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Carollo v. Al Warren Oil Co.11/24/2004
UNPUBLISHED
Plaintiff, Jack Carollo, appeals from (1) an order granting summary judgment in favor of defendants, Al Warren Oil Company, Inc. (Warren), and Altom Transport, Inc. (Altom) (referred to collectively as defendants), and (2) the trial court's decision that found defendants severally liable, as opposed to jointly liable, for plaintiff's non-economic damages. Defendants have cross-appealed from the trial court's denial of their motion for judgment notwithstanding the verdict. We affirm.
BACKGROUND
On May 13, 1998, plaintiff was seriously injured in an explosion at work. At the time, plaintiff was working for Premier Fuel & Cartage, Inc. (Premier), providing fueling services at McCormick Place. Plaintiff routinely drove a tanker truck, referred to as A-2, from which he would fuel small vehicles in various locations in the Chicagoland area and then return to Premier for refueling. Premier had purchased A-2, as well as A-3, an even larger tanker truck, from defendants in 1993 and 1994, at the time Premier began its fuel business. Altom is a 48-state trucking company that provides cartage for chemicals and petroleum products. Warren is a bi-state wholesaler and retailer of motor fuels, heating oils, and chemicals.
A-2's tank had four separate compartments, each holding 500 gallons of either diesel fuel or gasoline. The Chicago fire department (CFD) had originally owned A-2's tank, which it used as a mobile fuel station to fill up CFD equipment. Altom purchased the tank from the CFD and used it for over eight years before selling it to Premier. There was no owners' manual with this used equipment when Altom purchased it. The tank, as purchased by Altom, had bottom loading capabilities; on the right side of the tank toward the bottom, a series of valves allowed "bottom-loading" transfer of fuel into A-2, making it unnecessary to refuel the truck from the top.
When Altom purchased the tank from the CFD, the tank did not have a static reel, which is a grounding device. The tank also did not have a fill pipe. A fill pipe can be either part of the tank or the fuel hose. For example, the fuel hose could have a long nozzle that could reach near the bottom of the tank to reduce splashing and static build up when the fuel hose is inserted inside the tank during fueling.
Dennis Epley, an Altom employee, testified that he and other Altom employees assembled A-2 for resale to Premier. A-2's assembly took approximately 200 hours. A-2 was assembled from an old, twice pre-owned, used tank, mounted on a chassis. The employees removed the tank from its older chassis and affixed it to a new chassis; this installation took around eight hours. The remainder of the time was spent painting the tank, replacing the rotted-out piping, reinstalling the valves, and conducting tests required by the Environmental Protection Agency and the Department of Transportation. A-3 was assembled in the same manner as A-2.
On the day of the accident, plaintiff was refueling A-2 from A-3, as he had been instructed. Plaintiff parked A-2 next to A-3, took the diesel hose attached to A-3, climbed on top of A-2, and opened the hatch to compartment number two, one of four compartments in the tank on A-2. Compartment number two held diesel fuel. Plaintiff switched the valve on the hose from diesel fuel to gasoline and waited for the diesel fuel remaining in the hose to clear out into the diesel compartment. Plaintiff planned to refuel A-2's gasoline compartments after the streaks of diesel fuel, which is a yellow-green color, dissipated. He watched for the gasoline, which is clear, to start coming out of the hose. As the fuel became clearer, with just a few yello
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