Woods v. Fruehauf Trailer Corp., 64857

• Decision Date: 04 October 1988
• Docket Number: No. 64857,64857
• Citation: 765 P.2d 770
• Parties: Prod.Liab.Rep. (CCH) P 11,942, 1988 OK 105 Leonard WOODS and Kathleen Woods, husband and wife, Appellants/Cross-Appellees, v. FRUEHAUF TRAILER CORPORATION, A Michigan Corporation, and Pier 51 Incorporated, an Oklahoma Corporation, Appellees/Cross-Appellants.
• Court: Oklahoma Supreme Court

Page 770

765 P.2d 770

Prod.Liab.Rep. (CCH) P 11,942, 1988 OK 105

Leonard WOODS and Kathleen Woods, husband and wife, Appellants/Cross-Appellees, v. FRUEHAUF TRAILER CORPORATION, A Michigan Corporation, and Pier 51 Incorporated, an Oklahoma Corporation,

Appellees/Cross-Appellants.

No. 64857.

Supreme Court of Oklahoma.

Oct. 4, 1988.

As Modified on Denial of Rehearing Jan. 9, 1989. ^*

Appeal from District Court of Oklahoma County; William R. Saied, trial judge.

Appellant Leonard Woods was injured in a fire fed by gasoline spilled while Woods was filling above ground gasoline storage tanks belonging to Pier 51 from a tanker-trailer manufactured by Fruehauf. Woods brought action against Fruehauf on the basis of products liability theory and against Pier 51 on negligence theory. Jury verdict found for Woods as against both Fruehauf and Pier 51. Trial court granted new trial motions of Fruehauf and Pier 51 on basis that instructions had been improper and on basis of jury misconduct. Woods appealed grants of new trial. Fruehauf and Pier 51 cross-appealed arguing that motions for directed verdict and for judgment N.O.V. should have been granted.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

McKinney, Stringer & Webster P.C. by Kenneth R. Webster and George D. Davis, Oklahoma City, for appellants/cross-appellees Woods.

Monnet, Hayes, Bullis, Thompson & Edwards by John T. Edwards and Henry J. Hood, Oklahoma City, for appellee/cross-appellant Fruehauf Trailer Corp.

Fenton, Fenton, Smith, Reneau & Moon by Donald R. Wilson and Laurie W. Jones, Oklahoma City, for appellee/cross-appellant Pier 51, Inc.

LAVENDER, Justice:

Appellant Leonard Woods was employed by a transport company which delivered gasoline from refineries to retailers. Woods owned his own truck but was supplied with the tanker trailer by his employer. On the date in question in this case Woods was supplied with a tanker trailer which had been manufactured by appellee Fruehauf Trailer Corporation. This tanker trailer had been built specifically for the purpose of transporting materials such as gasoline. Woods' employer had added piping, valves and hoses so that the tanker trailer could be unloaded by gravity into underground storage tanks or could be unloaded by use of a pump into storage facilities above ground. Woods had a pump located on his truck for use in pumping the gasoline into above ground facilities.

On the date in question Woods was ordered to pick up a load of gasoline at a refinery for delivery to appellee Pier 51, Inc. Woods received a load of 8,504 gallons of gasoline at the refinery and hauled the load to Pier 51's facility on Lake Keystone near Tulsa. The gasoline storage facilities belonging to Pier 51 were above ground. The facilities consisted of three tanks, two with a capacity of four thousand gallons and one with a three thousand gallon capacity. All three tanks were interconnected at ground level by a one inch line equipped with gate valves so that the small tank could be used as a reserve and gasoline could be transferred from it to the others as their levels were pumped down. The tanks were cylindrical and placed on their sides with an upspout for loading located at the top and near the front of the tanks. The only method provided for reaching the loading ports was a fifty-five gallon barrel. The tanks were set on a bed of gravel.

