Burgi v. Acid Engineering, Inc.

• Decision Date: 17 July 1986
• Docket Number: No. 8967,8967
• Citation: 724 P.2d 765,1986 NMCA 70,104 N.M. 557
• Parties: Debra Lynn BURGI, Personal Representative of the Estate of Danny W. Burgi, Deceased, Plaintiff-Appellant, v. ACID ENGINEERING, INC., a Corporation, and Karen Simpkins, Personal Representative of the Estate of Bobby R. Simpkins, Deceased, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 765

724 P.2d 765

104 N.M. 557

Debra Lynn BURGI, Personal Representative of the Estate of Danny W. Burgi, Deceased, Plaintiff-Appellant, v. ACID ENGINEERING, INC., a Corporation, and Karen Simpkins Personal Representative of the Estate of Bobby R Simpkins, Deceased Defendants-Appellees.

No. 8967.

Court of Appeals of New Mexico.

July 17, 1986.

Certiorari Denied Aug. 20, 1986.

[104 NM 557] U. Edward Schissel, Jr., Neal & Neal, Hobbs, for plaintiff-appellant.

R.E. Richards, Law Offices of R.E. Richards, P.A., Hobbs, for defendants-appellees.

OPINION

FRUMAN, Judge.

This is an appeal from an order granting summary judgment in favor of defendants in a wrongful death action. Plaintiff is the personal representative of the estate of her husband, Danny W. Burgi, who died as a result of hydrogen sulfide intoxication while engaged in his employment with A.A. Oilfield Service, Inc. (A.A.). The trial court found that defendants' motion for summary judgment was "well taken" and dismissed the case with prejudice. The grounds for defendants' motion were: there were no disputed issues of material facts; they were entitled to judgment as a matter of law; and defendants did not breach any lawfully imposed duty to decedent. We reverse.

TESTIMONY

On December 30, 1984, during the course of his employment, decedent was assigned to clean out a "frac tank" located at A.A.'s petroleum by-product treatment facility and disposal site. The frac tank contained basic sediment and water, or sludge. Defendant Acid Engineering, Inc. (Acid Engineering) prepared and used acid solutions to clean, among other things, equipment used in the petroleum industry. Plaintiff's affidavit in response to defendants' motion for summary judgment alleged that Acid Engineering negligently failed to warn decedent and other employees of A.A. that its waste fluids, which contained an acid solution, would produce toxic gases when mixed with the sludge.

Acting pursuant to an on-going business relationship with A.A., Acid Engineering instructed several of its employees to dispose of an acid solution, or flush water, at the A.A. site on December 30, 1984. Ordinarily, Acid Engineering's flush water was disposed of at that site, by its own employees, but not into the frac tank. On that date, decedent and several other A.A. employees attempted to clean the frac tank. Heated water was jetted into the tank at high pressure to try to wash out the residual oily sludge. Finding this method to be unsuccessful, and as a result of informal discussions between employees of A.A. and Acid Engineering, it was decided to pour some of Acid Engineering's flush water into the tank to help loosen the sludge.

Most of the witnesses agree that decedent had first entered the frac tank to check the depth level of the sludge after heated water was hosed into the tank but before the flush water was poured. At least one witness inferred that decedent first entered the tank after the flush water was introduced. Even so, decedent entered the tank at least once after the flush water was poured in, and was seen to fall or slip into the sludge. An employee of Acid Engineering rushed into the frac tank to rescue decedent, and he, too, fell upon entering the tank and likewise died of hydrogen sulfide intoxication. Neither decedent nor his would-be rescuer revived after entering the tank. Although some witnesses told decedent to put his mask on, none who witnessed decedent's fall and predicament initially suspected the presence of gas--each thought that decedent had slipped while in the tank.

The uncontradicted testimony is fundamentally as follows: it is common knowledge that the presence of toxic gases is to be expected in many closed spaces in the petroleum industry; air supplying devices or air masks should be worn every time one enters a closed space where the presence of toxic gases can be anticipated; hydrogen sulfide gas is toxic and its presence can be anticipated; and hydrogen sulfide, in large amounts, can deaden an individual's senses and ability to detect its presence by smell. More particularly, the uncontradicted testimony is that: decedent had been to several hydrogen sulfide training schools, although there is no mention as to what he was taught at these schools; decedent knew that he should wear an air mask at all times when entering the frac tank because of the possibility of the presence of toxic gases; A.A. employees told decedent several times to put on an air mask before his first entry into the frac tank on December 30th; decedent did not manifest any physical or other effects upon his first entry into the tank that day; A.A. employees and an Acid Engineering employee again told decedent to put on an air mask as he was descending into the frac tank for the second, fatal time; and, decedent did not wear an air mask during either entry.

Additional uncontradicted testimony is that: the employees of Acid Engineering who were present at the A.A. disposal facility had not been formally trained regarding hydrogen sulfide gas; those employees had not been trained regarding safety considerations or the possibility of hazards in the dumping or disposal of the acid solution flush water; and such considerations had not been discussed with them by either their employer or any employee of A.A.

There is conflicting testimony as to the presence of the odor of hydrogen sulfide gas before decedent made his second tank entry. There are also conflicting opinions as to whether hydrogen sulfide gas would be expected to be produced in the tank upon the introduction of the flush water. While Acid Engineering employees said they did not expect that hydrogen sulfide gas would be produced upon the addition of the flush water into the sludge, there is an inference that they knew that a chemical or physical reaction of some type would occur since they suggested that the flush water would loosen the sludge for easier removal. A question also exists as to whether the heated water jetted into the frac tank prior to the pouring of the flush water was responsible for the production of hydrogen sulfide gas. Also, a consultant who reviewed the circumstances of the accident was seemingly unaware of the pumping of heated water under high pressure into the frac tank.

Conflicting inferences may be drawn from the following: decedent's specific training with respect to hydrogen sulfide and whether he could anticipate its presence in this instance; whether decedent knew of at least one prior pouring of flush water into the frac tank and the results; whether decedent knew that flush water had been poured into the frac tank on the day at issue, or the possible results of that action (while it seems he was present during the pouring, there is no testimony as to what decedent may have actually seen or heard regarding the composition or use of the flush water); whether any of Acid Engineering's employees knew that decedent had previously entered the tank without the use of an air mask and without consequence; when it became noticeable that the sludge was bubbling; and, whether the advice from an Acid Engineering employee to decedent to put on an air mask indicates a superior knowledge of the danger awaiting decedent.

SUMMARY JUDGMENT

The rules used in evaluating a motion for summary judgment are set out in Akre v. Washburn, 92 N.M. 487, 590 P.2d 635 (1979) (quoting First National Bank in Albuquerque v. Nor-Am Agricultural Products, Inc., 88 N.M. 74, 80, 537 P.2d 682, 688 (Ct.App.), cert. denied, 90 N.M. 48, 536 P.2d 1085 (1975)):

(1) A summary judgment proceeding is not to decide an issue of fact, but, rather, to determine whether one exists.

(2) Summary judgment can be granted only where the record shows there is no genuine issue as to any material fact.

(3) The party opposing the motion for summary judgment must be given the benefit of all reasonable doubts...