Opinion
CIVIL ACTION 02-2316, SECTION "T"(1).
July 24, 2003.
Before the Court is a Motion for Summary Judgment filed on behalf of the Defendant, Hydrochem Industrial, Inc., hereinafter Hydrochem. The Court, having considered the arguments of counsel, the evidence presented, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The Plaintiffs, Margaret Brown and Henry Holmes, allege that they were exposed to phosgene and/or other vapors while working in the course and scope of their employment for National Maintenance in the MDI II unit of BASF's Geismar facility on October 30, 2001. Phosgene is a deadly gas once used as a chemical weapon in World War I. BASF manufactures and sells a variety of chemicals including MDI. The Plaintiffs allege that the injuries allegedly sustained were due to the negligence of Hydrochem and that Hydrochem is liable on the basis of negligence and/or strict liability.
BASF contracted with National Maintenance to perform general maintenance at BASF's Geismar facility. The contract is entitled "Master Agreement for Supplemental Maintenance and Construction Services." The work performed by the Plaintiffs on October 30, 2001, in the MDI II unit of BASF's Geismar facility, was pursuant to the contract. BASF was deemed a statutory employer and dismissed via Summary Judgment on January 14, 2003.
The MDI II unit is a large industrial facility which has within its confines a large building known as the "chamber." The chamber is an enclosed space with four solid walls, a ceiling, and one or two steel doors on each level. BASF controls access to the chamber. Workers and sub-contracted employees are required to obtain written permission from BASF to enter the chamber. Hydrochem was contracted to perform pipe cleaning services at the BASF facility.
Hydrochem employees were required to clean "lines and trays" in the MDI II unit with high-pressure water. Hydrochem employees were not required to clean any valves or "blind" any lines pursuant to the contract between Hydrochem and BASF. Hydrochem was required to obtain written permission from BASF before entering the phosgene gas chamber to perform any work. Even with permission, BASF required full access to the work being performed by Hydrochem, at all times. BASF would inspect the line and re-take possession of the line after Hydrochem's work was done satisfactorily.
On October 25, 2001, line R-2305 AX had been cleaned by Hydrochem — five days prior to accident/leak. BASF had inspected the line before the accident and found it to be clean. BASF terminated Hydrochem's cleaning permit and re-took possession of the line in question on October 25, 2001.
On October 30, 2001, the date of the alleged accident, Hydrochem was in the MDI II unit cleaning/hydroblasting a completely separate system, the D-2230/T-2230 piping system. Hydrochem was not working inside the chamber on this date. The release of phosgene allegedly occurred at 10:30 am on October 30, 2001 when the Plaintiffs were working on the ground level of the MDI II chamber.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of Hydrochem in Support of Motion for Summary Judgment:
The Defendant argues that the Plaintiff's negligence claim fails as a matter of law because the Plaintiffs cannot satisfy the first two prongs of the five-part duty/risk analysis. In order to recover for negligence, the Plaintiff must satisfy a five-prong "duty/risk analysis test." Eldridge v. Downtowner Hotel, 492 So.2d 64, 65 (La.App. 4th Cir. 1986). The duty/risk analysis requires that the Plaintiff demonstrate:
(1) the delictual conduct was the cause-in-fact of the damage or injury, (2) the defendant owed the plaintiff a duty under the special circumstances of the particular case, (3) the particular defendant breached the duty which s/he owed the particular plaintiff, (4) the risk and resulting harm were within the scope of protection of the defendant's duty, and (5) the plaintiff showed actual damage.Roberts v. Benoit, 605 So.2d 1032 (La. 1991); Myers v. Dronet, 1002-5, 2001-5 (La.App. 3d Cir. 6/22/01), 801 So.2d 1097, 1103-4 (affirming summary judgment).
The Plaintiffs cannot establish the first prong, that any conduct of Hydrochem or its employees was a cause-in-fact of the injuries alleged by Plaintiffs. Plaintiffs allege two negligence actions against the Defendant: (a) an employee of Hydrochem hit or struck the phosgene pipes and (b) Hydrochem negligently failed to make sure all solids were hydroblasted or flex-lanced before the pipe was released. These claims are unsupported by the evidence in the case. The BASF investigation established that a BASF engineer actually moved the valve which released the phosgene gas. (See Depo. of Russell Talbot, Exhibit "3," p. 21-26). Russell Talbot, a BASF chief environmental health and safety specialist, testified that Hydrochem employees were not present. (See Depo. of Russell Talbot, Exhibit "3, p. 31, 34, 63). Talbot also testified that a BASF employee was operating the valve to check its mechanical integrity and solids on the valve seat were dislodged, resulting in the release of phosgene gas. (See Depo. of Russell Talbot, Exhibit "3," p. 21-26). The Plaintiffs themselves have testified that no Hydrochem employees were present in the MDI II chamber on October 30, 2001. (See Exhibit "1," p. 195-6; Exhibit "2," p. 44-5, 60). Accordingly, Plaintiff's claims that a Hydrochem employee hit or struck the phosgene pipes are entirely without factual support. The fact that no Hydrochem employee was present at the time is undisputed by the Plaintiffs and, therefore, they are precluded from proving Hydrochem could have been a cause-in-fact of Plaintiff s alleged injuries.
