Mays v. Ciba-Geigy Corp., CIBA-GEIGY

Citation233 Kan. 38,661 P.2d 348
Decision Date26 March 1983
Docket NumberNo. 54176,CIBA-GEIGY,54176
PartiesLarry Keith MAYS, Appellant, v.CORPORATION, Misco-United Supply, Inc., and Graves Drilling Company, Inc., Appellees, and Doc's Backhoe Service and Cimarron Insurance Company, Inc., Intervenors.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Generally a party may not defeat summary judgment by filing a subsequent affidavit impeaching his previous testimony upon deposition.

2. Supreme Court Rule 141 (230 Kan. lxxxv) requires a party seeking summary judgment to file a written statement of uncontroverted facts in support of said motion. Amendment of said statement, by the movant at time of hearing on the motion, is within the discretion of the trial court and such determination will not be disturbed on appeal absent a showing of an abuse of such discretion.

3. To present a prima facie strict liability case, the party must produce proof of three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control. These elements 4. For circumstantial evidence to make out a prima facie case of strict liability, it must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective. Because liability in a products liability action cannot be based on mere speculation, guess or conjecture, the circumstances shown must justify an inference of probability as distinguished from mere possibility.

may be proven inferentially, by either direct or circumstantial evidence.

5. While a party is not normally required to prove his case at the summary judgment stage, he must present some facts to support the elements of his claim.

6. A party may limit the claim to negligence in failing to warn about foreseeable harm from a product or claim strict liability for injury derived from the same failure. In either case, however, the duty is one of ordinary care.

7. The duty of manufacturers and sellers to warn relative to installation of specialized industrial products is discussed.

8. Express warranties under K.S.A. 84-2-313(1)(a) and (c) are discussed and held to be absent under the circumstances herein.

9. K.S.A. 44-503(a) specifies conditions whereby an injured worker will be deemed the statutory employee of a principal contractor for workers' compensation purposes and does not require the work undertaken to be the primary work of the principal. It is sufficient if such work is a part of the overall operations of the principal contractor. A principal contractor may engage in several types of business activity, any one of which may constitute an integral part of its trade or business.

10. In a personal injury action based on negligence, strict liability, and breach of express warranties, the record is examined and it is held: The trial court did not err in (1) striking portions of certain affidavits in which affiants sought to impeach their prior deposition testimony; (2) permitting a defendant seeking summary judgment to amend orally its written statement of uncontroverted facts at the time of the hearing; (3) granting summary judgments to the defendants seller and manufacturer on all theories of liability asserted; and (4) granting summary judgment to the defendant drilling company on the basis it was the statutory employer of plaintiff pursuant to K.S.A. 44-503(a).

Richard D. Greene and Jeffery L. Carmichael, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, argued the cause, and Dennis M. Feeney, Wichita, of the same firm, was with them on the briefs for appellant.

Alvin D. Herrington, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause, and Eric E. Davis and Randall E. Fisher, Wichita, of the same firm, were with him on the brief for appellee Ciba-Geigy Corp.

Larry Withers, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Arthur S. Chalmers, Wichita, of the same firm, was with him on the brief for appellee Misco-United Supply, Inc.

Steven C. Day, of Turner & Boisseau, Chartered, Wichita, was on the brief for appellee Graves Drilling Co., Inc.

McFARLAND, Justice:

In this action plaintiff Larry Keith Mays seeks recovery for personal injuries suffered when a gas pipeline system on which he was working exploded. Theories advanced for liability of the various defendants include negligence, manufacturing defect, failure to warn, and breach of express warranty. The trial court entered summary judgment in favor of each defendant and plaintiff appeals therefrom.


