Peneschi v. National Steel Corp., 15069

• Decision Date: 24 June 1982
• Docket Number: No. 15069,15069
• Citation: 170 W.Va. 511,295 S.E.2d 1
• Parties: Joseph PENESCHI, et al. v. NATIONAL STEEL CORP., et al. v. KOPPERS CO., INC.
• Court: West Virginia Supreme Court

Page 1

295 S.E.2d 1

170 W.Va. 511

Joseph PENESCHI, et al. v. NATIONAL STEEL CORP., et al. v. KOPPERS CO., INC.

No. 15069.

Supreme Court of Appeals of West Virginia.

June 24, 1982.

Dissenting Opinion July 7, 1982.

Rehearing Denied Sept. 16, 1982.

[170 W.Va. 512] Syllabus by the Court

1. Fletcher v. Rylands, 3 H. & C. 774, 159 Eng.Rep. 737 (1865), rev'd Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), aff'd Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), as articulated in the Restatement (Second) of Torts (1976) is hereby adopted into the common law of this jurisdiction.

[170 W.Va. 513] 2. Where a party engages an independent contractor for the purposes of working with an abnormally dangerous instrumentality and an employee of the independent contractor is injured as a result of the abnormally dangerous instrumentality, there is no Rylands -type strict liability on the part of the employer engaging the independent contractor.

3. Where a plaintiff has not filed any claim against a third-party defendant, but after the statute of limitations has run seeks to amend his complaint to add that third-party defendant as a party defendant to the original complaint because a new cause of action was discovered in the development of the original law suit within a reasonable time, it is within the trial judge's discretion under Rule 15(c), W. Va. R.C.P. to determine whether the ends of justice are served by permitting the complaint to be amended and "relate back," thereby avoiding the effect of the statute of limitations.

4. " 'When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party cannot stand, the court should direct a verdict in his favor.' Point 6 Syllabus, Lightner v. Lightner, 146 W.Va. 1024 [124 S.E.2d 355]." Syl. pt. 1, Wagner v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).

Bogarad & Robertson and William R. Kiefer, Weirton, for appellants.

Frankovitch & Anetakis, Carl N. Frankovitch and George J. Anetakis, Weirton, for appellee National Steel Corp.

Donell, DeLaMater & Hagg and W. Dean DeLaMater, Weirton, for appellee Koppers Co., Inc.

Bachmann, Hess, Bachmann & Garden, John B. Garden and R. Noel Foreman, Wheeling, for appellee Hamilton.

Schrader, Stamp, Byrd, Byran, Johnson & Companion, Fred P. Stamp and James F. Companion, Wheeling, for appellee Yobe.

NEELY, Justice:

On 15 December 1972 Joseph Peneschi was an employee of Koppers Company, Inc., when a coke oven battery located on Browns Island in the Ohio River that Koppers was building for the National Steel Corporation exploded. Mr. Peneschi was standing on a water tank approximately one hundred feet from the explosion; he jumped from the tank and allegedly injured himself. Mr. Peneschi and his wife brought suit against the National Steel Corporation for negligence and against George V. Hamilton, Inc. and Yobe Electric, Inc., two sub-contractors of Koppers Company for negligence. National Steel Corporation filed a third-party complaint against Koppers Company, Inc., for indemnification under the construction contract between Koppers and National and in 1978, over five years after the injury, Mr. Peneschi sought to amend his complaint to assert a cause of action against Koppers, his employer, for intentional injury under Mandolidis v. Elkins Industries, 161 W.Va. 695, 246 S.E.2d 907(1978).

The circuit court denied Mr. Peneschi's motion to amend his complaint to assert a cause of action against Koppers on the ground that the claim was barred by the two year tort statute of limitations. Furthermore, during the course of trial both George V. Hamilton, Inc. and Yobe Electric, Inc. were dismissed as parties because there was no evidence of negligence on their part. The case then went to the jury on the question of whether National Steel was negligent in causing the explosion and the jury returned a verdict for the defendant. It is from this jury verdict that the plaintiffs appeal. We affirm.

