Wedgewood v. U.S. Filter/Whittier Inc.
| Decision Date | 31 May 2011 |
| Docket Number | No. A-09-1280.,A-09-1280. |
| Parties | JAY H. WEDGEWOOD, APPELLEE, v. U.S. FILTER/WHITTIER, INC. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Washington County: DARVID D. QUIST, Judge. On motion for rehearing, reargument granted. Original memorandum opinion withdrawn. Affirmed in part, and in part reversed and remanded for further proceedings.
Thomas M. Locher and Joseph J. Kehm, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellant.
Mark J. Daly and MaryBeth Frankman, of Brashear, L.L.P., for appellee.
Jay H. Wedgewood appealed to this court from an order of the district court for Washington County that granted summary judgment in favor of U.S. Filter/Whittier, Inc. (U.S. Filter), on seven grounds and dismissed Wedgewood's second amended complaint with prejudice in his products liability suit for personal injury. In our earlier memorandum opinion, we agreed with the district court that an efficient intervening cause broke the chain of proximate causation thereby relieving U.S. Filter of liability. Accordingly, we affirmed the district court's grant of summary judgment. See Wedgewood v. U.S. Filter/Whittier, Inc., No. A-09-1280, 2010 WL 5384269 (Neb. App. Dec. 21, 2010) ().
Following the release of our memorandum opinion, Wedgewood filed a motion for rehearing. We granted the motion, heard reargument, and our previous opinion is hereby withdrawn. We conclude that our previous analysis of foreseeability in connection with the defense of efficient intervening cause was incorrect and that we needed to deal with otherdefenses discussed by the district court. Having viewed the evidence in the light most favorable to Wedgewood as our standard of review requires, we now find that there are genuine issues of material fact preventing the entry of summary judgment in favor of U.S. Filter. Thus, we reverse portions of the district court's order dismissing this suit and remand the cause based on defective design for further proceedings. We affirm the dismissal of Wedgewood's claims based on insufficient warnings and instructions as explained hereafter.
Wedgewood was injured on January 14, 2001, when hot lactic acid poured out of the swing door of a 500-gallon "fines filter" he was in the process of manually opening. At the time of the incident, Wedgewood was an employee of Cargill, Inc., located in Blair, Nebraska, and Cargill was participating in a joint venture doing business as PGLA-1 (PGLA). The fines filter was manufactured by U.S. Filter and sold to PGLA in 1999. PGLA purchased the fines filter for use in its production of lactic acid at the Blair facility. The purpose of the fines filter is to remove small particles, or fines, from the lactic acid solution as part of the purification process.
The fines filter is a 500-gallon cylindrical metal tank, or vessel, that contains 31 leaves, which are caked with a filtering mechanism called "precoat." Fluid, in this case a 50-percent hot lactic acid solution, flows through the leaves, and small particles, or fines, accumulate on the leaves. The fines filter has an automated cleaning process which is normally capable of washing and removing the accumulated matter from the leaves. As such, U.S. Filter also refers to the fines filter as an "Auto-Jet." During the automated cleaning cycle, water is sluiced onto the rotating leaves and matter is washed to the bottom of the tank. Once the cleansing process is complete, the liquid solution is drained into a separate tank called a "sour" tank.
The interior of the fines filter is accessed through a 6-foot-diameter "swing door" located on one end of the tank. The swing door is secured shut by 20 bolts, which must be manually removed in order to open the door to access the interior of the tank. When the fines filter was operating as expected, it was anticipated that it would only be necessary to manually access the tank's interior on an occasional basis for routine maintenance.
Jennifer DeSantis was responsible for procuring the fines filter from U.S. Filter on PGLA's behalf. She was employed by Cargill from 1996 to 2000 and worked as an engineer leased to the joint venture with PGLA at the lactic acid facility in Blair. When she arrived in Blair, only the infrastructure for Cargill's existing corn milling facility was there. Thus, she started developing the lactic acid production process almost entirely from scratch. DeSantis testified that she worked in conjunction with an engineering firm, Fluor Daniel, to help develop the overall lactic acid production process, whereas U.S. Filter was responsible for the design of the equipment, including the fines filter. The equipment purchase and sale agreement between the parties recites that U.S. Filter "has expertise with respect to the design, manufacture, assembly, installation and operation of the Auto-Jet filter." DeSantis testified that she relied on U.S. Filter's expertise to provide an equipment design--including the filter, nozzles, and internals--that met the service conditions.
The service conditions for the fines filter were provided to U.S. Filter by PGLA. They are contained in a U.S. Filter project data sheet in evidence. On the data sheet, the process liquid islisted as a 50-percent lactic acid solution with an operating temperature of 150 degrees Fahrenheit and a flow rate specified at 60 to 70 gallons per minute.
When asked whether he made any recommendations for "appropriate" monitoring devices in this case, Sigel responded in the negative. We note that DeSantis testified that although PGLA would take U.S. Filter's recommendations into account with regard to monitoring devices, PGLA would install such devices itself. She stated, "It's likely more economical for us to . . . do that on site with our own personnel."
When asked at his deposition about hazards associated with this particular vessel, Sigel testified that opening the door would present a hazard because of the possibility the tank had not been emptied of 150 degrees Fahrenheit liquid, which he believed to be a dangerous temperature. Also, he testified, "Because of the rotation of the motor and the sprocket back there, there's a chain guard and you want to make sure you don't get your hand somehow in the motor." Further, "if you're filtering something bad, that's a hazard right there," due to possible leakage.
The fines filter was retrofitted into PGLA's existing lactic acid production system in 1999 in order to accommodate the introduction of gypsum into the processing of lactic acid. Thereafter, problems began to occur due to excessive gypsum accumulating on the leaves inside the tank. Sometime after July 2000, due to the amount and porous character of the gypsum, the automated cleaning process was not adequately cleaning the interior of the filter and an accumulation of gypsum was causing the leaves to become caked and clogged, which necessitated opening the filter to manually remove the accumulated gypsum.
Before Wedgewood was injured, it had become necessary to open the vessel to remove excess gypsum from the leaves as often as three to four times per day. Scott McElmury, the operations team leader, testified that he notified U.S. Filter of this problem prior to Wedgewood's injury, and U.S. Filter indicated it had not encountered such before and "couldn't believe that was the case." When asked whether U.S. Filter was told that gypsum was apparently causing the problem, McElmury replied, "I can't recall the discussion that I had, but I know we would talk about gypsum." McElmury testified that he did not recall U.S. Filter offering any solutions for the problem.
Before opening the fines filter for routine maintenance or to remove accumulated gypsum as described above, the system operators were required to complete and secure a "Line Break Permit." Both Wedgewood and his coworker, Mark Gusse, had been trained in the procedures for the Line Break Permit, and both had initiated such permits prior to the incident in question. Wedgewood testified that he had been involved in accessing the interior of the fines filter because of accumulated gypsum more than 10 times in the 2 weeks prior to the incident.
On the day Wedgewood was injured, the crew working the fines filter, which included Wedgwood and Gusse, assumed they had broken the drive that turns the leaves inside the tank due to excessive gypsum accumulation. In troubleshooting that perceived problem, the crew determined that it needed to...
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