[874 P.2d 126] Thomas R. Patton, Lynn C. Harris, Provo, and Vicki Rinne, Highland, for plaintiffs and petitioners.

Mark J. Williams, Salt Lake City, for defendants and respondents.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Justice:

This case is before the court on a petition for a writ of certiorari to the Utah Court of Appeals. Plaintiffs Jeff Christensen and Kyle James Fausett claim that the court of appeals erred when it concluded that defendant Burns International Security Services ("Burns") was not liable under the doctrine of respondeat superior for the actions of its employee, Gloria Swenson. The court of appeals determined that Swenson was acting outside the scope of her employment at the time of her automobile accident with Christensen and Fausett and therefore affirmed the trial court's grant of summary judgment. Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992). We reverse.

Burns provides security services for the Geneva Steel Plant ("Geneva") in Orem, Utah. Burns employed Swenson as a security guard in June 1988. On the day of the accident, July 26, 1988, Swenson was assigned to guard duty at Gate 4, the northeast entrance to the Geneva property. Security guards at Gate 4 worked eight-hour continuous shifts, with no scheduled breaks. However, employees were permitted to take ten- to fifteen-minute unscheduled lunch and restroom breaks.

When taking their lunch breaks, Gate 4 guards generally ate a bag lunch but occasionally ordered take-out food from the sole restaurant within close physical proximity to Gate 4, the Frontier Cafe. The Frontier Cafe was located directly across the street from the Geneva plant, approximately 150 to 250 yards from Gate 4. The cafe's menu was posted near the telephone at Gate 4. Aside from vending machines located within a nearby Geneva office building, the Frontier Cafe provided the sole source of food accessible to Gate 4 guards within their ten- to fifteen-minute breaks. Indeed, the Frontier Cafe was the only restaurant in the immediate area. Whether they brought their lunches or ordered from the cafe, Gate 4 guards were expected to eat at their posts.

Shortly after 11:00 a.m. on the day of the accident, Swenson noticed a lull in the traffic at Gate 4 and decided to get a cup of soup from the Frontier Cafe. She placed a telephone order for the soup from Gate 4 and then drove her automobile to the cafe. She intended to pick up the soup and return to Gate 4 to eat at her post. She expected the round trip to take approximately ten to fifteen minutes, as permitted by Burns' unscheduled break policy. On her return trip, however, she collided with plaintiffs' motorcycle at a public intersection just outside Geneva's [874 P.2d 127] property. Both Christensen and Fausett were injured.

Christensen and Fausett filed a negligence action against Swenson and Burns. After answering the complaint, Burns moved for summary judgment, claiming that it was not liable under the doctrine of respondeat superior because Swenson was not acting within the scope of her employment at the time of the accident. The trial court granted Burns' motion, and Christensen and Fausett appealed. The court of appeals affirmed the trial court's decision, concluding that reasonable minds could not disagree that Swenson was acting outside the scope of her employment at the time of the accident. Christensen, 844 P.2d at 995. We granted plaintiffs' petition for certiorari.

Summary judgment is appropriate when the record indicates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1039 (Utah 1991). We review a trial court's order granting summary judgment for correctness, according no deference to the trial court's legal conclusions. Clover, 808 P.2d at 1039-40; Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989). In addition, we view all relevant facts and all inferences arising from those facts in the light most favorable to the party opposing the motion. Clover, 808 P.2d at 1039. Should we conclude that a genuine issue of material fact exists, we must reverse the grant of summary judgment and remand for trial on that issue. Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1989).

Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within the scope of their employment. Clover, 808 P.2d at 1040. Whether an employee is acting within the scope of her employment is ordinarily a question of fact. Id. The question must be submitted to the jury " 'whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of [the employer's] business or within the scope of employment.' " Id. (quoting Carter v. Bessey, 97 Utah 427, 432, 93 P.2d 490, 493 (1939)). However, when the employee's activity is so clearly within or outside the scope of employment that reasonable minds cannot differ, the court may decide the issue as a matter of law. Id.; Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).

In Birkner, we stated that acts falling within the scope of employment are "'those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.'" 771 P.2d at 1056 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70, at 502 (5th ed. 1984)). We articulated three criteria helpful in determining whether an employee is acting within or outside the scope of her employment. First, the employee's conduct must be of the general kind the employee is hired to perform, that is, "the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor." Id. at 1056-57. Second, the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Id. at 1057. Finally, "the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest." Id.

The court of appeals held that Swenson was not substantially within the ordinary spatial boundaries of her employment because the accident did not occur on Geneva property.^[1] Christensen, 844 P.2d at 995. [874 P.2d 128] Christensen and Fausett argue that the court of appeals erred in its application of the second criterion identified in Birkner. Burns responds that the court of appeals properly construed the second Birkner criterion in holding that Swenson was acting outside the scope of her employment at the time of the accident.

Because the court of appeals concluded that Swenson failed to satisfy the second Birkner criterion, it did not address the first and third criteria. See Christensen, 844 P.2d at 995. However, our review of the record indicates that reasonable minds could differ on all three criteria. Thus, to avoid a second summary judgment on remand, we address all three of the Birkner criteria.

The first Birkner criterion requires that the employee's conduct be of the general kind the employee is hired to perform, that is, "the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor." Birkner, 771 P.2d at 1056-57. Reasonable minds could differ as to whether Swenson was about Burns' business when she was involved in the traffic accident between Gate 4 and the Frontier Cafe.

We base this conclusion on two disputed issues of material fact. First, Swenson claims that Burns employed her as a security guard to "see and be seen" on and around the Geneva plant. Thus, traveling the short distance to the Frontier Cafe in uniform arguably heightened the secure atmosphere that Burns sought to project. Burns, on the other hand, claims that Swenson was not hired to perform that function. Burns' position is supported by the deposition of another security guard who stated that he considered lunch trips to the Frontier Cafe to be entirely personal in nature.

A second material issue of fact remains as to whether Burns tacitly sanctioned Gate 4 guards' practice of obtaining lunch from the Frontier Cafe. Burns expected its Gate 4 guards to work eight-hour continuous shifts and to remain at their posts as much as possible. However, because Burns also recognized that the guards must at times eat meals and use the restroom, the company permitted them to take ten- to fifteen-minute paid breaks. The record indicates that Burns was aware that its employees occasionally traveled to the Frontier Cafe during these unscheduled breaks but had never disciplined them for doing so. Indeed, Swenson asserts that a menu from the Frontier Cafe was posted in plain view at Gate 4. Thus, reasonable minds could differ as to whether Burns tacitly sanctioned, or at least contemplated, that its guards would satisfy their need for nourishment by obtaining meals from the Frontier Cafe.

The second Birkner criterion states that the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Birkner, 771 P.2d at 1057. It is undisputed that Swenson's action occurred within the hours of her employment. She was at her post and in uniform when she decided to take advantage of a lull in plant traffic to eat lunch.

With respect to spatial boundaries, we find that reasonable minds might differ as to whether Swenson was substantially within the ordinary spatial boundaries of her employment when traveling to and from the Frontier Cafe. Again, the court of appeals concluded that Swenson did not pass this criterion because the accident did not occur on Geneva property. Christensen, 844 P.2d at 995. While it is true that Swenson was not on Geneva property when the accident occurred, she was attempting to obtain lunch from a restaurant within the geographic area accessible during her ten- to fifteen-minute break. Given the other facts of this case, reasonable minds could differ as to whether Swenson's trip to the Frontier Cafe fell substantially [874 P.2d 129] within the ordinary spatial boundaries of her employment.^[2]

Furthermore, Burns could not point to specific orders barring guards from leaving the facility in their own vehicles to go to the Frontier Cafe on break, although two managers opined that such behavior was prohibited. This dispute alone presents a genuine issue of material fact. If guards were expressly forbidden to drive to the Frontier Cafe to pick up lunch during their break, a jury could find that Swenson was substantially outside the ordinary spatial boundaries of her employment; if they were not so forbidden, a jury might find her to have been acting substantially within the ordinary spatial boundaries of her employment.^[3]

Under the third criterion of the Birkner test, "the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest." Birkner, 771 P.2d at 1057. Applying this criterion to the instant case poses the question of whether Swenson's trip to the Frontier Cafe was motivated, at least in part, by the purpose of serving Burns' interest. Reasonable minds might also differ on this question.

