Hicks v. Commercial Union Ins. Co.

• Decision Date: 26 August 1994
• Parties: Prod.Liab.Rep. (CCH) P 14,023 Vernda Kay HICKS, as administratrix of the Estate of John William Hicks, deceased v. COMMERCIAL UNION INSURANCE COMPANY, et al. 1921934.
• Court: Alabama Supreme Court

Page 211

652 So.2d 211

Prod.Liab.Rep. (CCH) P 14,023

Vernda Kay HICKS, as administratrix of the Estate of John William Hicks, deceased v. COMMERCIAL UNION INSURANCE COMPANY, et al.

1921934.

Supreme Court of Alabama.

Aug. 26, 1994.

Rehearing Denied Dec. 16, 1994.

Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, L.A. Marsal of Seale, Marsal & Seale, Mobile, for appellant.

Vaughan Drinkard, Jr. and Winn Faulk of Drinkard, Ulmer & Hicks, Mobile, for Thaxton, Inc. and Hy-Tech Machine, Inc.

Vincent A. Noletto, Jr. and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for Commercial Union Ins. Co. and Samuel Flood.

PER CURIAM.

Vernda Kay Hicks, as administratrix of the estate of John Williams Hicks, appeals from a summary judgment in favor of the defendants Thaxton, Inc., Hy-Tech Machine, Inc., Samuel Flood, and Commercial Union Insurance Company. Vernda Hicks brought this action for damages against these four defendants and against three co-employees of John Hicks, ¹ alleging negligence, intentional or willful wrongful conduct, and liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), in connection with the discharge of a pipe plug or pipe stopper, attached to a highly pressurized container or vessel, which struck John Hicks in the head, killing him instantly. With regard to Thaxton, Inc., and its "affiliate," Hy-Tech Machine, Inc. (together referred to hereinafter as "Thaxton"), Vernda Hicks alleged that the pipe stopper and its component parts, which Thaxton had designed and manufactured, were "defective," as that term is used in our cases applying the AEMLD. With regard to Samuel Flood and his employer, Commercial Union Insurance Company, Vernda Hicks alleged that Commercial Union, through Flood, had breached a duty to exercise reasonable care to ensure safety during the testing of the vessel, during which testing John Hicks was killed.

The issues are (1) Whether a genuine issue of material fact exists as to whether the pipe stopper was defective; (2) Whether a genuine issue of fact exists as to whether the condition of the pipe stopper had been substantially altered when it was used in the testing of the vessel; (3) Whether the evidence indicated that John Hicks was contributorily negligent as a matter of law; (4) Whether it indicated that John Hicks voluntarily assumed the risk of death, as a matter of law; and (5) Whether the plaintiff presented substantial evidence that Commercial Union and its agent Flood had assumed a duty to exercise reasonable care to inspect the pipe stopper for safety.

A summary judgment is proper only when the court concludes that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, Rule 56, Ala.R.Civ.P. On a motion for a summary judgment, when the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Rule 56(e); § 12-21-12, Ala.Code 1975. The court views the evidence most favorably to the nonmovant and resolves all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So.2d 403, 404 (Ala.1990).

John Hicks had been employed by Taylor-Wharton/Plant City Steel Company ("Taylor-Wharton") and its predecessor Union Carbide since 1977. Taylor-Wharton manufactures boilers or "vessels," which store pressurized gasses such as oxygen, nitrogen, and hydrogen. John Hicks conducted hydrostatic pressure tests of vessels manufactured by Taylor-Wharton.

In a hydrostatic pressure test, water is placed into the vessel being tested, and the vessel is then pressurized to determine whether the vessel properly maintains its structural stability under such pressure. During such a test, the vessel is inspected for leaks and other conditions that may affect its compliance with standards of the Boiler and Pressure Vessel Code ("Code") of the American Society of Mechanical Engineers ("ASME"); such compliance is necessary for the manufacturer to obtain ASME certification of its vessel. The vessel John Hicks was testing when he was killed had been designed and manufactured to meet ASME standards.

For a vessel to receive ASME certification, which signifies that a vessel complies with ASME standards, a representative of an authorized ASME inspection agency must be present at the testing of the vessel. Commercial Union was an authorized inspection agency; under a written contract between it and Taylor-Wharton, Samuel Flood, an inspector employed by Commercial Union, regularly witnessed the testing of vessels manufactured by Taylor-Wharton at Taylor-Wharton's manufacturing facility.

