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HERMAN v. WELLAND CHEM.

February 28, 1984

Daniel HERMAN, and Alice HERMAN, Plaintiffs,
v.
WELLAND CHEMICAL, LTD., a Canadian corporation, LAMCO LEASING, LTD., a Canadian corporation, DAVIS, Sandra and PARSON, Robert, Co-Partners trading as CHAUFFEUR'S SERVICE, GILLESPIE, James A., ACO-ASSMAN OF CANADA LTD., a Canadian corporation, VALLANCE BROWN AND CO., LIMITED, a Canadian corporation, and ORRACH, William A., Defendants; JOHN CURTIS and SHARON CURTIS, Plaintiffs, v. WELLAND CHEMICAL, LTD., et al., Defendants



The opinion of the court was delivered by: NEALON

 The plaintiffs in the above-captioned actions seek to recover damages for injuries arising from an automobile accident during which defendant Orrach's car struck plaintiffs Daniel Herman and John Curtis. The plaintiffs began their actions in the Court of Common Pleas, Monroe County, Pennsylvania on August 19, 1982. The defendants removed the case to this court in April 1983, relying upon the diversity of the parties' citizenship.

 Defendant Welland Chemical, Ltd. (Welland) has moved to dismiss the claims asserted against it. For the reasons set forth below, the motion to dismiss will be granted as to the plaintiff's claims regarding absolute liability and the claims of the plaintiff-wives concerning negligent infliction of emotional distress. The motion to dismiss will be denied in all other respects.

 FACTUAL BACKGROUND

 In considering Welland's motion to dismiss, the court is bound to accept as true the allegations set forth in the plaintiffs' complaints. According to the plaintiffs' allegations, Welland agreed to sell, and to ship from its plant in Canada, 18 tons of aluminum chloride anhydrous to a company in New Jersey. Welland obtained a truck, a flatbed trailer and a driver and loaded the chemical into 12 polyethylene pallet hoppers. The hoppers were placed on the trailer and were secured with chains, binders and hooks. *fn1" On or about February 1, 1982, the truck began its journey from Canada to New Jersey.

 Proceeding eastbound on Interstate Highway 80, the truck had reached Stroud Township in Monroe County, Pennsylvania at approximately 4:30 a.m. on February 3, 1982. According to the complaint, the driver lost control of the truck at about this point. The rear portion of the trailer allegedly struck the concrete barrier dividing the east and westbound lanes of the highway. Eight hoppers fell from the trailer, and several of the containers ruptured, causing the chemical to spill on the roadway. Because it had been raining that morning, the pavement was wet. The chemical reacted with the water from the rain, creating a cloud of hydrochloric gas.

 State, County and Stroud Township officials assembled a task force to respond to the danger posed by the hydrochloric gas. A ten mile stretch of Route 80 was closed in both directions. A few miles east of the disabled truck, in East Stroudsburg, some volunteer firemen were dispatched and told to help reroute motorists off the westbound lane of the highway. Plaintiffs Daniel Herman and John Curtis were among this group of firemen. Lit flares were placed along the road to aid the firemen in merging traffic into the right-hand lane and eventually off the highway. The complaint asserts that plaintiff Herman was directing traffic by holding a flare in his hand and waving it in the desired direction.

 Six hours after the chemical spill and at least one hour after the flares had been placed along the highway, defendant Orrach approached the firemen in his automobile, traveling westerly in the center lane. According to the complaint, Orrach "caused his vehicle to run over several flares, proceed[ed] upon a closed area of highway, and struck the plaintiffs where [they] stood" directing traffic. Both plaintiffs were injured severely.

 To support the liability of Welland for their injuries, the plaintiffs have asserted claims based upon negligence, strict products liability and absolute liability theories. In addition, the wives of the injured plaintiffs have set forth claims for loss of consortium and negligent infliction of emotional harm. Welland has moved to dismiss each of these counts for failure to state a claim upon which relief can be granted.

