Cropper v. Rego Distribution Center, Inc.
| Decision Date | 17 June 1982 |
| Docket Number | Civ. A. No. 77-117,77-194. |
| Parties | Wallace S. CROPPER, Jr. and Diane C. Cropper, his wife, Plaintiffs, v. REGO DISTRIBUTION CENTER, INC., et al., Defendants. |
| Court | U.S. District Court — District of Delaware |
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John J. Schmittinger, and Douglas B. Catts, Schmittinger & Rodriguez, P. A., Dover, Del., for plaintiffs.
Michael N. Castle, Michael N. Castle, P.A., Wilmington, Del., for defendants Rego Co., Gloconda Corp., Bastian-Blessing Co. and Rego Distribution Center, Inc.
James T. McKinstry, Richards, Layton & Finger, Wilmington, Del., for defendants Swift Agricultural Chemical Corp.
Dennis D. Ferri, Becker & Ferri, P. A., Wilmington, Del., for defendant Pro Chem Co., Inc.
F. Alton Tybout, and Jeffrey S. Marlin, Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for third party defendant Southern States Co-op.
Robert K. Payson, and Christopher J. Varner, Potter, Anderson & Corroon, Wilmington, Del., for third party plaintiff Penn Central Transp. Co.
Plaintiffs Wallace and Diane Cropper have brought suit against numerous defendants on a variety of negligence and breach of warranty claims because of injuries Wallace Cropper suffered when he was sprayed with anhydrous ammonia. Mr. Cropper's injury involved a structure known as an unloading riser which has become the focus of this lawsuit. It was built by defendant Pro Chem, Inc. ("Pro Chem") for defendant Swift Agricultural Chemicals Corporation ("Swift")1 in 1971 and at the time of the accident incorporated an A7514 valve manufactured by defendant Rego Company ("Rego").2 Jurisdiction is based on diversity of citizenship and the amount in controversy exceeds $10,000 exclusive of interest and costs. Presently before the Court are defendants Pro Chem, Swift and Rego's motions for summary judgment.3 In order to understand the Court's disposition of these motions, a certain amount of background information is required. Unless otherwise stated, the facts are either undisputed or taken in the light most favorable to plaintiffs, the non-moving party, as they must be on a motion for summary judgment. See Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3d Cir. 1978).
Anhydrous ammonia is a chemical fertilizer with a boiling point of -28° or -27° F. Although it is a gas at atmospheric temperature and pressure, it may be compressed to a liquid, the state in which it is generally handled. Contact with anhydrous ammonia in its liquid state is extremely dangerous. The accident occurred on May 21, 1975, while Wallace Cropper was working with the anhydrous ammonia system located at the Southern States Plant in Dagsboro, Delaware. The facility at Dagsboro was designed to unload anhydrous ammonia from truck or railroad tank cars and store it until it could be sold to farmers for use as fertilizer. The facility consists of a tank car unloading riser used to unload tank cars, storage tanks, and a field riser used to load the farmers' vehicles. At the time of the accident a fence enclosed all of the Dagsboro plant except the unloading riser. The anhydrous ammonia moved through the system in only one direction — from the tank car through the unloading riser and into the storage tanks for subsequent unloading through the field riser.
The unloading riser consists of a series of pipes, hoses, attachments, valves and a compressor which when attached to a tank car containing anhydrous ammonia permits the pumping and transportation of anhydrous ammonia from the tank car into the storage tanks. A central supporting pipe buried in the earth outside the fence supports two metal pipes which go through the fence surrounding the rest of the facility and connect to the storage tanks and the compressor. The anhydrous ammonia in the tank cars is kept under pressure while being transferred to the storage tanks. Two hoses, one connected to each of the pipes described above, are needed to unload the tank cars. One hose, connected through the pipe to the compressor (pressure hose), applies pressure to the tank car forcing the liquid anhydrous ammonia to flow into the second hose (product hose) which is connected to the pipe leading to the storage tanks. Both the product and the pressure hoses are connected to the tank car by means of connector pipes.4 Each connector has a small spigot-like valve which can be opened to allow the anhydrous ammonia to escape into the air, thus "bleeding" the system so that the operator can safely disconnect the hose.