When Woods arrived at the Pier 51 facilities he drove his truck and tanker rig to the tanks and positioned the equipment to unload the gasoline via the truck mounted pump into the tanks. Woods was told, however, that the man with the keys to unlock the caps on the tank upspouts was not yet at work. Woods waited for this individual to arrive. During this period of time Woods requested gauge charts for the tanks. These charts gave gallonage figures for incremental levels of gasoline in the tanks. Woods was told that these charts were in the possession of the bookkeeper and no further effort was made to provide these charts to him. When the keys to the locks on the tanks were provided to him Woods proceeded to unload the gasoline into the tanks. Since the tanks were not equipped with any method to determine level except by manually placing a stick down into the tank and measuring in inches, Woods placed the discharge hose fitted with an aluminum down spout into the upspout of a tank and proceeded to pump gasoline into the tank until he could see gasoline begin to come out of the top of the upspout. At that point Woods would cut the engine on his truck which in turn cut the power take-off driven pump. Woods would then close the valve on his truck, and using the fifty-five gallon barrel would climb up to remove the hose and transfer it to the next tank. By this method Woods filled both large tanks and had proceeded to fill the small tank. The small tank filled up faster than expected and more gasoline overflowed. Woods cut the engine and proceeded to remove the hose from the small tank. As he was doing so gasoline on the ground underneath him ignited and Woods was severely burned in the ensuing fire.

Woods and his wife brought the present action against Fruehauf Trailer Corporation on a products liability theory alleging that the tanker trailer was unsafe for the purpose of hauling and unloading gasoline into above ground facilities. The action against Pier 51, Inc., was brought under negligence theory on the allegation that Pier 51 was negligent in failing to provide Woods with a way to measure the tank levels and in failing to inform him of problems such as the tank interconnections and in failing to provide reasonably safe facilities. Woods also sought recovery against the manufacturer of the pump which he used to transfer the gasoline.

The matter was tried to a jury. Following the conclusion of Woods' case, demurrers from all defendants were sustained as against the claims brought by Woods' wife. A demurrer to the evidence was sustained as to the manufacturer of the pump and the manufacturer was dismissed. A demurrer to the evidence to support a claim for punitive damages was also sustained as to appellee Fruehauf. The remaining demurrers by appellees Fruehauf and Pier 51 were overruled. At the conclusion of the trial the court denied motions for directed verdict by both appellees. The jury subsequently returned a verdict for Woods against Fruehauf and awarded him six million dollars in damages. The jury also found Pier 51 liable but calculated that Woods' contributory negligence in the matter was thirty percent. The jury found Woods' damages as against Pier 51 to be six million dollars and further awarded four hundred thousand dollars in punitive damages. Appellees subsequently moved for mistrial, for judgment N.O.V., for remittitur and for new trial. The trial court took these motions under advisement.

The trial court subsequently denied the motions for mistrial, for judgment N.O.V. and for remittitur. The motions for new trial were granted as to both Fruehauf and Pier 51 on the basis that the court had incorrectly instructed the jury concerning failure to warn as a basis for Fruehauf's liability under products liability theory and because the court felt that the jury had failed to understand its instructions and had rushed to verdict. These latter reasons were in turn based on written questions presented by the jury and on one observation made by the bailiff.

Appellant Woods has appealed arguing that the trial court's grants of new trial were erroneous. Appellees Fruehauf and Pier 51 have filed cross-appeals challenging the trial court's denial of motions for directed verdict and for judgment N.O.V. ¹ We shall first deal with the cross-appeals.

I.

It is well established that a motion for directed verdict or motion for judgment N.O.V. raises the question of whether there is any evidence to support a judgment for the party against whom the motion is made. ² In ruling on such a motion the trial court must consider as true all the evidence and all the inferences reasonably drawn therefrom favorable to the party against whom the motion is made and any conflicting evidence favorable to the movant must be disregarded. ³

A.

Fruehauf argues that the evidence presented at trial will not support a judgment under products liability theory because, as a matter of law, the evidence failed to establish that Fruehauf should have equipped the tanker trailer with safety devices or that Fruehauf had a duty to warn potential users of dangers resulting from failure to use such devices. The first argument is based on the proposition that the tanker trailer is not a finished product and that the duty to attach safety devices would attach at a later point in assembly of the tanker unit. The second argument is premised on the assertion that there is no duty to warn of an obvious danger and that gasoline constitutes such a danger.

The elements required to establish a right to recovery under products liability theory were set forth by this Court in Kirkland v. General Motors Corporation: ⁴

First of all Plaintiff must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough.

Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the manufacturer, at the time the product left the manufacturer's possession and control. Thompson v. Trane Co., Okl., 500 P.2d 1329 (1972). If the action is against the retailer or supplier of the article, then the Plaintiff must prove that the article was defective at the time of sale for public use or consumption or at the time it left the retailer's possession and control.

Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property as the term "unreasonably dangerous" is above defined.

The definition of "unreasonably dangerous" adopted by this Court was taken from comment g to the Restatement of Torts 2d § 402A, and...