Armstrong v. Mailand
| Decision Date | 09 February 1979 |
| Docket Number | No. 48380.,48380. |
| Citation | 284 NW 2d 343 |
| Parties | Lois C. ARMSTRONG, As Trustee for the Next of Kin of Erling G. Armstrong, Decedent, et al., Appellants, v. Wallace M. MAILAND and Mary Ellen Mailand, Individually and d. b. a. Mailand Construction Company, Respondents, L. P. Gas Equipment, Inc., Respondent, E. S. P., Inc., Respondent, Transunion Company, et al., Respondents, International Harvester Company, Defendant, Trinity Industries, Defendant, Corken Pump Company, Defendant, Dahlen Transport, Inc., Respondent, Skelly Oil Company, Respondent, and DAHLEN TRANSPORT, INC., Wallace M. Mailand and Mary Ellen Mailand, Individually and d. b. a. Mailand Construction Company, third party plaintiffs, Respondents, International Harvester Company, Third Party Plaintiff, v. CITY OF WEST ST. PAUL, Third Party Defendant, Respondent. |
| Court | Minnesota Supreme Court |
DeParcq, Anderson, Perl, Hunegs & Rudquist and Stephen S. Eckman, Minneapolis, for appellants.
Van Eps & Gilmore, Duane E. Arndt and Wayne D. Tritbough, Lasley, Gaughan, Reid & Stich, Robins, Davis & Lyons, Minneapolis, for Mailand et al.
Mahoney, Dougherty & Mahoney and Richard Mahoney, Minneapolis, for L. P. Gas Equipment, Inc.
McEachron & McEachron and Thomas McEachron, Bloomington, for E. S. P., Inc.
Barnett, Ratelle, Hennessy, VanderVort, Stasel & Herzog, Minneapolis, for Transunion Co. et al.
Murnane, Murnane, Conlin & White and Robert Murnane, St. Paul, for Dahlen Transport, Inc.
Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, for Skelly Oil.
Dean K. Johnson, Bloomington, Hansen, Dordell & Bradt and William Bradt, St. Paul, for City of West St. Paul.
Heard, considered, and decided by the court en banc.
On January 11, 1974, a fire occurred at a liquified petroleum (LP) gas storage facility. The facility was located at an apartment complex and LP gas was being delivered at the time. The fire started at the delivery truck. After the fire department arrived, the fire spread to the 11,000-gallon storage tank. While the fire was being fought, the LP storage tank exploded, killing three firemen. There is evidence of negligence, fire code violations, and product defects attributable to some of the defendants. The trial court granted summary judgment to the defendants under the "fireman's rule." We affirm.
Wallace M. Mailand is the owner and developer of an apartment complex located in West St. Paul, Minnesota. The buildings were heated by natural gas, but the supplier required the owner to provide alternate, standby facilities so that the supply of natural gas could be interrupted during periods of excess demand caused by cold weather. Mailand decided to use LP gas as his standby source of fuel. To facilitate the changeover from natural gas to LP gas, it was necessary to install vaporizing equipment which blended air with the LP gas to make the product compatible with the furnace equipment. The vaporizer used an open flame in its operation.
At the time of the original installation in 1968, seven 1,000-gallon LP storage tanks were used. A redwood weave type fence was constructed around the tanks and vaporizing equipment. Thereafter, a wooden roof was placed over the installation for esthetic reasons. This installation did not operate effectively. Thereafter, in the fall of 1972, Mailand decided to replace the seven 1,000-gallon LP storage tanks with a single 11,000-gallon tank. Skelgas, the LP gas supplier, referred Mailand to L. P. Gas Equipment, Inc., to make the changeover. L. P. Gas Equipment contacted Union Tank Car Company and arranged to purchase an 11,000-gallon LP tank which had been used on a railway car. Union Tank knew of the intended use of the tank. Union Tank agreed to prepare the tank and provide a suitable retested relief valve. Union Tank removed insulation from the tank which necessitated the installation of a different relief valve. Union Tank did not install a new valve and did not advise L. P. Gas Equipment to recheck the valve or tank. L. P. Gas Equipment relied upon the certification furnished by Union Tank at the time of delivery and made no independent inspection of the tank or valve.
