Blackwell v. Phelps Dodge Corp.

• Decision Date: 20 June 1984
• Court: California Court of Appeals Court of Appeals
• Parties: James BLACKWELL, et al., Plaintiffs and Appellants, v. PHELPS DODGE CORPORATION, Defendant and Respondent. B002786.

Page 706

203 Cal.Rptr. 706

157 Cal.App.3d 372

James BLACKWELL, et al., Plaintiffs and Appellants, v. PHELPS DODGE CORPORATION, Defendant and Respondent.

B002786.

Court of Appeal, Second District, Division 1, California.

June 20, 1984.

Hearing Denied Aug. 21, 1984.

Hawkins & OConnell and Richard M. Hawkins, Newport Beach, for plaintiffs and appellants.

John Nouskajian, Jr., and Joseph R. Serpico, South Pasadena, for defendant and respondent.

LILLIE, Associate Justice.

In this action to recover damages for personal injuries, plaintiffs appeal from judgment of dismissal entered in favor of defendant Phelps Dodge Corporation following the granting of defendant's motion for summary judgment.

Named as defendants, in addition to Phelps Dodge, were Union Tank Car Company and McKesson Chemical Company. The complaint contained three causes of action on behalf of each plaintiff. ¹ The first cause of action alleged in pertinent part: "That on or about the 15th day of April, 1980, defendants and each of them operated, owned, maintained, managed, worked on, constructed, controlled, supervised and had custody of the premises known as the McKesson Chemical Company, located at Santa Fe Springs, California. [p] That at said time and place defendants and each of them as above mentioned, controlled, managed and supervised said premises in such a negligent manner so as to proximately cause and permit a tank car to have pressure blowout, blowing sulphuric acid on the plaintiff, so as to proximately thereby cause plaintiff severe personal injuries ...." The second cause of action alleged: "That at all times mentioned herein, defendants and each of them sold, furnished, supplied and maintained a defective product in a defective container, and that the defective container permitted a pressure buildup, which pressure was released upon opening of the tank; that it was further defective in that there was no warning concerning the pressure, no instructions concerning how to relieve the pressure, no method or means for relieving the pressure, and no instructions as to the proper method of unloading the tank car, so as to proximately cause and permit a tank car to have a pressure blowout, blowing sulphuric acid on the plaintiff thereby causing plaintiff severe personal injuries...." The third cause of action alleged: "That the defendants and each of them furnished and supplied a tank carload of sulphuric acid to plaintiff's employer, and as such were in control of the said tank car, which constituted a peculiar risk of injury to persons opening said tank car, and thereby caused plaintiff severe personal injuries ...."

In support of its motion for summary judgment defendant Phelps Dodge produced evidence ² showing: The tank car mentioned in the complaint was designed, manufactured and owned by Union Tank and leased by Union Tank to McKesson, plaintiffs' employer, pursuant to a written lease. McKesson sent the car to defendant in Hidalgo, New Mexico, to be filled with sulfuric acid and returned to McKesson. After defendant loaded the acid into the tank car, the car went to McKesson's bulk chemical plant in Santa Fe Springs, California. There plaintiffs attempted to attach unloading fittings to the tank car in order to transfer the acid into a storage tank. One of the plaintiffs, apparently without first venting the tank car, unscrewed the unloading line thereby allowing the acid to escape and come into contact with plaintiffs. In response to an interrogatory asking what warnings or instructions they contended should have been on the tank car, plaintiffs stated: "There should have been warnings and instructions not to open the discharge cap without removing the cap off of the inlet line, since the discharge pipe went all the way to the bottom of the tank car; there is no way, when the cap is removed, that the pressure would be relieved without the contents spurting out. It is contended that there should be warnings to open the inlet cap first, which would let only air off, not material; that if these warnings and instructions were given to people using the tank cars, this accident would not have happened. It is also contended that both the inlet and the outlet openings should have had valves on them so that a hose or pipe could be attached thereto, so that no material could come out until the valve was opened...."

In opposition to the motion for summary judgment plaintiffs submitted the declaration of their attorney stating: defendant knew that unless the sulfuric acid was unloaded in a certain manner it would cause severe personal injuries to those handling and unloading it; with such knowledge, defendant loaded the tank car with sulfuric acid and sent it to plaintiffs' employer; defendant gave no warning of the dangerous properties of the acid and how it should be unloaded; further, with knowledge of the type of tank car that was carrying the acid, defendant gave no instructions or warnings as to the fact that pressure could build up within the tank in transit, nor did defendant give any warning as to what vents or pipes should be used in unloading the acid; "no markings or decals or other instructions" were given to plaintiffs or to the recipients of the acid; when plaintiffs opened a pipe on top of the tank car for the purpose of unloading its contents, the pressure generated within the tank caused the acid to be ejected onto plaintiffs, injuring them severely.

A defendant moving for summary judgment must show clearly that the plaintiff cannot prevail on any cause of action or theory pleaded by him. (Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127, 109 Cal.Rptr. 724.) In the present case the evidentiary materials submitted in support of and in opposition to the motion for summary judgment show that the facts are not in dispute. Thus, there was no triable issue of fact. The only issues presented to the trial court were issues of law, which may be determined in summary judgment proceedings. (Allis-Chalmers Corp. v. City of Oxnard (1981) 126 Cal.App.3d 814, 818, 179 Cal.Rptr. 159.) The sole question on appeal is whether the trial court properly applied the law to the uncontroverted evidence in granting defendant Phelps Dodge's motion for summary judgment and dismissing the action as to that defendant.

The evidence shows that defendant supplied sulfuric acid to McKesson. For that purpose McKesson sent to defendant in New Mexico a tank car leased by McKesson from United Tank, which designed, manufactured and owned the car. After defendant loaded the tank car with sulfuric acid, the car was sent to McKesson's bulk chemical plant at Santa Fe Springs, California. As the result of pressure generated within the tank the acid therein was caused to spew out and come into contact with plaintiffs when they attempted to unload it from the tank. Defendant, with knowledge of the dangerous properties of sulfuric acid and the type of tank car used to transport it, did not warn plaintiffs of a possible accumulation of pressure within the tank nor instruct them on how safely to unload the acid.

Plaintiffs' first cause of action alleged that defendant "controlled, managed and supervised" McKesson's premises in such a negligent manner as to cause the tank car to have a pressure blowout, spraying acid on plaintiffs. The record establishes as a matter of law that plaintiffs cannot prevail against defendant on that cause of action. Defendant merely sent the carload of acid from its plant in New Mexico to McKesson in California. In no manner did defendant control, manage or supervise McKesson's premises.

While plaintiffs' second cause of action alleged that defendant sold "a defective product in a defective container," subsequent allegations leave no doubt that the product claimed to be defective was the tank car, not the acid. The tank car allegedly was defective because it permitted the formation of pressure in its cargo of acid, and contained neither warnings concerning such pressure nor instructions as to the proper method of unloading the acid from the tank. The third cause of action alleged that defendant supplied a tank carload of sulfuric acid to plaintiffs' employer, and "as such [was] in control" of the tank car. The evidence establishes that defendant had control of the tank car only while it was at defendant's facility; defendant relinquished control of the car upon its being filled with acid and sent from defendant's facility in New Mexico to McKesson's bulk chemical plant in California. From such evidence it appears that defendant had control of the car for a sufficient time to have had an opportunity to put appropriate warnings and...