First, two Burns managers admitted in their depositions that employee breaks benefit both the employee and the employer. Employees must occasionally eat meals and use the restroom, and employers receive the corresponding benefit of productive, satisfied employees. Reasonable minds could differ as to whether Swenson's particular break fell into this mutual-benefit category.

Second, given the continuous-shift nature of the job and the comparatively brief breaks permitted, Burns' break policy obviously placed a premium on speed and efficiency. Swenson claimed that traveling to the Frontier Cafe enabled her to obtain lunch within the allotted period and thus maximize the time spent at her post. In this respect, reasonable minds might conclude that Swenson's conduct was motivated, at least in part, by the purpose of serving Burns' interest. Evidence indicating that Swenson tried to save time on her lunch break by phoning her order ahead, driving instead of walking, and attempting to return immediately to her post is also relevant in this regard.

In sum, we hold that reasonable minds could differ as to whether Swenson was acting within or outside the scope of her employment when she collided with plaintiffs' motorcycle. Thus, summary judgment is inappropriate. We reverse and remand for further proceedings.

ZIMMERMAN, C.J., STEWART, Associate C.J., and GREENWOOD, Court of Appeals Judge, concur.

HOWE, Justice, concurring:

I concur. I write to address the concerns of the court of appeals when, in affirming the summary judgment in favor of Burns, it wrote:

Holding otherwise would unduly expand the scope of employment. Every off-site location regularly patronized by an employee for personal purposes could potentially be considered within the ordinary spatial boundaries of the employment. Such a holding would also blur the rule that conduct occurring during an employee's off-premises lunch hour is outside the scope of employment. See, e.g., 1 Arthur Larson, The Law of Workmen's Compensation § 15.51 (1992).

[874 P.2d 130] Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992).

Larson in his treatise recognizes exceptions to the general rule relied on by the court of appeals. One such exception is where the employee is paid during the time taken out for lunch or coffee and to suit the employer's convenience, the employee rushes out to "get a quick bite to eat, and [hurries] back because of the pressure of work.... Here the very making of a lightning excursion for lunch is an effort expended in the employer's interest to conserve his time." 1 Arthur Larson, The Law of Workmen's Compensation, § 15.52 (1993). Larson cites many cases where the exception was relied on. Only one need be mentioned. In Shoemaker v. Snow Crop Marketers Division of Clinton Foods, Inc., 74 Idaho 151, 258 P.2d 760 (1953), an employee was awarded compensation when he was injured while retrieving his packed lunch from a building adjoining his employer's premises. He was on paid time and under orders of his employer to hurry back.

Although the case presently before the court is not a workers' compensation case, I believe that this well-recognized exception may be applicable here, as the majority opinion correctly opines.

GREENWOOD, Court of Appeals Judge, sat to fill the vacancy on the court.

[1] We note that in reaching its decision, the court of appeals construed Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), as establishing a literal approach to the second Birkner criterion. The court of appeals interpreted Clover's application of the second Birkner criterion as turning on the fact that the employee's conduct took place " 'on his employer's premises.' " Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992) (quoting Clover, 808 P.2d at 1041). Relying on that language, the court of appeals concluded that because Swenson's accident did not occur on "the premises of the Geneva Steel Plant[,]" the accident necessarily did not occur substantially within the ordinary spatial boundaries of her employment. Id.

We did not intend to establish such a bright-line rule in Clover. The Birkner criteria cannot be rigidly applied to every fact pattern. Some flexibility is required to address situations, like the instant case, where the employee's conduct is technically outside the physical boundaries of her employer's premises but arguably substantially within the ordinary spatial boundaries of the employment.

[2] Moreover, as we have already noted, the record indicates that Burns was aware that Gate 4 guards occasionally traveled to the Frontier Cafe for lunch and that the company may have tacitly sanctioned the practice. Reasonable minds could differ as to whether such a tacit sanction brought the Frontier Cafe substantially within the ordinary spatial boundaries of Swenson's employment.

[3] We acknowledge the court of appeals' concern that ruling in favor of Swenson could result in "[e]very off-site location regularly patronized by an employee for personal purposes [to] potentially be considered within the ordinary spatial boundaries of the employment." Christensen, 844 P.2d at 995. However, we note that this case is before us on a petition to review the court of appeals' affirmance of summary judgment. Thus, our opinion establishes only that, under the facts of this case, reasonable minds may differ as to whether Swenson's accident occurred substantially within the ordinary spatial boundaries of her employment. We do not hold that all lunch breaks, no matter where or when taken, fall within the scope of employment. Furthermore, we think that lines can successfully be drawn to avoid the court of appeals' concerns.

858 So.2d 1158

Klaus ROESSLER, Appellant,
v.
Russell W. NOVAK, M.D.; Sarasota Surgical Specialists, P.A., a Florida corporation; Richard J. Lichtenstein, M.D.; SMH Radiology Associates, P.A., a Florida corporation; and Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital, Appellees.

No. 2D02-1670.

District Court of Appeal of Florida, Second District.

November 7, 2003.

[858 So.2d 1159] Hector R. Rivera of Duane Morris LLP, Miami, and Dr. Joel S. Cronin, Esq., of Romano, Eriksen & Cronin, West Palm Beach, for Appellant.

Kathleen T. Hessinger of Deacon & Moulds, P.A., St. Petersburg, for Appellee Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital.

Heather C. Goodis of Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., for Appellees Russell W. Novak, M.D., and Sarasota Surgical Specialists, P.A.

No appearance for Appellees Richard J. Lichtenstein, M.D.; and SMH Radiology Associates, P.A.

[858 So.2d 1160] SALCINES, Judge.

Klaus Roessler timely appeals a summary final judgment entered in favor of Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital (Sarasota Memorial).^[1] Because genuine issues of material fact exist as to Sarasota Memorial's vicarious liability for the alleged negligent acts of the radiologist who rendered services to Mr. Roessler while he was a patient at the hospital, the trial court erred in granting the summary final judgment. Accordingly, we reverse.

On September 19, 1996, Mr. Roessler was examined by a physician at the Sarasota Family Walk-In Clinic. The physician took chest and abdominal x-rays of Mr. Roessler. After viewing the x-rays, the physician diagnosed Mr. Roessler as suffering from a perforated viscus and pneumonia. A perforated viscus is a potentially acute life-threatening condition requiring immediate surgical intervention. The physician immediately made arrangements for Mr. Roessler to go to Sarasota Memorial's emergency room to be seen by a surgeon for evaluation of the perforated viscus and surgery. Mr. Roessler went from the family clinic directly to Sarasota Memorial's emergency room. After being evaluated in the emergency room, Mr. Roessler was admitted to the hospital.

The next day, on September 20, 1996, scans^[2] of Mr. Roessler's abdomen were taken in Sarasota Memorial's radiology department while he was an inpatient. Dr. Richard J. Lichtenstein, a board certified radiologist, analyzed and interpreted those scans because he was the radiologist on duty at Sarasota Memorial at the time the scans were brought to be interpreted. Dr. Lichtenstein was not acquainted with Mr. Roessler at that time.