At the time of the accident, the system also contained various valves to control the flow of anhydrous ammonia. At the end of the product hose which attached to the railroad car was a two-inch Rego angle valve model number A7514. As will become apparent, that valve is at the center of this controversy. The next valve in the system was another Rego shut-off valve located on the metal pipe. Closing that valve would trap anhydrous ammonia between it and the next valve downstream, a "back check" valve which prevented the anhydrous ammonia from flowing backwards through the system towards the tank car.
On the date of the accident, Mr. Cropper was preparing the system so his fellow worker could unload a tank car. He picked up the product hose and laid it on the ground; as he did so he was sprayed with anhydrous ammonia and sustained serious injuries. Although no one is certain how the accident occurred, plaintiffs' expert theorized that the presence of the Rego A7514 shut-off valve on the end of the product hose permitted the system to become a "wet hose system." If there had been no valve on the end of the product hose, the operator's bleeding of the connector pipe would have emptied the hose all the way back to the valve on the metal pipe or if that valve were also open, the next closed valve in the system. Such a system is known as a "dry hose system" because, as its name implies, the hose is kept in a dry, i.e., empty, state. The presence of the A7514 valve prevented an automatic bleeding of the hose. If the operator bled the connector pipe while the valve was closed, only the connector itself would be emptied; the hose would remain full. Plaintiffs argue that at the time of the accident there must have been anhydrous ammonia in the product hose which escaped as Mr. Cropper moved it and that but for the presence of the valve, the hose would had to have been empty.
As will be explained more fully, infra, plaintiffs also allege various subsidiary acts of negligence. Thus, for example, plaintiffs allege that the failure to provide a locking device on the A7514 valve to prevent its accidental opening was negligent. They argue that even if the riser was operated as a wet system, it would not have released the anhydrous ammonia if the A7514 valve had been locked closed. Plaintiffs also theorize that the facility may have been operated as a dry hose system at the time of the accident (there is a factual dispute on this point). If so then, they argue, there may have been tampering with the system. The absence of a fence and/or locks on the downstream valves which would have prevented such tampering is also claimed to be negligent. Nonetheless, plaintiffs' basic allegation is that the A7514 valve allowed the facility to become a wet hose system. Regardless of how the hose came to be filled or why the anhydrous ammonia escaped, the hose could not have held the anhydrous ammonia but for the A7514 valve.
As originally designed, the product hose did not have a shut-off valve on its end. There is a factual dispute on this point, but for the purposes of these motions both Swift and Pro Chem have conceded that each was responsible for the placement of the valve, that the placement was negligent and made the system defective for the purpose of applying the theories of strict liability and breach of warranty. Plaintiffs assert that each of the defendants is liable to them under a variety of legal theories including breach of warranty, strict tort liability and negligence. Inasmuch as both the theories of recovery and the defenses raised vary with each defendant, it will be necessary to deal with each defendant separately.
As noted, for the purposes of this motion Pro Chem admits it installed the A7514 valve and constructed the facility. Plaintiffs argue that Pro Chem is liable under theories of strict tort liability, breach of warranty and negligence. Pro Chem raises a number of grounds for summary judgment, each of which will be discussed in turn.
As a threshold matter, Pro Chem argues that it is entitled to summary judgment because even if it did install the riser system containing the A7514 valve, it did so in conformity with 29 C.F.R. § 1910.111 and the applicable industry standards. Recognizing that compliance with industry standards is not generally conclusive on the issue of negligence, Pro Chem asserts that the federal regulation in question amounts to a specific direction that the valve be placed on the end of a transfer hose when that hose is not drained. Given the Court's view of the regulation in question, it is unnecessary to reach the issue of whether under any circumstances it could immunize defendant's conduct. Insofar as they are relevant to this case, the industry standards are substantially the same as the federal regulation, which provides in part:
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