849 F.2d 1277 (10th Cir. 1988), 87-2852, Burnette v. Dresser Industries, Inc.

Docket Nº87-2852, 87-2894.
Citation849 F.2d 1277
Party NamePearl Laverne BURNETTE, et al., Plaintiffs-Appellees-Cross-Appellants, v. DRESSER INDUSTRIES, INC., Defendant-Appellant-Cross-Appellee, Ronald Eugene TATE, et al., Plaintiffs-Appellees-Cross-Appellants, v. DRESSER INDUSTRIES, INC., Defendant-Appellant-Cross-Appellee.
Case DateJune 13, 1988
CourtUnited States Courts of Appeals, United States Court of Appeals (10th Circuit)

Page 1277

849 F.2d 1277 (10th Cir. 1988)

Pearl Laverne BURNETTE, et al., Plaintiffs-Appellees-Cross-Appellants,

v.

DRESSER INDUSTRIES, INC., Defendant-Appellant-Cross-Appellee,

Ronald Eugene TATE, et al., Plaintiffs-Appellees-Cross-Appellants,

v.

DRESSER INDUSTRIES, INC., Defendant-Appellant-Cross-Appellee.

Nos. 87-2852, 87-2894.

United States Court of Appeals, Tenth Circuit

June 13, 1988

Rehearing Denied Nov. 3, 1988.

Page 1278

Bruce W. Pitzer, Oklahoma City, Okl. (Law Offices of John W. Norman, Incorporated, on the brief), for defendant-appellant-cross-appellee.

William Tinker, Jr., Wichita, Kan. (Quentin E. Kurtz, and McDonald, Tinker, Skaer, Quinn & Herrington, on the brief), for plaintiffs-appellees-cross-appellants.

Before LOGAN, SEYMOUR and TIMBERS, [*] Circuit Judges.

TIMBERS, Circuit Judge.

Appellants Pearl Laverne Burnette, Gerald C. Burnette, Mark W. Krusor, Ronald Eugene Tate, Donna Jean Tate, Harold Dean Tally, John H. Tally, Jamie R. Tally and William B. Tally ("appellants" collectively) appeal, pursuant to a certification under 28 U.S.C. Sec. 1292(b) (Supp. III 1985), from an interlocutory order entered August 15, 1986 in the District of Kansas, Sam A. Crow, District Judge, denying their motion to amend a pretrial order to include a claim of manufacturing defects 1 against appellee Dresser Industries, Inc. ("Dresser").

Appellee Dresser cross-appeals pursuant to Sec. 1292(b) from an interlocutory order also entered August 15, 1986 in the District of Kansas, Sam A. Crow, District Judge, denying Dresser's motion for summary judgment. 2

The instant appeal in this diversity action, arises from a tank explosion at a refinery operated by Total Petroleum Company ("Total") on June 17, 1981 at Arkansas City, Kansas. The explosion occurred while three employees of Total were filling the tank. As a result of the explosion, one employee, Ronald Tate, was severely burned. The other two, Gerald C. Burnette and Betty Tally, died. Dresser had manufactured the pressure relief valve on the tank.

On appeal, appellants claim that, unless we modify the pretrial order to add manufacturing and design defects claims against Dresser, they will sustain manifest injustice. On its cross-appeal from the order denying its motion for summary judgment, Dresser claims (1) that it had no duty to warn appellants or Total because it was a supplier of a non-defective part and was not aware that the part would be used in the way Total used it; and (2) that it had no

Page 1279

duty to warn appellants or Total of the need to establish a servicing schedule for the valve or to use rupture disks in conjunction with the valve.

We hold that appellants failed to preserve for appeal any claim regarding design defects and that in any event the pretrial order should not be modified to include a claim based on either manufacturing defects or, had the issue been preserved, design defects. We also hold that the district court correctly denied Dresser's motion for summary judgment because there were genuine issues of material fact regarding its duty to warn.

We affirm.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on the instant appeal. 3

On June 17, 1981, a storage tank exploded at Total's refinery while it was being filled with the chemical diethanolamine LFG ("DEA"). When the tank ruptured, hot DEA was spewed onto Ronald Tate, Gerald C. Burnette and Betty Tally. Tate survived, but with 59% of his body covered with burns. Tally died ten days after the explosion. Burnette died July 21, 1981, one month and three days after the explosion.