After Mr. Roessler had been admitted to Sarasota Memorial for six days, an operation was performed on his perforated viscus. Although he survived, Mr. Roessler developed serious complications which required approximately a two and one-half month admission in Sarasota Memorial. During that time, Mr. Roessler developed renal failure, a heart condition, systemic sepsis, and multiple brain abscesses which had to be surgically removed.

Mr. Roessler subsequently filed an action against Sarasota Memorial for medical malpractice based upon vicarious liability as well as for negligent destruction of evidence. The present appeal concerns only the summary judgment entered on Mr. Roessler's claim for medical malpractice. In that claim, Mr. Roessler alleged that Dr. Lichtenstein misinterpreted the scans taken in Sarasota Memorial's radiology department and was negligent in failing to include an abdominal abscess in his differential diagnosis of Mr. Roessler's abdominal scans. He further alleged that Dr. Lichtenstein did so while an agent of Sarasota Memorial, that he did so within the scope of the agency, and that the hospital [858 So.2d 1161] was, thus, vicariously liable for Dr. Lichtenstein's alleged negligence.

In response, Sarasota Memorial asserted in its answer, among other affirmative defenses, that Dr. Lichtenstein was an independent contractor and was not an agent, servant, or employee of Sarasota Memorial. Sarasota Memorial filed a motion for summary judgment which asserted, in relevant part, that it was not liable for the acts of Dr. Lichtenstein because he was not an employee or agent of Sarasota Memorial. The trial court granted Sarasota Memorial's motion for summary judgment and entered a final judgment thereon.

In this appeal, we are asked to determine whether Sarasota Memorial satisfied its burden to establish that no genuine issues of material fact existed regarding its vicarious liability, thereby entitling it to summary judgment as a matter of law. We find that Sarasota Memorial did not satisfy that burden.

As a general rule, a principal may be held liable for the acts of its agent that are within the course and scope of the agency. Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985). Although some agencies are based upon an express agreement, a principal may be liable to a third party for acts of its agent which are within the agent's apparent authority.See Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 12.18, at 747 (2003) (discussing agency principles generally and in the context of medical malpractice actions). Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing.Taco Bell of Cal. v. Zappone, 324 So.2d 121, 123 (Fla. 2d DCA 1975). The rationale for the doctrine of apparent authority is that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent. Liberty Mut. Ins. Co. v. Sommers, 472 So.2d 522, 524 (Fla. 1st DCA 1985); see also Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla. 4th DCA 1982).

An apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.^[3] 648 So.2d 119, 121 (Fla.1995). Apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates the appearance of an agency relationship. Id.

While some hospitals employ their own staff of physicians, others enter into contractual arrangements with legal entities made up of an association of physicians to provide medical services as independent contractors with the expectation that vicarious liability will not attach to the hospital for the negligent acts of those physicians. See Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 12.18, at 751-52 (2003). Indeed, Sarasota Memorial and the professional association of radiologists with which Dr. Lichtenstein was affiliated had entered into such an independent contractor agreement.

Under certain circumstances, however, a hospital may be held vicariously liable for the acts of physicians, even if they are independent contractors, if these physicians act with the apparent authority of the hospital. Cuker v. Hillsborough County Hosp. Auth., 605 So.2d 998, 999 (Fla. 2d DCA 1992). The doctrine of apparent authority has been applied to physicians who rendered care and treatment to individuals treated in hospital emergency rooms, see Orlando Regional Medical Center, Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990), as well as in hospital departments other than emergency rooms, see Cuker, 605 So.2d 998. The question of a physician's apparent authority to act for a hospital is often a question of fact for the jury. See Cuker, 605 So.2d at 999 (Fla. 2d DCA 1992); Chmielewski, 573 So.2d at 876.

In the present matter, evidence presented to the trial court for the purpose of the summary judgment proceeding demonstrated that Sarasota Memorial maintained a radiology department which was physically located within the hospital's grounds. Sarasota Memorial contracted with SMH Radiology Associates, P.A., for it to be the exclusive provider of professional radiological services at the hospital. Dr. Lichtenstein was an employee of SMH Radiology on the date he interpreted Mr. Roessler's scans. Neither Dr. Lichtenstein nor SMH Radiology had offices outside of Sarasota Memorial's hospital grounds. The radiologists employed by SMH Radiology, including Dr. Lichtenstein, worked at Sarasota Memorial to provide all professional radiological services twenty-four hours a day, seven days a week, to Sarasota Memorial's inpatients and outpatients.

Mr. Roessler sought the services offered by Sarasota Memorial when he went to Sarasota Memorial's emergency department. [858 So.2d 1163] He was admitted to Sarasota Memorial as an inpatient through Sarasota Memorial's emergency department. Once Mr. Roessler arrived at Sarasota Memorial and was admitted as an inpatient, the hospital provided him with the health care services and providers it determined to be necessary. Such services included inpatient professional radiological services, which were provided by Sarasota Memorial through its radiology department. After abdominal scans were taken in its radiology department, Sarasota Memorial assigned Dr. Lichtenstein to interpret them. Like the plaintiff in Cuker, 605 So.2d 998, Mr. Roessler did not attempt to secure a specialist on his own, but instead accepted the physician provided to him by the hospital.

During a trial, other facts might be developed which could negate a conclusion that Sarasota Memorial should be vicariously liable under an apparent agency theory. However, as presented to the trial court the foregoing facts created a jury question concerning whether Sarasota Memorial, through its actions, represented that Dr. Lichtenstein was its apparent agent. Therefore, the entry of the summary judgment was improper.

Reversed and remanded for further proceedings consistent herewith.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge, Concurring.

I concur because precedent requires me to do so. I believe, however, that our twenty-year experiment with the use of apparent agency as a doctrine to determine a hospital's vicarious liability for the acts of various independent contractors has been a failure. Patients, hospitals, doctors, nurses, other licensed professionals, risk managers for governmental agencies, and insurance companies all need to have predictable general rules establishing the parameters of vicarious liability in this situation. Utilizing case-specific decisions by individually selected juries to determine whether a hospital is or is not vicariously liable for the mistakes of a radiology department, an emergency room, or some other corporate entity that has been created as an independent contractor to provide necessary services within the hospital is inefficient, unpredictable and, perhaps most important, a source of avoidable litigation. Our society can undoubtedly function well and provide insurance coverage to protect the risks of malpractice if there is either broad liability upon the hospital for these services as nondelegable duties or if liability is restricted to the independent contractor. The uncertainty of the current system, however, does not work. The supreme court or the legislature needs to simplify the rules of liability in this area.

As well explained in the majority opinion, in the context of tort law, apparent agency was intended to create vicarious liability for a principal who retains an independent contractor and then represents to the world that the independent contractor is an agent whom the principal has the authority to control. When a specific plaintiff actually relies upon the misrepresentation to his or her detriment, the plaintiff is entitled to recover from the principal for the negligence of the independent contractor. See generally Fla. Std. Jury Instr. (Civ.) 3.3(b)(2). To some extent, apparent agency can be viewed as a form of vicarious liability for personal injuries and property damage that is warranted because of false information negligently supplied by the principal for the guidance of others. See generally Fla. Std. Jury [858 So.2d 1164] Instr. (Civ.) 8.2. This theory works reasonably well to create vicarious liability for isolated cases of negligence involving motor vehicles or premises liability. See Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995) (no jury question where reliance not established by plaintiff); Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 493-94 (Fla.1983),receded from on other grounds by Mobil Oil Corp., 648 So.2d 119 (jury question whether franchisor liable for incident on franchisee's premises); Mather v. Northcutt, 598 So.2d 101 (Fla. 2d DCA 1992); Font v. Stanley Steemer Int'l, Inc., 849 So.2d 1214 (Fla. 5th DCA 2003) (jury question whether franchisor is liable for automobile accident involving franchisee); Dalia v. Elec. Realty Assocs., Inc., 629 So.2d 1075 (Fla. 3d DCA 1994) (same).^[4] It has not worked well to establish responsibility for torts in the context of a complex institution like a hospital that has many interrelated independent contractors working side-by-side for the same customers.

