ELR Citation: ELR 20360
No(s). s. 89-3703, -3757 (7th Cir. Oct 18, 1990)

The court holds that placing acrylonitrile, a highly toxic chemical, in a rail shipment that will pass through a populated area, does not make the shipper subject to strict liability. The Illinois Department of Environmental Protection ordered a railroad switching line to take decontamination measures to remedy a tankcar spill of the highly toxic chemical acrylonitrile. The trial court denied the shippers motion to dismiss a strict liability claim by the railyard, and granted the railyard a judgment of nearly $981,000. The court first notes that whether the shipper of a hazardous chemical by rail should be strictly liable for the consequences of spills en route is a novel question in Illinois. In granting plaintiff summary judgement on the strict liability count, the district court relied on dicta in Illinois appellate court cases that are distinguishable from this case, and cannot be considered reliable predictors of how the Supreme Court of Illinois would rule. Instead, the court holds that a negligence claim is adequate to remedy and deter the accidental spillage of acrylonitrile. Where the hazards of an activity can be avoided by being careful, there is no need to switch to strict liability. Whether the shipper's activities subject the shipper to strict liability is a question of law. Thus, no deference is owed the district court's conclusion, and the court will look to the Restatement (2d) of Torts §520 for the factors to consider in deciding whether the shippers activities constituted an abnormally dangerous activity. The court notes that the evidence at trial revealed that the spill resulted from carelessness, not from the inherent properties of acrylonitrile. Thus, due care could have eliminated the risk of this accident. The court next notes that the record shows no indication that the risk of harm was great because the spill occurred in a densely populated area. Although the incentive of avoiding strict liability may have prompted the shipper to find alternative routes away from population centers, railroad transportation involves a hub-and-spoke system, and the evidence does not show that rerouting away from all population centers is possible, absent potentially prohibitive costs. Moreover, shippers, as opposed to carriers, are unlikely to be best situated to do the rerouting. While shippers can designate the route of shipment in the bill of lading, it is unrealistic to suppose that shippers will become students of railroading in order to lay out the safest route by which to ship their goods.

[The district court opinion is published at 17 ELR 21163.]

Counsel for Plaintiff-Appellee/Cross-Appellant
Roger Serpe
Indiana Harbor Belt Railroad Co.
Law Dept., 175 W. Jackson Blvd., Ste. 1460, Chicago IL 60604
(312) 715-3867

Counsel for Defendant-Appellant/Cross-Appellee
Thomas Allen
Wildman, Harrold, Allen & Dixon
225 W. Wacker Dr., Chicago, IL 60606
(312) 201-2000

Before POSNER, MANION, and KANNE, Circuit Judges