Common Carriage and Liability in the Rail Transportation of Toxic Inhalation Hazard Materials
Foland, Stephen J., Ave Maria Law Review
On November 4, 2000, a Burlington Northern & Santa Fe Railway freight train traveling down the North Platte River Valley in western Nebraska derailed as it passed through the town of Scottsbluff. (1) The hulls of three of the train's tank cars ruptured, releasing a vapor plume of benzene and other toxic chemicals into the town, resulting in the evacuation of some 3750 local residents. (2) Fourteen months later, on January 18, 2002, a freight train of the Canadian Pacific Railway derailed near Minot, North Dakota. (3) Eleven damaged tank cars released more than 220,000 gallons of anhydrous ammonia vapor, leading to one death and numerous claims for personal injury and property damage. (4) Then, on January 6, 2005, a collision on the Norfolk Southern Railway in Graniteville, South Carolina, ruptured a parked tank car and released a plume of chlorine gas, killing nine people and sending more than five hundred others to the hospital. (5)
In most cases, a freight train wreck presents no particular danger to the general public. Commodities like coal, grain, and automotive parts, while valuable, do not present the citizens of a nearby town with the danger of illness or death; but commodities like anhydrous ammonia, benzene, and chlorine--known collectively as toxic inhalation hazard ("TIH") or poison inhalation hazard materials--present that very danger. Where that danger leads, the problem of liability in the event of an accident follows. Who should pay the freight, so to speak, to plaintiffs injured in a railroad accident involving the release of TIH materials? In a case where a railroad's negligence caused the release, the answer may seem to be simple enough: sue the railroad. However, it may be that a particular accident was not the result of a carrier's negligence, but rather the negligence of another party in producing the cargo, negligence in maintaining privately owned rolling stock, (6) or even no negligence at all. In addition, even if a particular accident is the result of a carrier's negligence, the injuries resulting from the accident will not be entirely the carrier's fault. What then?
As Judge Richard Posner pointed out in his opinion in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., it is a simple truism that anything--such as the release of hazardous materials from a rail car without any negligence on the railroad's part--can happen. (7) But rather than existing simply as improbable scenarios conceived in the minds of torts professors, such accidents have actuary occurred, (8) leaving various courts to answer the question, "What then?" Some of these courts have held that, in light of their obligation as common carriers to move any and all freight handed to them for shipment, rail carriers should be immune from liability. (9) Other courts have imposed strict liability on rail carriers for accidents, openly acknowledging the carriers were not negligent, but holding nonetheless that the rail transportation of hazardous materials was precisely the type of ultrahazardous activity strict liability theories were developed to address. (10) Still others have avoided answering the question altogether. (11) Regardless of the answers they have given, however, these courts have all framed the question in terms of strict liability and whether or not a rail carrier's obligations as a common carrier exempt it from such liability.
These courts have taken the wrong approach. The courts taking the right approach cannot frankly admit a defendant rail carrier was not negligent (12) and fail to account for the unique characteristics of TIH materials--as opposed to the characteristics of explosive or inflammable materials--which render strict liability theories ineffective in fairly determining liability for a TIH accident. The combination of rail carriers' obligation to move TIH materials and the unique dangers these materials present creates a distinct problem, calling for an approach diverging from that historically taken in assessing rail carrier liability for hazardous materials accidents. …