It appears that Florida first utilized apparent agency in the context of medical malpractice in the early 1980s. See Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982); Irving v. Doctor's Hosp. of Lake Worth, 415 So.2d 55 (Fla. 4th DCA 1982). I suspect that the doctrine arose at that time because that is when hospitals first began spinning off their departments into separate corporations. Over the last twenty years, the apparent agency theory has not allowed the law to establish predictable, general rules of liability because a theory that requires a representation by the principal and reliance by the plaintiff is inherently case specific. Thus, after twenty years of precedent, if a hospital were sued by two different patients for two identical acts of malpractice occurring on the same day and committed by the same doctor in the radiology department, the hospital's vicarious liability would be a fact question for resolution by two different juries. Because such liability is based on case-specific representations by the defendant and reliance by the plaintiff, the two juries would be free to decide that the hospital was vicariously liable for one act but not the other.

More than a century ago, Oliver Wendell Holmes theorized that trial by jury should be a practical way to obtain greater certainty in the law. Juries could take the "featureless generality" of the standards announced in negligence law and create narrower, more precise rules through a "process of specification." Oliver Wendell Holmes, The Common Law89-90 (1881). That process may have succeeded to some extent in other areas of tort law, but it has failed in the area of vicarious liability for the acts of medical professionals.

Two recent cases, which are admittedly distinguishable from today's case, seem to favor a theory of nondelegable duty over that of apparent agency in the context of medical negligence. See Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 28 Fla. L. Weekly D2027, ___ So.2d ____, 2003 WL 22023474 (Fla. 1st DCA Aug.29, 2003); Carlisle v. Carnival Corp., 28 Fla. L. Weekly D1991, ___ So.2d ____, 2003 WL 22014591 (Fla. 3d DCA Aug.27, 2003). This trend suggests that hospitals should be vicariously liable as a general rule for activities within the hospital where the patient cannot and does not realistically have the ability to shop on the open market for another provider.^[5] Given modern marketing [858 So.2d 1165] approaches in which hospitals aggressively advertise the quality and safety of the services provided within their hospitals, it is quite arguable that hospitals should have a nondelegable duty to provide adequate radiology departments, pathology laboratories, emergency rooms, and other professional services necessary to the ordinary and usual functioning of the hospital.^[6] The patient does not usually have the option to pick among several independent contractors at the hospital and has little ability to negotiate and bargain in this market to select a preferred radiology department. The hospital, on the other hand, has great ability to assure that competent radiologists work within an independent radiology department and to bargain with those radiologists to provide adequate malpractice protections for their mutual customers. I suspect that medical economics would work better if the general rule placed general vicarious liability upon the hospital for these activities. Thus, I would consider adopting a theory of nondelegable duty, similar to the approach used inShands, if it were not for the existing precedent that employs the theory of apparent agency.

[1] The summary final judgment in favor of Sarasota Memorial was entered only as to one count of a two-count complaint filed against it. The partial final summary judgment was an appealable final order because the causes of action set forth in count one (the hospital's vicarious liability for the alleged negligence of certain health care providers) and count two (the hospital's spoliation of evidence) were distinct claims which were not interrelated under the facts of the present case. See, e.g., S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974).

[2] In the record before this court, the abdominal scans taken of Mr. Roessler by the radiology department at Sarasota Memorial are sometimes referred to as CT (computerized tomographic) scans, and at other times are referred to as CAT (computerized axial tomographic) scans.

[3] In the portion of its motion for summary judgment addressing Mr. Roessler's medical malpractice claim, Sarasota Memorial did not contest Mr. Roessler's reliance or change of position based upon that reliance and, rather, asserted only that it did not represent that Dr. Lichtenstein acted as its agent. In this appeal, Sarasota Memorial suggests that Mr. Roessler's claim should fail on the latter two elements required for a showing of apparent agency. It reasons that where Mr. Roessler never spoke to Dr. Lichtenstein, there was no reliance and since there was no reliance, there was no change in position on Mr. Roessler's part.

The crucial issue as to the latter two elements, however, is not what interaction transpired between Dr. Lichtenstein (the agent) and Mr. Roessler (the third party), but rather what representations were made by Sarasota Memorial (the principal) which would have led Mr. Roessler (the third party) to rely upon it to provide radiological services.

We note that the Fifth District, addressing whether these latter elements had been established by the plaintiffs in the case before it, stated:

In this case, it was shown without dispute that the Chmielewskis came to the ORMC [Orlando Regional Medical Center] emergency room because of ORMC's name and reputation as a hospital and that Boleslaus [Chmielewski] allowed himself to be treated there. The injuries he suffered (if casually connected to the treatment he received) were clearly a "detriment." These additional elements of reliance and detriment appear to us to be subsumed in the scenario of proof in this cause, justifying the trial court's refusal to direct a verdict for ORMC.

However, we note that the Restatement (Second) of Torts quoted above requires no separate proof of "reliance" and "detriment," and further that illustration three of the comments to Restatement (Second) of Agency, section 267 (1958), also does not require these elements, in addition and apart from the initial representation....

The fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient.

Orlando Reg'l Med. Ctr., Inc. v. Chmielewski, 573 So.2d 876, 879-80 (Fla. 5th DCA 1990) (citations omitted).

[4] Apparent agency is also used to impose responsibility upon principals for claims that are not based on negligence theories. See Nat'l Indem. Co. v. Consol. Ins. Servs., 778 So.2d 404 (Fla. 4th DCA 2001)(holding liability not established for insurance broker under apparent agency).

[5] Other jurisdictions have attempted to solve this problem by narrowing the doctrine of apparent agencies and establishing general rules that place liability primarily upon the independent contractor. For example, under Kentucky law the fact that a patient reads and signs an admission form containing an independent contractor clause regarding medical personnel is determinative on the issue of ostensible agency.Floyd v. Humana of Va., Inc., 787 S.W.2d 267, 270 (Ky.Ct.App.1989). Even if a patient is unconscious at the time of admission, if the hospital has taken action to notify the public about the status of physicians, an apparent agency is not created. Roberts v. Galen of Va., Inc., 111 F.3d 405, 413 (6th Cir.1997), rev'd on other grounds, Roberts v. Galen of Va., Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999). In Kentucky, the test is not whether the patient read and signed the form containing the disclaimer; the test is whether the hospital took steps to notify the public about the status of the physicians.

[6] See generally Restatement (Second) of Torts § 416 (1965); William L. Prosser, Handbook on the Law of Torts at 468 (4th ed.1971).

Page 1174

        Anna M. Kelly, Roger A. Serpe, Chicago, Ill., for plaintiff-appellee, cross-appellant.

        Thomas D. Allen, Ruth E. VanDemark, Iren J. Ustel, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant-appellant, cross-appellee, American Cyanamid Company.

        Robert L. Landess, Daniel P. Hogan, Ross & Hardies, Chicago, Ill., for defendant, cross-appellee, Missouri Pacific Railroad Company.

Page 1175

        John M. Christian, Jan Feldman, Stanley V. Figura, Phelan, Pope & John, Chicago, Ill., for amicus curiae Chemical Industries Council of Illinois.

        David G. Norrell, Eric P. Heichel, Kirkland & Ellis, Washington, D.C., for amici curiae Chemical Mfrs. Ass'n, Nat. Agricultural Chemicals Ass'n, Fertilizer Institute, Chlorine Institute, Compressed Gas Ass'n, Nat. Propane Gas Ass'n, Nat. Indus. Transp. League, American Petroleum Institute.

