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United States District Court, Northern District of Illinois

June 12, 1981


The opinion of the court was delivered by: 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

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 rule to be its law." Bernhardt v. Polygraphic Co., 350 U.S. 198, 209, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1956) (Frankfurter J., concurring). This court will examine the facts presented in the instant case with regard to the common law in Illinois. The court will also consider the law of other jurisdictions in the absence of resolution of this issue by Illinois courts.

The above discussed blasting cases provide a generalized standard by which the defendant's activity can be measured. If an activity is inherently dangerous and harm naturally and probably results from it despite the exercise of utmost care, liability will result. The complaints here allege shipping acrylonitrile is an inherently dangerous activity both because of the characteristics of the chemical and the type of equipment upon which it was transported. Plaintiff argues that the natural and probable consequence of loading and transporting acrylonitrile in a defective tank car is property damage and personal injuries and cites the actual damage which allegedly occurred. As in any lawsuit, plaintiff must prove the facts alleged. If there is any set of facts, however, under which liability can be imposed, a motion to dismiss may not be granted. Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980). This court believes that if the facts alleged are true, a cause of action has been stated under Illinois law.

The sets of facts here are analogous to the blasting cases in yet another respect. As in the blasting cases, defendant here acted "for his own purposes and profit" in introducing the peril into the community. Here, as in the blasting cases, liability should result.

This conclusion is bolstered by other Illinois opinions involving strict liability concepts. While cases imposing strict liability for subjacent support*fn1 and products liability*fn2 are not relevant to determine whether the complaint may stand on the basis of an ultra hazardous activity, some of those cases are helpful in discussing the bases for imposition of strict liability. Indeed, the Illinois courts recognized this in Ruggeri v. Minnesota Mining & Manufacturing Co., 63 Ill. App.3d 525, 20 Ill.Dec. 467, 380 N.E.2d 445 (1978), a products liability case:

  "Most jurisdictions in this country have adopted the
  principle of Rylands v. Fletcher . . . and impose
  liability on owners and users of land for harm
  resulting from abnormally dangerous conditions

  and activities . . . we are not suggesting that this
  rule of strict liability has applicability here
  except to suggest a parallel between the underlying
  basis of that rule and strict product liability
  because of the unreasonably dangerous nature of the
  activity and the product." Id. 20 Ill.Dec. at 469,
  380 N.E.2d 445.

The product liability cases consistently recognize that liability is imposed primarily for public policy reasons. Where a defective condition makes a product unreasonably dangerous to the user, Illinois courts have found it just to impose "the loss on the one creating the risk and reaping the profit." Suvada v. White Motor Co., 32 Ill.2d 612, 619, 210 N.E.2d 182, 186 (1964).

In Ruggeri, supra plaintiff sued for injuries resulting from a flammable adhesive "33 Red" manufactured by defendant. The court was presented with extensive evidence about the dangerous nature of the product and imposed liability upon the manufacturer. The court framed the issue as follows:

  Are there products with such dangerous qualities that
  they should not be placed in the stream of commerce;
  or if so placed that the risk of harm to the public
  is so great that liability should be imposed on the
  manufacturer if harm befalls one exposed to the
  product. Id. 20 Ill.Dec. at 469, 380 N.E.2d 445.

The above cases demonstrate that Illinois courts have made value judgments seeking to protect the public from various harms. The court's inclination to make these kinds of judgments in tort cases was most recently demonstrated in Alvis v. Ribar, ___ Ill. ___, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981). In that case, the court abandoned contributory negligence concepts in favor of comparative negligence, stating:

  "We believe that the concept of comparative
  negligence which produces a more just and socially
  desirable distribution of loss is demanded by today's
  society." At ___, 52 Ill.Dec. 30, 893 N.E.2d 421.

This court's ruling is consistent with the general concern of fairly distributing the loss and of protecting the public from harm.

Other jurisdictions have been presented with factual situations either similar or analogous to the one presented here. The standards employed are generally consistent although courts have reached different conclusions regarding the activities which it considers ultra hazardous.*fn3 The Restatement of Torts, applied in most jurisdictions,*fn4 § 519 and § 520 has formulated a definition of ultra hazardous activity. It is one which necessarily involves a risk of serious harm to a person which cannot be eliminated by the exercise of the utmost care and it is not a matter of common usage. The Restatement considers six factors to determine if an activity is ultra hazardous: 1) the existence of a high degree of risk of harm to person, land or chattels of others, 2) likelihood the harm will be great, 3) inability to eliminate the risk by the exercise of reasonable care, 4) it is not a matter of common usage, 5) the inappropriateness of the activity to the place where it is carried on and 6) the extent to which the value to the community is outweighed by dangerous attributes.

