502 P.2d 1181 (Wash. 1972)
Seventeen-year-old Carol J. House died in the flames of a gasoline explosion when her car encountered a pool of thousands of gallons of spilled gasoline. She was driving home from her after-school job in the early evening of November 22, 1967, along Capitol Lake Drive in Olympia; it was dark but dry; her car’s headlamps were burning.1
Aaron L. Kuhlman had been a truck driver for nearly 11 years after he completed the 10th grade in high school and after he had worked at other jobs for a few years. He had been driving for Pacific Intermountain Express for about 4 months, usually the night shift out of the Texaco bulk plant in Tumwater. That evening of November 22nd, he was scheduled to drive a gasoline truck and trailer unit, fully loaded with gasoline, from Tumwater to Port Angeles. Before leaving the Texaco plant, he inspected the trailer, checking the lights, hitch, air hoses and tires.2
Running downgrade on the offramp, he felt a jerk, looked into his left-hand mirror and then his right-hand mirror to see that the trailer lights were not in place. The trailer was still moving but leaning over hard, he observed, onto its right side. The trailer then came loose. Realizing that the tank trailer had disengaged from his tank truck, he stopped the truck without skidding its tires. He got out and ran back to see that the tank trailer had crashed through a chain-link highway fence and had come to rest upside down on Capitol Lake Drive below.3
The trailer was owned by defendant Pacific Intermountain Express. It had traveled about 329,000 miles prior to November 22, 1967, and had been driven by Mr. Kuhlman without incident down the particular underpass above Capitol Lake Drive about 50 times. When the trailer landed upside down on Capitol Lake Drive, its lights were out, and it was unilluminated when Carol House’s car in one way or another ignited the spilled gasoline. There was no evidence of impact on the vehicle she had driven, Kuhlman said, except that the left front headlight was broken.45
From a judgment entered upon a verdict for defendants, plaintiff appealed to the Court of Appeals which affirmed. The Supreme Court granted review and reversed.6
Whether the trial court should have given a res ipsa loquitur instruction to the jury?7
Res ipsa loquitur permits the jury to infer negligence when the instrumentality causing injury is under the defendant's exclusive control. The accident must be of a type that does not ordinarily occur absent negligence.8 This principle was established in precedents such as ZeBarth v. Swedish Hosp. Medical Center and Pederson v. Dumouchel.9
Yes. Aaron L. Kuhlman inspected the trailer before departure from the Texaco plant.10 The trailer disengaged while under his control during the downgrade on the offramp.11
The trailer had traveled 329,000 miles and passed the underpass route about 50 times without incident.12 The cause of separation remains unknown despite defendants' evidence of due care in maintenance and operation.13
These circumstances satisfy the elements for res ipsa loquitur because the event is one that does not happen without negligence when the defendant maintains control.14 Plaintiff was therefore entitled to an instruction allowing the jury to draw the inference.15
The trial court erred by refusing to instruct the jury on res ipsa loquitur.16
Related opinions on this issue
Joined by Justice Stafford
Justice Neill dissents from the majority's treatment of res ipsa loquitur.17 He contends that the proposed instructions were defective for using the phrase that the happening of the accident affords reasonable evidence of negligence.18
We particularly disagree with the statement that “the happening of the accident alone affords reasonable evidence . . . that the accident arose from the want of reasonable care.” We have been at some pains to make it clear that the happening does not afford “reasonable evidence”; that it does no more than permit the jury to infer, though it is not required to so infer, that the defendant or its agents were at some point negligent.19 He maintains that a trial court need not give an erroneous instruction.20 He would affirm the verdict because the only assignment of error presented concerned the procedural effect of res ipsa loquitur.21
The defective proposals failed to address that issue correctly.22
Whether the transportation of thousands of gallons of gasoline as cargo on public highways is an abnormally dangerous activity?23
One who carries on an abnormally dangerous activity is subject to strict liability for resulting harm even if the utmost care was exercised.24 Such strict liability is limited to the kind of harm the risk of which makes the activity abnormally dangerous.25 Determination of an abnormally dangerous activity considers factors including high degree of risk, gravity of harm, inability to eliminate risk through reasonable care, uncommon usage, inappropriateness to the location, and community value.26 This rule was adopted from Restatement (Second) of Torts sections 519 and 520 in Pacific Northwest Bell Tel. Co. v. Port of Seattle.27
Yes. Transporting thousands of gallons of gasoline at freeway speeds involves a high degree of risk of great harm that cannot be eliminated by reasonable care.28 The trailer disengaged despite prior inspection and crashed to spill its cargo on Capitol Lake Drive where Carol J. House's car ignited the vapors.29
The activity is not a matter of common usage given the extraordinary dangers from bulk, volatility, and highway movement.30 The risk remains abnormally high even on appropriate roads because latent defects or third-party hazards can produce catastrophic results without traceable proof.31 Application of the Restatement factors therefore classifies the transportation as abnormally dangerous.32 This warrants strict liability independent of negligence findings.33
The transportation of thousands of gallons of gasoline as cargo on public highways constitutes an abnormally dangerous activity subject to strict liability.34
Related opinions on this issue
Joined by Chief Justice Hamilton, Justice Finley, And Justice Ryan Pro Tem.
Justice Rosellini concurs that strict liability applies to commercial transportation of highly volatile substances in large quantities.35 This is because of the extreme risk to defenseless highway users if the cargo escapes containment.36
He emphasizes that the transporter can spread losses among customers who benefit from the activity.37 The transporter is best positioned to pursue manufacturers when defects originate in production.38
He clarifies that liability attaches only when the substance escapes without apparent intervention of outside forces beyond the control of the manufacturer, owner, or operator.39 He notes that the legislature's statutes on trailer connections align with imposing strict liability here where no external collision caused the detachment.40
Joined by Justice Stafford
Justice Neill dissents from the imposition of strict liability.41 He argues that deciding the case on that theory violates established rules of appellate review because the issue was never raised at trial or in the Court of Appeals.42
It was injected sua sponte after review was granted.43 He contends that the majority improperly assumes facts about the connection's security that remain disputed by circumstantial evidence and expert testimony at trial.44
This trespasses on the jury's role.45 He states that the concurring opinion's sua sponte questioning of the contributory negligence instruction further exceeds proper appellate bounds since no error was assigned to it.46