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INDIANA HARBOR BELT R. CO. v. AM. CYANAMID CO.

June 12, 1981

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.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

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.

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 ...


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