City of Bloomington, Indiana v. Westinghouse Electric Corporation, Etc.

Cir.1988). 1414, (7th penalty provision, enhanced the elements of Pfeifer F.2d presented jury). which need not be only if he be faced with this choice would criminally Acevedo’s affida- was involved.1 Affirmed. appeal, allegation. no such On vit contains Pfeif- speculate

Acevedo asks us to about however, burden,

er’s involvement. Her actual to demonstrate an conflict. Be-

was so,

cause she failed to do she is not entitled presumption prejudice.

to a BLOOMINGTON, INDIANA, CITY OF appeal claim on Acevedo’s second al., Plaintiffs-Appellants, et that she denied a fair trial because the jury govern court instructed the that prove that Acevedo ment did not have to WESTINGHOUSE ELECTRIC

possessed alleged amount of cocaine CORPORATION, etc., al., et only government indictment: had to Defendants-Appellees. prove possessed that Acevedo a “measura No. 88-2660. of cocaine. Acevedo acknowl ble amount” Appeals, United States Court of edges that this instruction is a correct Seventh Circuit. statement of law. See United States v. (7th Cir.1975)

Jeffers, 524 F.2d 253, Argued Sept. 1989. (government prove posses does not have Decided Dec. 1989. sion of the amount of the controlled sub En Banc Rehearing Rehearing indictment, alleged stance Denied Jan. amount”). ar of “some measurable She gues longer should no be Jeffers mandatory the enactment of the law after 841(b). penalties

minimum of 21 U.S.C. § 841(b) penalty wrong.

She is Section is a provision. provides, It in rel

enhancement part, involving

evant in a case “500

grams or more of a mixture of substance

containing a amount of ... co detectible

caine,” the defendant shall be sentenced to imprison years’

a term of not less than five 841(b)(l)(B)(ii)(II).

ment. 21 Sec U.S.C. § 841(b) nothing

tion to do with the sub underlying of

stantive elements of quantity

fense. Because the con sentencing

trolled substance is a issue un guilt, underlying

related to a defendant’s jury. properly

the trial court instructed the Scanzello, United States v. F.2d

See (3rd (Section 841(b)(6) Cir.1987) is an Pfeifer, powder. positive presence Assuming of fluorescent that Acevedo contacted then for the Although nothing facts lead to the conclusion that Pfeifer had to fear from Acevedo’stesti- these testify might mony. the hidden contents of the His advice not to have Acevedo knew about van, testimony prudent. jury already Acevedo had contacted and been had heard evi- attorney country, would have been even retained an dence that Acevedo traveled across expending Furthermore, incriminating. this evi- more more than one thousand dollars of men, money inference that accompanied dence would have created the her own two gopher allegedly buy year mere Acevedo was more than a to tion, a five old van. In addi- system. distribution at the time of her arrest her hands tested Grodner, Mallor, Grodner &

Geoffrey M. II, Bohrer, Trulock, Bloomington, James R. Ind., plaintiffs-appellants. Daniels, In- Carney, Baker & Joseph B. Berz, Ind., Stanley M. dianapolis, David R. Weil, Manges, Wash- Spracker, Gotshal & Tabler, D.C., Michael R. ington, Bryan G. Fickle, Mi- (argued), Stanley C. Fruehwald Rosiello, Thornburg, India- Barnes & chael Swerdel, Ind., J. napolis, Anna Deborah Justice, Schmall, Washington, Dept, of U.S. D.C., defendants-appellees. CUDAHY, CUMMINGS, Before and EASTERBROOK, Judges. Circuit CUMMINGS, Judge. Circuit Bloomington, April City In 1981 the Indiana, (col- and its Board Utilities Service lectively “City”) Westinghouse Elec- sued $149,000,000 damages Corporation for tric equitable alleging Westinghouse and relief discharged containing polychlorinat- waste (PCBs) Bloomington’s biphenyls ed into sewers and into its Winston-Thomas Sew- age Treatment Plant. In October 1981 the complaint adding an amended filed Company a defendant and covering presence at also of PCB waste City’s Lemon Lane Landfill. The $80,000,000 sought complaint amended damages equitable relief from Monsan- stayed in Proceedings to. were October permit Westinghouse 1983 to and the negotiate negotia- settlement. agreement tions resulted —referred parties and the lower court as a approved by Judge consent Dillin decree — August filed March 1986 the its second complaint solely against Monsan to, reasserting liability under theories of public private trespass, ab normally dangerous activity, negli adding gence, and a wilful and wanton misconduct count as well as three counts Racketeering Corrupt Influenced under (RICO). The Organizations Act ad dam Joseph Karaganis (argued), A. Bruce V. White, White, Ill., $387,000,000. Chicago, Karaganis & num was 27, 1988, the district court hand- ment and 1976 Monsanto announced that On June opinion dismissing stop selling the counts it would PCBs since ed down an substitutes complaint equipment on were available for electrical of the second amended based nuisance, trespass, abnormally dangerous manufacturers. days activity, and RICO. Two thereafter One of Monsanto’s customers for PCBs the district court denied leave to file a third Westinghouse. Westinghouse used complaint1 and week thereafter Bloomington plant PCBs in its where it negligence the case went to trial on the and capacitors. Westinghouse manufactured wilful and wanton misconduct counts con- containing waste PCBs was hauled to vari- complaint. tained in the second amended landfills, Bloomington ous area and small jury The found in favor of Monsanto and got concentrations of PCBs also into the 1988, July judgment on was entered in Westinghouse plant. sewer effluent of the its favor. agreement the sales between City appealed basically Westinghouse Blooming- Monsanto and the ground presented the trial evidence plant provision requiring ton contained a