On May 15, 1990, Michael Onderdonk, a Taylor-Wharton employee, prepared a 6,000-gallon vessel for testing by the next work shift. When the shift changed, Onderdonk left, and Hicks arrive to conduct the hydrostatic test. Pursuant to the ASME Code, John Hicks began the test by pressurizing the vessel to 433 pounds per square inch. Samuel Flood was present, along with Lee Hull, another Taylor-Wharton employee. After about two minutes, a pipe stopper on the vessel dislodged and shot toward John Hicks, who at that moment was walking in front of it. The pipe stopper, which weighed 2.8 pounds, was travelling 71 feet per second when it struck John Hicks in the head; it went through John Hicks's hard hat, killing him instantly.

Pipe stoppers cover the opening of pipes extending from vessels for the purpose of pressurizing vessels for testing. A pipe stopper contains four "jaws," which secure the pipe stopper to the pipe extending from the vessel by expanding with increased pressure. As the pressure increases, the jaws expand and grip the inside of the pipe. The jaws are manufactured in sets. Although the jaws within a set are apparently uniform in size, the size of the jaws of different sets varies slightly. Because these sets of jaws differ slightly in size, the jaws of a set are all marked by the same letter, e.g., "A," "B," or "C." The jaws easily detach from the pipe stopper itself, and the jaws of different sets are interchangeable. An "o-ring" and a neoprene seal hold the jaws on the pipe stopper. The o-ring and the seal deteriorate with use, and the pipe stopper is designed to permit their replacement. Thaxton markets "o-ring kits" to replace the o-ring and the seal after they deteriorate. To replace the o-ring and the seal, it is necessary to remove the jaws from the pipe stopper.

The circuit court entered a summary judgment in favor of all of the defendants. With regard to the AEMLD claims against Thaxton, the circuit court held that Vernda Hicks had failed to present substantial evidence 1) that the pipe stopper was defective; 2) that the condition of the plug had not been substantially altered; and 3) that Thaxton had failed to adequately provide certain warnings. The circuit court held further that John Hicks had been contributorily negligent, as a matter of law; that John Hicks had assumed the risk of death, as a matter of law; and that the doctrine of res ipsa loquitur was not applicable to these facts. With regard to the claims against Flood and Commercial Union, the circuit court held that in Commercial Union's contract with Taylor-Wharton to provide inspection services, Commercial Union had not assumed a duty to ensure that the testing of vessels was conducted safely.

I. The Claims Against Thaxton and Hy-Tech

In arguing that the circuit court erred in entering the summary judgment in favor of Thaxton and Hy-Tech as to her AEMLD claim, Vernda Hicks contends first that a genuine issue of material fact exists as to whether the pipe stopper was "defective" within the terms of the AEMLD.

In order to establish liability under the AEMLD, a plaintiff must show the following:

"(1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if

"(a) the seller is engaged in the business of selling such a product, and

"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."

Kelly v. M. Trigg Enterprises, Inc., 605 So.2d 1185, 1191 (Ala.1992) (quoting earlier cases); Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 855 (Ala.1981). "Liability under the AEMLD turns upon whether a product is unreasonably dangerous when put to its intended use." Koehring Cranes & Excavators, Inc. v. Livingston, 597 So.2d 1354 (Ala.1992); Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala.1976). This Court has further stated:

" 'The manufacturer of a product which may be reasonably anticipated to be dangerous if used in a way which he should reasonably foresee it would be used is under a duty to exercise reasonable care to give reasonable and adequate warnings of any dangers known to him, or which in the exercise of reasonable care he should have known and which the user of the product obviously could not discover. Reasonable care means that degree of care which a reasonably prudent person would exercise under the same circumstances.' "

Bean v. BIC Corp., 597 So.2d 1350, 1353 (Ala.1992) (quoting Dunn v. Wixom Brothers, 493 So.2d 1356, 1360 (Ala.1986) (quoting Alabama Pattern Jury Instructions (Civil), 32.07, and stating that A.P.J.I. 32.07 was a correct statement of the law)).

In opposition to the summary judgment motion filed by Thaxton, Vernda Hicks submitted the deposition testimony of Fred A. Lewter III and J. Albert McEarchern, Jr., two engineering experts, regarding the Thaxton pipe stopper, its jaws, and the instructions and warnings that accompanied the product. After conducting numerous hydrostatic tests using the pipe stopper and jaws that had failed and led to the death of John Hicks, and...