L. P. Gas Equipment submitted plans of the installation to the state fire marshal whose office gave its approval. The approved plans were submitted to the West St. Paul fire chief who objected to the east-west orientation of the tank, preferring a north-south orientation for safety reasons based on information available to him at that time. However, because the fire chief believed that the city had no authority to countermand the approval by the state fire marshal, the installation was completed. To accomplish the changeover, the structure around and above the original installation was removed and replaced after the 11,000-gallon tank had been set in place. As a result, the 11,000-gallon tank and vaporizing unit were contained within the confines of a single structure with no fire wall between them as is apparently required by the fire code.
On the evening of January 11, 1974, Dahlen Transport, Inc., pursuant to its contract with Skelgas, was delivering fuel to the installation. The LP gas was transported by truck to the site and the delivery hose was connected to the storage tank. A vapor hose, which is supposed to be connected between the storage tank and the delivery truck to equalize pressure, was not connected by Dahlen's employee. This was a direct violation of the trucking company's order to its employees. The driver activated the pumping mechanism on the truck. He returned to the cab of the truck, which also is in violation of company rules. The meter on the truck measuring the flow of LP gas apparently was improperly installed. It also had a broken relief line which caused LP gas to escape and collect near the meter and on the ground under the meter.
Later, the driver of the truck left the cab for the purpose of checking the delivery. While near the meter located on the side of the truck, the LP gas ignited. The flames engulfed the driver. He rolled in the snow to extinguish the flames and proceeded to the apartment complex where he had observed some people. The delivery truck was not shut off. The fire department was notified, and it arrived in a few minutes.
When the fire department arrived, the fire was burning at the truck in the vicinity of the meter and on the ground underneath. One of the firemen approached the truck to shut off the supply of LP gas, but he was unsuccessful. At this time, the fire expanded rapidly to the storage facility. The spread of the fire from the truck to the storage facility was described as giving the appearance of a huge blowtorch in operation. The spread of the fire was apparently caused by a burning through of the supply line from the truck to the tank which permitted the escape of LP gas.
The storage facility was engulfed in flames. The recommended procedure at that time for fighting LP fires was to attempt to cool the storage tank with water, avoid locating personnel at the ends of the tank which were regarded as being more vulnerable to being jettisoned, and attempt to shut off the supply of gas to the fire. Within a few minutes after the spread of the fire, water was being directed to the storage facility from a snorkel operated above the tank and off to the side of the tank. Water was also being directed onto the tank from a fire gun located on a truck. Pressure in the 11,000-gallon tank continued to rise. The firemen heard the relief valve release and continued to pour water on the fire. Within a few minutes, a BLEVE (boiling liquid expanding vapor explosion) occurred. The force of the explosion was compared to the thrust of a Saturn rocket. Firemen Erling G. Armstrong, John R. Heuer, and Richard N. Neikirk were killed. This action for wrongful death was commenced.
The evidence indicates that the firemen in West St. Paul were familiar with the term "BLEVE" and had received training in combating such fires. In addition, because of small fires at the prior installation, the Mailand installation had been the subject of discussion and practice runs by the West St. Paul Fire Department. Various firemen testified in depositions that they and their fellow firemen knew that a BLEVE was a risk at every LP gas storage tank fire.
The complaint alleges negligence of various defendants, violations of fire codes, strict products liability, and maintenance of an abnormally dangerous instrumentality. The trial court, relying on our decision in Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W.2d 549 (1951), found there were no genuine issues of material fact which would permit recovery under the Shypulski standards. The trial court further declined to consider the strict liability and ultrahazardous instrumentality issues. The trial court did not rule on the motion of the city of West St. Paul for dismissal of third-party actions against it seeking indemnity and contribution.
The issues presented on appeal are:
(1) To what extent does a fireman assume, in the primary sense, the risks associated with firefighting?
a. Under the proper circumstances, may the doctrine of primary assumption of the risk be applied to relieve a landowner of a duty toward firemen which is otherwise owed to third parties?
b. Under the proper circumstances, may the doctrine of primary assumption of the risk be applied in negligence per se and strict liability actions to relieve a defendant of a duty toward firemen which is otherwise owed to third parties?
c. If the doctrine of primary assumption of the risk may be applied under the proper circumstances, does the record in this case indicate as a matter of law that the firemen assumed, in a primary sense, the risk causing their injuries?
(2) Collateral issues:
a. Are the firemen within the class of persons protected by fire codes?
b. Is recovery under Restatement, Torts (2d), § 402A, strict products liability,...
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