Summons v. Missouri Pacific R.R.

• Decision Date: 24 June 1991
• Docket Number: No. 90-230,90-230
• Citation: 306 Ark. 116,813 S.W.2d 240
• Parties: Charles and Wilma SUMMONS, Individually and as next friends of Kellen and Tanya Summons, Appellants, v. MISSOURI PACIFIC RAILROAD and Union Carbide Corporation.
• Court: Arkansas Supreme Court

Page 240

813 S.W.2d 240

306 Ark. 116

Charles and Wilma SUMMONS, Individually and as next friends of Kellen and Tanya Summons, Appellants, v. MISSOURI PACIFIC RAILROAD and Union Carbide Corporation.

No. 90-230.

Supreme Court of Arkansas.

June 24, 1991.

Jay Youngdahl, Little Rock, for appellants.

Frederick S. Ursery, Gordon S. Rather, Little Rock, for appellees.

NEWBERN, Justice.

This is an interlocutory appeal of a circuit court's refusal to certify a class action. The appellants are Charles and Wilma Summons who brought the action on behalf of themselves and their children, Kellen and Tanya Summons. They seek to represent a class of several thousand persons who were evacuated from their homes or businesses as the result of a railroad accident in which a chemical tank car overturned in North Little Rock. The appellees are Missouri Pacific Railroad (MOPAC), which operated the train, and Union Carbide Corporation, the shipper of the chemical. We agree with the Summonses' argument that the Trial Court abused its discretion in refusing to certify the class, and thus the decision is reversed and remanded.

The accident occurred mid-morning on July 8, 1987. A liquid substance was observed to be leaking from the overturned car which was carrying ethylene oxide, an allegedly highly volatile and toxic chemical. The evacuation began with an order by local emergency services personnel at approximately 10:40 a.m. The order was lifted at approximately 4:15 p.m. when it was determined that the liquid leaking from the car was not ethylene oxide, but a non-hazardous refrigerant which was part of the overturned car's container system.

The Summonses alleged that they and others who were evacuated were frightened, their lives were disrupted, they were forced to spend money for food, clothing, and shelter, and that they suffered pain and mental anguish. They alleged that some persons were forced to seek medical treatment. They contended that MOPAC and Union Carbide were wilfully and wantonly negligent, and they asserted a strict liability claim based on shipment of an ultrahazardous product.

The complaint stated that the class the Summonses sought to represent consisted of about 5,000 persons, that joinder of so many claims would be impractical, that there were questions of law and fact common to the claims, and that the interests of the class outweighed those of individual members. It was also alleged that the Summonses' claim was typical of members of the class, they had obtained competent counsel, they were aware of their responsibilities as members of the class, and a class action was the superior method of deciding the claims of the class members.

In its answer, MOPAC denied negligence, denied that the transportation of ethylene oxide was an ultra-hazardous activity giving rise to strict liability, and denied all of the allegations supporting the certification of the class. Union Carbide filed a similar answer, adding that the injuries claimed were the result of actions of parties over whom Union Carbide had no control or were the result of intervening causes.

A hearing was held on the Summonses' motion to certify the class. Janet Jones, an employee of McHenry Law Firm, testified that she compiled a list of persons claiming damages as a result of the evacuation. The list numbered 5,321 persons, many of them living in the Eastgate Terrace, Shorter Gardens, and Dixie Addition sections of North Little Rock. On cross-examination Ms. Jones testified about the differences in the claims. She said some were for motel and meal expenses, and some were for loss of work because, for example, of inability of claimants to return to their homes to obtain uniforms to wear. Also, on cross-examination, Ms. Jones pointed out that she had no first-hand knowledge that anyone from MOPAC or Union Carbide assisted the North Little Rock police in the evacuation procedure.

Testimony was also taken from potential class members about the general effect of the evacuation upon their lives on the day in question. The operative portion of the Court's order was as follows:

1. A class action proceeding would result in indeterminate and chaotic litigation and would cause judicial extravagance rather than judicial economy.

2. A class action would be an inappropriate method of dealing with the proposed claims.

3. This action should not be maintained as a class action because the prerequisites of Rule 23 ... have not been satisfied....

1. Rule 23 requirements

At the time the decision was made, Rule 23(a) contained the "prerequisites" to a class action as follows: "Where the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all." The Rule has since been amended to list the prerequisites as follows:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Whichever version is applied, we find the prerequisites satisfied.

a. Numerosity

The Trial Court stated in his conclusory remarks that "you could have conceivably some 3,500 plaintiffs in a case," and that he knew of no rule which would prohibit it. There was no explanation why a class action would not be superior where there is such an "unwieldy" number of plaintiffs. Joinder of so many claims is obviously, in the language of the Rule, "impracticable."

In City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981), we held that 17 potential plaintiffs was too small a number to satisfy the Rule. In Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986), we held that 184 were enough. In International Union of Electrical, Radio & Machine Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), we held that "at least several hundred" class members were enough. The fact that there are several thousand claimants in this case is enough to satisfy the numerosity requirement.

b. Common questions

MOPAC's brief seems to concede that there are common questions of law and fact relating to its conduct and that of Union Carbide. It argues, however, that they do not predominate the issues of causation and damages which will be different with respect to each claimant. Union Carbide's brief adds the contention that plaintiffs who suffered physical injury may be entitled to recover for mental anguish but that the many who do not claim to have suffered physical injury will have to show wilfull and wanton misconduct to recover.

It may indeed be true that the class can be and will be divided into subclasses with respect to theory of recovery if it is determined that MOPAC and Union Carbide were engaged in mere negligence, wilfull and wanton negligence, or an ultrahazardous activity. The predominant question, however, in any case will be factual. The defendants' actions will have to be determined, and then it will have to be determined if those actions were wrongful and to what degree. We have no hesitancy in saying there are common questions.

As to whether the common questions predominate others, such as causation in terms of class definition and damages, there is a clear overlap with the question of whether the class action is a superior method of handling the litigation in prospect. See H. Newberg, Class Actions, § 4.22 (1985). We will discuss it below along with the abuse of discretion standard of review.

c. Typicality

MOPAC and Union Carbide contend that the Summonses' claim or claims are not typical of those of the other members of the class they seek to represent because, unlike some members, the Summonses allege no physical harm and only seek to recover for their inconvenience and fear in having to leave their home and for the expense of eating out.

The typicality requirement is discussed in H. Newberg, Class Actions, § 3.13, supra, as follows:

Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff's injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims. [Footnotes omitted.]

Although the Summonses' allegations as to their injuries and damages are different from those they describe for other members of the class, their claims are typical in the sense that they arise from the alleged wrong to the class which includes the wrong allegedly done to them, and that is sufficient.

d. Representation

Mrs. Summons testified that she understood her obligations in undertaking representation of the class and the possible costs involved. She said she would do whatever was necessary in that respect. The Summonses have alleged that they are represented by counsel competent to handle a class action, and MOPAC and Union Carbide have given us no reason to doubt that allegation.

2. Rule 23(b)

Whether common questions of law or fact predominate and whether a class action is a superior method of deciding the case are, to a degree, necessarily subjective questions and...