Hurlbut v. Conoco, Inc.

• Citation: 856 P.2d 1313,253 Kan. 515
• Decision Date: 30 July 1993
• Docket Number: No. 68379,68379
• Parties: , Prod.Liab.Rep. (CCH) P 13,652 David HURLBUT, Appellee, v. CONOCO, INC., Appellant/Cross-Appellee, and Firman L. Carswell Manufacturing Company, Appellee/Cross-Appellant.
• Court: United States State Supreme Court of Kansas

Page 1313

856 P.2d 1313

253 Kan. 515, Prod.Liab.Rep. (CCH) P 13,652

David HURLBUT, Appellee, v. CONOCO, INC., Appellant/Cross-Appellee, and Firman L. Carswell Manufacturing Company, Appellee/Cross-Appellant.

No. 68379.

Supreme Court of Kansas.

July 30, 1993.

Syllabus by the Court

1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

2. The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. If factual issues do exist, they must be material to the case to preclude summary judgment.

3. In ruling on a motion for summary judgment or a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This test is applied when appellate review is sought on a motion for summary judgment, a motion for a directed verdict, and a motion for judgment notwithstanding the verdict.

4. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses.

5. The granting of a new trial is a matter of trial court discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of that discretion.

6. Appellate review of an order denying a new trial is limited to whether the trial court abused its discretion.

7. Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects with which the jury is not familiar or if such testimony will assist the jury in arriving at a reasonable factual conclusion from the evidence. The test of competency of an expert witness is whether he or she discloses sufficient knowledge to entitle his or her opinion to go to the jury. The admissibility of expert testimony is within the broad discretion of the trial court.

8. Throughout discovery and trial, the judge is vested with vast amounts of discretion in his or her direction of the pretrial discovery and the admission of evidence during the trial. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts and situations which occur prior to and during the trial.

9. The admissibility of business records is a question to be determined by the 10. The admission of evidence of experiments must be established by showing background proof that the experiments were conducted under conditions that were at least similar to those which existed at the time of the incident in question. Demonstrations of experiments used to merely illustrate the principles in forming an expert opinion do not require strict adherence to the facts. The relevance of demonstrations or tests to be performed in the presence of the jury rests in the sound discretion of the trial court.

trial court upon a preliminary showing as to their authenticity and accuracy. The judge's determination of the sufficiency of such preliminary proof will not be disturbed unless there has been an abuse of discretion. An appellate tribunal will accept the trial judge's assessment unless the judge's assessment was arbitrary or capricious.

Lynn W. Hursh, of Armstrong, Teasdale, Schlafly & Davis, Kansas City, argued the cause, and John A. Vering III, Gerald A. King, and Renana B. Abrams, of the same firm, were with him on the briefs for appellant/cross-appellee.

Ben T. Schmitt, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Paul Hasty, Jr., of the same firm, was with him on the brief for appellee/cross-appellant Firman L. Carswell Manufacturing Co.

Lynn R. Johnson, of Shamberg, Johnson, Bergman & Morris, Chartered, Overland Park, argued the cause, and Thomas E. Hayes and John E. Shamberg, of the same firm, were with him on the brief for appellee.

LOCKETT, Justice:

This is an appeal from a jury verdict in a personal injury action in favor of plaintiff, David Hurlbut, against his employer, J & J Metal Products Company (J & J), and Conoco, Inc., for injuries suffered as a result of an explosion at the J & J plant. The jury unanimously awarded Hurlbut $14,613,553 and apportioned fault 85% against Conoco, 15% against J & J, and 0% against the other parties. Judgment was entered against Conoco and in favor of Hurlbut in the amount of $12,421,520 (85% of the jury verdict). Conoco appeals, claiming the trial court (1) erred in failing to grant its motions for summary judgment, directed verdict, and judgment notwithstanding the verdict and (2) deprived it of its right to a fair trial. Defendant Firman L. Carswell Manufacturing Company (Carswell), the maker of the vat which exploded, cross-appeals.

