Case Study:
Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613 (10th Cir. 1998)
Individuals injured by the April 19, 1995, bombing of the Alfred P. Murrah Federal Building (“Murrah Building”) in Oklahoma City, Oklahoma, filed suit against the manufacturers of the ammonium nitrate allegedly used to create the bomb. * * * The district court dismissed the complaint for failure to state a claim upon which relief may be granted, and the plaintiffs appealed. We affirm. *** Background On April 19, 1995, a massive bomb exploded in Oklahoma City and destroyed the Murrah Building, causing the deaths of 168 people and injuries to hundreds of others. On May 10, 1995, plaintiffs filed this diversity action, on behalf of themselves and all persons who incurred personal injuries during, or may claim loss of consortium or wrongful death resulting from, the bombing, against ICI Explosives (“ICI”), ICI’s parent company, Imperial Chemical Industries, PLC, and another of Imperial Chemical’s subsidiaries, ICI Canada. ICI manufactures ammonium nitrate (“AN”). Plaintiffs allege that AN can be either “explosive grade” or “fertilizer grade.” According to plaintiffs, “explosivegrade” AN is of low density and high porosity so it will absorb sufficient amounts of fuel or diesel oil to allow detonation of the AN, while “fertilizer-grade” AN is of high density and low porosity and so is unable to absorb sufficient amounts of fuel or diesel oil to allow detonation. Plaintiffs allege that ICI sold explosive-grade AN mislabeled as fertilizer-grade AN to Farmland Industries, who in turn sold it to Mid-Kansas Cooperative Association in McPherson, Kansas. Plaintiffs submit that a “Mike Havens” purchased a total of eighty 50- pound bags of the mislabeled AN from Mid-Kansas. According to plaintiffs, “Mike Havens” was an alias used either by Timothy McVeigh or Terry Nichols, the two men tried for the bombing. Plaintiffs further allege that the perpetrators of the Oklahoma City bombing used the 4000 pounds of explosive-grade AN purchased from Mid-Kansas, mixed with fuel oil or diesel oil, to demolish the Murrah Building. *** Analysis *** I. Negligence Plaintiffs allege that ICI was negligent in making explosive-grade AN available to the perpetrators of the Murrah Building bombing. Under Oklahoma law, the three essential elements of a claim of negligence are: “(1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly perform that duty, and (3) the plaintiff’s injury being proximately caused by the defendant’s breach.” The district court held that ICI did not have a duty to protect plaintiffs and that ICI’s actions or inactions were not the proximate cause of plaintiffs’ injuries. Although causation is generally a question of fact, “the question becomes an issue of law when there is no evidence from which a jury could reasonably find the required proximate, causal nexus between the careless act and the resulting injuries.” Because we determine that there is a failure of causation as a matter of law, we need not discuss whether under Oklahoma law defendants owed plaintiffs a duty of care. * * * Under Oklahoma law, “the causal nexus between an act of negligence and the resulting injury will be deemed broken with the intervention of a new, independent and efficient cause which was neither anticipated nor reasonably foreseeable.” Such an intervening cause is known as a “supervening cause.” To be considered a supervening cause, an intervening cause must be: (1) independent of the original act; (2) adequate by itself to bring about the injury; and (3) not reasonably foreseeable. “When the intervening act is intentionally tortious or criminal, it is more likely to be considered independent.” “A third person’s intentional tort is a supervening cause of the harm that results—even if the actor’s negligent conduct created a situation that presented the opportunity for the tort to be committed—unless the actor realizes or should realize the likelihood that the third person might commit the tortious act.” If “the intervening act is a reasonably foreseeable consequence of the primary negligence, the original wrongdoer will not be relieved of liability.” *** Oklahoma has looked to the Restatement (Second) of Torts § 448 for assistance in determining whether the intentional actions of a third party constitute a supervening cause of harm. Section 448 states: The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. Comment b to § 448 provides further guidance in the case before us. * * * [U]nder comment b, the criminal acts of a third party may be foreseeable if (1) the situation provides a temptation to which a “recognizable percentage” of persons would yield, or (2) the temptation is created at a place where “persons of a peculiarly vicious type are likely to be.” There is no indication that a peculiarly vicious type of person is likely to frequent the Mid-Kansas Co-op, so we shall turn our attention to the first alternative. We have found no guidance as to the meaning of the term “recognizable percentage” as used in § 448, comment b. However, we believe that the term does not require a showing that the mainstream population or the majority would yield to a particular temptation; a lesser number will do. Equally, it does not include merely the law-abiding population. In contrast, we