The opinion of the court was delivered by: Foreman, Chief Judge:
The defendant's Motion for Summary Judgment (Document No. 9) is
now before the Court.
This action arose from the death of Hubert W. Newkirk, the
deceased husband of plaintiff, Margaret G. Newkirk. Mr. and Mrs.
Newkirk purchased passenger tickets in Chicago, Illinois on an
Amtrak train operated by defendant National Railroad Passenger
Corporation (NRPC). The Newkirk's departed from the Chicago
station on October 14, 1982 to visit relatives in Phoenix,
Arizonia. The only means of exiting the train was through the
entraining doors on each side of the center of the cars. These
doors were secured by a snap-lock and safety handle which clamps
the doors shut. The snap-lock, which can be locked with a key,
was not locked, thereby enabling someone to raise the safety
handle and pull the doors open. None of the sealed train windows
had been removed at the time of the incident in this action. A
vestibule area made it impossible for someone to exit the train
from between cars.
On October 16, 1982, Mr. Newkirk told his wife that he was
going to the adjoining observation car. Thereafter, Mrs. Newkirk
slept in her seat for approximately a half hour. Mrs. Newkirk
then discovered that Mr. Newkirk had not returned to his seat.
After she unsuccessfully searched the train for her husband, she
reported his disappearance to the train's crew members. Neither
the crew members' search of the train, nor their interviews of
train passengers revealed anything about Mr. Newkirk's
whereabouts or the circumstances of his disappearance.
Mrs. Newkirk continued on to Phoenix, Arizona where she
reported her husband's disappearance to the authorities. Mr.
Newkirk's body was finally found on February 24, 1983 along the
railroad right-of-way just west of Wilcox, Arizona. The Medical
Examiner concluded that the cause of Mr. Newkirk's death was
multiple fractures to the head and body caused by impacting with
the ground at a tremendous velocity.
Mrs. Newkirk brought this action against defendant, NRPC, for
the death of her husband, relying solely on the doctrine of res
ipsa loquitur. Plaintiff alleges that the decedent's fall from
the train would not have taken place in the ordinary course of
things if NRPC had not been negligent.
The defendant now moves for summary judgment, arguing that the
facts in this case cannot support the application of the doctrine
of res ipsa loquitur, and that the plaintiff cannot prove that
the proximate cause of the injury was defendant's allegedly
negligent act. Mrs. Newkirk opposes defendant's motion, arguing
that the doctrine of res ipsa loquitur is properly presented in
Summary judgment is appropriate only where the record shows
that "there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56. The party moving for summary judgment has the
burden of establishing the lack of a genuine issue of material
fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th
Cir. 1984). The Court must view the evidence, and the reasonable
inferences to be drawn therefrom, in the light most favorable to
the party opposing summary judgment. When the moving party fails
to meet its strict burden of proof, summary judgment cannot be
entered even if the opposing party fails to respond to the
motion. Yorger v. Pittsburg Corning Corp., 733 F.2d 1215 (7th
When the moving party has met its initial burden and the
opposing party asserts the existence of a question of fact, the
Seventh Circuit has identified two considerations to be used in
determining whether summary judgment is proper. The Court must
determine whether the non-moving party has established that there
is a genuine issue as to that fact.
To create a question of fact, an adverse party
responding to a properly made and supported summary
judgment motion must set forth specific facts showing
that there is a genuine issue for trial . . . A party
may not rest on mere allegations or denials of his
pleadings; similarly, a bare contention that an issue
of fact exists is insufficient to raise a factual
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert.
denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
Furthermore, the disputed fact must be material, that is, it must
be outcome-determinative under the applicable law. Egger v.
Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied,
464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).
In examining defendant's motion for summary judgment, the Court
finds that the substantive law of Arizona is controlling in this
case. Initially, the Court notes that is is bound by the Illinois
choice of law doctrine. Klaxon Company v. Stentor Electric
Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed.2d 1477
(1941). The choice of law doctrine in Illinois directs that the
local law where the injury occurred determines the parties'
rights and liabilities, "unless Illinois has a more significant
relationship with the occurrence and with the parties, in which
case, the law of Illinois should apply." Ingersoll v. Klein,
46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970). Because the injury
occurred in Arizona and neither party is a citizen of Illinois,
Illinois does not have any significant relationship to justify
the application of its law to this case. Therefore, the law where
the injury occurred, Arizona, is applicable.
The plaintiff relies exclusively upon the doctrine of res ipsa
loquitur in her complaint. Res ipsa loquitur is a rule of
circumstantial evidence under which the jury may infer negligence
in the absence of direct evidence to that effect. Jackson v. H.H.
Robertson Co., 118 Ariz. 29, 31, 574 P.2d 822, 824 (1978). The
necessary conditions for a res ipsa loquitur case in Arizona are:
(1) the accident must be one which ordinarily does not occur in
the absence of negligence; (2) the accident must be caused by an
agency or instrumentality within the exclusive control of the
defendant; (3) the accident must not have been due to any
voluntary action on the part of the plaintiff or decedent; (4)
plaintiff must not be in a position to show the particular
circumstances that caused the agency or instrumentality to
operate to his injury. Id. See also Capps v. American Airlines,
81 Ariz. 232, 234, 303 P.2d 717, 718 (1956). The plaintiff has
the burden of proof as to these elements. See Jackson.
The Court finds that the doctrine of res ispa loquitur is
inapplicable to the case at hand. The third requirement of the
res ipsa loquitur doctrine is that the accident must not have
been due to any voluntary action on the part of the plaintiff or
decedent. The circumstances surrounding Mr. Newkirk's exit from
the train are wholly unknown to the parties in this action.
Before the doctrine of res ipsa loquitur can be applied, the
plaintiff must have evidence that would eliminate the conjecture
that the accident resulted from an act of the plaintiff. McKeever
v. Phoenix Jewish Community Center, 92 Ariz. 121, 123,
374 P.2d 875, 877 (1962). See also Nieman v. Jacobs, 87 Ariz. 44,
347 P.2d 702 (1959) ("the doctrine of res ipsa loquitur does not apply
where the facts shown are equally consistent with the hypothesis
that the injury sued for was caused ...