JOHN E. MILLER, Senior District Judge.
There is before the court the motion of defendant filed September 1, 1972, for summary judgment, together with the response of plaintiff filed November 10, 1972.
On November 24, 1971, plaintiff, Ozark Industries, Inc., (Ozark) filed its complaint against the defendants in which it was alleged that on November 5, 1971, the defendant Stubbs Transports, Inc. (Stubbs), through its employee, Robert D. Hurrelbrink, was operating a 1968 Crane carrier truck with tank trailer attached, containing gasoline, owned by Stubbs, within the City of Springdale, Arkansas, at or near the intersection of State Highway 68 and Dyer Avenue within said City; that the employee of Stubbs was operating the truck at a high, dangerous and reckless rate of speed and drove into the ditch adjacent to the said highway while attempting to pass on the right-hand side of a vehicle lawfully upon said highway; that the tank trailer overturned causing the gasoline to spill into the ditch adjacent to said highway; "that the said gasoline and fuel oil readily percolated to the subterranean waters beneath the point where the said gasoline was discharged from the said tank truck * * *; that after said gasoline and fuel oil percolated through the said subterranean waters it was emitted and discharged into the spring waters used by the plaintiff for the raising of trout fish."
In paragraphs 6 and 7 it was alleged:
In the answer of the defendants filed December 6, 1971, they specifically denied the material allegations set forth in the complaint, and affirmatively pleaded that the alleged conduct of the defendants cannot be the proximate cause of
On December 23, 1971, Judge Williams entered an order allowing plaintiff to file an amendment to the complaint, in which plaintiff alleged that the defendants were transporting a highly inflammable fuel oil and that they owed to the public the duty to exercise care commensurate with the danger of the transportation of said fuel oil, which duty was violated by them, and they should be held absolutely and strictly liable for the damages committed to the property of other persons by the escape of the said fuel oil. "That the plaintiff, Ozark Industries, Inc., hereby pleads the doctrine of absolute and strict liability and states that the defendants should be held responsible for plaintiff's damages, even though it may be found that defendants could not have foreseen the actual damage that occurred to this plaintiff."
Plaintiff further alleged that since defendants had exclusive care, control and management of the tank truck, that the doctrine of res ipsa loquitur applies.
The plaintiff, Ozark, is a corporation organized and existing under the laws of the State of Arkansas with its principal place of business in Washington County, Arkansas. The defendant Stubbs is a corporation organized and existing under the laws of the State of Oklahoma. Hurrelbrink is a resident and citizen of the State of Oklahoma. The amount in controversy exceeds the sum or value of $10,000, exclusive of interest and costs. Thus the court has jurisdiction of the parties and the subject matter, 28 U.S. C.A. § 1332.
The substantive law of Arkansas controls and defines and determines the rights of the parties.
In the motion for summary judgment the defendants alleged that the pleadings filed herein, together with the answers to interrogatories and depositions filed in this matter, show that there is no genuine issue as to any material fact, and that they are entitled to a judgment as a matter of law.
In the response the plaintiff denied the material allegations contained in defendants' motion, and alleged that there is a genuine issue as to material facts and that the motion of defendants should be denied.
The burden is upon the movants to establish that there is no genuine issue as to any material fact and that they are entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
On the morning of November 5, 1971, the defendant Hurrelbrink, a duly licensed operator of motor vehicles and an experienced driver of 14 years, and an employee of defendant Stubbs, left the plant of Texaco Co., Inc., in Tulsa, Oklahoma, about 7:30 a. m. driving a 1968 Crane carrier truck with tank trailer attached containing gasoline for delivery to Texaco Co., Inc., at Rogers, Ark.