jury the theories issues under of Westinghouse to use its best efforts to dangerous activity, abnormally and tres- prevent entering PCBs from the environ- pass, the trial court therefore and that Westing- ment and Monsanto instructed granting erred defendant’s Rule dispose house how to they PCBs so that 12(b)(6) If motion to dismiss these claims. not enter systems, including would water City right, it is entitled to a new trial. City’s sewage systems. Monsanto also conclude, however, City We that the had no made recommendations to reduce dis- PCB against Monsanto on viable claim based charges by treating waters before their and therefore affirm. those theories Westinghouse to release sewers. took a steps discharges to number reduce PCB I. Factual Statement Bloomington plant from its until Monsanto are chemical mixtures manufac- stopped selling any PCBs PCB to that plant September tured Monsanto and others and sold including purposes, industrial insu- various containing Water from West- PCBs high voltage equipment electrical lation of inghouse plant City’s was found in the capacitors and such as transformers. Lemon Lane Landfill and its Winston- Sewage experience Industrial showed that exces- Thomas Treatment Plant and con- long-term exposure sive to PCBs could nected sewers. The 1985 consent decree pro- City Westinghouse rashes and liver and cause skin disturbances. between cleanup for an environmental with an Consequently Monsanto confined its sales vides Westinghouse in to sealed containers for electrical estimated cost to excess PCBs $100,000,000. uses, accepted fluid for reclama- of Br. at 5.2 The de- used PCB removal, incineration, excavation, provides informed cree for the tion and custom- incineration of ma- ers of the latest information on the effects PCB-contaminated Landfill, Lane In 1970 Monsanto commenced terial from the Lemon of PCBs. Plant, Sewage using warning advising customers Winston-Thomas Treatment label spite and various other sites.3 In of this permit not to PCBs to enter the environ- entry ap- complaint specifically, 3.More the district court’s 1. The third amended was similar Westing- proving describes the consent decree predecessor with docu- its but was fleshed out undertakings house’s as follows: $750,000,000 requested mentary references and materials from a. To excavate and remove damages. complaints against Each of the sites; the six strikingly increased the amount of from certain streams b. To remove sediment damages sought from that defendant. banks; and stream federal, city ap- state and c. To construct a proved Judge description of the consent de- Dillin’s high temperature incinerator to incin- Westinghouse gives an estimated cost to cree wastes and erate associated hazardous $13,000,000 $65,000,000 cleanup. for the from in accordance with the re- soil solid waste quirements Entry August at 14. law; federal, local state and right Monsanto retained City, in last eluded that program, the comprehensive Monsanto, point of sale against beyond seeks control the PCBs pleading proposed $750,000,000. district agree with the Westinghouse, an additional we held liable that Monsanto cannot be court upset the urging us to City is not theory. on a nuisance negligence and it on its against judgment misconduct theories wanton wilful and on the Restatement relies it contends jury. Rather tried to the were 821D, reads as fol- which dismissing erred the district nontrespas- private “A nuisance is a lows: nuisance, trespass, and on the claims based sory of another’s interest invasion Here, enjoyment of land.” private use and entitled to a new trial. therefore however, upon which to there is no basis 12(b)(6)dismissal under a a Rule We review opposed to conclude that Monsanto —as Chicago v. standard. Corcoran de novo City’s in- Westinghouse invaded the —has District, 609, (7th Cir. 875 F.2d 609 Park enjoyment in the of land. Section terest 1989). “an un- public defines a nuisance as 821B right com- reasonable interference with Analysis II. general public.” Since there is mon to the A. Nuisance that Mon- upon no basis which to conclude City endeavors to recover on The right, interfered with such a santo itself private nuisance public or the basis of that definition has not been satisfied either. only opposes nui stating that The uncontested record shows when ground that Monsan sance on alerted to the risks associated with of the plant was not the source to’s own every to have West- Monsanto made effort misreading of Monsan pollution. This is safely. inghouse dispose of the chemicals judge recog position. As the district to’s Westinghouse product of the was control nized, of nuisance is of the tort the essence solely responsible purchased and was for Westinghouse “using his party one — —here safely dispos- it created the nuisance not the use detriment of and property to the product. County Johnson v. ing 27, Entry of June enjoyment of others.” Co., Gypsum F.Supp. United States 580 citing Friendship Farms 4, 1988, at 284, (E.D.Tenn.1984), 294 modified on other Parson, 73, Camps, Inc. v. Ind.App. 172 (E.D.Tenn.1985). F.Supp. 1127 grounds, 664 280, (1977). 