Sharp v. Wyatt, Inc., 11315

• Decision Date: 06 July 1993
• Docket Number: No. 11315,11315
• Citation: 627 A.2d 1347,31 Conn.App. 824
• Court: Connecticut Court of Appeals
• Parties: Larry L. SHARP, Administrator (ESTATE OF David C. SHARP), et al. v. WYATT, INC., et al.

Page 1347

627 A.2d 1347

31 Conn.App. 824

Larry L. SHARP, Administrator (ESTATE OF David C. SHARP), et al. v. WYATT, INC., et al.

No. 11315.

Appellate Court of Connecticut.

Argued March 31, 1993.

Decided July 6, 1993.

[31 Conn.App. 825] Joan C. Harrington, with whom was Michael P. Koskoff, for appellants (plaintiffs).

[31 Conn.App. 826] Richard A. Jontos, with whom was Jane E. Hugo, for appellee (named defendant).

Ben A. Solnit, with whom, on the brief, were Robert W. Allen, Thomas R. Gerarde, J. Kevin Golger, Kevin M. Tepas, Sergio C. Deganis and James G. Geanuracos, for appellees (defendant Exxon Co., U.S.A., et al.).

Before FOTI, LANDAU and SCHALLER, JJ.

SCHALLER, Judge.

The plaintiffs ¹ appeal from the judgment of the trial court rendered after that court granted the defendants' motion for summary judgment. The issues in this appeal implicate the scope of liability under the warnings provision of Connecticut's product liability statute. General Statutes § 52-572q. ² Specifically, the plaintiffs claim that the trial court improperly (1) applied the principles governing summary judgment, (2) determined that under Connecticut law no warnings are required unless The following facts are not in dispute. The defendant Wyatt, Inc. (Wyatt), is a wholesale distributor of petroleum products. Prior to the events at issue, Wyatt purchased petroleum products from the defendants, B.P. North America Trading, Inc.; Exxon Company, U.S.A.; Moore McCormack Petroleum, Inc.; Mount Airy Trading Company; Northville Caribbean Corporation; and Phibro Distributors, Inc. (oil suppliers). Wyatt then sold these products to the Norbert E. Mitchell Company (Mitchell Fuel) for retail sale.

                the product itself is defective, 3 (3) found that any lack of warnings [31 Conn.App. 827] was not the legal cause of the deaths given the absence of (a) cause in fact, (b) proximate cause 4 and (c) product identification, and (4) rejected expert testimony on the issue of causation.   The judgment is reversed and the case is remanded for further proceedings
                

Mitchell Fuel stored the defendants' petroleum products on its premises in seven underground tanks of which five contained number two oil, one diesel fuel, and the other kerosene. The tanks surrounded a vault that housed valves but did not, by design, store petroleum products. Employees of Mitchell Fuel frequently entered the vault via a ladder through a thirty-six inch manhole, but they never first tested oxygen levels in the tank or used protective gear.

On February 3, 1983, Norbert E. Mitchell, Jr., directed his employee, David C. Sharp, to enter the vault and to shut off a valve. Prior to that time, nearly six months had elapsed since anyone had entered the vault. When Mitchell heard banging noises, he instructed another employee of Mitchell Fuel, Robert Vidal, to aid Sharp, but Vidal collapsed at the bottom of the ladder. Mitchell left the area to call for help. Before Mitchell returned, Alois Entress descended the ladder with a rope. He, too, collapsed at the bottom of the ladder. As a result of this incident, the three employees who descended into the vault each died from asphyxiation.

On January 24, 1985, the plaintiffs brought this action against Wyatt pursuant to General Statutes §§ 52-572m through 52-572r. ⁵ They claimed that Wyatt, as a wholesaler, failed to warn of the hazards associated with the storage of petroleum products. On January 28, 1985, Wyatt impleaded its oil suppliers as third party defendants. Subsequently, the plaintiffs brought direct actions against the oil suppliers.

In 1991, the defendants filed motions for summary judgment. In support of these motions, the defendants asserted that, as a matter of law, their products were neither defective nor the proximate cause of the deaths. They also posited that the plaintiffs' action was barred by the sophisticated user and the bulk supplier defenses ⁶ as well as by the statute of limitations. ⁷ In response to the defendants' motions, the plaintiffs argued that the defendants' failure to give adequate warnings of the dangers associated with the storage of petroleum products caused the deaths of the decedents. They also disputed the applicability of the asserted defenses.

