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HURLBUT v. CONOCO7/30/1993
The opinion of the court was delivered by
This is an appeal from a jury verdict in a personal injury action in favor of plaintiff, David Hurlbut, against his employer, J & J Metal Products Company (J & J), and Conoco, Inc., for injuries suffered as a result of an explosion at the J & J plant. The jury unanimously awarded Hurlbut $14,613,553 and apportioned fault 85% against Conoco, 15% against J & J, and 0% against the other parties. Judgment was entered against Conoco and in favor of Hurlbut in the amount of $12,421,520 (85% of the jury verdict). Conoco appeals, claiming the trial court (1) erred in failing to grant its motions for summary judgment, directed verdict, and judgment notwithstanding the verdict and (2) deprived it of its right to a fair trial. Defendant Firman L. Carswell Manufacturing Company (Carswell), the maker of the vat which exploded, cross-appeals.
Hurlbut was severely injured as a result of an explosion on January 20, 1988, at the J & J plant in Paola, Kansas. Hurlbut was an employee of the company. Two other employees, Charles Hoffman and John Windisch, died as a result of their injuries from the explosion. Wrongful death actions involving those decedents were consolidated with the Hurlbut lawsuit for discovery and trial. This appeal is not concerned with the verdict and judgment in those actions, which have been settled.
J & J manufactures and markets corrugated steel pipes. As part of its manufacturing operations, J & J uses a large asphalt dip vat for the purpose of coating corrugated steel pipe with asphalt. Carswell designed, manufactured, and installed the dip vat used by J & J in 1951 or 1952. The dip vat had an open-to-air asphalt chamber, or pan, sitting on top of a heat transfer oil chamber. Ten natural gas burners heated oil in the lower chamber which in turn heated asphalt in the upper chamber. J & J had always used Dowtherm A in the lower chamber. The Dowtherm A was heated to its boiling point of 490 degrees Fahrenheit during the heat transfer process.
Dowtherm A (manufactured and marketed by Dow Chemical Company) was designed to be utilized either as a liquid phase heat transfer medium or a vapor phase heat transfer medium. Carswell recommended Dowtherm A for use as a vapor phase heat transfer medium in the vapor phase heat transfer system of
the dip vat. From 1951 until January 1988, Dowtherm A functioned safely and effectively as a vapor phase heat transfer medium in the vapor phase heat transfer system of the dip vat. In January 1988, J & J substituted Conoco heat transfer oil (CHTO) for Dowtherm A as the heat transfer medium in the dip vat. CHTO is designed as a liquid phase only heat transfer medium to be used only in liquid phase heat transfer systems. CHTO is not designed for use as a vapor phase heat transfer medium in any type of vapor phase heat transfer system. J & J, acting on Conoco's recommendation, attempted to use CHTO in the same manner as Dowtherm A had been used.
J & J performed routine maintenance on the dip vat in December 1987 and January 1988. Part of the routine maintenance included replacing the heat transfer fluid. During the routine maintenance of the dip vat in January 1988, Dowtherm A was drained from the heat transfer chamber and replaced with CHTO. In order to remove any residual Dowtherm A from the heat transfer chamber, J & J employees put water into the chamber, heated the water until it boiled, and then drained the water and Dowtherm A residue from the heat transfer chamber.
After replacing the Dowtherm A with CHTO, J & J employees started the process of heating the asphalt
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