Ex parte Chevron Chemical Co.

• Decision Date: 15 May 1998
• Parties: Prod.Liab.Rep. (CCH) P 15,244 Ex parte CHEVRON CHEMICAL COMPANY (Re Don LAWLEY and Derrick Bryant v. CHEVRON CHEMICAL COMPANY). 1961326.
• Court: Alabama Supreme Court

Page 922

720 So.2d 922

Prod.Liab.Rep. (CCH) P 15,244

Ex parte CHEVRON CHEMICAL COMPANY (Re Don LAWLEY and Derrick Bryant v. CHEVRON CHEMICAL COMPANY).

1961326.

Supreme Court of Alabama.

May 15, 1998.

Rehearing Denied July 17, 1998.

Joseph C. Sullivan, Jr., and David A. Boyett III of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for petitioner.

Sidney W. Jackson III and Scott E. Denson of Jackson, Taylor & Martino, P.C., Mobile, for respondents.

Samuel H. Franklin and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham, for amicus curiae Chemical Manufacturers Ass'n.

SEE, Justice.

This case arises out of injuries suffered by Don Lawley and Derrick Bryant in the explosion of a plastic gas pipeline they were installing for their employer, Mobile Gas Company ("Mobile Gas"). Lawley and Bryant sued Chevron Chemical Company ("Chevron"), the manufacturer of the plastic pipe, alleging negligent failure to warn and alleging liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for placing an unreasonably dangerous product on the market. The trial court granted Chevron's motion for summary judgment, noting that Chevron had warned Mobile Gas and that Mobile Gas had been aware of the risk involved in installing plastic pipe. The Court of Civil Appeals reversed, holding that whether Chevron had adequately warned Mobile Gas of the danger of fire caused by static electricity was a question for the jury. Lawley v. Chevron Chemical Co., 720 So.2d 918 (Ala.Civ.App.1997). Because we conclude that Chevron did not have a duty to warn Lawley and Bryant or Mobile Gas of commonly known dangers, we reverse and render a judgment for Chevron.

I. Facts and Procedural History

The evidence in this case is undisputed. Chevron sold plastic pipe to Mobile Gas to be used in a natural gas pipeline. The general danger that static electricity buildup can cause a fire and the specific danger of such a fire when wet rags are not used to ground the pipe during the purging process have been common knowledge in the gas pipeline industry for years. Nevertheless, Chevron provided Mobile Gas a bulletin that gave the following warning regarding the purging process:

"Before You Start ... spray plastic pipes with water and ground with wet cloth to remove static electricity prior to cutting or tapping a pressurized line."

Mobile Gas had prepared for its employees who worked on pipelines a manual that stated in pertinent part:

"The following procedures shall be followed when purging and repairing plastic mains. Particular attention to prevention of static electric discharge shall be practiced. ... When plastic gas lines are broken or being purged, static electric charges have been known to build up and, in some instances, cause a fire. ... The best grounding device to date appears to be wet rags over the pipe and wet to the earth ...."

(Emphasis added.)

Mobile Gas assigned the job of installing the new plastic pipe to two of its employees, Lawley and Bryant. In Lawley and Bryant's truck there was a copy of the manual with the quoted warning and precautionary procedure. Nonetheless, on the day of the accident neither Lawley, who had installed plastic pipe 200 times before, nor Bryant, who had installed plastic pipe 50 times before, took the precaution of grounding the plastic pipe with wet rags. While Lawley and Bryant were installing the plastic pipe and purging it with air, static electricity built up and ignited natural gas fumes. The resulting explosion injured both men. The parties agree that use of the wet rags to ground the plastic pipe would have prevented the explosion.

Lawley and Bryant filed this action against Chevron, claiming: (1) that Chevron was liable under the principles established in § 388 of the Restatement (Second) of Torts (1965) for negligent failure to warn them of the danger of static electricity buildup; and (2) that Chevron was liable under those principles of § 402 A of the Restatement (Second) of Torts embodied in the AEMLD, for placing an unreasonably dangerous product (the plastic pipe) on the market without a warning. Because of the industry-wide knowledge both of the danger of static electricity buildup and of the precaution of using wet rags to prevent such a buildup; because of Chevron's warning in its bulletin to Mobile Gas; and because of Mobile Gas's warning in the manual to Lawley and Bryant, the trial court entered a summary judgment for Chevron. The Court of Civil Appeals, however, reversed, holding that the adequacy of the warning presented a jury question that precluded summary judgment.

