Burnette v. Dow Chemical Co.

Decision Date13 June 1988
Docket NumberNo. 86-2450,86-2450
Citation849 F.2d 1269
PartiesProd.Liab.Rep.(CCH)P 11,847 Pearl Laverne BURNETTE, et al., Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY, Nalco Chemical Company, and Independent Tank Company, Defendants-Appellees. Ronald Eugene TATE, et al., Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY, Nalco Chemical Company, and Independent Tank Company, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Bruce W. Pitzer, Oklahoma City, Okl. (Law Offices of John W. Norman, Inc., on the brief) for appellants.

John P. Woolf, Wichita, Kan. (Triplett, Woolf & Garretson, on the brief) for appellee Dow Chemical Co.

Kurt A. Harper, Wichita, Kan. (Sherwood, Hemsley & Harper, on the brief) for appellee Nalco Chemical Co.

Clifford L. Malone, Wichita, Kan. (Laura L. Ice, and Adams, Jones, Robinson and Malone, on the brief) for appellee Independent Tank Co.

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 Fed.R.Civ.P. 54(b) certification, from an order entered August 15, 1986 in the District of Kansas, Sam A. Crow, District Judge, granting the motions for summary judgment of Dow Chemical Co. ("Dow"), Nalco Chemical Co. ("Nalco") and Independent Tank Co. ("Independent"). 1

On June 17, 1981, a storage tank exploded at a refinery operated by the Total Petroleum Co. ("Total") in Arkansas City, Kansas 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 approximately 59% of his body was covered with burns. Tally died ten days after the explosion. Burnette died July 21, 1981, one month and three days after the explosion.

On appeal, appellants claim with respect to Nalco, that (1) as the seller and apparent manufacturer of the tank, Nalco owed a duty to appellants; (2) there were issues of material fact regarding the design and construction of the tank and the cause of the accident; (3) there was no unforeseeable misuse of the tank; and (4) Nalco's failure to warn and any causal connection was a jury issue. With respect to Independent, appellants claim that (5) Total's misuse of the tank was not unforeseeable as a matter of law; (6) the construction and design of the tank contributed to its rupture; and (7) the trial court improperly applied the standard for granting summary judgment in a products liability case. With respect to Dow, appellants claim that (8) the DEA as shipped by Dow required an adequate warning; and (9) the DEA, which was heated to 140? F, contributed to appellants' deaths.

We hold that the district court correctly granted summary judgment in favor of Nalco and Independent, but erred in granting summary judgment in favor of Dow.

For the reasons which follow, we affirm in part and vacate and remand in part.

I.

The basic facts and prior proceedings are set forth in detail in our opinion filed today in Burnette v. Dresser Industries, Inc., supra, familiarity with which is assumed. We shall summarize here only those additional facts and prior proceedings believed necessary to an understanding of the issues raised on the instant appeal.

The tank originally was manufactured by Independent as an atmospheric tank, i.e., a tank to be used to store substances at a pressure of about 0.5 psi or less. The tank had three openings, a 4-inch one on top, a 2-inch one on top, and a 2-inch connection for draining on the bottom. Atmospheric tanks are supposed to be vented with such openings. Independent had the tank tested to withstand pressure of up to 5 psi, to ensure that it would not leak. It had no further contact with the tank after it was delivered to Nalco in 1978. Total's engineer, Steve Long, testified that the tank was adequate as an atmospheric storage tank.

Shortly after the tank arrived, Total modified it by adding a manhole, installing steam heating coils inside the tank's bottom, adding glass gauges on the outside, and covering it with insulation. Total then used the tank as an atmospheric tank to store pour point depressant until April 1980. At that time, Total converted the tank to a pressure tank to store DEA. It converted the tank to a closed system (i.e., lacking vents), so that the DEA could be covered with a blanket of natural gas. Total closed the top vent and installed a pressure relief valve set to relieve at 6 psi. The tank was filled with DEA three times: (1) at the time of the conversion in April 1980, (2) in April 1981, and (3) on the day of the accident.

When tested after the accident, the relief valve did not open until pressure reached 148 psi. Steve Long testified that he had calculated the pressure in the storage tank at the time it ruptured to have been 47 psi. He stated that if the relief valve had functioned properly, relieving the pressure at 6 psi, the "system would have worked". Appellants' expert, George Stanton, also testified that, if the valve had opened, the tank would not have burst. Independent's expert, John A. Sevart, testified that the "sole cause of the accident was the failure of the pressure relief valve to adequately relieve at 6 psi."

