MacKrell v. Bell H2S SAFETY, 89-218

• Citation: 795 P.2d 776
• Decision Date: 23 July 1990
• Docket Number: No. 89-218,89-218
• Parties: Paul MacKRELL, Appellant (Plaintiff), v. BELL H sub2 S SAFETY and Kim Brondum, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 776

795 P.2d 776

Paul MacKRELL, Appellant (Plaintiff), v. BELL H sub2 S SAFETY and Kim Brondum, Appellees (Defendants).

No. 89-218.

Supreme Court of Wyoming.

July 23, 1990.

William J. Flynn, Green River, for appellant.

Thomas A. Nicholas of Hirst & Applegate, Cheyenne, for appellees.

Before CARDINE, C.J. ^* , and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

Appellant Paul MacKrell (MacKrell) sued to recover damages for personal injuries resulting from a propane gas explosion. He appeals from a summary judgment in favor of appellees Bell H sub2 S Safety (Bell) and its employee Kim Brondum (Brondum).

We affirm.

ISSUES

MacKrell states the issue as:

"Did the District Court err in granting summary judgment for Defendants Bell H sub2 S Safety and Kim Brondum on the issue of whether their negligent acts were the proximate cause of the Plaintiff's injuries?"

Bell and Brondum present the issues:

"A. Did the District Court correctly decide that there were no genuine issues as to material facts and that Bell H sub2 S Safety and Kim Brondum were entitled to judgment as a matter of law?

"B. Did the District Court correctly decide that Defendants were entitled to summary judgment as a matter of law because Plaintiff's injuries were the result of an intervening cause?"

The justification for the enormous delay in processing this matter through the district court is not evident from the record. The original complaint was filed on July 28, 1983. Summary judgment in favor of Bell and Brondum was entered on July 1, 1985. MacKrell had made claims against several other defendants which were not disposed of by the summary judgment. A notice of appeal, filed on July 16, 1985, was withdrawn on August 21, 1985, for the reason that the judgment appealed from was not final. On August 8, 1989, and August 22, 1989, over four years after the summary judgment was entered, the district court entered orders dismissing the complaints against the other defendants, with prejudice, upon stipulation of the parties. The judgment of the district court then became a final appealable order, and a notice of appeal was filed on August 22, 1989.

In their motion for summary judgment, Bell and Brondum asserted that they owed no duty to appellant in the hookup, maintenance, inspection, repair or any aspect of the propane gas system; that even if there was a duty and a breach of that duty, they were not liable because the proximate cause of appellant's injury was the ignition of a cigarette lighter by a coemployee of MacKrell in a trailer obviously filled with the propane gas.

FACTS

The motion for summary judgment was supported by an affidavit of Brondum, an employee of Bell. Brondum arrived at work at 7:00 a.m. on October 24, 1982.

Steve Lovett (Lovett), another Bell employee, was in the process of hooking up a propane gas line to a trailer that belonged to Bell. A "T" was being placed in the gas line leading from a propane bottle to the Norton trailer. Once the "T" was in place, turning on the flow of gas would result in gas being supplied to both the Bell trailer and the Norton trailer. When Brondum took over, Lovett directed him not to turn on the gas because the stove burners inside the Norton trailer were turned on. Brondum was to contact the Norton toolpusher to have the burners turned off. Brondum went to the Norton drilling rig floor and asked the toolpusher to unlock the Norton trailer so he could turn off the burners. Brondum was advised by the Norton toolpusher that the burners had been turned off and that it was all right to turn on the gas. Brondum turned the gas on at 9:30 p.m. that same day.

At 3:00 a.m. on October 26, 1982, the Norton trailer exploded. Brondum ran to the scene of the explosion and found three injured people to whom he rendered first aid and then transported two of them to a hospital in Kemmerer. While waiting to be treated, the injured Norton workers told Brondum that they had gone into the trailer, smelled gas, turned off the burners, opened the windows, then tried to light the furnace with a Bic lighter and the trailer exploded.

