Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., Civ-70-647.

• Decision Date: 14 April 1976
• Docket Number: No. Civ-70-647.,Civ-70-647.
• Citation: 411 F. Supp. 705
• Parties: MUSTANG FUEL CORP., a corporation, Plaintiff, v. The YOUNGSTOWN SHEET AND TUBE COMPANY, an Ohio Corporation, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

411 F. Supp. 705

MUSTANG FUEL CORP., a corporation, Plaintiff, v. The YOUNGSTOWN SHEET AND TUBE COMPANY, an Ohio Corporation, Defendant.

No. Civ-70-647.

United States District Court, W. D. Oklahoma.

April 14, 1976.

Joe G. Wolfe and Ed Abel, Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., for plaintiff.

Calvin W. Hendrickson, Pierce, Duncan, Couch & Hendrickson, Oklahoma City, Okl., for defendant.

MEMORANDUM OPINION AND ORDER

CHANDLER, District Judge.

On this 6th day of April, 1976, the Court having reviewed the entire record, including memorandum briefs submitted by counsel for the respective parties in support of and in opposition to the plaintiff's Motion for New Trial, the Motion for New Trial of the plaintiff, Mustang Fuel Corp., is denied.

By plaintiff's opening statement in its Brief in Support of its Motion for New Trial, there appears a lack of understanding of the Court's Order of November 26, 1975, granting summary judgment to the defendant. The Court's denial of plaintiff's Motion for New Trial is predicated upon the following rationale.

By its decision in Kirkland v. General Motors Corporation, 521 P.2d 1353 (Okl. 1974), the Supreme Court of the State of Oklahoma adopted its version of Restatement of Torts (Second), § 402A, denominating it "Manufacturers' products liability." The Oklahoma Supreme Court at page 1362 of the reported opinion, specifically adopted Restatement Second § 402A, comment "g" stating:

"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Emphasis added)

The instant case, it goes without saying, involves consumers who are not "ordinary" such as the ordinary consumer in the day-to-day marketplace. For this reason, the Court must give special notice to the phrase "ordinary consumer who purchases it." That is, it must view the Mustang Fuel Corporation as such and not as an ordinary consumer without knowledge of the petroleum industry. The Court notes that the purchase was initiated by the plaintiff through its Chief Engineer, James H. Coulter, who, at the time he established the specifications to which the pipe would be built had had approximately 14 years experience involved with the laying of pipelines and during that time was intimately associated with pipeline systems not only in the employment of Mustang but also with the United States Navy and Sohio Petroleum Company. The purchase order was pursuant to detailed technical specifications of the American Petroleum Institute. Without stating the tests in detail, suffice it to say that order by these specifications is proof that the plaintiff understood in depth the chemical and metallurgical tests that would be performed on the pipe prior to delivery. As noted by the United States Court of Appeals for the Tenth Circuit in its decision, Mustang Fuel Corp. v. Youngstown Sheet and Tube Company, 516 F.2d 33, at page 38 (10th Cir. 1975), Mustang prescribed the tests to be performed, Mustang knew what tests would be performed, and Mustang even had the right to have its own representative at the defendant's plant to insure that those tests, and presumably other tests it might wish, were in fact performed. This opportunity, as noted in the reported opinion, supra, was not exercised. Now after purchase and delivery of the pipe, after interment of the pipe for several years, after repeated ruptures to the pipe, after the Lemke incident which gave rise to this litigation, indeed after the first hearing of this matter, the plaintiff has produced Dr. Hochman who has performed a microprobe analysis which, according to Dr. Hochman's testimony, shows "certain areas of extremely high increase of sulphur content."

In Dr. Hochman's opinion the localized corrosion suffered was caused in some cases by incomplete fusion and/or high sulphur content acting both in concert. Dr. Hochman does not testify with particularity which corrosion was so caused on the basis of his preliminary study. Dr. Hochman agreed that the API specifications did not call for a microprobe analysis. In fact, Dr. Hochman's testimony established as undisputed fact that no specifications in the country require the test that he performed.

Against this evidentiary and legal background, the Court was called upon to determine if, at the time the defendant moved for summary judgment, there were any actual or inferential facts which, taken in a light most favorable to the plaintiff, would establish a triable issue in this remanded litigation. The Court decided there is not a triable issue herein for the reason that plaintiff has wholly failed in its burden to establish a defect in the pipe, which defect was "unreasonably dangerous" at the time it left the hands of the defendant manufacturer.

In Sterner Aero AB v. Page Airmotive, Inc., 499 F.2d 709, at page 712 (10th Cir. 1974), the United States Court of Appeals, Tenth Circuit, addressed the nature of the § 402A theory, stating:

"This strict liability in tort (§ 402A) is substantially similar to implied warranty stripped of the contract defenses of priority, notice, disclaimer and the other contract attributes."

The defendant has raised by the Third Proposition of its Memorandum Trial Brief the argument that where the plaintiff has failed in its burden of proof to show a product was unmerchantable, then plaintiff has by the same failure not met its burden of proof with respect to proof of an "unreasonable danger." The defendant further argues that Kirkland does not serve to lessen the burden of proof as to a defective product. Upon the facts of this case, the Court agrees. If the parties were at a disparate bargaining position, with the purchaser at the...