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Stinson v. Berry6/17/1997
{1} On the Court's own motion, the original opinion filed May 1, 1997, is withdrawn and the following opinion is substituted in its place.
{2} Plaintiffs, personal representatives of the estate of decedent (Decedent), appeal the trial court's order granting summary judgment to Defendants John O. Berry (John) and H.C. Berry (H.C.) and the dismissal of Plaintiffs' complaint against these two Defendants. The complaint alleged Defendants' negligence caused the wrongful death of Decedent, who died in an explosion. The complaint was against Defendant Yucca Feeds, Inc., a corporation; John, the president and manager of the corporation; and H.C., the owner of the property on which the explosion occurred. The complaint against Yucca Feeds was not dismissed, and the corporation is not a party to this appeal. We affirm the summary judgment in favor of H.C. and reverse the summary judgment in favor of John.
I. FACTUAL AND PROCEDURAL BACKGROUND
{3} Decedent was fatally injured when a used fuel storage tank on which he was welding exploded. The explosion occurred on property owned by H.C. The property was used for several purposes relating to the Berry family enterprises and was the business location of Yucca Feeds, Inc., a corporation whose president and vice-president were John and H.C. respectively. John was also the managing officer of Yucca Feeds, having direct control of the day-to- day operations of the corporation. Yucca Feeds was in the business of purchasing and reselling liquid cattle feed. As part of that business, the corporation provided storage tanks for the feed to its customers. Most of those storage tanks were converted from used fuel storage tanks that Yucca Feeds purchased and converted for such use.
{4} The procedure for this conversion was developed by John several years before the accident. That procedure consisted of the tanks being steam-cleaned to remove the fuel residue, after which they would be cut and welded for use as a feed storage tank. John would have a person with a portable steamer spray steam into the tank for a period of thirty minutes per one thousand gallons of tank capacity. He would then test the tank by passing a lighted welding torch or flame through the exit steam. If there was no flare, John considered the tank safe for welding. He had used this procedure himself a number of times and considered it safe. This was the procedure that he had advised Decedent to use.
{5} On the day of the accident, John was out of town, but he had left instructions for an employee of Yucca Feeds to telephone Leroy Regalado, the person who normally did the steam cleaning. Decedent was called to do the welding. After Mr. Regalado finished the steaming, Decedent began welding. An explosion occurred, and Decedent was killed. No one knew whether the "flame test" had been done. Mr. Regalado did not do it; he never did. He testified that he simply used the steam rod on the tank as John had previously instructed him. John testified that he himself did not test the tank because of his absence from the business that day.
{6} Plaintiffs' complaint alleged that Yucca Feeds failed to provide a safe work place for Decedent, that John had a duty to warn Decedent of the hazardous nature of the work and to ensure that the tank was safe for cutting, and that H.C., as the owner of the property, had a duty to provide premises free from inherently hazardous activity. John and H.C. moved for summary judgment on the basis that neither of them individually owed a duty to Decedent. The trial court agreed and granted the motions.
II. DISCUSSION
A. Strict Liability
{7} Plaintiffs argue that the trial court err
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