyanamid Company ("Cyanamid"), manufacturer and shipper of the acrylonitrile, arranged for defendant Missouri Pacific to transport the substance in a leased car from Louisiana to Indiana Harbor Belt Railway's ("Indiana Harbor") freight yard in Illinois. There, Missouri Pacific was to deliver the car to Consolidated Rail Corporation ("Conrail") so that it could be further transported to Cyanamid's facility in New Jersey. Upon arrival at Indiana Harbor's freight yard, substantial amounts of acrylonitrile leaked from the freight car. Indiana Harbor alleges there was extensive damage to property, equipment and the water supply over a two mile area. The spill resulted in the evacuation of 3,000 people from their homes, interference with railroad operations for a substantial period of time and extensive expenditures to restore Indiana Harbor's property. Counts I and III of 80 C 1857 allege negligence by the defendants and both have filed an answer as to those counts. Count II alleges that defendant, American Cyanamid Co.

engaged in ultra-hazardous activity in shipping acrylonitrile in interstate commerce because said commodity is a hazardous, flammable and toxic substance; that defendant, American Cyanamid Company, had a non-delegable duty to assure that said shipment was safely and properly loaded in proper non-defective equipment, and secured in such a manner as to prevent members of the public, including the plaintiff, from being exposed to the hazards of flammability and toxicity inherent in the commodity being transported, while said commodity was in the stream of commerce; and that defendant failed to fulfill its duty to the public, including the plaintiff.

Cyanamid has filed a motion to dismiss Count II for failure to state a strict liability claim. For the reasons hereinafter stated, the motion to dismiss is denied.

After 80 C 1857 was filed, James Sanders, an employee who attempted to repair the leak on the tank car, brought suit against Indiana Harbor, alleging extensive personal injuries. (80 C 2190). A first amended complaint was filed several months later adding North American Car Corp., Cyanamid and Missouri Pacific Railroad Company as defendants. (80 C 6762). Defendant Cyanamid has filed a motion to dismiss Count IV of the amended complaint, which alleges defendant engaged in an ultra-hazardous activity and should be strictly liable. That motion is also denied.

Before reaching the motion to dismiss, several preliminary matters must be decided. Plaintiffs in 80 C 2190 inadvertently filed their amended complaint as a new case. (80 C 6762). The latter case will be dismissed and the amended complaint treated as part of the file in 80 C 2190.

The plaintiff in 80 C 1857 has submitted extensive information with the briefs regarding the nature of acrylonitrile. These documents are not part of the pleadings and the court may not consider them on a motion to dismiss.

Plaintiff Sanders has also filed a motion to consolidate these related cases for discovery purposes only. That motion is granted in light of the common questions of fact in the cases, all of which arose from the same accident. Baldwin-Montrose Chemical Co. v. Rothberg, 37 F.R.D. 354 (1964); F.R.C.P. 42(a). Defendant Cyanamid has not sufficiently demonstrated any prejudice which would result from this ruling.

Cyanamid argues that dismissal of plaintiff's strict liability counts is required because no cause of action has been stated under Illinois law. They maintain that strict liability standards apply to activities which are inherently dangerous and which naturally and probably result in harm despite the exercise of the utmost care. They argue that Illinois law has limited the ultra hazardous activity concept to cases involving blasting or explosives and it has not been extended to the circumstances alleged in this case. They note that regardless of acrylonitrile's qualities as a hazardous substance, strict liability cannot be applied unless it is a hazardous activity. Defendant contends that their activity was not inherently dangerous as a matter of common knowledge or otherwise.

Plaintiff Sanders applies the same legal standards as Cyanamid but believes that Cyanamid's conduct fits within them. They acknowledge that these facts raise a question of first impression but argue that the allegations "fit comfortably within the contours of the Illinois absolute liability doctrine."

Indiana Harbor argues that Illinois courts apply strict liability principles when a peril with potentially grave consequences is introduced into the community. As they believe shipping acrylonitrile is intrinsically dangerous regardless of how careful the shipper may be, plaintiff urges that this court apply strict liability standards.

Illinois courts began applying strict liability concepts for inherently dangerous activities in 1877. In The City of Joliet v. Harwood, 86 Ill. 110 (1877), an independent contractor engaged in blasting to construct a sewer for the city. Despite the contractor's use of "all due care, skill and caution" the blasts caused damage to neighboring property. The court held the city liable for the damages despite the lack of negligence stating:

"In this case the work which the contractor was required by the city to do was intrinsically dangerous, however carefully or skillfully done. The right of recovery in this case does not rest upon a charge of negligence on the part of the contractor; it rests upon the fact that the city caused work to be done which was intrinsically dangerous — the natural (though not the necessary) consequence of which was the injury to plaintiff's property."

The doctrine was more fully developed in Fitzsimmons & Connell Co. v. Braun, 199 Ill. 390, 65 N.E. 249 (1902). In that case, plaintiff's building was damaged as the result of the explosion of heavy charges of dynamite by the defendant in constructing a nearby tunnel in a populous area. The court imposed liability without regard to the degree of care exercised where the natural and probable result of explosives was injury to another. The court stated that "the nature and power of dynamite as an explosive have been demonstrated by universal experience, and it is a matter of common knowledge that the use of dynamite as an explosive is intrinsically dangerous." Id. at 394, 65 N.E. 249. In reaching this result, the court noted that other jurisdictions had resolved the problem differently. The court here observed, however:

If one who, for his own purposes and profit, undertakes to perform a work ... inherently dangerous to the property of another, should be held liable for an injury occasioned by any substance cast by the explosives on the property of such other, it is only by the merest subtlety of reasoning he should be held not liable to respond for equal or greater damage caused by the concussion of the air or of the earth. Id. at 397, 65 N.E. 249.

An implicit value judgment was made that the perpetrator should bear the loss rather than the innocent property owner. Thus, liability was imposed.

This position was reaffirmed and extended more recently in Opal v. Material Services Corp., 9 Ill.App.2d 433, 133 N.E.2d 733 (1956). The court held that there was no distinction between explosions resulting from stored dynamite or from those employed in blasting to determine liability. Again, the court discussed the relative positions of the parties as a basis for imposing liability. The court quoted Justice Holmes in The Common Law, p. 154:

"The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community." If damage is inflicted, there ordinarily is liability, in the absence of excuse. When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss. The blasting cases seem to afford ample analogies and to justify this conclusion. Id. at 459, 133 N.E.2d 733.

Neither party has cited any Illinois authority discussing whether shipment of acrylonitrile is an inherently dangerous activity. The Illinois cases in this area have focused largely on blasting activities though they have not expressly limited the concept to this activity. This court is thus presented with an issue of first impression which it must resolve. The process is necessarily one of predicting how Illinois courts would decide the question were they called upon to do so. The dilemma is not unusual. "As long as there is diversity jurisdiction, `estimates' are necessarily often all that federal courts can make in ascertaining what the state court would...