Cartwright v. Atlas Chemical Industries, Inc.

• Decision Date: 18 April 1978
• Docket Number: No. 50527,No. 1,50527,1
• Citation: 1978 OK CIV APP 23,593 P.2d 104
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Parties: Tommy J. CARTWRIGHT, James F. Murphy, and Stephen A. Little, Co-Administrators of the Estate of Ira L. Lauderdale, Deceased, Appellees, v. ATLAS CHEMICAL INDUSTRIES, INC., a Foreign Corporation, Appellant

Page 104

593 P.2d 104

18 A.L.R.4th 180

Tommy J. CARTWRIGHT, James F. Murphy, and Stephen A. Little Co-Administrators of the Estate of Ira L Lauderdale, Deceased, Appellees, v. ATLAS CHEMICAL INDUSTRIES, INC., a Foreign Corporation, Appellant.

No. 50527.

Court of Appeals of Oklahoma, Division No. 1.

April 18, 1978.

Rehearing Denied May 23, 1978.

Certiorari Denied March 19, 1979.

Released for Publication by Order of Court of Appeals March 22, 1979.

Appeal from the District Court of Creek County; Charles S. Woodson, Judge.

AFFIRMED.

Jack B. Sellers Law Associates, Inc. by Jack B. Sellers, Sapulpa, for appellees.

Dan A. Rogers, W. Michael Hill, Tulsa, for appellant.

BOX, Presiding Judge:

An appeal by Atlas Chemical Industries, Inc. (Atlas), defendant in the trial court, from a manufacturers' product liability case. Plaintiffs-appellees are the co-administrators of the estate of Ira L. Lauderdale, deceased, who brought a survival cause of action for the benefit of the estate seeking damages for pain and suffering and reimbursement for medical expenditures and a wrongful death action for the pecuniary loss suffered by the beneficiaries by reason of the death of decedent. The beneficiaries consist of the widow and two adult daughters.

Decedent was a sixty-one year old welder who was employed by Cimarron Pipeline Company (Cimarron). On September 8, 1971, decedent was in the process of moving dynamite fuse caps when he allegedly dropped a partially filled container causing one or more of the caps to explode which, in turn, caused detonation of the remaining caps. Decedent died as a result of injuries sustained in the explosion. The caps involved in the explosion were allegedly manufactured by Atlas. Plaintiffs brought both the wrongful death and survivorship causes of action based upon manufacturers' product liability. Plaintiffs' main contention was that Atlas caps were high explosives capable of detonation when subjected to impact force. Given this susceptibility, the packaging of the caps was defective inasmuch as the caps were not cushioned from one another and would strike against each other if dropped which made the product unreasonably dangerous to the consumer.

Plaintiffs initially sued American Cyanamid Company (American Cyanamid) and Deupree Distributing Co., Inc. (Deupree) as co-defendants. However, plaintiffs dismissed their causes of action against these defendants without prejudice.

Upon submission of the case to the jury, a verdict was returned in favor of plaintiffs in the total amount of $272,045.28. On appeal, Atlas asserts nine propositions of error which will be discussed under separate headings. This court commends the parties for the excellent briefs provided.

I. Sufficiency of the Evidence

Atlas' first contention is that plaintiffs failed to establish a prima facie case inasmuch as the evidence failed to establish a defect existed or that the defect caused the accident and the trial court erred in refusing to direct a verdict in favor of Atlas.

In order to establish a prima facie case in manufacturers' products liability under Kirkland v. General Motors Corp., Okl., 521 P.2d 1353, plaintiffs must prove: (1) that the product was the cause of the injury; (2) that the defect existed in the product at the time it left the possession and control of the manufacturer; and (3) that the defect made the product unreasonably dangerous to the user or his property. Unreasonably dangerous is defined at pages 1362-63 of Kirkland, as follows:

"The article sold must be 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."

Plaintiffs contend that the defect existed in the packaging of the dynamite caps.

The parties entered into numerous stipulations, all of which are not necessary to enumerate at this time. Stipulations 8 and 9 read as follows:

8. That it was intended by Atlas in the manufacture and packaging and sale and distribution of the caps it made during the time material to this case that the caps would reach the ultimate user or consumer in the same and unchanged condition was made and packaged by them.

9. That it is agreed in this case such Atlas caps as were sold to Cimarron Pipeline by Deupree, or if any, from American Cyanamid, were delivered to Cimarron in the same condition as when manufactured, packaged and sold by Atlas.

These two stipulations were sufficient to establish element number two of plaintiffs' prima facie case. Thus, plaintiffs had only to prove a defect existed in the product which caused the injury and the defect made the product unreasonably dangerous to the user.