Hurlbut was severely injured as a result of an explosion on January 20, 1988, at the J & J plant in Paola, Kansas. Hurlbut was an employee of the company. Two other employees, Charles Hoffman and John Windisch, died as a result of their injuries from the explosion. Wrongful death actions involving those decedents were consolidated with the Hurlbut lawsuit for discovery and trial. This appeal is not concerned with the verdict and judgment in those actions, which have been settled.

J & J manufactures and markets corrugated steel pipes. As part of its manufacturing operations, J & J uses a large asphalt dip vat for the purpose of coating corrugated steel pipe with asphalt. Carswell designed, manufactured, and installed the dip vat used by J & J in 1951 or 1952. The dip vat had an open-to-air asphalt chamber, or pan, sitting on top of a heat transfer oil chamber. Ten natural gas burners heated oil in the lower chamber which in turn heated asphalt in the upper chamber. J & J had always used Dowtherm A in the lower chamber. The Dowtherm A was heated to its boiling point of 490 degrees Fahrenheit during the heat transfer process.

Dowtherm A (manufactured and marketed by Dow Chemical Company) was designed to be utilized either as a liquid J & J performed routine maintenance on the dip vat in December 1987 and January 1988. Part of the routine maintenance included replacing the heat transfer fluid. During the routine maintenance of the dip vat in January 1988, Dowtherm A was drained from the heat transfer chamber and replaced with CHTO. In order to remove any residual Dowtherm A from the heat transfer chamber, J & J employees put water into the chamber, heated the water until it boiled, and then drained the water and Dowtherm A residue from the heat transfer chamber.

phase heat transfer medium or a vapor phase heat transfer medium. Carswell recommended Dowtherm A for use as a vapor phase heat transfer medium in the vapor phase heat transfer system of [253 Kan. 518] the dip vat. From 1951 until January 1988, Dowtherm A functioned safely and effectively as a vapor phase heat transfer medium in the vapor phase heat transfer system of the dip vat. In January 1988, J & J substituted Conoco heat transfer oil (CHTO) for Dowtherm A as the heat transfer medium in the dip vat. CHTO is designed as a liquid phase only heat transfer medium to be used only in liquid phase heat transfer systems. CHTO is not designed for use as a vapor phase heat transfer medium in any type of vapor phase heat transfer system. J & J, acting on Conoco's recommendation, attempted to use CHTO in the same manner as Dowtherm A had been used.

After replacing the Dowtherm A with CHTO, J & J employees started the process of heating the asphalt dip vat during the afternoon of January 19, 1988. In order to gradually heat the transfer system, the dip vat, and the asphalt, the burners were ignited over a period of time. Throughout the night and early morning of January 19-20, 1988, one or more of J & J's employees stayed with the dip vat and observed the heating process.

At approximately 4:20 p.m. on January 20, 1988, an explosion forced the bottom of the asphalt chamber of the dip vat upwards into an inverted position. Asphalt was spewed throughout the dip house. A fireball erupted and also spread throughout the house. There were only two possible scientific explanations for the explosion: (1) autoignition of the heat transfer oil; or (2) water instantaneously flashing to steam.

Hurlbut sued Conoco; Carswell; J & J; Quality 66 Service Company, the company that sold the heat transfer oil to J & J; and others. Trial commenced on March 2, 1992, and ended April 24, 1992. The jury found Conoco liable for breach of express warranty, strict liability, breach of implied warranty, negligence, and misrepresentation of material facts. The jury found the cause of the explosion in the heat transfer chamber of the asphalt dip vat to be autoignition.

MOTION FOR SUMMARY JUDGMENT

Conoco first contends its motion for summary judgment should have been granted because: (a) plaintiff was allowed to violate Supreme Court Rule 141 (1992 Kan.Ct.R.Annot. 124) by reserving until the trial the right to call witnesses to controvert defendant's facts set out in its motion for summary judgment; (b) plaintiff did not and could not produce facts in support of the autoignition theory; and (c) the facts contained in the summary judgment record demonstrated that steam caused the explosion.

Conoco's motion for summary...