According to the second amendment to the complaint, filed August 9, 1972, John Flake, an employee of Stubbs, was driving a tank carrier truck immediately in front of Hurrelbrink. Flake failed to keep a proper lookout and thus failed to see a vehicle traveling in front of the truck he was driving, and when he did see it, he applied his brakes and slid 50 feet. Apparently from the pleading in the original complaint and the second amendment thereto, Hurrelbrink attempted to avoid striking the truck being driven by Flake, and in order to miss the Flake truck he had to go to the right, which caused his truck to enter the ditch along highway 68 causing the gasoline and fuel oil to spill into the
Mr. James Wyatt, who up until March 1, 1972, had been employed for approximately two years by Escomlab, a division of McClelland Engineers, in charge of the water and waste water laboratory, ran some tests on the water in the spring, and in his deposition testified:
Mr. Leroy Johnson, 36 years old, has lived in that area all of his life. He is one of the stockholders of the plaintiff corporation, owner of the trout farm, and has been manager of it since May 1965. He testified that he had absolutely no idea from where the water in the spring came, and that it could "easily" come from a thousand miles away as far as he knew. The terrain is fairly level along the highway in Springdale where the truck overturned, and the surface waters from that point run north or northwest and not south toward the trout farm.
Mr. Johnson gave his deposition on March 3, 1972, in which the following questions were propounded and answered:
Counsel for the parties have submitted briefs in support of their respective contentions.
The defendants contend that their motion should be sustained for all or any of the following reasons:
The plaintiff contends that the motion should be denied "for the reason that there are several crucial and material fact questions to be decided by the jury. Some of the questions which should go to the jury are: (1) negligence on the part of the defendant, (2) the questions relating to strict liability and res ipsa loquitur, and (3) the question of damages."
The court is of the opinion that the contentions of the plaintiff should be discussed first.
On the question of liability, the plaintiff in its brief relies upon the doctrine of strict or absolute liability and cites in support thereof Section 165 of the Restatement of Torts 2d. That section merely establishes that if the doctrine of strict or absolute liability applies, then the person allegedly harmed does not have to show negligence on the part of the person causing the harm, but the mere fact that the injury occurred is sufficient.
The plaintiff, beginning on page 3 of its brief filed with this court, has also cited several cases which it contends support its claim of strict or absolute liability. The court has examined each of the cases cited by plaintiff. The first case relied upon is South Arkansas Oil Co. v. Livingston (1971) 250 Ark. 374, 465 S.W.2d 119. In that case suit was brought against a gasoline station owner and seller of gasoline for damages caused by fire which occurred while gasoline was being pumped into the gasoline storage tanks. The person who was supposed to watch the procedure left the gasoline running while he went for a cup of coffee. The gasoline overflowed, caught fire and caused substantial damage to the adjoining property. The court in disposing of the case required a showing of substantial evidence of negligence on the part of the defendant and that such negligence was the proximate cause of the damages. The court at page 376 of 250 Ark., page 120 of 465 S.W.2d, in quoting from Tri-County Gas & Appliance Co. v. Charton (1959) 229 Ark. 989, 320 S.W.2d 103, said:
Gibson Oil Co. v. Sherry (1927) 172 Ark. 947, 291 S.W. 66, is cited in support of the contention that gasoline is a highly dangerous substance. That case was a suit to recover damage to personal property caused by spilled gasoline at a service station. The court at page 949 of 172 Ark., page 67 of 291 S.W. said:
The court did not impose any doctrine of absolute liability on handlers of gasoline but merely held that such handlers must take care to avoid injury to others, and if such care is not taken, they are negligent and liability will be imposed.
Another case cited by plaintiff is Sinclair Refining Company v. Gray (1935) 191 Ark. 175, 83 S.W.2d 820. This was a suit to recover damages received by appellees caused by an explosion of a gasoline tank. The court at page 179 of 191 Ark., page 822 of 83 S.W.2d said:
In Constantin Refining Company v. Martin (1922) 155 Ark. 193, 244 S.W. 37, the defendant had drilled a gas well and struck gas. The well was capped and a few days later gas began to escape from a fissure in the surface of the earth at a point 950 feet from the well. A 14-year old girl was burned to death by escaping gas from the fissure. The administrator of her estate filed suit and was awarded a verdict. The Supreme Court of Arkansas, in reversing the case, at pages 199-200 of 155 Ark., at page 39 of 244 S.W. said:
In Chapman Chemical Co. v. Taylor (1949), 215 Ark. 630, 222 S.W.2d 820, the Supreme Court applied the doctrine of strict liability against the manufacturer of a new chemical, 2-4-D, which it had manufactured and placed on sale without making proper tests to determine the floatability of the chemical when applied by the use of airplanes as was customary in the application of other chemicals used by rice growers to destroy grass and noxious weeks. At page 644 of 215 Ark., at page 827 of 222 S. W.2d the court said:
See, Higgins v. General Motors Corp., (1970) 250 Ark. 551, 554-555, 465 S.W.2d 898.