The defendant, National Steel Corporation, is a Delaware Corporation, operating in Weirton, Hancock County, West Virginia, as Weirton Steel Division. The Weirton Steel Division, a fully integrated steel-producing facility, decided to expand the coke-producing capacity of its plant by building a new coke facility on an undeveloped island in the Ohio River known as Browns Island. National Steel personnel met with representatives

of Koppers to develop[170 W.Va. 514] preliminary specifications for a coke-producing facility and after these preliminary specifications were developed, National solicited competitive bids from companies engaged in the construction of coke ovens. Three bids were received by National, and Koppers was selected as the successful bidder

Following the selection of Koppers to build the coke oven battery, representatives of Koppers and National met extensively to design the project. Koppers had blueprints and drawings prepared for each facet of the construction, and these drawings were inspected by representatives of National. National's representatives would either approve the drawings for construction or would suggest changes. The process of consultation on design and specifications continued as the project was being built.

It was anticipated that construction of the Browns Island coke oven battery would require twenty-four months. During this time several hundred construction workers were employed by Koppers and its sub-contractors to complete the project. At one point during the consultations on design a representative of National suggested the inclusion of a water spray device on a piece of equipment known as a preheater. A preheater is used to raise the temperature of fuel gas burned to heat the coke ovens in the battery. (The coke battery was designed to be heated by coke oven gas that is composed principally of methane and carbon dioxide and ignites at approximately 1500° F.)

As the gas temperature is raised by the preheater, impurities are removed from the fuel gas. This process enables the fuel gas to burn more efficiently; however, the removal of such impurities results in those impurities accumulating as a type of a sludge in the preheater and related gas lines. The intended purpose of the water spray washing device was to eject a stream of water into the preheater to wash out these deposits. Through the floor on which the preheater was located, the water then drained at the base of the preheater from two, four-inch drain lines into the basement of the coke oven battery and entered an open pit.

Fuel gas was first introduced into the Browns Island coke battery in August 1972 and the process of heating-up the batteries continued until 15 December 1972, the date of the explosion. The fuel gas used to heat the batteries was produced by National at its mainland coke plant that was located in Hancock County, West Virginia, near the river bank across from Browns Island. The gas produced at that plant was pumped under pressure, through gas mains, across a bridge and onto Browns Island. There was a temporary reducing station at the point where the bridge touched down on Browns Island in order to regulate the pressure in the gas mains. From this point the fuel gas lines entered the basement of the Browns Island coke oven battery and made their way through that structure to the flues or burners.

On 15 December 1972 gas escaped from the preheater washing system (that had no warning or protective devices of any kind) and its attendant drain because the drains at the base of the heater were not closed. The pit into which the drain lines emptied did not have a continuously maintained level of liquid as a seal or lid, nor a vent pipe to carry any escaping gas. The explosion resulted.

Some time before the explosion, employees of National were assigned to Browns Island to learn the operation of the battery that was still under the control of the general contractor, Koppers. The plaintiffs alleged that the explosion was caused by negligence on the part of National's employees who were operating various pieces of equipment at the time of the explosion. The allegations in this regard, however, are immaterial to the appeal before us since the jury had all the evidence of active negligence before it and found for the defendant.

I

The primary issue that this Court must decide is the extent to which National is liable to the plaintiff on a theory of strict liability because National was engaged in

an abnormally dangerous undertaking, [170 W.Va. 515] namely the accumulation and use of combustible gas for a private purpose. This issue causes us to confront squarely the question of the extent to which Fletcher v. Rylands, 3 H. & C. 774, 159 Eng.Rep. 737 (1865), rev'd Fletcher v. Rylands, L.R. 1 Ex. 265 (1866),ff'ff'd Rylands v. Fletcher, L.R. 3 H.L. 330 (1868) is applicable in West Virginia today

The basic principle of Rylands is that where a person chooses to use an abnormally dangerous instrumentality he is strictly liable without a showing of negligence for any injury proximately caused by that instrumentality. In the case before us, the plaintiff, Mr. Peneschi, was an employee of a contractor who had been engaged to work with the abnormally dangerous instrumentality and so we are asked to decide whether under these circumstances, where the employee has accepted employment under hazardous conditions, the employer of the independent contractor can be held liable on a strict liability, Rylands -type theory. We conclude that while an unrelated third party could recover against either Koppers or National on a strict liability, Rylands -type theory, an employee of either the general contractor or a sub-contractor who is hired to work under hazardous circumstances is barred from recovery on a strict liability theory. Following an overview of the Rylands doctrine, we will consider its history in this State.

The "rule" of...