Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
Notes
1. Commentary on Indiana Harbor Belt Railroad. A number of scholars have weighed in on
Judge Posner’s decision. According to Professor David Rosenberg, Judge Posner took an
unnecessarily narrow view of strict liability’s potential benefits. Instead of recognizing that strict
liability could “reduce the frequency and amount of risky activity,” Judge Posner only focused on
strict liability’s ability to end dangerous activities, thus “dismissing strict liability’s potential
benefits.” David Rosenberg, The Judicial Posner on Negligence Versus Strict Liability: Indiana
Harbor Belt Railroad Co. v. American Cyanamid Co., 120 HARV. L. REV. 1210, 1216 (2007).
According to Professor Alan Sykes, Judge Posner could have held that the appellant,
Indiana Harbor Belt Railroad, assumed the risk by accepting shipments from the appellee,
American Cyanamid Company. Alan O. Sykes, Strict Liability Versus Negligence in Indiana
Harbor, 74 U. CHI. L. REV. 1911, 1928-29 (2007). According to the Restatement (Second) of
Torts, assumption of risk is a defense against liability arising from abnormally dangerous
activities. RESTATEMENT (SECOND) OF TORTS § 523 (1977). According to Professor Sykes, such
an approach would have been “a simpler way to dispose of the case than the questionable analysis
of the Restatement factors to which Judge Posner devoted most of his opinion.” Id. at 1929.
According to Professor Klass, Indiana Harbor Belt Railroad establishes an
insurmountable standard for plaintiffs pleading strict liability in the Seventh Circuit:
By [Indiana Harbor Belt Railroad], the Seventh Circuit . . . set out a very narrow
role for strict liability in modern tort law—one that puts a significant burden on
plaintiffs to bring in statistical, historical, and technical expert evidence to
essentially prove an impossible hypothetical: that no amount of care under any
circumstances would allow the particular activity to be performed safely.
Alexandra B. Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law
Strict Liability Environmental Claims, 39 WAKE FOREST L. REV. 903, 960 (2004).
2. The “shale revolution.” The transformation in the American natural gas industry and the
boom in the oil and gas business in places like North Dakota has arguably made Indiana Harbor
Belt Railroad’s holding more significant than ever. Rail shipments of oil are steadily increasing.
Moreover, oil companies prefer shipping by rail to shipping via pipeline because pipeline
construction is more capital-intensive and controversial.
The increase in rail shipping, however, has led to a spate of accidents. In July 2013, a
train carrying North Dakota oil through Quebec derailed and exploded, killing 47 people and
destroying virtually an entire small town. In November 2013, a train carrying crude oil derailed in
Alabama. A month later, a train carrying crude oil collided with a derailed train carrying grain,
forcing the evacuation of Casselton, North Dakota. Although no one was hurt in the explosion,
experts believe that the explosion was relatively harmless only because of luck; had the train
exploded near a “more populated town,” people would have been injured. In January and
February 2014, two derailments took place in Pennsylvania, one in the remote western part of the
state, the other in densely populated Philadelphia. At the end of April 2014, an oil train derailed
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