282 359 N.E.2d allegations support proposi- do not requirement either of its not refuted this participated carrying tion that Monsanto any briefs, it able to find nor has been partic- Without such on the nuisance. pub liable for holding cases manufacturers ipation, Monsanto cannot be liable within arising from private lic or nuisance claims the definition of the Restatement subsequent product to the the use of their (Second) 834.5 The dismissal of nuisance pleadings do not point of Since the sale.4 XI XII was warranted. it could be con- Counts set forth facts from which 646, (as Co., (D.R.I.1986) F.Supp. transport and incin- sum 637 656 d. to the incinerator To sites; bestos), from the six and Town Hooksett School District v. erate the materials removed 126, Co., (D.N.H. by-prod- F.Supp. dispose and other e. To of the ash W.R. Grace & 133 1984) (asbestos). process, in accord- ucts of the incineration law; requirements ance with the rely Monsanto does not on the Indiana statu- mea- perform remedial f. To certain interim tory "coming exception the nuisance” sites, monitoring; including sures at the of a so that there is no need definition close, g. properly and monitor To maintain applicability. See Erbrich here to determine and other materials each site after the PCBs 850, Co., Wills, N.E.2d 857- Products Inc. have been removed. (Ind.App.1987). 22, 1985, Entry August at 15. provides: That section holding not liable for 4. For cases manufacturers subject a nuisance arising the use of their One nuisance from claims sale, activity, justifi- when he Judge an not product subsequent Dillin caused partic- when he ably Hamp- but also applying New carries on ipates relied on two cases carrying extent in it on. Gyp- to a substantial National shire Manchester v. Co., 86-1857, B. Trespass No. Exterminating 1988 WL (D.D.C. 9, 1988) (chlordane March alleges XIII Count Monsanto’s heptachlor); Co., Gypsum National causing conduct the PCB contamination of 656; Co., at W.R. Grace & City’s property “trespass constituted F.Supp. at 133. under Indiana law.” district court dis missed XIII the City Count because did not deposit Monsanto did not PCB wastes in allege performed any that “Monsanto in City property nor did Monsanto instruct act, tentional which act could have resulted Westinghouse to do Therefore, so. trespass alleged.” Entry of June trespass Westinghouse’s was responsi- sole at 5. The contends that bility. wrongful dismissal Judge because of Dillin’s “erroneous view of the intent re Abnormally Dangerous C. Activity quired trespass liability.” City Br. at However, support ruling, his The district court also dismissed judge Maus, district relied on Hawke v. 141 Count XIV of the second amended com Ind.App. (1967), 226 N.E.2d plaint dealing with which expressly stated that “it is neces activity. recognizes the doctrine of sary trespasser intend to commit a strict stemming from carrying on trespass.” Appellate Rather the Court of abnormally dangerous activity. Enos explained Indiana required that “it is for Mining Schuchart, Coal Co. v. 243 Ind. trespass that there be an intentional act 692, (1963); 188 N.E.2d 406 Erbrich Prod very and an intent to do the which act ucts, 509 N.E.2d at 853. As reflected in trespass.” results in the Id. This seem (Second) Restatement of Torts § ingly accords with the Restatement of however, plaintiff cannot recover unless Torts, pertinent part only imposes which by the harm is activity caused of the liability trespass for if the actor “inten defendant. Here the harm to the City’s tionally possession ... enters land in the sewage and by any landfill was not caused other, of the or thing causes a or a third abnormally dangerous activity of Monsanto ” person so,.... to do Restatement of by the buyer’s safeguard failure to (Second) 158(a) Torts (emphasis supplied). § denying liability waste. In for an ultra- required. To this intent is extent here, hazardous the district court pointed out that Monsanto did not brief, control City quotes In its Comment i Westinghouse’s the PCBs contained in 158(a). Section The four illustrations in waste. This with the accords require this Restatement Comment all the actor’s intent. view because the Restatement confines explained And as in Comment,/, there no strict who carries on an “[o]ne a defendant has where caused en- abnormally dangerous activity.” Restate try (here person Westinghouse) of a third 519(1). ment Here that definition (here Monsanto) would § unless the actor intention- Westinghouse include but not Monsanto. ally person causes the third to enter land command, request, physical or duress. on relies Indiana Harbor Belt When Westing- Monsanto sold the PCBs to Co., Railway Cyanamid Co. v. American house, Monsanto did not know that West- (N.D.Ill.1981), 517 support 314 inghouse deposit would harmful on waste proposition that the manufacture of City property, certainly and Monsanto did abnormally dangerous activity. PCBs is an command, request, Westing- not or coerce shipment Indiana Belt held that Harbor doing house into so. Monsanto lacked thus acrylonitrile, substance, a toxic was an ab trespassory kind of intent. normally dangerous activity. In Martin v. In prin- Richardson, Inc., accordance with the Harrington Restatement ciples, impose trespass (1984), do not explicitly courts liabili- F.2d 1200 this Court dis ty injuries Belt, on tinguished sellers caused their Harbor Indiana held product ownership it has left the handguns after and the manufacture is not possession of the sellers. Dine v. and that there Western ultrahazardous can limited West- manufacturing could have been merely PCBs liability for no

