Williams et al v. APAC Atlantic Inc et al

Filing 43

ORDER granting 30 Motion for Summary Judgment as to Randy Williams' claim for negligence and dismissing Mary Williams' claim for loss of consortium. Signed by Honorable Joseph F Anderson, Jr on 02/11/2010.(bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION R a n d y Williams and Mary Williams, ) ) P l a i n t if f s , ) ) vs. ) ) A P A C Atlantic Inc., APAC Inc., APAC ) Carolina Inc., ) ) D e f e n d a n ts . ) ________________________________ ) C/A No.: 3:08-3432-JFA

ORDER

T h is matter comes before the court on the defendants' motion for summary judgment f ile d December 15, 2009 [dkt # 30]. On February 5, 2010, the court heard oral argument and to o k the matter under advisement. This order serves to announce and memorialize the co u rt's ruling on the motion. For the reasons stated herein, defendants' motion for summary ju d g m e n t is granted. I. F ACTUAL AND PROCEDURAL BACKGROUND P la in tif f Randy Williams was a tanker truck driver employed by Curtis Oil Company d eliv ering hot asphalt. On October 3, 2005, while offloading the asphalt at defendant's f a cility in Sumter, South Carolina, Williams was sprayed with hot asphalt. He alleges that th e hook up equipment comprised of certain piping was not working properly and caused the p re ss u riz e d hot asphalt to spray on him. Williams filed this action asserting a negligence c la im against defendants, and his wife, Mary Williams, asserts a loss of consortium claim. D e f en d a n ts deny the allegations. The majority of the facts are not in dispute, but pursuant

to Fed.R.Civ. P. 56, the court views the facts in the light most favorable to the plaintiff, and a d o p ts the presentation of facts as outlined in plaintiff's opposition memorandum. A s an employee of Curtis Trucking, plaintiff was unloading liquid asphalt from his ta n k e r trailer into APAC's liquid asphalt storage tank by using a transfer hose and quick c o n n e ct camlock coupling system. The transfer hose connects the storage tank and the tanker tra iler to each other. One end of the hose has a female quick connect coupling ("female c o u p lin g " ), which mates with a male quick connect coupling ("male coupling") located on th e tanker trailer's drain valve (collectively referred to as "the couplings"). To connect the h o s e to the trailer's valve, a trucker inserts the male coupling into the female coupling, and m a n u a lly pulls down two external levers ("dogears") on the female coupling to ensure that th e connected couplings are locked into place. After the hose is connected to the tanker trailer v ia the couplings, the trucker turns on the storage tank's pump, which suctions the liquid a sp h a lt through the hose and into the tank. Following activation of the storage tank's pump, the trucker opens the trailer's dome (to allow air into the trailer) and turns on the trailer's d ra in valve, which allows the liquid asphalt to begin to transfer through the hose and into the s to ra g e tank. The internal liquid pressure of the asphalt then causes the asphalt to drain from th e trailer. A pump that creates suction force on the truck side of the pump assists the g ra v ita tio n a l flow of liquid asphalt. A full tank of liquid asphalt takes about thirty minutes to an hour to unload. In delivering the liquid asphalt load to the APAC plant, plaintiff: (1) backed the tanker tr a ile r to APAC's unloading station; (2) put on his "safety gear;" (3) hooked the transfer hose 2

to the trailer; (4) climbed on top of the trailer and opened the trailer's hatch to allow air in s id e of the trailer; (5) climbed down to the ground and turned on the trailer's valve; and (6) tu rn e d on the storage tank's pump. Plaintiff, in recalling this process, testified that the tra n s f e r hose "seemed to fit right" when he connected it to the trailer's valve. Plaintiff claims th a t, despite activation of the trailer's valve and the storage tank's pump, the liquid asphalt w a s not transferring or pumping into the APAC storage tank. After turning the trailer's valve a n d the storage tank's pump off, plaintiff allegedly reported the problem to the APAC " s u p e rv is o r," who told plaintiff to have an APAC employee assist him. APAC has a position called the "lookout." Part of the lookout's duties include lo o k in g after drivers safety and assisting, if asked. According to plaintiff, the APAC e m p lo ye e unhooked and rehooked the transfer hose. Plaintiff specifically recalled seeing the A P A C employee "clamp" the hose back down, and "[f]rom [plaintiff's] knowledge it looked lik e [the APAC employee] hooked it up right." However, plaintiff specifically denies having a n opinion that it was actually hooked up correctly, stating "I'm not going to say that he (A P A C employee) did hook it up right. I am not going to say that." The APAC employee th e n turned the trailer's valve and the storage tank's pump back on. The APAC employee s u b s e q u e n tly used a blow torch on the transfer hose to heat dried, solidified asphalt inside o f the transfer hose which may cause a blockage and prevent liquid asphalt from flowing th ro u g h the hose. In the process of using the blow torch on the hose, the APAC employee a p p a re n tly burned the air line that served the brakes on plaintiff's tanker trailer. Thereafter, plaintiff claims he left the transfer station to return to his truck's cab, 3