In opposition to the motions for summary judgment, the plaintiffs submitted evidence that supports the following facts.

                In 1966, Mitchell Fuel purchased seven used tanks and installed them as part of an underground storage facility.   Each of the seven fuel tanks leaked petroleum products supplied, in part, by the defendants. 8  Two of the seven tanks contained the defendants' products exclusively.   The five number two oil tanks contained roughly 5 percent of products supplied by the defendants.   In each of the tanks, the defendants' products commingled with the petroleum products of other suppliers.   These other suppliers were not parties in this action.   The petroleum products leaked into the vault in an amount proportionate to the percentages of oil attributable to each supplier.   The defendants, therefore, supplied approximately 25 percent of the petroleum that leaked into the vault
                

As a result of the leakage of petroleum products into the vault, a chemical reaction ensued. In this regard, the plaintiffs have submitted expert deposition testimony to develop two distinct scientific theories. The first theory, styled hydrocarbon displacement, is that hydrocarbon vapors emanating from the fuel products displaced oxygen in the vault. The second theory, entitled biological oxidation, is that microorganisms, indigenous to the soil, consumed petroleum products. In consuming the petroleum products, the organisms utilized oxygen to generate carbon dioxide and water. Under both theories, the chemical reactions operated to deplete oxygen levels in the vault and thereby to cause the asphyxiation of the decedents.

The plaintiffs further submitted evidence indicating that the defendants' petroleum products were defective in that they were not accompanied by adequate warnings. Specifically, the defendants failed to warn of the dangers of deoxygenation associated with the storage of petroleum products in confined spaces. The defendants also failed to issue adequate preventative instructions. Because Mitchell did not understand that the petroleum products chemically would deplete the oxygen levels in the vault, he did not take any precautionary measures. For example, had Mitchell been aware of the need to test for safe oxygen levels, he would have done so before directing Sharp to enter the facility.

The plaintiffs' evidence notwithstanding, the trial court granted the defendants' motions for summary judgment and issued a detailed memorandum of decision. With respect to the plaintiffs' scientific theories, the court expressly rejected hydrocarbon displacement as a possible cause of the decedents' deaths. The court found that the theory had been discredited by the plaintiffs' other expert witness, who propounded the second theory, biological oxidation. The court did not flatly reject the second theory, however, instead noting that it, too, was "speculative."

The trial court further determined that the defendants' products were not defective because, unlike the situation where fumes emanate from petroleum products, the process of biological oxidation is not a danger attributable to the petroleum products. The court stated, "the fact that oil is subject to bacterial oxidation is not a defect or fault with the product.... Accordingly, it is unnecessary to consider the factual considerations required by the statute to determine whether instructions or warnings were required, whether they were given here, whether they were given to the proper person to prevent the potential harm, and whether, if adequate warnings were given, they would have prevented the injury."

The principal focus of the trial court's memorandum of decision was on the issue of causation. The trial court found that (1) the defendants reasonably could not have foreseen that the decedents would die in the vault by asphyxiation, (2) the lack of warnings was not a substantial factor leading to the deaths, (3) the acts and omissions of Mitchell Fuel implicated the doctrine of Lastly, the trial court addressed the statute of limitations defense asserted by the defendant oil suppliers. ⁹ The issue was whether a two year statute of limitations provision, General Statutes § 52-577c(b), ¹⁰ or a three year provision, General Statutes § 52-577a, ¹¹ applied in this case. The court determined that this question involved mixed issues of fact and law and that its resolution was premature at that time. The court, therefore, rejected this defense as an additional basis on which summary judgment could be granted for the defendant oil suppliers.

superseding cause, (4) any warnings that the defendants might have provided would not have prevented the accident, and (5) the defendants were responsible for only 5 percent of the oil that may have leaked into the vault and, thus, "the plaintiffs must resort to speculation and conjecture that [the defendants' oil] resulted in the deoxidization of the vault and that a party that caused the decedents' death is in this case."

The plaintiffs appealed from the summary judgment rendered by the trial court. In response, the defendants argue that the judgment was entirely appropriate and also supportable on other grounds.

I STANDARD OF REVIEW

We note initially that the granting of summary judgment by the trial court must meet well established standards. Practice Book § 384 provides that "[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is nevertheless]...