be care. inghouse’s exercise of reasonable products. liability impose requiring explored Cases Fifth has also Circuit activity as a re- for the ultrahazardous cogent in a liability in this field limits of recog- product. To of the use of the sult Perkins by Judge Wisdom opinion or distrib- a manufacturer liability of nize (5th Corp., n. 43 F.I.E. F.2d the in- virtually make them utor would Cir.1985): explosives, such surer of the Restatement Even if 519-520 §§ dangerous drugs chemicals or hazardous ap- applicable, it of Torts were negli- products are not though such even could not be pears that the defendants any defects. nor contain gently made under those sections.... held liable policy may be Although such a social comments to 519 demonstrate § legislature, ought it not by the adopted product marketing a consumer is not by judicial decree. imposed to be kinds of activi- purview within the of the 1204, quoting with Martin, 743 F.2d at meant to encom- ties that section was Armament v. Int’l approval Riordan particular, comment d states pass. (Circuit Cook Corp., L 27923 Court “liability arises out of abnormal 21, 1983) (em- Division, July County, Law activity itself, risk danger and the affirmed, Ill.App.3d original), phasis in harm to those creates, it 477 N.E.2d 1293 Ill.Dec. (Second) of vicinity." Restatement and both Martin (1985).6 While (1977) (emphasis 519 comment d § decided under Illinois Harbor Belt were added). Thus, encompasses activi- indication that Indiana law is no there ties that are and of them- Rather, Appeals the Court differs. directly cause harm selves and can Indiana, holding that the manufacture of vicinity,” though “in to those even abnormally dangerous, gas chlorine pre- “the utmost care to conducted with to that in Mar- reasoning employed similar storage Id. the harm.” The of vent otherwise, tin, stating, “If the rule were dynamite city paradigm given in a is one or industrial activ- virtually any commercial marketing of a hand- comment e. danger- involving which are ity substances itself, gun dangerous in and of is not automatically in the abstract only ous occurs, injury the direct when it is not abnormally dangerous. as deemed would be itself, of the sale but rather the result intolerable.” Erbrich would be This result by party. a third result of actions taken Products, addition, 509 N.E.2d at Martin, unwilling are to extend As we Products held that an the Erbrich liability for an the doctrine of strict abnor- abnormally not be considered activity could mally dangerous activity party if risks therefrom could be dangerous the injury.7 did not cause the whose exercise of reasonable care. by limited the Products, Erbrich And, disposal consistent the with the with Id. The risks associated legations against Appeals a manufacturer of have the District of Colum- of of 6. The Court Delahanty recently adopted application this result. considered the of strict bia 1989),: (D.C.Ct.App., Hinckley, A.2d 758 abnormally dangerous v. activities to PCBs. In cases, gun marketing Properties Corp. of a hand is not the first of these Amland itself, occurs, injury America, it is of and when in and v. Aluminum Co. (D.N.J.1989), of sale, result of the but rather the the direct court, not Jersey applying the New by party. actions taken third Fur- result of thermore, disposal question whether held that the gun marketing cannot be clas- hand dangerous activity abnormally of PCBs was an abnormally dangerous by applying as sified Similarly, jury. the in the second was one for any example, For factors of Section 520. case, Superior Ahrens v. The Court harm, high degree or likelihood of risk of Francisco, Cal.App.3d County San great, would result harm will be that such Dist.1988), (1st Cal.Rptr. the court such, use, marketing from the not question whether the use of held that the guns. hand PCB-containing in urban office transformers has held that the manufacture dangerous activity 7. No