## Facts

- Welland Chemical, Ltd. sold and shipped 18 tons of aluminum chloride anhydrous from Canada to New Jersey, arranging a truck, flatbed trailer, and driver and loading 12 polyethylene pallet hoppers secured with chains, binders, and hooks.
- On February 3, 1982, the truck lost control on Interstate 80 in Monroe County, Pennsylvania; the trailer struck a concrete median barrier, and eight hoppers fell, several rupturing.
- The chemical reacted with moisture on the wet roadway, creating a cloud of hydrochloric gas; authorities closed a ten-mile stretch of interstate and diverted traffic while responding to the hazardous condition.
- Daniel Herman and John Curtis, volunteer firefighters, responded for traffic control at a location several miles from the spill.
- Approximately six hours after the spill, while Herman used flares and warning devices to direct traffic, a motorist (Orrach) drove past warnings and struck Herman and Curtis, causing severe injuries.
- The firefighters sued Welland and others, asserting negligence (including loading/packaging/transportation), strict products liability, and absolute liability for an allegedly ultrahazardous activity; their wives asserted derivative claims including negligent infliction of emotional distress.

## Issues

1. Whether the complaints plausibly alleged that Welland’s negligence was a proximate cause of the firefighters’ injuries despite the subsequent negligent driving by a third party.
2. Whether the third party driver’s conduct could be treated, as a matter of law at the pleading stage, as a superseding cause that cut off Welland’s liability.
3. Whether plaintiffs stated a strict products liability claim based on allegedly defective packaging/loading of the chemical for shipment.
4. Whether transporting aluminum chloride anhydrous on public highways supported “absolute liability” for an abnormally dangerous activity under Pennsylvania law.
5. Whether the wives stated claims for negligent infliction of emotional distress under Pennsylvania bystander doctrines.
6. Whether the firefighters’ status as volunteer responders barred recovery under a fireman’s rule theory.

## Decision

- Welland’s Rule 12(b)(6) motion was granted in part and denied in part.
- The court denied dismissal of the firefighters’ negligence claims, holding it plausible that the hazardous spill foreseeably drew rescuers into the area and exposed them to additional foreseeable risks, including negligent motorists.
- The court declined to treat the driver’s negligence as a superseding cause as a matter of law at the pleading stage, leaving proximate-cause questions for fact development.
- The court denied dismissal of the firefighters’ strict products liability claims based on allegations that the containers/loading were defective and unreasonably dangerous.
- The court granted dismissal of the “absolute liability” (ultrahazardous activity) counts, concluding that routine highway transportation of the chemical did not qualify for abnormally dangerous activity liability under Pennsylvania law.
- The court granted dismissal of the wives’ negligent infliction of emotional distress claims for failure to satisfy Pennsylvania limits on bystander NIED.
- The court did not bar the firefighters’ claims based on their volunteer firefighter status at the pleading stage.

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true and draws reasonable inferences in plaintiffs’ favor.
- Under Pennsylvania proximate-cause doctrine, intervening negligence does not automatically sever liability; if the intervening act is within the scope of foreseeable risk created by the defendant, superseding-cause treatment is generally a fact question.
- Rescuers and emergency responders may be foreseeable plaintiffs when a defendant’s conduct creates a dangerous condition likely to require emergency response.
- Strict products liability may apply to allegedly defective containers/packaging or shipment configuration when the pleaded defect renders the product unreasonably dangerous and contributes to the harm.
- Abnormally dangerous activity (absolute liability) is narrowly applied; ordinary transportation of hazardous materials on public roads, without more, is generally insufficient under Pennsylvania law.
- Pennsylvania bystander NIED is limited by requirements such as contemporaneous sensory perception and proximity; failure to plead these elements warrants dismissal.
- A fireman’s rule bar is not presumed; volunteer firefighters are not automatically precluded from pursuing negligence claims for injuries incurred while responding.

## Conclusion

The court permitted volunteer firefighters’ negligence and strict products liability claims against a chemical shipper to proceed because rescuer involvement and resulting risks could be found foreseeable and third-party driver negligence was not deemed a superseding cause on the pleadings, but it dismissed claims for ultrahazardous-activity absolute liability and the wives’ bystander NIED claims under Pennsylvania law.


Herman v. Welland Chem., Ltd., 580 F. Supp. 823 (M.D. Pa. 1984)