        Martin W. Bercovici, Kris A. Monteith, Keller & Heckman, Washington, D.C., for amici curiae American Fiber Mfrs. Ass'n, Inc., Rubber Mfrs. Ass'n, Inc., Soc. of Plastics Industry, Inc.

        Before POSNER, MANION and KANNE, Circuit Judges.

        POSNER, Circuit Judge.

        American Cyanamid Company, the defendant in this diversity tort suit governed by Illinois law, is a major manufacturer of chemicals, including acrylonitrile, a chemical used in large quantities in making acrylic fibers, plastics, dyes, pharmaceutical chemicals, and other intermediate and final goods. On January 2, 1979, at its manufacturing plant in Louisiana, Cyanamid loaded 20,000 gallons of liquid acrylonitrile into a railroad tank car that it had leased from the North American Car Corporation. The next day, a train of the Missouri Pacific Railroad picked up the car at Cyanamid's siding. The car's ultimate destination was a Cyanamid plant in New Jersey served by Conrail rather than by Missouri Pacific. The Missouri Pacific train carried the car north to the Blue Island railroad yard of Indiana Harbor Belt Railroad, the plaintiff in this case, a small switching line that has a contract with Conrail to switch cars from other lines to Conrail, in this case for travel east. The Blue Island yard is in the Village of Riverdale, which is just south of Chicago and part of the Chicago metropolitan area.

        The car arrived in the Blue Island yard on the morning of January 9, 1979. Several hours after it arrived, employees of the switching line noticed fluid gushing from the bottom outlet of the car. The lid on the outlet was broken. After two hours, the line's supervisor of equipment was able to stop the leak by closing a shut-off valve controlled from the top of the car. No one was sure at the time just how much of the contents of the car had leaked, but it was feared that all 20,000 gallons had, and since acrylonitrile is flammable at a temperature of 30? Fahrenheit or above, highly toxic, and possibly carcinogenic (Acrylonitrile, 9 International Toxicity Update, no. 3, May-June 1989, at 2, 4), the local authorities ordered the homes near the yard evacuated. The evacuation lasted only a few hours, until the car was moved to a remote part of the yard and it was discovered that only about a quarter of the acrylonitrile had leaked. Concerned nevertheless that there had been some contamination of soil and water, the Illinois Department of Environmental Protection ordered the switching line to take decontamination measures that cost the line $981,022.75, which it sought to recover by this suit.

        One count of the two-count complaint charges Cyanamid with having maintained the leased tank car negligently. The other count asserts that the transportation of acrylonitrile in bulk through the Chicago metropolitan area is an abnormally dangerous activity, for the consequences of which the shipper (Cyanamid) is strictly liable to the switching line, which bore the financial brunt of those consequences because of the decontamination measures that it was forced to take. After the district judge denied Cyanamid's motion to dismiss the strict liability count, 517 F.Supp. 314 (N.D.Ill.1981), the switching line moved for summary judgment on that count--and won. 662 F.Supp. 635 (N.D.Ill.1987). The judge directed the entry of judgment for $981,022.75 under Fed.R.Civ.P. 54(b) to permit Cyanamid to take an immediate appeal even though the negligence count remained pending. We threw out the appeal on the ground that the negligence and strict liability counts were not separate claims but merely separate theories involving the same facts, making Rule 54(b) inapplicable. 860 F.2d 1441 (7th Cir.1988). The district

Page 1176

judge then, over the switching line's objection, dismissed the negligence claim with prejudice, thus terminating proceedings in the district court and clearing the way for Cyanamid to file an appeal of which we would have jurisdiction. There is no doubt about our appellate jurisdiction this time. Whether or not the judge was correct to dismiss the negligence claim merely to terminate the lawsuit so that Cyanamid could appeal (the only ground he gave for the dismissal), he did it, and by doing so produced an incontestably final judgment. The switching line has cross-appealed, challenging the dismissal of the negligence count.

        The question whether the shipper of a hazardous chemical by rail should be strictly liable for the consequences of a spill or other accident to the shipment en route is a novel one in Illinois, despite the switching line's contention that the question has been answered in its favor by two decisions of the Illinois Appellate Court that the district judge cited in granting summary judgment. In both Fallon v. Indian Trail School, 148 Ill.App.3d 931, 934, 102 Ill.Dec. 479, 481, 500 N.E.2d 101, 103 (1986), and Continental Building Corp. v. Union Oil Co., 152 Ill.App.3d 513, 516, 105 Ill.Dec. 502, 504-05, 504 N.E.2d 787, 789-90 (1987), the Illinois Appellate Court cited the district court's first opinion in this case with approval and described it as having held that the transportation of acrylonitrile in the Chicago metropolitan area is an abnormally dangerous activity, for which the shipper is strictly liable. These discussions are dicta. The cases did not involve acrylonitrile--or for that matter transportation--and in both cases the court held that the defendant was not strictly liable. The discussions were careless dicta, too, because the district court had not in its first opinion, the one they cited, held that acrylonitrile was in fact abnormally dangerous. It merely had declined to grant a motion to dismiss the strict liability count for failure to state a claim. We do not wish to sound too censorious; this court has twice made the same mistake in interpreting the district court's first opinion. Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1203 (7th Cir.1984); City of Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7th Cir.1989). But mistake it is. The dicta in Fallon and Continental cannot be considered reliable predictors of how the Supreme Court of Illinois would rule if confronted with the issue in this case. We are not required to follow even the holdings of intermediate state appellate courts if persuaded that they are not reliable predictors of the view the state's highest court would take. Williams v. Lane, 826 F.2d 654, 662-63 (7th Cir.1987); Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern National Ins. Group, 750 F.2d 619, 624-25 (7th Cir.1984); Klippel v. U-Haul Co., 759 F.2d 1176, 1181 (4th Cir.1985). No court is required to follow another court's dicta. Cf. Wood v. Armco, Inc., 814 F.2d 211, 213-14 (5th Cir.1987). Here they are not even considered or well-reasoned dicta, founded as they are on the misreading of an opinion.

        The parties agree that the question whether placing acrylonitrile in a rail shipment that will pass through a metropolitan area subjects the shipper to strict liability is, as recommended in Restatement (Second) of Torts Sec. 520, comment l (1977), a question of law, so that we owe no particular deference to the conclusion of the district court. They also agree (and for this proposition, at least, there is substantial support in the Fallon and Continental opinions) that the Supreme Court of Illinois would treat as authoritative the provisions of the Restatement governing abnormally dangerous activities. The key provision is section 520, which sets forth six factors to be considered in deciding whether an activity is abnormally dangerous and the actor therefore strictly liable.

        The roots of section 520 are in nineteenth-century cases. The most famous one is Rylands v. Fletcher, 1 Ex. 265, aff'd, L.R. 3 H.L. 300 (1868), but a more illuminating one in the present context is Guille v. Swan, 19 Johns. (N.Y.) 381 (1822). A man took off in a hot-air balloon and landed, without intending to, in a vegetable garden in New York City. A crowd that

Page 1177

had been anxiously watching his involuntary descent trampled the vegetables in their endeavor to rescue him when he landed. The owner of the garden sued the balloonist for the resulting damage, and won. Yet the balloonist had not been careless. In the then state of ballooning it was impossible to make a pinpoint landing.