This court has been able to find only one case which involves the chemical, acrylonitrile, involved here. In China Union Lines, Ltd. v. A.O. Anderson & Co., 364 F.2d 769 (5th Cir. 1966), the Fifth Circuit suggested the possibility of a strict liability standard for shipment of acrylonitrile. That court stated the defendant had a duty to "not knowingly participate in a method of handling or transport which would imprudently imperil the lives of these people." Id. at 797. The court remanded the case to the district court for a determination of:

  what Cyanamid actually knew and ought to have known
  about its own product and, knowing that, what in
  prudence considering these extremely high hazards
  could and ought to be done to minimize, if not
  eliminate, the devastating consequences of a
  foreseeable casualty. Id. at 797.

The court further stated that Cyanamid "should have been put to its proof . . . to refute the hazardous characteristics" of the substance. Id. at 798. The Fifth Circuit echoes concerns expressed by this court and its reasoning is consistent with Illinois decisions.

There are two opinions which this court believes provide persuasive rationales for finding liability in analogous circumstances. In Chavez v. Southern Pacific Transportation Co., 413 F. Supp. 1203 (E.D.Calif. 1976), Southern Pacific transported 18 boxcars loaded with bombs. The bombs exploded in a railroad yard causing personal injury and property damage. The court imposed strict liability because the defendant was engaged in an ultra hazardous activity. The court focused on the relative positions of the parties and the desirability of properly distributing the loss. The court emphasized that one who intentionally acts with knowledge that their activity may cause harm, despite the exercise of due care, should "in all fairness be required to compensate the other for the damage done." Id. at 1207.

  "The risk distribution justification for imposing
  strict liability is well suited to claims arising out
  of the conduct of ultra hazardous activity. The
  victims of such activity are defenseless. Due to the
  very nature of the activity, the losses suffered as a
  result of such activity are likely to be substantial
  — an `overwhelming misfortune

  to the person injured'. . . . By indirectly imposing
  liability on those that benefit from the dangerous
  activity, risk distribution benefits the
  social-economic body in two ways: (1) the adverse
  impact of any particular misfortune is lessened by
  spreading its cost over a greater population and over
  a longer time period, and (2) social and economic
  resources can be more efficiently allocated when the
  actual costs of goods and services (including the
  losses they entail) are reflected in their price to
  the consumer. Both of these benefits may be achieved
  by subjecting Southern Pacific to strict liability.
  Id. at 1209.

The California court more expressly articulated the rationale interwoven throughout Illinois strict liability opinions. This court believes the same considerations apply here as in Chavez.

The Supreme Court of Washington in Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972) cert. denied 411 U.S. 983, 93 S.Ct. 2275, 36 L.Ed.2d 959 (1973) applied the Restatement rule to find defendant strictly liable for damages resulting from spillage of gasoline on a public highway. The court found hauling gasoline as cargo an abnormally dangerous activity emphasizing the nature of gasoline:

  "Dangerous in itself, gasoline develops even greater
  potential for harm when carried as freight —
  extraordinary dangers deriving from sheer quantity,
  bulk and weight, which enormously multiply its
  hazardous properties. . . . It is quite probable that
  the most important ingredients of proof will be lost
  in a gasoline explosion and fire. Gasoline is always
  dangerous whether kept in large or small quantities
  because of its volatility, inflammability and
  explosiveness. But when several thousand gallons of
  it are allowed to spill across a public highway —
  that is, if, while in transit as freight, it is not
  kept impounded — the hazards to third persons
  are so great as to be almost beyond
  calculation. . . . The rule of strict liability rests
  not only upon the ultimate idea of rectifying a wrong
  and putting the burden where it should belong as a
  matter of abstract justice, that is, upon the one of
  the two innocent parties whose acts instigated or
  made the harm possible, but it also rests on problems
  of proof." Id. at 1184-5.

The court also noted "stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability — even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability." Id. at 1186.

The defendant's motion to dismiss is denied. This court believes the complaint states sufficient allegations to allow plaintiffs to prove a strict liability claim.

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