In Torts, we're currently working on Indiana Harbor Belt Railraod Co. v. American Cyanamid Co., 916 F.2d 1174. Judge Posner delivered the opinion, and in class, Professor Nockleby offered a critique of it. I thought Judge Posner wrote very lucidly, but Professor Nockleby also makes some great points. The professor challenged us to offer policy arguments against his, as a way of forcing us to learn the arguing skills we must develop as lawyers. I had a few thoughts, and I decided to share them with Judge Posner in an e-mail, which I have excerpted here:
Essentially, Professor Nockleby's position is as follows:
1. The real issue in the case is, "In the absence of negligence (or proof of negligence), on whom should the presumptive burden of loss caused by the escape of a dangerous substance, acrylonitirle, while in rail transit be cast?"
2. The shipment of acrylonitirle is an abnormally dangerous activity. Therefore, the court should impose strict liability upon the Shipper. (Professor Nockleby cites Rylands, Siegler, and Spano as precedents that argue *in favor* of his position.)
3. Where a loss is created, and created non-negligently, someone must bear the loss, and strict liability is the best vehicle for assigning the loss.
[Here I have questions:
1) Does imposition of strict liability allow for later indemnification (Prof. Nockleby seems to imply that it does, but I'm not sure that's so clear); and
2) In the instant case, isn't the state agency which cleaned up the spill (and which charged Indiana Harbor Belt for the cleanup) essentially the way in which the liability is shifted? That is to say, if, as Prof. Nockleby insists, the danger of the case is in the future implications when, rather than a switching station, it is residents who are harmed, isn't the fact that a government agency can clean up the spill an argument that "the people" have resources which are just as corporate as "big business"? Isn't the government a sunk transaction cost, and what we're doing then is simply doing the indemnification?]
4. Professor Nockleby insists that, in an abnormally dangerous activity such as shipping a dangerous chemical like acrylonitrile, it should be the agent which has control over the decision to ship which should bear the loss.
5. Professor Nockleby also takes exception to your analogy with people who build houses between runways at O'Hare. My understanding of that illustration was that the people built the houses after the runways were already there, in which case I think it is reasonable to expect people not to buy up land between runways and build houses. If, on the other hand, the houses were there before the runways, we have eminent domain issues.
I don't expect an e-mail back from Judge Posner, but I invite you, dear readers, to leave comments, particularly if you're familiar with this case and its interpretations and arguments. Thank you!