The DEA was manufactured by Dow Chemical Company ("Dow"). The tank was manufactured by Independent Tank Company ("Independent") according to specifications furnished by Nalco Chemical Company ("Nalco"). In November 1978, Nalco sold to Total 5,000 gallons of pour point depressant, which is a combustible liquid, but which may be stored in an atmospheric tank. An atmospheric tank is designed to store chemicals essentially at zero pressure. It is to be distinguished from a pressure tank. As a part of that sale of liquid, Nalco agreed to furnish Total an atmospheric tank to store the pour point depressant. Nalco did furnish the tank that was involved in the deaths and injuries referred to above.

Since the pour point depressant was a combustible liquid, it had to be stored in a tank meeting the specifications of the standard that the Underwriters' Laboratory designates as UL 142. The tank did not meet those specifications. It was made defectively. While the end of the tank that ruptured was welded on the inside and outside, the other end was welded only on the outside. Moreover, the tank was constructed of metal of insufficient thickness; it lacked a warning label regarding emergency venting required for tanks containing combustible liquids; and it was poorly welded.

Total later converted the tank into a pressure tank in order to use it for storing DEA. Specifically, Steve Long, an engineer and operations manager at Total, designed modifications for the tank which converted it to a "closed system" in which the tank would be unable to vent to the atmosphere as an atmospheric tank normally would. To convert the tank in this way, Long installed a pressure relief valve on the tank.

This valve was manufactured by Dresser. In 1976, Dresser sold the valve, a 1/2 inch "Consolidated" Steel 1980 C-2 safety relief valve, to Tulsa Gauge Company, a distributor. The valve later was acquired by Total at an unknown date and under unknown circumstances. Long selected the valve after consulting unidentified literature published by Dresser. He took the valve from an inventory of valves maintained by Total. Dresser had set the valve to open at 6 pounds per square inch ("psi").

The day after the explosion, on June 18, 1981, the valve was tested and did not open until pressure reached 148 psi. It thereafter opened consistently at 7.5 psi.

Total's employees, including Long, knew that a relief valve had to be serviced periodically and that the frequency of service was determined by the environment in which the valve was used. Total's employees

Page 1280

established a servicing schedule for the valve under which the valve would be serviced every three months. Total, however, did not abide by this schedule. The last time it had serviced the valve before the explosion was 17 months earlier--on February 12, 1980. Appellants' expert testified that this failure to follow the servicing schedule was one cause of the accident.

According to appellants' theory of the case, a major cause of the explosion was the failure to use a rupture disk with the relief valve. A rupture disk is a safety device used to prevent unwanted contact between the chemical contents of a tank and the tank's internal component parts. Appellants claim that the DEA in the tank condensed on an uninsulated pipe attached to the tank and formed crystals on the internal parts of the relief valve which was attached to the pipe. The crystals are said to have caused the valve to seal shut so that it was unable to open and relieve the mounting pressure in the tank. Appellants claim that using a rupture disk would have prevented the valve from sealing shut.

Total employees were aware that rupture disks could be used to protect pressure relief valves. Long considered using a rupture disk but decided against it. Dresser's catalogue stated that safety devices should not be hindered by the vessel's contents, but it did not specify means to accomplish this objective and did not give any examples.

On June 16, 1983, appellants commenced the instant actions by filing their complaints. 4 The complaint named Dresser, Nalco, Independent, Dow and several others 5 as defendants. The allegations regarding Dresser are identical in each complaint. The relevant paragraphs of the complaint allege:

"17. Said tank, and its component parts, were designed, manufactured ... and sold by NALCO and DRESSER.

* * *

  1. The tank rupture and BURNETTE'S decedent's injuries and harm, were the direct and proximate result of defects in the design, material, manufacture, workmanship, marketing and sale of the DEA chemical, the tank which ruptured, the equipment owned, maintained and operated by NATIONAL, STI, SNI, AMNACO, and AMCAP, and in the tank from which the DEA chemical was being pumped. Said defects caused said products to be unreasonably dangerous, constituted misrepresentations of safety, and breach of implied and express warranties, for which all defendants are strictly liable.

  2. The tank rupture, and BURNETTE'S decedent's injuries and harm, were the direct and proximate result of the design of said products, for which said designs Defendants are strictly liable in tort, because the risks of said designs out-weigh [sic] the utility thereof.

