Ozark Industries, Inc. v. Stubbs Transports, Inc., F-71-C-43.

• Decision Date: 21 November 1972
• Docket Number: No. F-71-C-43.,F-71-C-43.
• Citation: 351 F. Supp. 351
• Parties: OZARK INDUSTRIES, INC., d/b/a Ozark Trout Farm, Plaintiff, v. STUBBS TRANSPORTS, INC., and Robert D. Hurrelbrink, Defendants.
• Court: U.S. District Court — Western District of Arkansas

351 F. Supp. 351

OZARK INDUSTRIES, INC., d/b/a Ozark Trout Farm, Plaintiff, v. STUBBS TRANSPORTS, INC., and Robert D. Hurrelbrink, Defendants.

No. F-71-C-43.

United State District Court, W. D. Arkansas, Fayetteville Division.

November 21, 1972.

Richard Hipp, of Niblock & Hipp, Fayetteville, Ark., for plaintiff.

H. Franklin Waters, of Crouch, Blair, Cypert & Waters, Springdale, Ark., for defendants.

OPINION

JOHN E. MILLER, Senior District Judge.

There is before the court the motion of defendant filed September 1, 1972, for summary judgment, together with the response of plaintiff filed November 10, 1972.

On November 24, 1971, plaintiff, Ozark Industries, Inc., (Ozark) filed its complaint against the defendants in which it was alleged that on November 5, 1971, the defendant Stubbs Transports, Inc. (Stubbs), through its employee, Robert D. Hurrelbrink, was operating a 1968 Crane carrier truck with tank trailer attached, containing gasoline, owned by Stubbs, within the City of Springdale, Arkansas, at or near the intersection of State Highway 68 and Dyer Avenue within said City; that the employee of Stubbs was operating the truck at a high, dangerous and reckless rate of speed and drove into the ditch adjacent to the said highway while attempting to pass on the right-hand side of a vehicle lawfully upon said highway; that the tank trailer overturned causing the gasoline to spill into the ditch adjacent to said highway; "that the said gasoline and fuel oil readily percolated to the subterranean waters beneath the point where the said gasoline was discharged from the said tank truck * * *; that after said gasoline and fuel oil percolated through the said subterranean waters it was emitted and discharged into the spring waters used by the plaintiff for the raising of trout fish."

In paragraphs 6 and 7 it was alleged:

"(6) That as a result of the dumping of the said gasoline and fuel oil as aforesaid, the percolated waters carried the said gasoline and fuel oil to the premises owned by the plaintiff, and used by the plaintiff as aforesaid, for the raising of trout fish, and thereby rendering the said water used by the plaintiff unfit for use by the plaintiff for said business purpose; that the plaintiff's complete and total inventory of trout, numbering 70,000, suffocated and died as a result of the gasoline and fuel oil entering the said Ozark Trout Farm premises.

"(7) That the negligence of the defendant, Hurrelbrink, while acting in the scope of his employment, was the direct and proximate cause of the damages suffered by the plaintiff as stated above."

In the answer of the defendants filed December 6, 1971, they specifically denied the material allegations set forth in the complaint, and affirmatively pleaded that the alleged conduct of the defendants cannot be the proximate cause of the injuries complained of for the reason that such alleged injuries were not the natural and probable consequences of the alleged conduct, and for the further reason that the defendants, as ordinary prudent persons, could not have foreseen such consequence, and if such injuries occurred as alleged, they were caused by an intervening efficient cause.

On December 23, 1971, Judge Williams entered an order allowing plaintiff to file an amendment to the complaint, in which plaintiff alleged that the defendants were transporting a highly inflammable fuel oil and that they owed to the public the duty to exercise care commensurate with the danger of the transportation of said fuel oil, which duty was violated by them, and they should be held absolutely and strictly liable for the damages committed to the property of other persons by the escape of the said fuel oil. "That the plaintiff, Ozark Industries, Inc., hereby pleads the doctrine of absolute and strict liability and states that the defendants should be held responsible for plaintiff's damages, even though it may be found that defendants could not have foreseen the actual damage that occurred to this plaintiff."

Plaintiff further alleged that since defendants had exclusive care, control and management of the tank truck, that the doctrine of res ipsa loquitur applies.