court abnormally buildings was an abnormally dangerous activity. Ap- PCBs is question jury. for the was a courts, addressing parently only al- two neither similarity in lan- F.Supp. at 656. This cannot be considered manufacture of PCBs the fact that neither New guage, added to law dangerous under Indiana adopted the Hampshire nor Indiana has have been the risks therefrom could since respect Restatement of Torts with care. by Westinghouse’s reasonable limited liability, nuisance lends credence to the Perkins, marketing of the Finally, as in Judge “justifiably Dillin re- assertion that itself, and the PCBs was not dismissing Gypsum lied” on National tak- injury rather the result of actions was against nuisance claim Monsanto. court was party. en a third The district dismissing IV of the sec- correct Count argues The dissent also complaint. ond proceed should have allowed to with been case, summary judgment at least to the its File Third III. Denial of Motion to stage. The dissent twice concedes that it is Complaint Amended Bloomington’s dismissed doubtful summary judg- claims would have survived City’s proposed third amended Judge In fact Dillin’s decision to ment. complaint presented days two after the nuisance, trespass, and dismiss the abnor- of the sec court had dismissed the Counts mally dangerous claims was based complaint based on ond amended pleadings also on more abnormally dangerous activit trespass, and allegations detailed and evidence contained complaint, y.8 The third amended how parties’ statements of contentions ever, prior materially alter the did not 27, 1988, Entry at 3. and exhibits. of June merely repeated factual mate pleading, but regardless apparent Thus it is already had been considered rials that ample op- applied, Bloomington had label court, stating at the end of each the trial of the evi- portunity to inform the court liability. these facts created Count that Final- proposed dence it to adduce at trial. proposed pleading did not as Because the opinion ly, suggests dissent that this depend upon new sert new contentions or “potentially dangerous precedent” sets evidence, permit need to there was no insulating liability regard- sellers from House, Inc., filing. Wakeen Hoffman of their activities before or after the less (7th Cir.1983). 724 F.2d product. Regardless of sale of their is con- whether touchstone Response to Dissent IV. participation, it seems trol or substantial argues The dissent that reliance on Na- incongruous penalize a manufacturer Grace, which Gypsum tional R.W. good faith efforts to limit and seller for his Hampshire under New is were decided effects of his potentially the hazardous Hamp- Indiana law. New inconsistent with plant. left his product once it has adopted the Restatement of shire has never suggests had Monsanto done dissent that respect to nuisance lia- Torts with less, merely product sold their they had bility. Contrary to the assertion in the away, they would have been and walked Indiana, dissent, large has even “in neither blameworthy. This seems to us a far less Rather, Indiana evaluates nui- measure.” approach than that taken more cited the sance claims under the statute opinion. this language at 13 n. 1. The of this dissent Judgment affirmed. nearly language identical to the statute is Gyp- in to define nuisance National used CUDAHY, Judge, dissenting: Circuit everything term includes that sum: “the the can health, Although I am doubtful that gives or offense to endangers life success- against Monsanto senses, decency, press or its claims violates the laws of the certainly it has stated fully, I believe and comfortable obstructs the reasonable view, my the district 637 cause of action. property.” Gypsum, use of National this was erroneous. of does not contend the RICO Counts 8. The court also dismissed complaint, the the second 618 3:4 Law 1 The American City’s the it dismissed erred when of (1983).2 dangerous activi- abnormally

