Matthews v. Ashland Chemical, Inc.

• Decision Date: 16 September 1985
• Docket Number: No. 84-3246,84-3246
• Citation: 770 F.2d 1303
• Parties: 19 Fed. R. Evid. Serv. 248 Henry MATTHEWS, Plaintiff-Appellant, v. ASHLAND CHEMICAL, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1303

770 F.2d 1303

19 Fed. R. Evid. Serv. 248

Henry MATTHEWS, Plaintiff-Appellant, v. ASHLAND CHEMICAL, INC., et al., Defendants-Appellees.

No. 84-3246.

United States Court of Appeals, Fifth Circuit.

Sept. 16, 1985.

Russ M. Herman, New Orleans, La., Philip A. Gattuso, Gretna, La., Leonard A. Davis, New Orleans, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel, New Orleans, La., for Ashland Chemical.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The only issues on appeal in this complex personal injury suit are whether the district court erred, either in directing a verdict for the defendants after both sides had rested, or in three evidentiary rulings during the trial. In an earlier appeal of this case, we held that the district court should not have entered a summary judgment and we remanded the case for trial of the disputed issues of fact. After remand, the case was bifurcated into separate trials, first on the merits, then, if the plaintiff prevailed, on damages. At the end of the trial on the merits, the jury deadlocked. With the consent of both counsel, the judge dismissed the jury. He then directed a verdict for the defendant. We affirm the district court's judgment, finding that the evidence was insufficient to warrant a verdict for the plaintiff by any reasonable juror. The evidentiary rulings complained of were either correct or harmless and, therefore, do not affect this result. The denial or reversal of a summary judgment does not necessarily mean that, when all of the evidence has been adduced, a reasonable juror might find for the plaintiff.

I.

In this vigorously tried diversity case, Henry Matthews, a propane gas deliveryman employed by Amoco Oil Co., seeks to recover damages under the Louisiana law of negligence and strict liability for injuries he sustained while delivering propane gas at a warehouse leased and operated by Ashland Chemical, Inc. In relating the facts of this case, we construe all of the evidence presented at trial "with all reasonable inferences most favorable to" Matthews. ¹

Ashland used forklift trucks powered by cylinders of propane gas. When the cylinders were empty, Ashland's employees usually placed them on the loading dock outside Ashland's warehouse. On the day Matthews was injured, Ashland had ordered refills for three empty cylinders from Amoco, which sent Matthews to Ashland's warehouse to make the delivery. When Matthews arrived, he connected the hose from his delivery truck to one of the cylinders at the place where it had been left by Ashland's employees. When he heard the propane begin to enter the cylinder, Matthews stepped over to an electric water cooler located just inside the warehouse, approximately two feet away. He took a drink of water and returned to the cylinder. As he attempted to open the valve on the hose to fill the cylinder more quickly, a large cloud of propane gas escaped, either from the nozzle of, or from a leak in, the hose. Simultaneously, Matthews heard a clicking noise from the water cooler and a flash fire erupted, engulfing and injuring him. At trial, Matthews presented expert testimony that, as the water cooler switched on automatically to chill more water, it emitted a spark capable of igniting the propane gas.

Regulations of the Louisiana Department of Public Safety Liquid Petroleum Gas Commission require that cylinders of propane be filled a minimum of ten feet from any building. Matthews was unaware of this requirement, although he had been employed by Amoco to deliver propane for fifteen years, and had filled propane cylinders on Ashland's premises for more than four years, Matthews had never received formal training in the proper delivery of propane. He passed a state licensing exam when first hired by Amoco, but the state examiner gave him the answers during the course of the examination.

Ashland did not require Matthews to fill the cylinders in any particular location. The cylinders weighed only 33 1/3 pounds each when empty and approximately 75 pounds when filled. Matthews could have easily moved the empty cylinders away from the warehouse, although he would have found it more difficult to move full cylinders back to the loading dock. Ashland argues that Matthews might have required that the cylinders be left in a place at least ten feet from the warehouse, but Matthews contends that he was both a salesman and deliveryman and that such a requirement would have antagonized his customer.