II. Requirement to Warn

A summary judgment is appropriate in a case where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Vines v. Beloit Corp., 631 So.2d 1003, 1004 (Ala.1994). We review motions for summary judgment in the light most favorable to the nonmovant, resolving all reasonable doubts in favor of the nonmovant. Id. To determine whether Chevron is entitled to a judgment as a matter of law, we must determine whether Chevron had a duty to warn Lawley and Bryant of the danger that caused the accident. See Rose v. Miller & Co., 432 So.2d 1237, 1238 (Ala.1983) (stating that the existence of a legal duty is a question of law for the court, not the jury, to decide).

A. Negligent Failure to Warn

Lawley and Bryant argue first that Chevron negligently failed to warn them, the ultimate users, of the dangers involved in installing the plastic pipe. Lawley and Bryant acknowledge that Chevron gave Mobile Gas a bulletin that stated, "Before You Start ... ground [pipe] with wet cloth to remove static electricity." Nevertheless, they argue that this warning to Mobile Gas was not adequate to notify them of the severity of the danger posed by static electricity. Chevron responds that it had no duty to warn Lawley and Bryant of a danger of which their employer, Mobile Gas, was already aware.

The duty to warn end users of the dangers of products arises, in a pure negligence context, from § 388, Restatement (Second) of Torts, as adopted by this Court. See Purvis v. PPG Industries, Inc., 502 So.2d 714, 719 (Ala.1987) (interpreting a negligent-failure-to-warn claim using § 388). Section 388 states:

" § 388. Chattel Known to be Dangerous for Intended Use

"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

"(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

"(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

"(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous."

(Emphasis added.)

We have held that the duty to warn contemplated by § 388(c) is triggered only when the supplier has "no reason to believe" that the user will realize the "dangerous condition" of the product referred to in § 388(b). See Gurley v. American Honda Motor Co., 505 So.2d 358, 361 (Ala.1987) (stating that "[t]here is no duty to warn of every potential danger or to explain the scientific rationale for each warning, but only a duty to warn of those dangers which the owner or user would not be aware of under the particular circumstances of his use of the product in question"); Ford Motor Co. v. Rodgers, 337 So.2d 736, 739 (Ala.1976) ("The objective of placing a duty to warn on the manufacturer or supplier is to inform a user of the danger [of] which he is not aware[;] therefore, there is no duty to warn when the danger is obvious."). Thus, the manufacturer is not required to provide a redundant warning, but only to provide a warning of those dangers that are not obvious to the user.

Lawley and Bryant cite Hicks v. Commercial Union Insurance Co., 652 So.2d 211 (Ala.1994), in support of their contention that Chevron had a duty to notify Mobile Gas notwithstanding the fact that Mobile Gas was aware of the danger posed by static electricity buildup and the fact that Mobile Gas had informed its employees of this danger. In Hicks, id. at 215, the manufacturer of a pipe stopper was sued after the pipe stopper dislodged during a hydrostatic pressure test and struck an employee. ¹ The manufacturer had provided an instruction booklet with a warning that pipe stoppers are dangerous and that people should not stand in front of the pipe stopper during pressure testing. Id. at 217. The manufacturer presented evidence indicating that the danger of pipe stoppers coming loose was common knowledge among employees who used them. Id. This Court, however, focused on the lack of evidence of common knowledge that mismatching of the jaws of the pipe stopper would greatly increase the likelihood of an accident. Id. This Court held that the evidence indicating common knowledge of a general danger did not relieve the manufacturer of its duty to warn, and that there was a genuine issue of material fact as to the adequacy of the warning provided by the manufacturer. Id.

This case is unlike Hicks, however, because the undisputed evidence in this case establishes that among installers of plastic pipe it was common knowledge that the failure to properly ground the pipe during the purging process would greatly increase the danger that static electricity would build up and ignite natural gas and cause a fire. The warning printed in Mobile Gas's manual expressly stated:

"Particular attention to prevention of static electric discharge shall be practiced. ... When plastic gas lines are broken or being purged, static...