nuisance and Monsanto’s to assert ty for failure claims language of section the It clear from is to di- physical control “authority actual or plaintiff that of the Restatement 834 past product disposal of its the use or rect “partic- the defendant need show App. at 4. Appellant’s point of sale.” the carrying extent” ipate[d] to a substantial must have that a defendant agree I do not Mas- See nuisance-causing activity. disposition of the the say” the “final over Pace, F.Supp. 821 sachusetts 616 face agent to harmful order 834); Page (D.Mass.1985) (following section abnormally nuisance or an under either a Honeywell, Appliance Center v. County recovery. theory of 1984) (same).3 (Iowa 171, 176 347 N.W.2d Restatement, under the This is not the law point, this majority evidently concedes (which large of Indiana nor the law 5, yet op. 614 & n. neverthe- see majority at Restatement).1 In- the measure follows applica- district court’s approves less the (and one stead, concept the operative the precedent, created of non-Indiana tion tort) “partic- that of is generic diversity to the law sitting in courts federal district v. I.V.O.W. MacMillan Co. See ipation.” support proposition jurisdiction, the (D.Vt.1980) 1134, 1146 Corp., F.Supp. defendant’s prove 495 must the plaintiff the law doctrine physical common control” over (applying “authority “the basic or actual in, or id. at See knowingly participates nuisance-causing agent. that one who the act, and sever- conflict with jointly is n. 4. Those cases a tortious furthers believe, and, see Restatement tortfeasor.”); I with prime ally liable with Gans, A. law.4 generally S. Speiser, C. Krause & recognition of ac- of concert seems to validate statute states 1. The Indiana nuisance senses, types actions. in all of tort "[wjhatever tion theories injurious to the or is property, use of so as to the free obstruction dissent, majority reply ob- to the In its essentially the comfortable en- to interfere with Hampshire nuisance law at the New serves that joyment property, of life or is a v. National in both Manchester issue subject Ann. of an action.” Ind.Code Co., (D.R.I.1986), F.Supp. Gypsum (Burns 1986). § 34-1-52-1 Grace & School Dist. v. W.R. Town Hooksett (Second) of Indiana follows the Restatement Co., (D.N.H.1984), quite sim- Torts, of “abnor section in its definition statute, language the Indiana cited to the ilar purely activity." mally dangerous See Erbrich Prods. supra, at note 1 of this for convenience Wills, (Ind.Ct.App. Co. v. 509 N.E.2d Likewise, nuisance statute the Iowa dissent. 1987). provides: Section language replicates the Indiana virtually (1) on an dan- One who carries 1987). (West ch. 657.1 law. See Iowa Code Nevertheless, subject gerous for harm Supreme Court adheres the Iowa person, another land or chattels of Page County See to Restatement section 834. activity, although resulting from the he Center, Appliance N.W.2d at 176. Since prevent exercised the utmost care merely and do define nuisance these statutes harm. any way applicability speak (2) to the kind This strict is limited perceive the relevance section I do not harm, possibility of which makes the similarity majority attaches to which the activity abnormally dangerous. Hampshire nui- and New between the Indiana provisions. sance showing partic- appears clear that a It also ipation a cause is all that is needed to maintain saying majority "un- also errs in 4. against trespass in a defendant. Sec- of action alerted to the record shows that when contested the Restatement conclude tions 875 and 876 of Monsanto made ev- risks associated with liability may applied of action be that concert Westinghouse dispose ery the have effort to any of the Restate- action in tort. The authors Majority op. safely.” at 614. This chemicals opinion as to whether a City hotly did withhold an ment the point not “uncontested" because is theory “immediacy” would be available in disagrees concert of action with which to the requiring showing a of intent or hazards tort claims not its customers of the Monsanto informed Nevertheless, longer logic, together questions with the sub- Monsanto's even fault. of PCBs and delay knowledge City. during imparting development its to the of tort law the in stantial disputes published, Monsanto’s claims years also since the Restatement was Wills, possible exceptions, 509 the sale. With some