        Guille is a paradigmatic case for strict liability. (a) The risk (probability) of harm was great, and (b) the harm that would ensue if the risk materialized could be, although luckily was not, great (the balloonist could have crashed into the crowd rather than into the vegetables). The confluence of these two factors established the urgency of seeking to prevent such accidents. (c) Yet such accidents could not be prevented by the exercise of due care; the technology of care in ballooning was insufficiently developed. (d) The activity was not a matter of common usage, so there was no presumption that it was a highly valuable activity despite its unavoidable riskiness. (e) The activity was inappropriate to the place in which it took place--densely populated New York City. The risk of serious harm to others (other than the balloonist himself, that is) could have been reduced by shifting the activity to the sparsely inhabited areas that surrounded the city in those days. (f) Reinforcing (d), the value to the community of the activity of recreational ballooning did not appear to be great enough to offset its unavoidable risks.

        These are, of course, the six factors in section 520. They are related to each other in that each is a different facet of a common quest for a proper legal regime to govern accidents that negligence liability cannot adequately control. The interrelations might be more perspicuous if the six factors were reordered. One might for example start with (c), inability to eliminate the risk of accident by the exercise of due care. Erbrich Products Co. v. Wills, 509 N.E.2d 850, 857 n. 3 (Ind.App.1987). The baseline common law regime of tort liability is negligence. When it is a workable regime, because the hazards of an activity can be avoided by being careful (which is to say, nonnegligent), there is no need to switch to strict liability. Sometimes, however, a particular type of accident cannot be prevented by taking care but can be avoided, or its consequences minimized, by shifting the activity in which the accident occurs to another locale, where the risk or harm of an accident will be less ((e)), or by reducing the scale of the activity in order to minimize the number of accidents caused by it ((f)). Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9 J. Legal Stud. 1 (1980). By making the actor strictly liable--by denying him in other words an excuse based on his inability to avoid accidents by being more careful--we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 939 (7th Cir.1986). The greater the risk of an accident ((a)) and the costs of an accident if one occurs ((b)), the more we want the actor to consider the possibility of making accident-reducing activity changes; the stronger, therefore, is the case for strict liability. Finally, if an activity is extremely common ((d)), like driving an automobile, it is unlikely either that its hazards are perceived as great or that there is no technology of care available to minimize them; so the case for strict liability is weakened.

        The largest class of cases in which strict liability has been imposed under the standard codified in the Second Restatement of Torts involves the use of dynamite and other explosives for demolition in residential or urban areas. Restatement, supra, Sec. 519, comment d; City of Joliet v. Harwood, 86 Ill. 110 (1877). Explosives are dangerous even when handled carefully, and we therefore want blasters to choose the location of the activity with care and also to explore the feasibility of using safer substitutes (such as a wrecking ball), as well as to be careful in the blasting itself. Blasting is not a commonplace activity

Page 1178

like driving a car, or so superior to substitute methods of demolition that the imposition of liability is unlikely to have any effect except to raise the activity's costs.

        Against this background we turn to the particulars of acrylonitrile. Acrylonitrile is one of a large number of chemicals that are hazardous in the sense of being flammable, toxic, or both; acrylonitrile is both, as are many others. A table in the record, drawn from Glickman & Harvey, Statistical Trends in Railroad Hazardous Material Safety, 1978 to 1984, at pp. 63-65 (Draft Final Report to the Environmental & Hazardous Material Studies Division of the Association of American Railroads, April 1986) (tab. 4.1), contains a list of the 125 hazardous materials that are shipped in highest volume on the nation's railroads. Acrylonitrile is the fifty-third most hazardous on the list. Number 1 is phosphorus (white or yellow), and among the other materials that rank higher than acrylonitrile on the hazard scale are anhydrous ammonia, liquified petroleum gas, vinyl chloride, gasoline, crude petroleum, motor fuel antiknock compound, methyl and ethyl chloride, sulphuric acid, sodium metal, and chloroform. The plaintiff's lawyer acknowledged at argument that the logic of the district court's opinion dictated strict liability for all 52 materials that rank higher than acrylonitrile on the list, and quite possibly for the 72 that rank lower as well, since all are hazardous if spilled in quantity while being shipped by rail. Every shipper of any of these materials would therefore be strictly liable for the consequences of a spill or other accident that occurred while the material was being shipped through a metropolitan area. The plaintiff's lawyer further acknowledged the irrelevance, on her view of the case, of the fact that Cyanamid had leased and filled the car that spilled the acrylonitrile; all she thought important is that Cyanamid introduced the product into the stream of commerce that happened to pass through the Chicago metropolitan area. Her concession may have been incautious. One might want to distinguish between the shipper who merely places his goods on his loading dock to be picked up by the carrier and the shipper who, as in this case, participates actively in the transportation. But the concession is illustrative of the potential scope of the district court's decision.

        No cases recognize so sweeping a liability. Several reject it, though none has facts much like those of the present case. Hawkins v. Evans Cooperage Co., 766 F.2d 904, 907 (5th Cir.1985); New Meadows Holding Co. v. Washington Power Co., 102 Wash.2d 495, 687 P.2d 212 (1984); Ozark Industries, Inc. v. Stubbs Transports, Inc., 351 F.Supp. 351, 357 (W.D.Ark.1972). With National Steel Service Center v. Gibbons, 693 F.2d 817 (8th Cir.1982), which held a railroad strictly liable for transporting propane gas--but under Iowa law, which uses a different standard from that of the Restatement--we may pair Seaboard Coast Line R.R. v. Mobil Chemical Co., 172 Ga.App. 543, 323 S.E.2d 849 (1984), which refused to impose strict liability on facts similar to those in this case, but again on the basis of a standard different from that of the Restatement. Zero Wholesale Co. v. Stroud, 264 Ark. 27, 571 S.W.2d 74 (1978), refused to hold that the delivery of propane gas was not an ultrahazardous activity as a matter of law. But the delivery in question was to a gas-storage facility, and the explosion occurred while gas was being pumped from the tank truck into a storage tank. This was a highly, perhaps unavoidably, dangerous activity.

        Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972), also imposed strict liability on a transporter of hazardous materials, but the circumstances were again rather special. A gasoline truck blew up, obliterating the plaintiff's decedent and her car. The court emphasized that the explosion had destroyed the evidence necessary to establish whether the accident had been due to negligence; so, unless liability was strict, there would be no liability--and this as the very consequence of the defendant's hazardous activity. 81 Wash.2d at 454-55, 502 P.2d at 1185. But when the Supreme Court of Washington came to decide the New Meadows case, supra, it did not distinguish Siegler on this ground, perhaps realizing

Page 1179

that the plaintiff in Siegler could have overcome the destruction of the evidence by basing a negligence claim on the doctrine of res ipsa loquitur. Instead it stressed that the transmission of natural gas through underground pipes, the activity in New Meadows, is less dangerous than the transportation of gasoline by highway, where the risk of an accident is omnipresent. 102 Wash.2d at 502-03, 687 P.2d at 216-17. We shall see that a further distinction of great importance between the present case and Siegler is that the defendant there was the transporter, and here it is the shipper.

        Cases such as McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 635 (1970); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); State Dept. of Environmental Protection v. Ventron, 94 N.J. 473, 488, 468 A.2d 150, 157-60 (N.J.1983); Cities Service Co. v. State, 312 So.2d 799 (Fla.App.1975), and Sterling v. Velsicol Chemical Corp., 647 F.Supp. 303, 315-16 (W.D.Tenn.1986), aff'd in part and rev'd in part, on other grounds, 855 F.2d 1188 (6th Cir.1988); but see Standard Equipment, Inc. v. Boeing Co., 1987 U.S.Dist.Lexis 15137, at pp. *19-20 (W.D.Wash.1987), that impose strict liability for the storage of a dangerous chemical provide a potentially helpful analogy to our case. But they can be distinguished on the ground that the storer (like the transporter, as in Siegler ) has more control than the shipper.

