Dauer v. Aerojet General Corp.

• Decision Date: 20 January 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Velta Lucille DAUER et al., Plaintiffs and Respondents, v. AEROJET GENERAL CORPORATION, Defendant and Appellant. Civ. 10666.

Page 356

36 Cal.Rptr. 356

224 Cal.App.2d 175

Velta Lucille DAUER et al., Plaintiffs and Respondents, v. AEROJET GENERAL CORPORATION, Defendant and Appellant.

Civ. 10666.

District Court of Appeal, Third District, California.

Jan. 20, 1964.

Rehearing Denied Feb. 13, 1964.

Hearing Denied April 1, 1964.

William A. Sitton, Johnson, Davies & Greve, Sacramento, for appellants.

Patrick J. McCarthy, Richard A. Case, Sacramento, for respondents.

SCHOTTKY, Justice.

This is an appeal by Aerojet General Corporation from a judgment awarding plaintiffs and respondents damages for the wrongful death of Edward Dauer, the husband of Velta Lucille Dauer, and the father of Edward Dauer, Jr., and Madeline Dauer, now Madeline Stanton, and from the order denying its motion for judgment notwithstanding the verdict.

Edward Dauer, an employee of D. Zelinsky & Sons, was killed as a result of burns received from an explosion in a tank in which he and another workman (by the name of Woolen) were applying Amercoat Number 23, a mixture containing volatile and inflammable solvents.

Aerojet and Zelinsky entered into a contract whereby Zelinsky agreed to apply Amercoat Number 23 to the inner surface of two new steel fuel storage tanks. The coating was to protect the surface of the tanks from the corrosive action of the fuel to be stored therein. The contract provided that Zelinsky would provide all material, labor and equipment. There was no express provision for the taking of precautions by Zelinsky in the performance of the work. Aerojet did not give Zelinsky any information or instructions regarding precautions which should be taken, though Aerojet did have knowledge of the characteristics of Amercoat Number 23. A short time prior to the incident here, a hydro sump pit was repaired with Amercoat Number 23. At all times while Amercoat Number 23 was being sprayed a fire engine and crew were present. Aerojet furnished explosion-proof equipment, and during the spraying a blower fan was used to remove the vapors created by applying the solution.

An expert testified that the circulation of air is the best and only complete precaution to use to prevent accumulation of explosive vapors when Amercoat Number 23 is used in confined spaces. There was testimony that a tank was a hazardous area in which to apply Amercoat. As stated by respondents' expert:

'Q. Now, you will note that in the factors that I have given you I have not given you any factors as to there being any ventilation. I presume you have noted that? A. Yes. Q. Well, I'm not going to give you a ventilation factor just yet, keeping in mind the factors I have given you for the type of work that's being done at that time and that place and with the factors as I have given them to you does that place of work offer any hazards insofar as the work is being done in that place with respect to this mixture? A. Oh, yes. I think it offers very definite hazards. In the first place, it's an enclosed area, quite a tight enclosure. If there is no ventilation as you specified so that there would be no spontaneous change of air to any extent now this would be definitely in that respect. If a tank which is deliberately made quite tight as compared with a building which is never completely tight and in which there is a considerable amount of change of air between the normal type of venting thru the walls and cracks and so forth, so it is besically a more dangerous type of locality. Definitely an explosive mixture within that enclosure area and then men working, it appears there are many possible hazards, the electric cords may be a very definite hazard because the sparks can readily occur at any loose connection. The can occur between the contacts and the light bulbs themselves, they can result in other words wherever there is a possibility of a little separation of your sparks or circuit this can happen in any kind of lighting equipment unless there is special type of connections used to eliminate the possibility of such separation I would say that static would represent a very definite hazard in this kind--Q. I wonder if you would explain that Doctor. A. Well, static electricity is the sort of thing you get by friction of materials over each other. We are all very familiar with the--in connection with plastics which are much in use today, plastic seat covers. You slide across them and you get a spark when you take hold of the door handle of the car you walk on certain plastic or glass or other floor surfaces. Glass is one of the worst. Sometimes use them in libraries. You can get a terrific spark by walking on it. The friction of clothing against each other or against some object. These instruments will often create static sparks. They are often of minor magnitude, you couldn't notice them but nevertheless they are hot enough to ignite an explosion in many cases. Q. For example would a--the striking of a piece of metal on metal, could that possibly cause a spark? A. It can, yes. It is less likely to than striking the metal with something like sand or stone but it can. Metal itself will trigger sparks.

'Q. Now, you have mentioned these various things, static electricity and so forth. The spark that might be between a connection and a carnival type connection, a spark would any of those be capable of exploding this mixture that we have hypothecated that was in the air? A. All of them would be able to do it. Q. Each or any of them? A. Each or any, yes, sir. Q. All right. You mentioned the painting in a tank as compared with painting of a house. Do you deem Doctor, that this kind of work, this kind of chemical and this kind of a space is more hazardous by virtue of the fact that the tank is airtight so to speak. That in and of itself makes this situation more hazardous from an explosion standpoint? A. Certainly does. I think it generally recognizes that working inside tanks is always more hazardous than working out of doors or ordinary enclosures. In the petroleum industry of course there is great hazards for people who have to go into tanks. They always have to have very special precautions both from the standpoint of the fires, explosions and poisons. You can become poisoned from many materials kept in tanks.'

The tank in which the accident happened was 30 feet in diameter and 24 feet from base to top. It had a floating roof, which was designed to float up and down as the fuel in the tank was increased or decreased. In order to coat the higher surface of the interior the roof was lowered, thus exposing the surface to be worked on. In order to work on the lower surface the roof was raised and supported by some sort of stanchions at an elevation of about seven feet. Thus, when working in the lower area the painters were in a dark, confined compartment. Under these conditions the danger was apparent that heavier than air inflammable gases exuding from the drying paint would pocket and concentrate in the lower part of the tank unless special precautions were taken.

The explosion occurred while Dauer and a co-worker (Woolen) were applying Amercoat Number 23 to the lower interior of the tank. No fan for the circulation of air or blower was used nor was explosion proof lighting equipment used.

We are satisfied that the record discloses substantial support for a finding of the jury that respondent Aerojet was liable for the damage caused by the failure of Zelinsky to exercise reasonable care. For as stated in Woolen v. Aerojet General Corp., 57 Cal.2d 407 at page 410, 20 Cal.Rptr. 12 at page 15, 369 P.2d 708 at page 711 (a case in which the facts were practically the same as in the case at bench) our Supreme Court said:

'The evidence is sufficient to support the judgment. The applicable rule is set forth in section 413 of the Restatement of Torts as follows: 'One who employs an independent contractor to do work which the employer should recognize as necessarily creating, during its progress, conditions containing an unreasonable risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the absence of such precautions, if the employer (a) fails to provide in the contract that the contractor...