In Erbrich Products a Co. (Ind.Ct.App.1987), unfortu- N.E.2d “participate” manufacturer also does not in nately the Indiana case from which we carrying the creation of a nuisance or the issue, guidance can draw on this the abnormally dangerous activity on of an Appeals Indiana Court of for the First Dis- merely by selling product.6 A manufac- explicitly applied the trict embraced however, may, “partic- turer otherwise danger- Restatement’s test for ipate” subsequent extensively in events pro- ous activities.5 The court reiterated a very the sale and could well incur by Supreme nouncement the Indiana Court Here, indeed, under that test. there are applied that sections 519 and 520 must be allegations extensive of the manufacturer's (empha- case-by-case on a basis. Id. at 853 disposition prod- efforts to affect the of the added). The district court in this case sis entirely possible I uct after sale. think it is attempt apply did not even the section appropriate that even under the test the Westinghouse’s disposal 520 test PCB City's allegations would not survive sum- practices, finding could not that Monsanto mary judgment, Westing- whether because any in event held it lacked be liable because disposal practices house’s were not abnor- “authority physical or actual control” over mally dangerous under section or be- by Westinghouse. bought the PCBs from it “participation” in cause Monsanto’s those sitting diversity While a federal court practices justify liability was insufficient to jurisdiction predict sometimes the must showing other or because of difficulties state law where the law is un- course of surely causation. But is entitled clear, seriously disputed it cannot be that a to a determination of its claims under a unambiguous follow federal must proper application of Indiana tort law. us, In state law. the case before dis- that, me prece- trict court eschewed clear Indiana It seems to basis adopting and instead cre- majority opinion, dent section 520 sellers of toxic chemicals criteria, any substances, ated its own without basis simply and other law, assessing adequacy status, virtue of their commercial become City’s abnormally dangerous activity any liability except insulated from — claim. cognizable negligence prod- under a or a theory beyond point of ucts dissent, response majority — any occurring their activities sale for suggest “participation” seems to or after the sale. Just either before be- thing. amount to the same “control” argu- here are cause Monsanto’s activities me, difference, important it seems to ably benign good insulate is not a reason to that a manufacturer almost definition activity, liability all manufacturer from point product past cannot “control” the me a benign or not. This seems to automatically ex- whether of sale and is therefore potentially dangerous precedent, one incon- after culpated from event (f)Extent disposal to the commu- good implementing to which its value its PCB faith out-weighed nity attrib- program. utes. sets out the 5. Section 520 of the Restatement course, inherently the sale of an or unrea- 6. Of must consider in deter- factors which a court mining may expose sonably dangerous product a manu- particular is abnor- whether theory prod- liability on a facturer to strict mally dangerous. Those factors are: liability. lia- Given the reach of ucts bility (a) high degree of risk of Existence of a courts would doubtless resist most person, land or chattels of some harm to the cause of action creation of an identical another; "abnormally dangerous ac- under the rubric However, (b) City explicitly tivity." the harm that results disclaims Likelihood that great; recovery against activity] sought Monsan- will be ever from that it has [the theory. Appel- (c) Inability See to eliminate the risk to on a Rather, care; City argues Reply Brief at 19. reasonable lant’s exercise of aggressive participant disposal (d) not a ”[a]s to which the Extent activities, discharge shares re- usage; and sponsibility matter of common injury caused (e) Inappropriateness added). on; (emphasis activities.” Id. place those where it is carried sistent law and one from with Indiana I respectfully

which must dissent. America,

UNITED STATES

Plaintiff-Appellee,

Fenet JARAMILLO and Esther Jaramil

lo, Defendants-Appellants. 89-1954,

Nos. 89-1955. Appeals,

United States Court of

Seventh Circuit.

Argued Sept.

Decided Dec.

Case Details

Case Name: City of Bloomington, Indiana v. Westinghouse Electric Corporation, Etc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 23, 1990

Citation: 891 F.2d 611

Docket Number: 88-2660

Court Abbreviation: 7th Cir.