Thrasher v. B & B Chemical Co., Inc., No. 92-5128

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SEYMOUR and TACHA; TACHA
• Citation: 2 F.3d 995
• Parties: Prod.Liab.Rep.(CCH)P. 13,792 Patrick THRASHER, Plaintiff-Appellant, v. B & B CHEMICAL COMPANY, INC., a Florida corporation, Defendant-Appellee.
• Docket Number: No. 92-5128
• Decision Date: 09 August 1993

Page 995

2 F.3d 995 Prod.Liab.Rep.(CCH)P. 13,792 Patrick THRASHER, Plaintiff-Appellant,
v.
B & B CHEMICAL COMPANY, INC., a Florida corporation,
Defendant-Appellee. No. 92-5128. United States Court of Appeals,
Tenth Circuit. Aug. 9, 1993.

Page 996

Joe L. White and Gary G. Grisso, Collinsville, OK, for plaintiff-appellant.

Randall A. Breshears of Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, OK, for defendant-appellee.

Before SEYMOUR and TACHA, Circuit Judges, and ROGERS, ^* Senior District Judge.

TACHA, Circuit Judge.

Plaintiff-appellant Patrick Thrasher appeals the district court's grant of summary judgment in favor of defendant-appellee B & B Chemical Company, Inc. ¹ Because disputed issues of material fact remain unresolved, we reverse and remand for further proceedings.

Thrasher, an American Airlines employee, was severely burned when a barrel of paint stripper erupted. The paint stripper was packaged in a fifty-five gallon drum which had been stored in direct sunlight, contrary to company policy. The drum and its valve now cannot be located.

American Airlines identified the supplier of the stripper as B & B Chemical Co., Inc. Thrasher filed a products liability action against B & B in Oklahoma state court. The action was removed, on diversity grounds, to the United States District Court for the Northern District of Oklahoma. B & B then brought a third-party action against Florida Drum Company, the alleged supplier of the barrel.

B & B and Florida Drum both moved for summary judgment, claiming that because Thrasher could not positively identify B & B as the supplier and could not demonstrate the existence of a defect which caused his injuries, there was no genuine issue of material fact. The district court agreed, granting B & B's motion and finding Florida Drum's motion moot. This appeal followed.

We review summary judgment decisions de novo, applying the same standards as those employed by the district court under Fed.R.Civ.P. 56(c). Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). Summary judgment is appropriate when, viewing the record in the light most favorable to the nonmoving party, "there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Id.; Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2511-12.

Page 997

We first determine whether Thrasher's evidence is sufficient to create a jury question on the identity of the paint stripper supplier. Because the barrel containing the chemical cannot be located, proof of the supplier must be made through circumstantial evidence. B & B and Florida Drum rely on the fact that Thrasher identified the barrel as green and white, whereas Florida Drum's barrels are black or black and white, and the fact that American Airlines has used other brands of paint stripper.

To support his claim that the stripper was supplied by B & B, Thrasher presented the following evidence: (1) in his workers' compensation proceeding, in an interrogatory response, American Airlines identified the chemical that injured Thrasher as "B & B 1717AMX" supplied by the B & B Chemical Company, Appellant's App. at 152; ² (2) in the six months that Thrasher worked with paint stripper at American Airlines, he saw only barrels stenciled with "B & B" on them, and never saw barrels labeled with any other brand name, id. at 96-97, 107, 110, 119; (3) during the six months before the accident, American Airlines ordered large quantities of B & B stripper, as evidenced by eight invoices, dated between January 30, 1989, and June 27, 1989, for a total of eighty-six barrels, id. at 183-190; (4) no invoices were produced to show that other brands of stripper were used during this period; (5) the American Airlines employee who replaced the barrel that injured Thrasher testified that it was black with a white top, although he later said that he couldn't safely say what color the barrel was, id. at 84, 86; (6) Charles Wofter, an American Airlines...