Lovett's affidavit, also filed with the motion for summary judgment, stated that he had received permission from the Norton toolpusher to connect a line from the Bell trailer to the propane bottle also used by the Norton trailer. He was in the process of doing this work when he was relieved by Brondum. Lovett told Brondum how to complete the work and that he thought the stove burners in the Norton trailer were on. Because the Norton trailer was locked, Lovett instructed Brondum to contact the Norton toolpusher to make sure the stove burners were turned off before turning on the propane. Lovett also stated that he had no responsibility for the Norton trailer or the propane gas service to it.

In answer to MacKrell's interrogatories, Bell stated that: Brondum was its employee, but denied that it or its employees installed a propane gas tank for the Norton trailer; denied that it had ever had a propane gas tank installed by it involved in an explosion prior to the explosion at the Norton trailer; denied knowing to whom the propane gas tank and connecting line belonged, but stated it assumed they belonged to Norton; denied that it had the right of control or management over the propane gas tank and gas line to the Norton trailer; stated that it had not installed the propane gas tank which supplied gas to the Norton trailer; and denied knowledge of any regulations or industry standards and any testing or inspection standards which apply to the connection of propane gas tanks to trailers. Attached to the answers to interrogatories were the statements of Brondum and Lovett. They add nothing beyond that which is provided in their affidavits.

MacKrell's opposition to the motion for summary judgment relied upon the affidavits of Brondum and Lovett in which they admitted splicing into the gas line and admitted knowing that the stove burners were on in the Norton trailer. MacKrell stated that the gas was turned on after checking with the Norton toolpusher, but without doing any further inspection or checking, and that when dealing with a dangerous instrumentality, like propane gas, the required standard of care must be measured by the hazards known to exist.

MacKrell also relied upon his deposition in which he stated that, at about 2:00 a.m. on the day of the explosion, MacKrell and two other Norton employees went to the trailer to move in their belongings. Initially, they were unable to enter the trailer because it was locked, but they found another hand who had a key and they entered. When he entered the trailer, he could smell gas "real bad"; it burned his eyes and made him cough. They opened some windows, and after discovering that the gas was coming from the stove burners, turned them off. All three of the men had warned each other not to light anything because there was so much gas in the The district court determined that there was no genuine issue of material fact and that, in accordance with W.R.C.P. 56(e), Bell and Brondum were entitled to summary judgment as a matter of law. The district court also determined that even if Brondum were negligent, the cause of the accident was MacKrell's coemployee Dave igniting a cigarette lighter in the trailer that reeked of propane fumes.

                trailer.  One of the men, who MacKrell identified as Dave, didn't think there was any gas in the trailer, although MacKrell and the third workman said, "Yes, there is."   Although only ten minutes or less had transpired since the men entered the trailer, Dave held out a Bic lighter, and despite the attempts of the others to stop him, flicked the lighter.  MacKrell was immediately engulfed in flames and suffered significant injuries.  MacKrell's deposition also established that he was aware that the stove burners were left on to drain the system before the trailer was moved from storage to the location where the explosion took place.  When asked who had the job of inspecting the trailer once it arrived on site to assure it was safe before people moved in, MacKrell responded that it was the Norton toolpusher's job and that he was sure it was not done
                

DISCUSSION

On review of summary judgment, we examine all the information and material presented to the district court. Matthews v. Fetzner, 768 P.2d 590, 592 (Wyo.1989). A detailed exposition of the standards we apply in summary judgment cases is found in Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985). We are also mindful in our resolution of this matter that a higher degree of care is required in dealing with a dangerous instrumentality such as propane gas, Diamond Management Corp. v. Empire Gas Corp., 594 P.2d 964, 967 (Wyo.1979), and Pan American Petroleum Corp. v. Like, 381 P.2d 70, 74 (Wyo.1963); that summary judgments are not favored in negligence actions, Randolph v. Gilpatrick Const. Co., Inc., 702 P.2d 142, 146 (Wyo.1985); and that, although summary judgments are not favored in negligence actions, where the record fails...