Matthews contends that Ashland was negligent in placing the cylinders to be filled adjacent to the electric water cooler that was capable of igniting escaped propane. Alternatively, Matthews contends that the juxtaposition of cylinders and the water cooler created an ultrahazardous condition and that Ashland should be subject to strict liability for the injuries he suffered. Finally, Matthews contends that Ashland should have posted signs warning of the danger.

In our earlier opinion reversing summary judgment, ² we explained at length Louisiana's law of negligence, under La.Civ.C. art. 2316, and its law of strict liability, under La.Civ.C. arts. 2317 and 2322, as construed by the then recent Louisiana Supreme Court decision in Entrevia v. Hood. ³ We found that a plaintiff who seeks to impose liability on the basis either of negligence or strict liability must prove that the harm he suffered resulted from an unreasonable risk created by the defendant's conduct or equipment. ⁴

The ultimate determination of the reasonableness or unreasonableness of the defendant's actions, however, requires two subsidiary determinations. The judge must decide, " 'from the same standpoint as would a legislator regulating the matter,' " whether the risk and the gravity of the harm created are of such magnitude that they outweigh the social utility of the defendant's conduct. ⁵ To decide questions of social utility, the judge is required "to consider the particular case in terms of moral, social, and economic considerations." ⁶ If the judge finds that the risk created by the defendant is not socially justified, then the defendant's conduct comes within reach of the liability provisions of the Louisiana Civil Code and it is up to the trier of fact to determine whether there was an "unreasonable risk of harm in the particularized situation presented for decision." ⁷

In directing a verdict for Ashland, the trial judge held that no reasonable trier of fact could find that Ashland was negligent, that it maintained defective premises, or that its premises posed an unreasonable risk of harm that could justify imposing liability for Matthews's injuries. Ashland maintained, in the judge's words, "nothing more than what you might call a plain vanilla warehouse," not a storage area for ultrahazardous materials.

The trial court weighed the risk and gravity of the harm against the social and economic utility of Ashland's activities. From the evidence adduced at trial, he found the use of propane fuel to power forklifts in warehouses such as Ashland's to have great utility. He found that it was "most reasonable," and by implication, socially and economically useful, to allow a warehouse operator such as Ashland to rely on the purported superior knowledge and skill of the propane deliverer to take the necessary precautions to fill the tanks properly and under safe conditions. He noted that Matthews could easily have moved the empty cylinders away from the loading dock. The trial court concluded that, although the gravity of the possible harm was great, the risk in these circumstances was miniscule, especially because the fire would not have occurred in the absence of an intervening cause, such as the hole in the hose of the delivery truck. Finally, the trial judge stated that it was irrelevant to his decision whether a reasonable juror would or would not find that the source of the spark was the water cooler.

Independent of these conclusions, the trial court held that no reasonable trier of fact could find that Matthews was not contributorily negligent and, therefore, Matthews was barred from recovery under the applicable Louisiana law, which, at that time, made contributory negligence a bar to recovery on the basis of negligence. The judge made no finding with regard to the defense of assumption of risk. On appeal, Matthews argues that contributory negligence is not a valid defense in this action. Because we do not base our affirmance on contributory negligence, we express no opinion concerning whether the plaintiff's negligence was or was not a bar to recovery in Louisiana strict liability cases before the adoption of comparative negligence. ⁸

On appeal, Matthews raises the following issues: (1) whether it was proper for the trial court to grant Ashland's motion for a directed verdict on the issues of strict liability and negligence; (2) whether the trial court committed reversible error by refusing to admit into evidence a fire-investigation report made at Ashland's warehouse on the day of the fire; and (3) whether the trial court committed reversible error by refusing to permit Matthews' expert witness to testify about the applicability of various state and national safety standards to Ashland's warehouse, and about whether the conditions at Ashland's warehouse were ultrahazardous.

II.

That summary judgment was improper did not preclude a directed verdict. As we stated in Nunez v. Superior Oil Co.: ⁹

Once all the evidence was before the court, however, the judge's decision on a motion for a directed verdict was governed by a different standard. No longer was the question simply whether there were disputed issues that might affect the result. Instead the trial judge was entitled to weigh the evidence to determine whether it sufficed to support a verdict. "[T]he reversal of...