Whetstine v. Gates Rubber Co., 89-1388

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation895 F.2d 388
Docket NumberNo. 89-1388,89-1388
PartiesJohn J. WHETSTINE, Plaintiff-Appellant, v. The GATES RUBBER COMPANY and Squibb-Taylor, Inc., Defendants-Appellees.
Decision Date07 February 1990

Page 388

895 F.2d 388
John J. WHETSTINE, Plaintiff-Appellant,
The GATES RUBBER COMPANY and Squibb-Taylor, Inc.,
No. 89-1388.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 13, 1989.
Decided Feb. 7, 1990.

Page 389

David A. Novoselsky, Novoselsky & Associates, Chicago, Ill., Elmo E. Koos, Sr., Peoria, Ill., for John J. Whetstine.

Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, Ill., for Gates Rubber Company, a foreign Corporation.

Murvel Pretorius, Jr., Quinn, Johnston, Henderson & Pretorius, Peoria, Ill., for Squibb-Taylor, Inc., a foreign Corporation.

Before EASTERBROOK and MANION, Circuit Judges, and GRANT, Senior District Judge. *

GRANT, Senior District Judge.

To recover for injuries suffered when a hose containing anhydrous ammonia exploded, John J. Whetstine brought an action on June 4, 1986 against The Gates Rubber Company [Gates], manufacturer of the hose, and Squibb-Taylor, Inc. [Squibb], distributor of the hose, alleging strict liability and negligence. 1 The district court first denied defendants' motion for summary judgment. However, after review of their motion to reconsider, the court granted summary judgment in favor of both defendants. We affirm the district court's determination.


On June 5, 1984, in the course of his employment, Whetstine was transferring anhydrous ammonia from one tank to another when the hose used for the transfer burst, causing the injuries which are the subject of plaintiff's complaint. Whetstine alleged that Gates was strictly liable for his injuries because the rubber and underlying fabric of the hose it manufactured were defective and too weak to withstand foreseeable use under pressure. The plaintiff also alleged that Gates negligently designed a hose that was not chemical-resistant, negligently sold it without adequate instructions for its use, and failed to discover and correct the defective condition or to warn future users of the danger. Allegations of negligence asserted against Squibb were that Squibb negligently sold a defective hose not fit for the use intended, failed to inspect the hose for defects before selling it, and failed to discover and correct the defective condition or to warn later owners of the danger.

Whetstine did not timely comply with the pretrial requirement of disclosing the expert witnesses he intended to present at trial. On October 21, 1987, the court ordered plaintiff to identify his experts within sixty days. At the expiration of that period the court extended the time, despite defendants' motion to bar plaintiff's expert testimony. However, when the plaintiff again failed to comply with the court's discovery order and defendants renewed their motion to bar his experts, the court granted defendants' motion.

Thereupon defendants filed a motion for summary judgment, asserting that there was no genuine issue as to any material

Page 390

fact. First, they stated that the condition of the hose was sound: It was neither defective nor unreasonably dangerous in its design or manufacture; it was reasonably fit and sufficiently strong for its intended use under pressure; and it was reasonably resistant to corrosive chemicals. Moreover, they indicated that the hose was sold with adequate instructions. Defendants then asserted the cause of the accident: The discharge hose had been at an angle when Whetstine was preparing to fill the tank through that hose, and the improper manner in which the hose was fastened to the nurse tank caused the hose to explode.

In support of their motion, defendants offered plaintiff's deposition and the affidavit of Professor Mansel Mayeux, professor emeritus of agricultural engineering at Louisiana State University, with broad experience in the area of anhydrous ammonia hose design, manufacture and safety. Professor Mayeux's affidavit described the results of his examination of the hose and anhydrous ammonia nurse tank 2 claimed to be involved in the accident. After observing the connection of the hose to the tank and analyzing the condition of the hose, he drew the following conclusion concerning the hose rupture:

In my opinion, the cause of the burst of the hose on June 5, 1984, was the improper manner in which the hose was affixed to the nurse tank creating a sharp radius of bend in the hose which unreasonably and unforeseeably stressed the hose beyond its breaking point and the fact that the hose was left full of anhydrous ammonia after it was used just prior to the accident of June 5, 1984.