The Plaintiffs cannot establish that Hydrochem owed a duty to protect the Plaintiffs from this harm. Hydrochem worked on the line 5 days prior to the accident but the line was inspected by BASF and they were found to be "very clean." (See Depo. of Russell Talbot, Exhibit "3," p. 18-20, 30, 32-33, 64). BASF did not require Hydrochem to clean the valve or blind the pipes and did not ask, instruct, or require Hydrochem to do anything else to the pipes beyond that point.
BASF attributed the cause of the incident to phosgene trapped in a valve of the R-2306 AX line. Talbot confirmed the findings and testified that the phosgene was released when a BASF employee "stroked a 4-inch manual block valve on the opposite end of the pipe. (See Depo. of Russell Talbot, Exhibit "3," p. 22-26, 32, 63). Hydrochem had no responsibility for cleaning the valve in question and accordingly, cannot be deemed to have owed any duty regarding phosgene left in a valve which it was not contracted to clean. Cleaning the valve is simply not within the scope of Hydrochem's work. The Motion, therefore, should be granted.
B. Arguments of Margaret Brown and Henry Holmes in Opposition to Motion for Summary Judgment:
The Plaintiffs argue that, despite the Defendant's arguments, Hydrochem negligently performed its work as a hydroblasting contractor by failing to remove solids from R-2305 and the negligence proximately caused the release of hydrochloric and phosgene gases and that Hydrochem is at least partially responsible. Hydrochem offers no expert opinion that it is more probable than not that the solids trapped within the four-inch valve caused the release of gases. Hydrochem's Motion is based entirely on the testimony of Russell Talbot, a witness and a BASF chief environmental health and safety specialist. The deposition of Talbot, however, does not suggest that he is qualified as an expert to offer his opinion as to the most probable cause of release.
The deposition testimony of Talbot is contrary to the findings of the investigative committee he chaired at BASF. The committee concluded that the source of the offending solids was a purge valve located at ground level. (See Plaintiff's Exhibit "1"). There are genuine issues of material fact created both by the findings of the BASF committee and the testimony of Talbot himself.
C. The Defendant's Reply:
The Defendant argues that the Plaintiff has not submitted evidence sufficient to prevent the Court from granting the Defendant's Motion. When a party has supported a motion for summary judgment with the necessary evidence to defeat the claims of plaintiffs as a matter of law, an opponent to the motion cannot rest upon mere possibilities but must come forward with probative evidence to create a genuine issue of material fact. See Douglass v. United Services Automobile Assoc., 79 F.3d 1415, 1429 (5th Cir. 1996); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th cir. 1994); see also Moody v. St. Charles County, 23 F.3d 1410 (8th Cir. 1994). Conclusory allegation, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden. Id. The Plaintiff does not offer an expert opinion but merely points to mere possibilities. It is undisputed that BASF accepted the work of Hydrochem and the work was done properly. There is no evidence of negligent cleaning. Moreover, it is undisputed that BASF did not ask Hydrochem to clean the valve. Hydrochem would have violated BASF procedure if they had attempted to clean the valve.
III. LAW AND ANALYSIS:
A. Law on Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. The Court's Analysis:
The Plaintiff has failed to carry its burden and is unable to overcome the undisputed material facts presented by the Defendant. It is undisputed that Hydrochem's work on the valve was completed five-days prior to the alleged accident and the work was approved by BASF. It is also undisputed that Hydrochem was not present in the MDI II chamber on the date of the incident and Hydrochem employees had nothing to do with the release of phosgene on that day. The Plaintiff, therefore, has failed to present any genuine issues. The Court hereby GRANTS the Motion for Summary Judgment.
Accordingly,
IT IS ORDERED that the Defendant's, Hydrochem, Motion for Summary Judgment is hereby GRANTED in regard to the STRICT LIABILITY CLAIM. IT IS FURTHER ORDERED that the Motion is GRANTED in regard to the NEGLIGENCE CLAIM.