916 F.2d 1174, 1177 (7th Cir. 1990)
American Cyanamid Company, a chemical manufacturer, loaded 20,000 gallons of liquid acrylonitrile into a leased railroad tank car at its plant in Louisiana on January 2, 1979.1 The following day, a Missouri Pacific Railroad train picked up the car for transport to a Cyanamid plant in New Jersey.2 The car arrived at the Blue Island railroad yard operated by Indiana Harbor Belt Railroad Company, a switching line in the Chicago metropolitan area, on the morning of January 9, 1979.3
Several hours after arrival, employees noticed fluid gushing from the bottom outlet of the car due to a broken lid.4 After two hours, the leak was stopped, but approximately 5,000 gallons of acrylonitrile had spilled.5 Local authorities evacuated nearby homes for a few hours.6 The Illinois Department of Environmental Protection ordered decontamination measures that cost the switching line $981,022.75.7
Indiana Harbor Belt Railroad filed a two-count complaint against American Cyanamid in federal district court.8 One count alleged negligence in maintaining the tank car.9 The other count alleged strict liability for engaging in an abnormally dangerous activity by shipping the chemical through a metropolitan area.10 The district court granted summary judgment to the plaintiff on the strict liability count for $981,022.75.11 The court later dismissed the negligence count with prejudice to permit an appeal.12
The case reached the United States Court of Appeals for the Seventh Circuit after an initial appeal was dismissed for lack of finality under Federal Rule of Civil Procedure 54(b).13 The district judge then dismissed the negligence claim to create a final judgment. The switching line cross-appealed the dismissal of the negligence count.14
Whether the transportation of acrylonitrile in bulk by rail through the Chicago metropolitan area is an abnormally dangerous activity subjecting the shipper to strict liability?15
Under Restatement (Second) of Torts § 520, an activity is abnormally dangerous when it presents a high degree of risk of great harm that cannot be eliminated by reasonable care, is not a matter of common usage, is inappropriate to the place where carried on, and has a value to the community outweighed by its dangerous attributes; when negligence liability adequately controls the risks, strict liability does not apply.16
No. The established facts show that American Cyanamid loaded 20,000 gallons of acrylonitrile into the leased tank car and the spill of approximately 5,000 gallons occurred because of a broken lid on the bottom outlet that employees stopped after two hours.17 The decontamination cost Indiana Harbor Belt Railroad $981,022.75 after local evacuation.18 The leak resulted from carelessness in maintenance or inspection by one of the handlers rather than from any inherent property of acrylonitrile that would defeat due care.19 The activity of shipping this chemical ranks only fifty-third in hazard among rail shipments and occurs routinely through Chicago hubs, making rerouting impractical without raising other accident probabilities.20
The shipper lacks the control over routing and handling that a transporter or storer possesses.21 A negligence regime therefore suffices to deter and remedy such spills.22
The transportation of acrylonitrile in bulk by rail through the Chicago metropolitan area is not an abnormally dangerous activity, and American Cyanamid is not subject to strict liability.23
Whether the district court properly dismissed the negligence count with prejudice solely to create a final appealable judgment?24
Federal Rule of Civil Procedure 54(b) permits entry of final judgment on fewer than all claims only when the claims are genuinely separate. When negligence and strict liability counts rest on the same facts as alternative theories, dismissal solely to manufacture appealability raises jurisdictional concerns. The issue need not be resolved when the count is reinstated by concession.25
No. The established facts show that after the initial appeal was dismissed for lack of finality under Rule 54(b), the district judge dismissed the negligence count with prejudice at the defendant's request to create an appealable order, prompting Indiana Harbor Belt Railroad's cross-appeal.26 American Cyanamid conceded on appeal that if the strict liability judgment is reversed the negligence count must be reinstated.27 The court therefore did not decide whether the dismissal was proper, noting only that the procedural maneuver cast doubt on prior precedent but left the negligence claim for further proceedings on remand.28
The court need not decide whether the district court properly dismissed the negligence count because the count is reinstated for further proceedings.29