        So we can get little help from precedent, and might as well apply section 520 to the acrylonitrile problem from the ground up. To begin with, we have been given no reason, whether the reason in Siegler or any other, for believing that a negligence regime is not perfectly adequate to remedy and deter, at reasonable cost, the accidental spillage of acrylonitrile from rail cars. Cf. Bagley v. Controlled Environment Corp., 127 N.H. 556, 560, 503 A.2d 823, 826 (1986). Acrylonitrile could explode and destroy evidence, but of course did not here, making imposition of strict liability on the theory of the Siegler decision premature. More important, although acrylonitrile is flammable even at relatively low temperatures, and toxic, it is not so corrosive or otherwise destructive that it will eat through or otherwise damage or weaken a tank car's valves although they are maintained with due (which essentially means, with average) care. No one suggests, therefore, that the leak in this case was caused by the inherent properties of acrylonitrile. It was caused by carelessness--whether that of the North American Car Corporation in failing to maintain or inspect the car properly, or that of Cyanamid in failing to maintain or inspect it, or that of the Missouri Pacific when it had custody of the car, or that of the switching line itself in failing to notice the ruptured lid, or some combination of these possible failures of care. Accidents that are due to a lack of care can be prevented by taking care; and when a lack of care can (unlike Siegler ) be shown in court, such accidents are adequately deterred by the threat of liability for negligence.

        It is true that the district court purported to find as a fact that there is an inevitable risk of derailment or other calamity in transporting "large quantities of anything." 662 F.Supp. at 642. This is not a finding of fact, but a truism: anything can happen. The question is, how likely is this type of accident if the actor uses due care? For all that appears from the record of the case or any other sources of information that we have found, if a tank car is carefully maintained the danger of a spill of acrylonitrile is negligible. If this is right, there is no compelling reason to move to a regime of strict liability, especially one that might embrace all other hazardous materials shipped by rail as well. This also means, however, that the amici curiae who have filed briefs in support of Cyanamid cry wolf in predicting "devastating" effects on the chemical industry if the district court's decision is affirmed. If the vast majority of chemical spills by railroads are preventable by due care, the imposition of strict liability should cause only a slight, not as they argue a substantial, rise in liability insurance rates, because the incremental liability should be slight. The amici have momentarily lost sight of the fact that the feasibility of avoiding accidents simply

Page 1180

by being careful is an argument against strict liability.

        This discussion helps to show why Siegler is indeed distinguishable even as interpreted in New Meadows. There are so many highway hazards that the transportation of gasoline by truck is, or at least might plausibly be thought, inherently dangerous in the sense that a serious danger of accident would remain even if the truckdriver used all due care (though Hawkins and other cases are contra ). Which in turn means, contrary to our earlier suggestion, that the plaintiff really might have difficulty invoking res ipsa loquitur, because a gasoline truck might well blow up without negligence on the part of the driver. The plaintiff in this case has not shown that the danger of a comparable disaster to a tank car filled with acrylonitrile is as great and might have similar consequences for proof of negligence. And to repeat a previous point, if the reason for strict liability is fear that an accident might destroy the critical evidence of negligence we should wait to impose such liability until such a case appears.

        The district judge and the plaintiff's lawyer make much of the fact that the spill occurred in a densely inhabited metropolitan area. Only 4,000 gallons spilled; what if all 20,000 had done so? Isn't the risk that this might happen even if everybody were careful sufficient to warrant giving the shipper an incentive to explore alternative routes? Strict liability would supply that incentive. But this argument overlooks the fact that, like other transportation networks, the railroad network is a hub-and-spoke system. And the hubs are in metropolitan areas. Chicago is one of the nation's largest railroad hubs. In 1983, the latest year for which we have figures, Chicago's railroad yards handled the third highest volume of hazardous-material shipments in the nation. East St. Louis, which is also in Illinois, handled the second highest volume. Office of Technology Assessment, Transportation of Hazardous Materials 53 (1986). With most hazardous chemicals (by volume of shipments) being at least as hazardous as acrylonitrile, it is unlikely--and certainly not demonstrated by the plaintiff--that they can be rerouted around all the metropolitan areas in the country, except at prohibitive cost. Even if it were feasible to reroute them one would hardly expect shippers, as distinct from carriers, to be the firms best situated to do the rerouting. Granted, the usual view is that common carriers are not subject to strict liability for the carriage of materials that make the transportation of them abnormally dangerous, because a common carrier cannot refuse service to a shipper of a lawful commodity. Restatement, supra, Sec. 521. Two courts, however, have rejected the common carrier exception. National Steel Service Center, Inc. v. Gibbons, 319 N.W.2d 269 (Ia.1982); Chavez v. Southern Pacific Transportation Co., 413 F.Supp. 1203, 1213-14 (E.D.Cal.1976). If it were rejected in Illinois, this would weaken still further the case for imposing strict liability on shippers whose goods pass through the densely inhabited portions of the state.

        The difference between shipper and carrier points to a deep flaw in the plaintiff's case. Unlike Guille, and unlike Siegler, and unlike the storage cases, beginning with Rylands itself, here it is not the actors--that is, the transporters of acrylonitrile and other chemicals--but the manufacturers, who are sought to be held strictly liable. Cf. City of Bloomington v. Westinghouse Elec. Corp., supra, 891 F.2d at 615-16. A shipper can in the bill of lading designate the route of his shipment if he likes, 49 U.S.C. Sec. 11710(a)(1), but is it realistic to suppose that shippers will become students of railroading in order to lay out the safest route by which to ship their goods? Anyway, rerouting is no panacea. Often it will increase the length of the journey, or compel the use of poorer track, or both. When this happens, the probability of an accident is increased, even if the consequences of an accident if one occurs are reduced; so the expected accident cost, being the product of the probability of an accident and the harm if the accident occurs, may rise. Glickman, Analysis of a National Policy for Routing Hazardous Materials on Railroads (Department of Transportation, Research and Special Programs Administration, Transportation Systems Center, May 1980). It is easy to see how

Page 1181

the accident in this case might have been prevented at reasonable cost by greater care on the part of those who handled the tank car of acrylonitrile. It is difficult to see how it might have been prevented at reasonable cost by a change in the activity of transporting the chemical. This is therefore not an apt case for strict liability.

        We said earlier that Cyanamid, because of the role it played in the transportation of the acrylonitrile--leasing, and especially loading, and also it appears undertaking by contract with North American Car Corporation to maintain, the tank car in which the railroad carried Cyanamid's acrylonitrile to Riverdale--might be viewed as a special type of shipper (call it a "shipper-transporter"), rather than as a passive shipper. But neither the district judge nor the plaintiff's counsel has attempted to distinguish Cyanamid from an ordinary manufacturer of chemicals on this ground, and we consider it waived. Which is not to say that had it not been waived it would have changed the outcome of the case. The very fact that Cyanamid participated actively in the transportation of the acrylonitrile imposed upon it a duty of due care and by doing so brought into play a threat of negligence liability that, for all we know, may provide an adequate regime of accident control in the transportation of this particular chemical.

        In emphasizing the flammability and toxicity of acrylonitrile rather than the hazards of transporting it, as in failing to distinguish between the active and the passive shipper, the plaintiff overlooks the fact that ultrahazardousness or abnormal dangerousness is, in the contemplation of the law at least, a property not of substances, but of activities: not of acrylonitrile, but of the transportation of acrylonitrile by rail through populated areas. Cropper v. Rego Distribution Center, Inc., 542 F.Supp. 1142, 1149 (D.Del.1982). Natural gas is both flammable and poisonous, but the operation of a natural gas well is not an ultrahazardous activity. Cf. Williams v. Amoco Production Co., 241 Kan. 102, 115, 734 P.2d 1113, 1123 (1987). Whatever the situation under products liability law (section 402A of the Restatement), the manufacturer of a product is not considered to be engaged in an abnormally dangerous activity merely because the product becomes dangerous when it is handled or used in some way after it leaves his premises, even if the danger is foreseeable. City of Bloomington v. Westinghouse Elec. Corp., supra, 891 F.2d at 616-17; Erbrich Products Co. v. Wills, supra. The plaintiff does not suggest that Cyanamid should switch to making some less hazardous chemical that would substitute for acrylonitrile in the textiles and other goods in which acrylonitrile is used. Were this a feasible method of accident avoidance, there would be an argument for making manufacturers strictly liable for accidents that occur during the shipment of their products (how strong an argument we need not decide). Apparently it is not a feasible method.

