Unpublished Disposition, 904 F.2d 710 (9th Cir. 1985)

MEMORANDUM^* 

Nelson appeals the district court's order of summary judgment in this diversity action on the grounds of res judicata and collateral estoppel. We have jurisdiction under 28 U.S.C. § 1291 (1982) and reverse and remand.

* This is the second lawsuit Nelson has filed since he fell on some ice in Wishram, Washington on November 20, 1985. Nelson, an engineer for Burlington Northern Railroad, was riding that night in a shuttle van supplied by Terry's Taxi, an Oregon company owned and operated by the Corcorans. Burlington Northern had hired Terry's Taxi to shuttle its employees from the Wishram station to Dalles, Oregon. As shuttle driver Don Lousignant drove up a steep hill in Wishram, he began to lose traction on the icy pavement. He pulled over. Nelson decided to get out. As soon as he stepped outside, he slipped, fell, and suffered the injuries that have become the subject of two lawsuits.

The first lawsuit, filed in federal district court, alleged that Burlington Northern had violated its duty of reasonable care under certain provisions of the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. Nelson claimed Burlington Northern was responsible because of the negligence of its agent Terry's Taxi; he did not name either Terry's Taxi or the Corcorans [hereinafter collectively, Terry's Taxi] as defendants. However, Burlington Northern, citing an indemnity provision in its shuttle contract, named the Terry's Taxi as a third-party defendant. Terry's Taxi accepted Burlington Northern's tender of defense and conducted the trial for Burlington Northern. Several of the jury instructions stated that Terry's Taxi was Burlington Northern's agent and thus its negligence must be attributed to Burlington Northern. The jury found for the defendant. Nelson did not pursue an appeal.

Instead, he filed a second lawsuit against Terry's Taxi. Suing under Washington tort law, Nelson claimed that Terry's Taxi breached the duty of extraordinary care that a common carrier owes its passengers. Because the parties were of diverse citizenship, Nelson filed the action in federal district court in Washington, where his fall occurred.

Terry's Taxi moved for summary judgment on the theories of res judicata and collateral estoppel. The district court granted the motion and Nelson timely appealed.

II

We review dismissal of an action on the basis of res judicata de novo. Robi v. Five Platters, Inc, 838 F.2d 318, 321 (9th Cir. 1988). We also review de novo the availability of collateral estoppel. Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 1988).

III

Under Washington law, res judicata (claim preclusion) applies to an action identical to a prior lawsuit four respects: "(1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made." Rains v. State, 674 P.2d 165, 168 (Wash.1983) (en banc).

The first element, identity of matter, is present. Nelson conceded this point at the summary judgment hearing.

The second element, identity of causes of action, is not present. In making this determination, we have balanced the following factors:

(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Rains, 674 P.2d at 168 (quotation omitted)

Factors two and four are present. Because both lawsuits arose out of the same slip and fall, the same evidence is involved.

However, factors one and three are not present. Because Nelson did not, and does not, allege that Burlington Northern owed him a duty of extraordinary care, this second lawsuit does not implicate Burlington Northern's rights and interests in any way. Moreover, because the lawsuits involve different standards of care, they implicate different rights. See Derish v. San Mateo-Burlingame Bd. of Realtors 724 F.2d 1347, 1350 (9th Cir. 1983), overruled on other grounds, 470 U.S. 373 (1985).¹ 

On balance, we conclude that the present action does not assert a cause of action identical to Nelson's first lawsuit. Accordingly, res judicata is inappropriate.² 

IV

Because the issue of whether Terry's Taxi breached a duty of extraordinary care was not litigated in the Nelson's first lawsuit, the doctrine of collateral estoppel (issue preclusion) does not prevent Nelson from litigating it in this action. See Shoemaker v. City of Bremerton, 745 P.2d 858, 860 (Wash.1987) (en banc).

V

For these reasons, the judgment of the district court is REVERSED and REMANDED.