The parties further stipulated that it was foreseeable to Atlas that dynamite caps might be dropped by the user from heights of four feet and that Atlas had the control and discretion of choice of packaging materials, subject to governmental regulations, if any.

In order to rule on Atlas' first contention, it becomes necessary to summarize the evidence presented by the parties. The transcript of evidence encompasses 687 pages. For this reason, the summary is not meant to include a detailed account of each witness' testimony. The objections to various portions of plaintiffs' evidence will be discussed under separate headings.

Plaintiffs' first witness was Lawson Dan Glenn, a welder for Cimarron, who was working with decedent on the date of the explosion, September 8, 1971, between 7:30 and 8:00 A.M. Mr. Glenn and decedent went to the shed to put protective covers over the locks of the storage magazine. They took no welding equipment in the shed and nothing was present which could have produced a spark. In order to put the protective covers over the locks of the magazine, it was necessary to move the dynamite caps that were located therein. There were two full cartons of caps plus one partially filled carton with loose caps without a lid (referred to as a tray). Mr. Glenn removed the first full box and handed it to decedent. Decedent carried the box and set it on the floor, 15 or 20 feet from the magazine. Mr. Glenn reached to remove the second full box while decedent was in the process of setting the first upon the floor. The same procedure was followed for the second full box of caps. The third box was a partial carton with several boxes removed so the remainder were loose. Mr. Glenn handed decedent the partially opened carton who proceeded to carry the box to set it on the floor. Mr. Glenn squatted down in front of the magazine to measure the lock and then decedent said "Dan" in a normal voice. Mr. Glenn raised and turned toward decedent but all he saw was the blast.

Clovis Dale Hester, president of Cimarron, testified he bought all his caps from Deupree and all the caps were stored in the magazine.

Willis Dyer, Jr. was the office manager for Cimarron for eighteen years and had custody and control over the magazine box. Mr. Dyer testified that the magazine contained two cartons and one tray. The last 6,000 caps purchased by Cimarron came from Deupree and Cimarron never purchased elsewhere. No other brand besides Atlas caps was in the magazine. The morning of the accident, Mr. Dyer had put the tray back in the magazine. The tray was partially filled with Atlas caps, some caps had been removed and a rag had been placed around it.

Willis Cummisky was the magazine keeper and manager for Deupree, an explosive distributor. After June, 1965, Deupree only received Atlas fuse caps and the oldest were sold first.

Joseph E. Deupree testified during plaintiffs' rebuttal. Mr. Deupree was associated with Deupree and supervised the record keeping. Since 1965, Deupree delivered only Atlas Number 6 caps and had never sold Dupont fuse caps.

Dr. John D. Hesson treated decedent in the emergency room. Dr. Hesson asked decedent what happened and "he was moving some dynamite caps and he thought he may have dropped them, and he said they exploded."

Plaintiffs called as their first expert witness Robert J. Grubb, chief chemist of the Warner Plant of American Cyanamid Company who was familiar with the general types of explosives manufactured in the United States. Two chemicals contained within the Atlas caps are HNM (Hexanitromannite) and Diazo (Diazodinitrophenyl) and both were considered by Mr. Grubb as high explosives. He stated that impact or shock energy of sufficient quantity can detonate these explosives. There is a level of impact above which all caps will detonate and below which none will. There is also a level of impact where some caps will detonate and others will not. On cross-examination, it was determined Mr. Grubb was not qualified to testify on the exact amount of force necessary to detonate a cap inasmuch as he had never performed drop tests on Atlas caps. If one cap in an Atlas tray, containing 100 caps, exploded there is a very high probability they all would detonate. In the explosion, the metal contained in the shell would be torn into shrapnel and thrown at high velocity. The presence of grit or impurities in the cap increases its sensitivity. Mr. Grubb's opinion was that caps that were afforded no cushion from one another with grit present in the caps and dropped four feet would be unreasonably dangerous to the consumer.

Robert E. Fearon, a chemical engineer educated in the fields of physics, chemistry and mathematics who has detonated and dissected caps to examine and analyze them, was called as plaintiffs' second expert witness. Atlas caps contain PETN (Pentaerythitol Tetranitrate), a very powerful and quite sensitive explosive. Mr. Fearon considers PETN more sensitive than nitroglycerin as to impact. Impurities which make PETN more sensitive are grit and void spaces filled with air. If PETN was dropped four feet onto the floor with a bubble of air contained therein and there was no cushioning, Mr. Fearon felt one of the caps might get hurt and explode. It...