  3. The tank rupture, and BURNETTE'S decedent's injuries and harm, were the direct and proximate result of the carelessness and negligence of all Defendants, individually, and by and through their agents, servants, and employees acting within the scope of their employment, jointly, severally, concurrently, and in concert, as follows:

(a) Defendants failed to adequately study available design criteria and failure modes;

Page 1281

(b) Defendants failed to adequately manufacture said products to provide safety in reasonably foreseeable uses;

(c) Defendants failed to adequately instruct and warn regarding proper assembly, maintenance, safe use, and failures of said products;

(d) Defendants failed to instruct, caution and warn regarding the proper use of said products;

(e) Defendant PENDERGRASS negligently operated the equipment in pumping said DEA chemical, and failed to use ordinary and reasonable care in the operation thereof, and failed to warn others regarding dangers associated therewith."

Following the...

To continue reading

Request your trial
67 practice notes
  • 232 B.R. 469 (10th Cir.BAP (Okla.) 1999), 97-17566, In re Jordana
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • April 16, 1999
    ...specific and material facts for trial and significant probative evidence supporting the alleged facts. Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1284 (10th Cir.1988). There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact t......
  • 994 F.2d 716 (10th Cir. 1993), 92-1209, Lyons v. Jefferson Bank & Trust
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • May 3, 1993
    ...judgment N.O.V. not properly preserved), vacated on other grounds, 928 F.2d 920 (10th Cir.1991) (en banc); Burnette v. Dresser Indus., 849 F.2d 1277, 1285 (10th Cir.) (arguments raised on motion for reconsideration were not considered by the trial court and would not be addressed on C In sh......
  • 968 F.2d 1224 (10th Cir. 1992), 91-3109, Equifax Services, Inc. v. Hitz
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • July 9, 1992
    ...upon by the district court. Farmers Ins. Co., Inc. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989); Burnette v. Dresser Industries, Inc., 849 F.2d 1277 (10th Cir.1988). In Farmers we observed that the narrow exceptions to the general rule relate to issues of jurisdiction in the "case or ......
  • 314 B.R. 6 (Bkrtcy.D.Utah 2004), 03-32544, In re Edie
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • September 7, 2004
    ...ED. R. CIV. P. 56(c). [6] See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). [7] Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1284 (10th [8] Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). [9] Sil-......
  • Request a trial to view additional results
66 cases
  • 232 B.R. 469 (10th Cir.BAP (Okla.) 1999), 97-17566, In re Jordana
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • April 16, 1999
    ...specific and material facts for trial and significant probative evidence supporting the alleged facts. Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1284 (10th Cir.1988). There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact t......
  • 994 F.2d 716 (10th Cir. 1993), 92-1209, Lyons v. Jefferson Bank & Trust
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (10th Circuit)
    • May 3, 1993
    ...judgment N.O.V. not properly preserved), vacated on other grounds, 928 F.2d 920 (10th Cir.1991) (en banc); Burnette v. Dresser Indus., 849 F.2d 1277, 1285 (10th Cir.) (arguments raised on motion for reconsideration were not considered by the trial court and would not be addressed on C In sh......
  • 968 F.2d 1224 (10th Cir. 1992), 91-3109, Equifax Services, Inc. v. Hitz
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (10th Circuit)
    • July 9, 1992
    ...upon by the district court. Farmers Ins. Co., Inc. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989); Burnette v. Dresser Industries, Inc., 849 F.2d 1277 (10th Cir.1988). In Farmers we observed that the narrow exceptions to the general rule relate to issues of jurisdiction in the "case or ......
  • 314 B.R. 6 (Bkrtcy.D.Utah 2004), 03-32544, In re Edie
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • September 7, 2004
    ...ED. R. CIV. P. 56(c). [6] See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). [7] Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1284 (10th [8] Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). [9] Sil-......
  • Request a trial to view additional results
1 books & journal articles
  • Raising New Issues on Appeal, 0717 COBJ, Vol. 46, No. 7 Pg. 24
    • United States
    • Colorado Bar Journal Nbr. 46-7, July 2017
    • July 1, 2017
    ...Dist. of N.M. v. U.S. Dep't of Interior, 538 F.3d 1299, 1302-04 (10th Cir. 2008). Cf, Burnette v. Dresser Indus, 849 F.2d 1277, 1285 (10th Cir. 1988) (declining to consider issue first raised in a motion for reconsideration and not ruled upon by the trial [32] ......