A number of complex issues are raised, several of which involve intensive scrutiny of different facets of the factual circumstances herein. We believe it would be appropriate at this point to state only a preliminary factual framework which identifies Plaintiff Larry Keith Mays was an employee of intervenor, Doc's Backhoe and Roustabout Service, a sole proprietorship owned and operated by Mr. Donald "Doc" Dale and located in Attica, Kansas. On December 18, 1976, Doc's Backhoe and Roustabout Service was engaged in connecting a new gas well to an existing separator on property located three miles south of the town of Murdock, in Kingman County, on what is referred to as the Kostner lease. The leasehold property already had two producing gas wells and the third was complete except for connection to the separator, some 1,200 feet from the new well. This new well is referred to as Kostner No. 3.

the parties and their relationship to this controversy as well as the basic facts of what occurred. Factual details will be set forth in the opinion as needed.

After digging the ditch, installing the pipe, and making all the connections, Doc Dale checked the line for defects and proceeded to test the new pipeline system. Plaintiff was directed by Dale to remain near the separator and read the pressure gauge. As gas surged through the pipeline system on the test, the line whipped up and an explosion ensued. Plaintiff was engulfed in flames and severely burned.

Defendant, Graves Drilling Company, Inc., was the producer-operator of the lease but had no ownership interest therein. Graves had served as the drilling contractor on the new well and had hired a completion rig to be moved onto the site. After the completion work was finished, Graves hired Doc Dale to connect the new well to the separator. This type of work was frequently done by Dale as a part of his business.

Doc Dale purchased most of the materials utilized on this job from defendant Misco-United Supply, Inc., an oil field supply company located in Medicine Lodge. Included within those purchases were fiberglass pipe, adaptors and epoxy glue which had been manufactured by defendant Ciba-Geigy Corporation.

Numerous errors in the installation and testing procedures utilized by Dale were established. They include:

1. Use of a low-pressure nipple in the pipeline system which required a high-pressure nipple;

2. Failure to backfill or pin the fiberglass pipe between connections prior to testing;

3. Failure to thruster-block the elbows of the pipe prior to testing;

4. Failure to test the system with a nonflammable substance; and

5. Failure to turn off open flames on separator and heater prior to testing.


The first issue on appeal is whether the district court erred in striking portions of three affidavits attached to plaintiff's memorandums in opposition to defendants Misco and Ciba-Geigy's motions for summary judgment.

Plaintiff's deposition was taken on May 12, 1978. Plaintiff was the only eyewitness as to the movement and rupture of the line. He testified in his deposition the pipe whipped up and broke within five feet either side of the steel-to-fiberglass connection. Five feet on the gas well side of the connection would be in the fiberglass pipe manufactured by Ciba-Geigy. Five feet on the separator side would be in the steel pipe not manufactured by Ciba-Geigy. More than three years later, on September 2, 1981, Misco filed its motion for summary judgment which included some six pages of "uncontroverted facts." On September 16, 1981, Ciba-Geigy filed its motion for summary judgment with 55 detailed "uncontroverted facts." On September 25, 1981, and October 19, 1981, plaintiff filed his memorandums in opposition to the respective summary judgment motions. Attached to the October 19, 1981, response was an affidavit of plaintiff dated October 8, 1981, which stated inter alia the pipe broke five feet into the fiberglass side of the connection.

The deposition of Doc Dale was taken on March 27, 1978. In his deposition Dale testified he believed he was well versed and well experienced in operations such as he was engaged in on the accident site. Specific In his two affidavits, both dated September 21, 1981, and each attached to the respective responses, a very different Doc Dale is portrayed--a man thirsting for knowledge, who, if adequately instructed by defendants Misco and Ciba-Geigy, would have performed all the steps properly and thereby avoided the explosion and resultant tragic injuries to plaintiff.

examples of his testimony relative to his belief and reliance in his own expertise in hooking up wells will be set forth in the discussion of Issue No. 5. Further, Dale testified he did not read the Ciba-Geigy package inserts on making the bond of steel to fiberglass connections. The picture that came across was clearly that of a man who thought he knew [233 Kan. 42] all there was to know about hooking up oil and gas wells and did not need to read, and would not read, instruction manuals issued in conjunction therewith.

In determining the issue, Judge Calvert held:

"The first matters that have to be dealt with are the supplemental affidavits. Those affidavits, to the extent that they are inconsistent with or contrary to the deposition testimony of Doc Dale...

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