Since the doctrine or theory of strict liability is inapplicable to the undisputed facts, the court will proceed to consider the other contentions of plaintiff.
It is difficult to determine from the brief whether plaintiff contends that the transportation of gasoline on the highway in tank trucks is an ultrahazardous activity.
Section 519 of Restatement of Torts, page 41, is as follows:
Section 520 at page 42 defines ultrahazardous activity as follows:
"An activity is ultrahazardous if it
In Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp., (N.D.Cal.1954) 123 F.Supp. 720, the plaintiff was suing for damages arising out of two instances in the building of a dam on the American River. The defendant built two cofferdams to divert the water so that the principal dam and its appurtenances could be constructed. Plaintiff was engaged in the building of a power plant. On two occasions, within a few months of each other, the water washed away the cofferdams and destroyed the plaintiff's construction. Four causes of action are based on each flood. Causes of action one and two are based on the doctrine of absolute liability. Causes three and four are based on absolute liability in the handling of a dangerous instrumentality. Causes of action five and six are based on negligence with specific acts of negligence alleged. The District Court, in discussing the claims based on the doctrine of ultrahazardous activity, referred to the opinion in Luthringer v. Moore, 31 Cal.2d 489, 190 P.2d 1, with approval, in which was quoted the sections of Restatement above set forth.
In Flanagan v. Ethyl Corp., (3d Cir. 1968) 390 F.2d 30, the plaintiff was claiming damages because of the death of her husband who was fatally injured while acting within the course of his employment with Atlantic Richfield Company. The deceased was filling a tank truck with oil when the explosion occurred which caused his death. In discussing the claim made by the plaintiff of absolute liability, the court, beginning at page 31, said:
The transportation of gasoline in tank trucks from the distributing centers to filling stations is a matter of common everyday occurrence of which the court may take judicial notice. Counsel have not cited any case holding that such transportation is ultrahazardous, and the only case that the court has been able to find by an independent investigation is the case of Collins v. Liquid Transporters (Ky.1953), 262 S.W.2d 382, in which the court said:
This leaves for discussion the question of whether the defendants were negligent
The defendants in their brief on page 4 state:
The facts relative to the issues of foreseeability and intervening cause are uncontroverted.
Reference has heretofore been made to the uncontroverted testimony of James Wyatt, a chemist, and Leroy Johnson, a stockholder and manager of the plaintiff corporation. In fact, no one who was familiar with the territory would have foreseen that the spilling or pouring of the gasoline into the highway ditch at the place where the truck overturned would result in killing fish at or near Johnson, Arkansas. This being true, it is inconceivable that Hurrelbrink, a resident of Oklahoma, while driving a tank truck down the highway at Springdale, Arkansas, five miles by highway and 2.9 miles by air from the trout farm should have known that if he drove the truck in a negligent manner, he might kill trout in the trout farm and thus cause damage to the plaintiff.
In § 50, Unforeseeable Consequences, p. 288, of Prosser on Torts, 3d Ed., it is stated:
The case before the court is strikingly similar to the case of Palsgraf v. Long Island Railroad Co., (1928) 248 N.Y. 339, 162 N.E. 99. In that case a passenger was running to catch one of defendant's trains. The defendant's servants, in trying to assist him to board the train, dislodged a package from his arms and it fell upon the rails. The package contained fireworks, which exploded with some violence. The concussion overturned some scales, many feet away on the platform and they fell upon the plaintiff and injured her. The defendant's servants, who were found by the jury to have been negligent in what they did, could have foreseen harm from their clumsiness to the package, or at most to the passenger boarding the train; but no harm to the plaintiff could possibly have been anticipated. Under the facts, Judge Cardozo held that there was no liability because there was no negligence toward the plaintiff who was injured when the scales were overturned by the concussion. He said negligence was a matter of relation between the parties, which must be founded upon the foreseeability of harm to the person in fact injured. The defendant's conduct was not a wrong toward plaintiff merely because such conduct was negligent toward someone else.