also believe that the term is not satisfied by pointing to the existence of a small fringe group or the occasional irrational individual, even though it is foreseeable generally that such groups and individuals will exist. We note that plaintiffs can point to very few occasions of successful terrorist actions using ammonium nitrate, in fact only two instances in the last twentyeight years—a 1970 bombing at the University of Wisconsin-Madison and the bombing of the Murrah Building. Due to the apparent complexity of manufacturing an ammonium nitrate bomb, including the difficulty of acquiring the correct ingredients (many of which are not widely available), mixing them properly, and triggering the resulting bomb, only a small number of persons would be able to carry out a crime such as the bombing of the Murrah Building. We simply do not believe that this is a group which rises to the level of a “recognizable percentage” of the population. As a result, we hold that as a matter of law it was not foreseeable to defendants that the AN that they distributed to the Mid-Kansas Co-op would be put to such a use as to blow up the Murrah Building. Because the conduct of the bomber or bombers was unforeseeable, independent of the acts of defendants, and adequate by itself to bring about plaintiffs’ injuries, the criminal activities of the bomber or bombers acted as the supervening cause of plaintiffs’ injuries. Because of the lack of proximate cause, plaintiffs have failed to state a claim for negligence. *** III. Manufacturers’ Products Liability Plaintiffs assert that ICI is strictly liable for manufacturing a defective product. We read their complaint as alleging both that the AN was defectively designed because, as designed, it was more likely to provide explosive force than an alternative formula, and that ICI failed to issue adequate warnings to Mid-Kansas that the AN was explosive grade rather than fertilizer grade so that Mid-Kansas could take appropriate precautions in selling the AN. “In Oklahoma, a party proceeding under a strict products liability theory—referred to as manufacturer’s products liability—must establish three elements: (1) that the product was the cause of the injury, (2) that the defect existed in the product at the time it left the manufacturer, retailer, or supplier’s control, and (3) that the defect made the product unreasonably dangerous.” “Unreasonably dangerous” means “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” A product may be unreasonably dangerous because it is defectively designed or manufactured, or because it is not accompanied by the proper warnings regarding use of the product. As the basis of their defective design claim plaintiffs contend that ICI could have made the AN safer by using an alternate formulation or incorporating additives to prevent the AN from detonating. Plaintiffs’ suggestion that the availability of alternative formulas renders ICI strictly liable for its product contradicts Oklahoma law. “Apparently, the plaintiff would hold the manufacturer responsible if his product is not as safe as some other product on the market. That is not the test in these cases. Only when a defect in the product renders it less safe than expected by the ordinary consumer will the manufacturer be held responsible.” The “ordinary consumer” is “one who would be foreseeably expected to purchase the product involved.” As plaintiffs acknowledge, the ordinary consumer of AN branded as fertilizer is a farmer. There is no indication that ICI’s AN was less safe than would be expected by a farmer. Similarly, plaintiffs have failed to state a claim regarding ICI’s alleged failure to warn Mid-Kansas that the AN was explosive grade rather than fertilizer grade. “Under Oklahoma law, a manufacturer may have a duty to warn consumers of potential hazards which occur from the use of its product.” If the manufacturer does not fulfill this duty, the product may be unreasonably dangerous. Interpreting Oklahoma law, this court has held that the duty to warn extends only to “ordinary consumers and users of the products.” Under this rationale, defendants had no duty to warn the suppliers of its product of possible criminal misuse. Conclusion We AFFIRM the dismissal of plaintiffs’ complaint for failure to state a claim upon which relief may be granted.
Q1. Products liability typically arises under state law. Why is this case being heard in federal court? What law does the court apply—federal or state?
Q2. The court determines that the defendant is not liable in negligence because there is no proximate causation between the plaintiff’s injury and the defendant’s breach. Explain.
Q3. The court also determines that the defendant is not strictly liable for the plaintiff’s injuries. Why?
Q4. What two types of strict liability claims does the plaintiff allege?
Q5. If the use of a fertilizer as an explosive device is widely published on the Internet, do you think that such a use would then be reasonably foreseeable? If a manufacturer’s product is used by a third party in a way that was unforeseen and someone is injured as a result, do you think that the manufacturer loses the defense that the use was unforeseeable in future lawsuits involving similar conduct by other third parties?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.