 ABSOLUTE LIABILITY

 The absolute liability counts can be dismissed without extended discussion, for a valid claim clearly is not stated under that theory. The Pennsylvania Supreme Court has adopted the doctrine embodied in § 519 of the Restatement of Torts which states that one who carries on an ultrahazardous activity may be held absolutely liable for injuries resulting from that activity. See, e.g., McCown v. International Harvester Co., 463 Pa. 13, 17 n.5, 342 A.2d 381 (1975); Lobozzo v. Adam Eidemiller Co., 437 Pa. 360 & n.1, 263 A.2d 432 (1970); Federoff v. Harrison Construction Co., 362 Pa. 181, 184, 66 A.2d 817 (1949). While the parties have cited no case holding that the activity of Welland falls within § 519 of the Restatement ("ultrahazardous" activities) or § 519 of the Restatement Second ("abnormally dangerous" activities), the court will assume for the plaintiffs' benefit that a Pennsylvania court would so decide. Even assuming that the doctrine of absolute liability could be applied to the shipment of chemicals, the plaintiffs' claims must fail, for such responsibility "is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous." Restatement (Second) of Torts § 519 & Comment e. The kind of harm suffered in the present case does not, as a matter of law, fall within the scope of the risks making the shipment of chemicals abnormally dangerous. Accordingly, no valid claim is stated.

 NEGLIGENCE

 To support its motion to dismiss the plaintiff's negligence claims, Welland argues that it breached no duty toward them, that proximate causation is absent and that Orrach's conduct was a superceding cause. The court will consider these arguments seriatim.

 Duty In asserting that no duty was owed toward the instant plaintiffs, Welland appears to posit that this case involves a situation akin to that encountered by Justice (then Chief Judge of the State of New York) Cardozo in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Palsgraf, Justice Cardozo enunciated the doctrine that there can be no negligence toward a plaintiff who is not within the foreseeable "orbit of danger." Explaining that such an unforeseeable plaintiff is owed no duty, Cardozo stated that "the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Id.; accord, Dahlstrom v. Shrum, 368 Pa. 423, 425, 84 A.2d 289 (1951) ("The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act.").

 To the extent that Welland argues that these plaintiffs may not recover on the ground that they were not, as a matter of law, within the foreseeable zone of harm, the court rejects this contention by looking to Justice Cardozo's comments in another case:

 
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.

 Welland also asserts that even if the plaintiffs were owed a duty, that duty does not include an obligation to protect them from the character of harm suffered here. Specifically, it is asserted:

 
In this case it might be argued that Welland owed plaintiffs a duty to refrain from injuring them by escape of poisonous gas or from falling hoppers. That duty does not extend, nor should it, to the unforeseeable risk of injury from reckless and careless motorists on the roadway.

 Brief in Support of Welland's Motion to Dismiss at 29, Document 10 of the Record. The difficulty with this position is that once the actor has subjected the plaintiff to a foreseeable risk of harm, he has breached a duty owing to the plaintiff and is considered to have been negligent. Having subjected the plaintiff to a foreseeable risk of harm, the actor is responsible for all consequences "which follow in a natural sequence of events" even if the precise consequences are not foreseeable. Hoover v. Sackett, 221 Pa. Super. 447, 451-52, 292 A.2d 461 (1972). Hence, under Pennsylvania law, Welland's contention that it cannot be held liable for "unforeseen consequences" must be rejected.

 " Proximate" or "legal" causation Welland next argues that even if it negligently transported the chemicals, that negligence did not proximately cause the plaintiffs' injuries and, hence, there can be no recovery. Before determining the existence of "legal" or "proximate" causation in a given case, the fact-finder first must decide whether factual causation is present. The "cause-in-fact" question implicates "a de minimis standard of causation, under which even the most remote and insignificant force may be considered the cause of an occurrence." Takach v. B.M. Root Co., 279 Pa. Super. 167, 171, 420 A.2d 1084 (1980). The cause-in-fact question does not appear to be a serious issue here, for the parties seem to agree that but for the chemical spill, the plaintiffs would not have been on the highway on the date they incurred their injuries.

 The much more difficult question is that of proximate causation. This concept "generally denotes more than mere causation-in-fact, and serves as a means by which courts are able to place practical limits on liability as a matter of policy." Wisniewski v. Great A. & P. Tea Co., 226 Pa. Super. 574, ...


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