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.
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 ...