The defendants' expert witness also gave his opinion that neither the fabric nor the design of the hose was defective or unreasonably dangerous and that the hose "was reasonably fit for its intended use and was of sufficient strength to withstand use under foreseeable pressures and conditions." Professor Mayeux found the hose reasonably resistant to corrosive chemicals, particularly anhydrous ammonia, and the instructions adequate for "knowledgeable and sophisticated users of such products."

Defendants also appended plaintiff's deposition to their motion for summary judgment, and indicated the portions of his statement in which he testified that the valve fitting and discharge hose were fastened to the tank at a sharp angle, as seen in photographs of tanks and hoses before him during the taking of the deposition. 3

Page 391

Plaintiff Whetstine filed a motion to strike the motion for summary judgment, contending that there was an issue of fact as to the placement of the hose. In support of this motion, Whetstine attached the affidavit of Larry Lark, the plant manager for W.R. Grace, plaintiff's employer. Lark stated that the hose

was installed on a certain nurse tank in like fashion as all other hoses were installed on comparable nurse tanks and that no portion of the hose was in a right angle crimped position caused by its installation or use by Affiant or any employee of W.R. Grace prior to or on June 5, 1984.

On September 29, 1988, the trial court found that the affidavits of Mayeux and Lark conflicted regarding the attachment of the hose and valve, and therefore denied defendants' motion for summary judgment. Moreover, the court allowed Lark to testify as an occurrence witness for plaintiff at trial, even though it had barred expert testimony.

Defendants sought reconsideration of the ruling. They argued that the only evidence concerning defects in the design or manufacture of the hose was given by the expert Mayeux. Because Mayeux affirmed that there was no defect, there was no evidence from which any inference in favor of the plaintiff could be drawn. Furthermore, no genuine issue of material fact was raised by Lark's affidavit, since he did not deny that the hose was at a right angle, but rather stated that the position of the hose was not the result of its installation by Lark or any other employee of Grace prior to the accident. Plaintiff Whetstine did not file a response to the Motion to Reconsider.

Order of the District Court

On January 24, 1989, the district court reconsidered its denial of summary judgment and was convinced by defendants' arguments that there was no genuine issue of material fact to preclude the court from entering summary judgment in favor of defendants. After summarizing the substantive law pertaining to plaintiff's allegations, it found that, because the Mayeux affidavit stated that the hose components were not defective or unreasonably dangerous, and because Whetstine submitted nothing to contradict Mayeux's statement, plaintiff failed to meet his burden of proving his strict tort liability claim.

The court then turned to the negligence allegations. In its earlier denial of summary judgment, the court had found a genuine issue of material fact in the conflicting Mayeux and Lark affidavits regarding the proximate cause element of Whetstine's negligence claim. However, upon re-examination of the affidavits, the court found

that Lark merely states that he did not connect the hose at a right angle and that no other W.R. Grace employee did so. Lark's affidavit does not state that the hose in question was not positioned at a right angle vis a vis the nurse tank [at the time of the accident], so it does not contradict Mayeux's affidavit.

Order of January 24, 1989 at 6. Thus, the court interpreted Lark's statement to deny the responsibility of Lark or any other employee of W.R. Grace for the position of the hose, but not to contradict Mayeux's affidavit and Whetstine's deposition testimony that the position of the hose was at a sharp angle. Furthermore, since Whetstine did not respond to the motion to reconsider, no evidence was offered by the plaintiff to contradict Mayeux's expert opinion that the two causes of the hose's rupture were the improperly bent manner in which it was attached to the nurse tank and the practice of leaving the hose full of anhydrous ammonia after its use. As a consequence, the court held that there was no genuine issue of material fact concerning any element essential to establish a cause of action for negligence or for strict tort liability, and granted summary judgment in defendants' favor.

Summary Judgment

When reviewing a district court's grant of summary judgment, this court must determine "whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of

Page 392

law." Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987), quoted in Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989). The moving party has the burden of establishing the lack of such an issue.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions...

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