Rutherford v. Polar Tank Trailer, Inc.

• Citation: 978 S.W.2d 102
• Parties: Steven Allen RUTHERFORD and Michael Rutherford, Plaintiffs-Appellants, and Liberty Mutual Insurance Company, Intervening Plaintiff-Appellant, v. POLAR TANK TRAILER, INC., A.P.A.C. Tennessee, Inc., Harrison Construction Company, Inc., et al., Defendants-Appellees.
• Decision Date: 03 March 1998
• Court: Court of Appeals of Tennessee

Page 102

978 S.W.2d 102

Steven Allen RUTHERFORD and Michael Rutherford, Plaintiffs-Appellants and Liberty Mutual Insurance Company, Intervening Plaintiff-Appellant, v. POLAR TANK TRAILER, INC., A.P.A.C. Tennessee, Inc., Harrison Construction Company, Inc., et al., Defendants-Appellees.

Court of Appeals of Tennessee Eastern Section, at Knoxville.

March 3, 1998.

Permission to Appeal Denied by

Supreme Court Sept. 14, 1998.

Byron D. Bryant, Knoxville, for Plaintiffs-Appellants.

Gerald L. Gulley, Jr., Baker, McReynolds, Byrne, O'Kane, Shea & Townsend, Knoxville, for Intervening Plaintiff-Appellant.

Jay Arthur Garrison, Kennerly, Montgomery & Finley, P.C., Knoxville, for Defendant-Appellee, Polar Tank Trailer, Inc.

OPINION

FRANKS, Judge.

In this products liability action the defendant was granted summary judgment and plaintiffs have appealed.

The injuries occurred on July 15, 1993, when plaintiff Michael Rutherford, a truck driver for Shore Truck Lines ("Shore") was delivering molten asphalt to a division of A.P.A.C.-Tennessee ("APAC") in Hayesville, North Carolina. The asphalt was transported in an insulated cylindrical trailer tank manufactured by defendant Polar Tank Trailer, Inc. ("Polar"). The tank had a lid or hatch on top and a valve on the bottom rear.

Rutherford had worked for Shore about three years and had been hauling asphalt for several weeks. Shore allowed Michael's nephew, Steven Rutherford, to accompany Michael on the APAC delivery. After reaching the APAC facility, Michael connected APAC's hose to the back of his trailer. The hose was also connected to APAC's pump. Michael inspected the hose and found no defects. He then opened the valve, turned on the pump and began to unload the asphalt. The gasket on the hose began to leak and drip asphalt during the unloading. Michael testified that the total loss caused by the leak would have been approximately one gallon of the 6,000 gallon load.

Michael notified an APAC employee of the leak and the employee asked Michael to change the gasket. He then attempted to change the gasket while the unloading process was underway. He had observed other drivers change the gaskets in the middle of unloading previously. Michael did not completely close the flow valve because he believed that APAC's pump would stall out if he turned the valve all the way off. He left the valve partly open as he uncoupled the hose to allow airflow into the line. At that point Steven was supposed to turn the valve all the way off. When Michael began to disconnect the hose, hot asphalt spewed from the tanker, injuring both Rutherfords.

We conclude for reasons hereinafter stated, that the Trial Court erred in granting summary judgment because plaintiffs' expert's affidavit raises factual issues that must be resolved. When evaluating a motion for summary judgment, the Trial Court should consider "1. Whether a factual dispute exists; 2. Whether the disputed fact is a material outcome of the case; and 3. Whether the disputed fact creates a genuine issue for a trial". Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). We are required to view the evidence in the light most favorable to the opponent of the motion and all legitimate inferences of fact must be drawn in favor of the opponent of the motion. Gray v. Amos, 869 S.W.2d 925 (Tenn.App.1993).

In order to prevail under Tennessee's Products Liability Act, a plaintiff must show that the product was in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller. See T.C.A. § 29-28-105(a). In this case, plaintiffs offered an expert affidavit stating that the flow valve on the tanker was unreasonably dangerous and did not contain bleed vents downstream of the ball cock. Defendant countered with its own expert affidavit stating that the valve was not unreasonably dangerous.

T.C.A. § 29-28-102(8) provides:

"Unreasonably dangerous" means that a product is 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, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that he knew of its dangerous condition.

T.C.A. § 29-28-105(d) states, however, that "a product is not unreasonably dangerous because of failure to adequately warn of a danger or hazard that is apparent to the ordinary user."

Thus, the statute provides two tests for determining whether a product is unreasonably dangerous. Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527 (Tenn.1996). Under the "consumer expectation test," a product "is not unreasonably dangerous if the ordinary consumer would appreciate the condition of the product and the risk of injury." Id. at 530. The prudent manufacturer test "imputes knowledge of the condition of the product to the manufacturer." Id. "The test is whether, given that knowledge, a prudent manufacturer would market the product." Id. (Citations omitted). These two tests are "neither mutually exclusive nor mutually inclusive." Id. at 531.

Defendants argue that it is entitled to judgment under the consumer expectation test because the hazard was obvious. The record shows that Michael Rutherford was aware that hot asphalt could spew out of the valve if the valve was left open. He testified that he was aware that if the valve was not completely closed, it meant asphalt was still flowing out of the trailer. He mistakenly believed that he had closed the valve enough to limit the flow and pressure.

Under the prudent manufacturer test, however, the consumer's expectations are irrelevant. Ray, 925 S.W.2d 527, 531. This test "requires proof about the reasonableness of the manufacturer or...