The plaintiff, Ozark, is a corporation organized and existing under the laws of the State of Arkansas with its principal place of business in Washington County, Arkansas. The defendant Stubbs is a corporation organized and existing under the laws of the State of Oklahoma. Hurrelbrink is a resident and citizen of the State of Oklahoma. The amount in controversy exceeds the sum or value of $10,000, exclusive of interest and costs. Thus the court has jurisdiction of the parties and the subject matter, 28 U.S. C.A. § 1332.

The substantive law of Arkansas controls and defines and determines the rights of the parties.

In the motion for summary judgment the defendants alleged that the pleadings filed herein, together with the answers to interrogatories and depositions filed in this matter, show that there is no genuine issue as to any material fact, and that they are entitled to a judgment as a matter of law.

In the response the plaintiff denied the material allegations contained in defendants' motion, and alleged that there is a genuine issue as to material facts and that the motion of defendants should be denied.

The burden is upon the movants to establish that there is no genuine issue as to any material fact and that they are entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

On the morning of November 5, 1971, the defendant Hurrelbrink, a duly licensed operator of motor vehicles and an experienced driver of 14 years, and an employee of defendant Stubbs, left the plant of Texaco Co., Inc., in Tulsa, Oklahoma, about 7:30 a. m. driving a 1968 Crane carrier truck with tank trailer attached containing gasoline for delivery to Texaco Co., Inc., at Rogers, Ark.

According to the second amendment to the complaint, filed August 9, 1972, John Flake, an employee of Stubbs, was driving a tank carrier truck immediately in front of Hurrelbrink. Flake failed to keep a proper lookout and thus failed to see a vehicle traveling in front of the truck he was driving, and when he did see it, he applied his brakes and slid 50 feet. Apparently from the pleading in the original complaint and the second amendment thereto, Hurrelbrink attempted to avoid striking the truck being driven by Flake, and in order to miss the Flake truck he had to go to the right, which caused his truck to enter the ditch along highway 68 causing the gasoline and fuel oil to spill into the ditch adjacent to said highway. On that date the plaintiff was operating a trout farm at Johnson, Arkansas, a distance of approximately 5 miles by highway from where the truck overturned and a distance of 2.9 airline miles southwest of the point where the truck overturned. The trout farm utilized an exceptionally large spring with an output of 1½ to 2 million gallons of water each 24-hour period. On the next day, November 6, the fish that were in a pool fed by the spring began showing signs of illness and a great number of them died. In view of the conclusion that the court has reached it is not necessary to discuss the cause of the death of the fish or the market value thereof. The question is whether defendants ate liable. If so, a separate hearing will be held to determine the damages.

Mr. James Wyatt, who up until March 1, 1972, had been employed for approximately two years by Escomlab, a division of McClelland Engineers, in charge of the water and waste water laboratory, ran some tests on the water in the spring, and in his deposition testified:

Q. Let me ask it this way: do you know where the spring water, that bubbles up out of the ground out at the Ozark Trout Farm, comes from, other than out of the ground?

A. Factual—or—?

Q. Yes, based on tests that have been run—on experiments that have been made, based on anything that you have read or you have been taught in your training; does anyone have any idea where the source of the water that bubbles up out of the ground at Ozark Trout Farm comes from?

A. No, I don't personally.

Q. You have never run any tests on this? You don't know of anyone else who has?

A. No.

Mr. Leroy Johnson, 36 years old, has lived in that area all of his life. He is one of the stockholders of the plaintiff corporation, owner of the trout farm, and has been manager of it since May 1965. He testified that he had absolutely no idea from where the water in the spring came, and that it could "easily" come from a thousand miles away as far as he knew. The terrain is fairly level along the highway in Springdale where the truck overturned, and the surface waters from that point run north or northwest and not south toward the trout farm.

Mr. Johnson gave his deposition on March 3, 1972, in which the following questions were propounded and answered:

Q. You also don't know any reason why anyone, even in the Johnson or Springdale area, would have any inkling that if something was spilled in that ditch up there it would end up in any spring, do you?

A. No, sir.

Q. You don't have any reason to believe that Mr. Hurrelbrink over in Oklahoma would have any way of knowing that might occur, do you?

A. No, sir.

Counsel for the parties have submitted briefs in support of their respective contentions.

The defendants contend that their motion should be sustained for all or any of the following reasons:

"(a) Even if it is assumed that the accident in question caused the alleged injuries, the defendants were not negligent as to this plaintiff in that it was not foreseeable that the alleged conduct would have caused damages to plaintiff.

"(b) Even if it is assumed that the occurrence resulted in the alleged damages to the plaintiff, the defendants are not liable because such damages were caused by an efficient,

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