In § 281, Restatement of Torts, 2d, the learned authors used the following illustration at page 5:
In 1908 the court decided the case of Ultima Thule, Arka. & Miss. Rd. Co. v. Benton, 86 Ark. 289, 110 S.W. 1037, in which the facts were stated as follows:
Crouch was an employee of defendant and the foreman of a track-laying crew working 17 miles from Dalark. The railroad carried the construction crews to and from their work on its trains. Flat cars were used upon which there were no seats, and the employees were accustomed to sit on the sides with their feet hanging over. They often carried wood on the train and threw it off as they approached their respective residences. The foreman was riding on the train with his legs dangling off of a flat car when one of the other employees threw some wood off a car. One stick rebounded and struck the foreman on his leg causing serious injury and probably his death. The administrator sought to recover and did so in the lower court upon the theory that he was a passenger and that the company must protect him as such, and that it was negligent in its duty to its passengers on the flat car by permitting other employees to throw off sticks of wood. The court at page 291 of 86 Ark., page 1038 of 110 S.W. said:
In 57 Am.Jur.2d, Negligence, § 161, at page 524, the rule on possibility of injurious consequences is stated as follows:
The case of St. Louis, I. M. & S. Ry. Co. v. Bragg, (1901) 69 Ark. 402, 64 S. W. 226, was a case where the plaintiff, a passenger on the defendant railroad, was let off of a train at a point where she was required to cross a cattle guard to get to her home. She alleged that the prospect of having to cross the cattle guard at night caused her mental anguish and her health was permanently damaged. The jury awarded her damages but the Supreme Court reversed holding that before the plaintiff could recover damages on account of the unintentional negligence of the defendant, it must appear that the injury was the natural and proximate cause thereof and that it ought to have been foreseen in the light of the attending circumstances. In the opinion the court, in quoting from Scheffer v. Railroad Company, (1881) 105 U.S. 249 said:
The case of Alaska Lumber Co. v. Spurlin, (1931) 183 Ark. 576, 37 S.W.2d 82, was a case in which one of the defendant's employees was driving a team of mules skidding logs out of the woods when his team became unruly and ran astride a bush or sapling. This angered the driver of the contrary team, causing him to speak to his team in a "loud and unusual tone of voice." Plaintiff was driving another team of mules some 30 to 50 yards away and the loud and unusual yelling caused the second team to run away seriously injuring the plaintiff. At page 577 of 183 Ark., page 83 of 37 S.W.2d the court said:
In Hill v. Wilson, (1949) 216 Ark. 179, at page 183, 224 S.W.2d 797, at page 800, the court said:
In Collier v. Citizens Coach Co., (1959) 231 Ark. 489, at page 492, 330 S.W.2d 74, at page 76, the court said:
In Hartsock v. Forsgren, Inc., (1963) 236 Ark. 167, 365 S.W.2d 117, the plaintiff in her complaint alleged that defendant in the course of its business maintained a large tank for the storage of tar; that despite repeated protests from the plaintiff and her neighbors, the defendant allowed the tar to spill over so that it flowed from the defendant's premises into an area where the plaintiff's son and other members of the public were accustomed to walk and play. The son walked into the tar to such a depth that his feet were covered to his ankles. When the child reached home, his parents took the child to the middle of his backyard to remove the tar by the application of gasoline, which according to the allegation was the only effective cleaning substance available at that time. While the parents were so engaged, a second child ran into the yard and unexpectedly exploded a cap pistol creating a spark which ignited the gasoline fumes, resulting in serious burns to the legs of the plaintiff's son. The court, after indicating that the defendant was negligent in allowing the tar to overflow in the area of the playground, stated:
The court quoted from Hill, supra, and from Collier, supra, the same language as heretofore set out by the court. At page 170 of 236 Ark., page 118 of 365 S. W.2d the court said:
On the same day that Hartsock was decided the court decided Jeffery v. Gordon, (1963) 236 Ark. 180, 365 S.W.2d 128. In that case the defendant, while operating a truck loaded with baled hay, parked the same beneath an overpass. The hay caught fire and burned causing damage to the overpass. The plaintiff, a contractor, who was required to repair the overpass before it was accepted by the Arkansas Highway Department filed suit, and at the close of the trial the court directed a verdict which the Supreme Court affirmed. It was conceded that the defendant was negligent in leaving the hay at that point, but the court, after stating that defendant was not negligent unless the act complained of was of such a nature that the consequent injury should be one in the light of attending circumstances that a person of ordinary foresight and prudence would have anticipated, held there was no negligence for lack of foreseeability. The evidence tended to show that the hay ignited because of spontaneous combustion,
In the instant case Hurrelbrink could not foresee what would happen because such a thing was unheard of and would happen so rarely. If Hurrelbrink was in fact negligent in causing his truck to overturn, he was negligent only to those persons and for the consequences of the act which a reasonably prudent person would have foreseen. In other words, if his turning the truck over had proximately caused damage to another person which, in the exercise of due care, was foreseeable, the defendants would have obviously been liable.
In Harrelson v. Whitehead, (1963) 236 Ark. 325, at page 329, 365 S.W.2d 868, at page 870, the court said:
North Little Rock Transportation Co. v. Finkbeiner, (1967) 243 Ark. 596, 420 S.W.2d 874, was a case where the defendant allowed a water sprinkler to operate until it had caused water to flow from his lawn and down the street approximately a block where it crossed the street. The plaintiff's cab traveling on the street skidded on the wet surface caused by the water from the sprinkler, damaging the cab. Evidence showed that on previous occasions when the sprinkler system was used, the water flowed along a curb and into a drain past the point of the accident and not across the street. The trial court directed a verdict in favor of the defendant which was affirmed on appeal. The court held that it was unreasonable to charge the defendant with constructive knowledge not only that the water would cross the road, but that a car traveling up the hill would skid on the wet surface. At page 602 of 243 Ark., at page 878 of 420 S.W.2d, the court said:
In the above case as well as the Hill case, supra, the court cited the Palsgraf case, supra, with approval.
Even if Hurrelbrink was guilty of negligence in allowing the tank truck to go into the ditch in an effort to avoid striking a truck traveling in front of him, the undisputed facts establish without doubt that such was not the proximate cause of the damage suffered by the trout farm. At page 183 of 216 Ark., page 800 of 224 S.W.2d, Hill v. Wilson, supra, the court held:
An intervening cause shades into and sometimes becomes almost indistinguishable from foreseeability. Regardless of whether an intervening cause is considered as a part of the question of foreseeability or is considered as a separate subject, there can be no question that the alleged action of the subterranean water in carrying the gasoline from the point of the accident to the trout farm was an efficient intervening cause, and the defendants are not liable.
In Prosser on Torts, 3d Ed., § 51, p. 310, the learned author states:
In Restatement of Torts, 2d, § 441, an intervening force is defined as follows:
In determining whether an intervening force is a superseding cause, it is stated in § 442, as follows:
Section 451 is as follows:
In Prosser Law of Torts, 3d Ed., page 320, the following appears:
The uncontroverted facts and circumstances show there is no genuine issue as to any material fact and that the defendants are not liable for the loss allegedly suffered by the plaintiff, and are entitled to a judgment of nonliability as a matter of law.
Therefore, judgment is being entered today holding that the defendants are not liable to the plaintiff for any damages; granting the motion of defendants filed September 1, 1972, for summary judgment; dismissing the complaint of plaintiff filed November 24, 1971, the amendments thereto filed December 23, 1971, and August 9, 1972; and adjudging costs against the plaintiff.