The safety standards of the Underwriters' Laboratory, Inc. apply to tanks built to hold flammable substances like the one here involved. The standard known as UL 142 requires steel plate thickness of .25 inch; three pieces of construction material; and a nameplate. UL 142 requires the nameplate to include a statement that "This tank requires emergency relief venting. Capacity not less than ___ cubic feet per hour." The tank that ruptured had a thickness of .18 inch; had four pieces of construction material; and lacked a nameplate. Moreover, the tank had defective welds.

Although the tank indisputably failed to meet the standards of UL 142, the record contains some evidence to suggest that these lapses were not causally connected to the accident. Sevart testified that none of these defects, alone or combined, caused the accident. He stated that "Even if those various manufacturing specifications had been satisfied, the rupture still would have occurred by reason of the excessive pressure present within the tank." Moreover, had the tank been affixed with the requisite nameplate, under UL 142 the nameplate would only have warned about the need for emergency relief venting. Had appellants checked, they would have found that the tank, at least apparently, had the capacity for such venting--i.e., the relief valve which ultimately malfunctioned.

The DEA was manufactured by Dow in Louisiana. It was transported to Total by National Bulk Transport, Inc. ("National"). At the time the DEA left the Dow plant, it was heated to 140? F. Dow's Transportation Equipment Data Sheet recommends a loading temperature of 100? F. One of the victims, Ronald Tate, had improperly turned up the heat in the tank that ruptured so that the temperature of the chemical already in the tank was 220? F.

National's truck driver, Don Pendergrass, gave a Total employee the papers accompanying the DEA shipment, including (1) the DEA product label, (2) a material safety data sheet ("safety sheet"), and (3) an emergency response information sheet ("emergency sheet"). The product label stated that DEA "CAUSES SKIN IRRITATION"; warned to "Avoid Contact with Skin and Clothing"; and counseled, "In cases of contact, immediately flush eyes with plenty of water for at least 15 minutes. Call a physician. Flush skin with water. Wash clothing before reuse." The safety sheet warned against repeated prolonged exposure to the skin and, depending on the extent and severity of likely exposure, recommended wearing protective clothing and impervious gloves, boots and aprons. The emergency sheet labeled DEA as "IRRITATING". It listed as a hazard to skin: "UP TO MODERATE IRRITATION, EVEN A BURN ON REPEATED CONTACT." It recommended as first aid for the skin: "IMMEDIATELY FLUSH WITH PLENTY OF WATER FOR AT LEAST 15 MINUTES WHILE REMOVING CONTAMINATED CLOTHING. CONSULT MEDICAL PERSONNEL."

Dow had attached a duplicate emergency sheet and DEA product label to the outlet valve of the truck used to transport the DEA. Total had a copy of the safety sheet on file. Its employees knew that protective clothing should be worn when loading the chemical.

Tate was wearing gloves and safety glasses, but not impervious boots or an apron. He stated that he would have worn no additional clothing regardless of the temperature of the DEA in the storage tank. Tate knew the temperature of the DEA in the storage tank; he recorded in a log book that it had a temperature of 220? F. The DEA that spewed onto the three victims came from the storage tank. It was a mixture of the DEA already in the tank and the new DEA from the truck. The temperature of the DEA was measured from drums outside the truck one hour after the explosion. It had a temperature of 132? F. The heat loss due to the transfer to the drums was estimated at 1-2? F.

DEA is not listed as a hazardous substance under Department of Transportation ("DOT") Regulations. 49 C.F.R. Sec. 172.101 (1987). The record before us does not indicate a definition of "hazardous". Under DOT regulations, however, a chemical is considered "corrosive" when it "causes visible destruction or irreversible alterations in human skin tissue at the site of contact...." 49 C.F.R. Sec. 173.240 (1987).

DEA is an alkaline chemical. The National Safety Council Data Sheet # 523 states, "Both thermal burns and chemical burns destroy body tissue. But a chemical will continue to cause damage until reaction with body tissue is complete or until the chemical is washed away with water. Strong alkalies will penetrate tissue deeply...." According to Tate's treating...

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