        The relevant activity is transportation, not manufacturing and shipping. This essential distinction the plaintiff ignores. But even if the plaintiff is treated as a transporter and not merely a shipper, it has not shown that the transportation of acrylonitrile in bulk by rail through populated areas is so hazardous an activity, even when due care is exercised, that the law should seek to create--perhaps quixotically--incentives to relocate the activity to nonpopulated areas, or to reduce the scale of the activity, or to switch to transporting acrylonitrile by road rather than by rail, perhaps to set the stage for a replay of Siegler v. Kuhlman. It is no more realistic to propose to reroute the shipment of all hazardous materials around Chicago than it is to propose the relocation of homes adjacent to the Blue Island switching yard to more distant suburbs. It may be less realistic. Brutal though it may seem to say it, the inappropriate use to which land is being put in the Blue Island yard and neighborhood may be, not the transportation of hazardous chemicals, but residential living. The analogy is to building your home between the runways at O'Hare.

        The briefs hew closely to the Restatement, whose approach to the issue of strict liability is mainly allocative rather than distributive. By this we mean that the emphasis is on picking a liability regime

Page 1182

(negligence or strict liability) that will control the particular class of accidents in question most effectively, rather than on finding the deepest pocket and placing liability there. At argument, however, the plaintiff's lawyer invoked distributive considerations by pointing out that Cyanamid is a huge firm and the Indiana Harbor Belt Railroad a fifty-mile-long switching line that almost went broke in the winter of 1979, when the accident occurred. Well, so what? A corporation is not a living person but a set of contracts the terms of which determine who will bear the brunt of liability. Tracing the incidence of a cost is a complex undertaking which the plaintiff sensibly has made no effort to assume, since its legal relevance would be dubious. We add only that however small the plaintiff may be, it has mighty parents: it is a jointly owned subsidiary of Conrail and the Soo line.

        The case for strict liability has not been made. Not in this suit in any event. We need not speculate on the possibility of imposing strict liability on shippers of more hazardous materials, such as the bombs carried in Chavez v. Southern Pacific Transportation Co., supra, any more than we need differentiate (given how the plaintiff has shaped its case) between active and passive shippers. We noted earlier that acrylonitrile is far from being the most hazardous among hazardous materials shipped by rail in highest volume. Or among materials shipped, period. The Department of Transportation has classified transported materials into sixteen separate classes by the degree to which transporting them is hazardous. Class number 1 is radioactive material. Class number 2 is poisons. Class 3 is flammable gas and 4 is nonflammable gas. Acrylonitrile is in Class 5. 49 C.F.R. Secs. 172.101, Table; 173.2(a).

        Ordinarily when summary judgment is denied, the movant's rights are not extinguished; the case is simply set down for trial. If this approach were followed here, it would require remanding the case for a trial on whether Cyanamid should be held strictly liable. Yet that would be a mistake. The parties have agreed that the question whether the transportation of acrylonitrile through densely populated areas is abnormally dangerous is one of law rather than of fact; and trials are to determine facts, not law. More precisely--for there is no sharp line between "law" and "fact"--trials are to determine adjudicative facts rather than legislative facts. The distinction is between facts germane to the specific dispute, which often are best developed through testimony and cross-examination, and facts relevant to shaping a general rule, which, as the discussion in this opinion illustrates, more often are facts reported in books and other documents not prepared specially for litigation or refined in its fires. Again the line should not be viewed as hard and fast. If facts critical to a decision on whether a particular activity should be subjected to a regime of strict liability cannot be determined with reasonable accuracy without an evidentiary hearing, such a hearing can and should be held, though we can find no reported case where this was done. Some courts treat the question whether an activity is abnormally dangerous as one of fact, and then there must be an evidentiary hearing to decide it. An example is Zero Wholesale Gas Co. v. Stroud, supra, 264 Ark. at 31, 571 S.W.2d at 76. Here we are concerned with cases in which the question is treated as one of law but in which factual disputes of the sort ordinarily resolved by an evidentiary hearing may be germane to answering the question. An evidentiary hearing would be of no use in the present case, however, because the plaintiff has not indicated any facts that it wants to develop through such a hearing.

        Other issues are raised, but need not be decided. The plaintiff's claim that it is entitled to prejudgment interest is premature, since the judgment it obtained must be set aside. The defendant's alternative ground for reversal, that the switching yard assumed the risk of the abnormally dangerous activity by voluntarily participating (through its contract with Conrail) in the transportation of the tank car filled with acrylonitrile, Restatement, supra, Sec. 523; Clark v. Rogers, 137 Ill.App.3d 591, 92 Ill.Dec. 136, 484 N.E.2d 867 (1985), is academic. (The argument is that the switching line was a participant in the activity-

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--even a joint tortfeasor--that has become transmogrified into a victim only because it incurred costs to prevent harm to the real victims of the accident.) Similarly, we need not decide whether the comprehensive regulations issued by the Department of Transportation under the Hazardous Materials Transportation Act, 49 U.S.C.App. Secs. 1801 et seq., which prescribe standards for the safe shipment of acrylonitrile by rail and, by requiring that such shipments be expedited, could be thought to authorize shipments via the most convenient rail hub even if it is located in a metropolitan area, would preempt a finding of common law liability premised on the assumption that such shipments should be rerouted. Those regulations are, however, relevant to showing that the shipments in question are not abnormally dangerous, and so support our rejection of strict liability whether or not the regulations are given preemptive effect. New Meadows Holding Co. v. Washington Water Power Co., supra, 102 Wash.2d at 501-02, 687 P.2d at 216; Perkins v. F.I.E. Corp., 762 F.2d 1250, 1265-66 n. 43 (5th Cir.1985).

        The defendant concedes that if the strict liability count is thrown out, the negligence count must be reinstated, as requested by the cross-appeal. We therefore need not consider the plaintiff's argument that the district judge was wrong to throw out the negligence count merely to create an appealable order. But we concede that the strong-arming that he had to do in order to create an appealable judgment casts doubt on the correctness of our previous decision. In refusing to accept the Rule 54(b) appeal, that decision emphasized the factual overlap between the negligence and strict liability counts. More recently we have suggested that factual overlap has been an overemphasized factor in our decisions interpreting and applying the rule. Olympia Hotels Corp. v. Johnson Wax Development Corp., 908 F.2d 1363, 1367 (7th Cir.1990). Perhaps we were thrown off the track in this case by the district judge's mention of the rule. We are now inclined to think that once he entered a judgment giving the plaintiff all the relief that it was seeking, the plaintiff's remaining ground merged in the judgment, which ended the case in the district court and therefore was appealable without the aid of Rule 54(b), even though, should such a judgment be reversed on appeal, the lawsuit would not be over, because the plaintiff had an alternative theory of liability. It is not over now. But with damages having been fixed at a relatively modest level by the district court and not challenged by the plaintiff, and a voluminous record having been compiled in the summary judgment proceedings, we trust the parties will find it possible now to settle the case. Even the Trojan War lasted only ten years.

        The judgment is reversed (with no award of costs in this court) and the case remanded for further proceedings, consistent with this opinion, on the plaintiff's claim for negligence.

        REVERSED AND REMANDED, WITH DIRECTIONS.