re m o v e d his safety gear, and entered the cab to attempt to telephone his employer about the a ir line. After not being able to get a cell phone signal in the cab, plaintiff exited the cab, a lle g e d ly put his safety gear (safety hat, gloves, coat) back on, and walked to the transfer s ta tio n . Plaintiff claims that as he rounded the rear of the trailer and was several feet away f ro m the couplings, he allegedly heard a "splush sound" and felt the hot asphalt on him, d e s c rib in g the asphalt which burned him as a "spray." A t the time of the accident, no APAC employee was at the transfer station and p lain tiff claims he does not know how the accident occurred. APAC employee Joseph Davis te stif ie d that he although he did not see the spewing start, but that when he "came around th e n that's when [he] saw it. And [he] saw Mr. Williams on the back of the truck turning the v a lv e ," and assisted him. Davis testified that the transfer hose still was connected to the ta n k e r trailer via the couplings, and that hot asphalt was spewing between six to seven feet in the air like a water hose that was under pressure. Because the asphalt had not pooled on th e ground, plaintiff suggests that the asphalt had just started spewing when Davis came upon h im trying to turn the valve off. Plaintiff then walked to the APAC plant office and advised th e plant manager, John Purvis, of his injury. Purvis, who noticed that plaintiff was wearing a short-sleeve shirt, called an ambulance. Subsequently, plaintiff's employer, Sammy Curtis, tra v e led to the APAC plant and, using the same transfer equipment, unloaded the liquid a sp h a lt from plaintiff's trailer and into APAC's storage tank without incident. II. D ISCUSSION A. S TANDARD FOR SUMMARY JUDGMENT 4

S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with affidavits, if any, show that there is no g e n u in e 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 has the b u rd e n of showing the absence of a genuine issue of material fact, and the court must view th e evidence before it and the inferences to be drawn therefrom in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is not "a disfavored procedural shortcut," but an important m e c h a n is m for weeding out "claims and defenses [that] have no factual bases." Celotex C o rp . v. Catrett, 477 U.S. 317, 327 (1986). Although the court must construe the facts in a lig h t most favorable to the non-moving party, an inference is only reasonable if it is plausible a n d the evidence is such that a reasonable jury, given the entire record, could draw that in f e re n c e. Id. W h e th e r a fact is considered to be "material" is determined by the substantive law, a n d "[o]nly disputes over facts that might affect the outcome of the suit under the governing la w will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 4 7 7 U.S. 242, 247 (1986). Only disputes over facts that might affect the outcome of the suit u n d e r the governing law will properly preclude the entry of summary judgment. Id. at 248; s e e also Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.2001). A "genuine" issue co n ce rnin g a "material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Anderson, 477 U .S. at 248. 5

S u m m a ry judgment shall be granted if the nonmoving party "fails to make a showing s u f f ic ie n t to establish the existence of an element essential to that party's case, and on which th a t party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322; see also H o o v e n -L e w is , 249 F.3d at 265. In meeting this burden, the nonmoving party must "go b e yo n d the pleadings" and present affidavits or designate specific facts in depositions, a n sw e rs to interrogatories, and admissions on file to establish a genuine issue of material f a ct. Celotex Corp., 477 U.S. at 324; see also M & M Med. Supplies & Serv., Inc. v. Pleasant V a lley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993). Although the court must draw all ju stif iab le inferences in favor of the nonmoving party, in order to successfully defeat a m o tio n for summary judgment, the nonmoving party must rely on more than "conclusory or s p e c u la tiv e allegations," the "building of one inference upon another," the "mere existence o f a scintilla of evidence," or the appearance of "some metaphysical doubt as to the material f a cts ." See Anderson, 477 U.S. at 252; Matsushita, 475 U.S. at 586; Thompson v. Potomac E le c . Power Co., 312 F.3d 645, 649 (4th Cir.2002); Stone v. Liberty Mut. Ins. Co., 105 F.3d 1 8 8 , 191 (4th Cir.1997). In evaluating the motion for summary judgment, the court " sc ru tin iz e s the plaintiff's case to determine whether the plaintiff has proffered sufficient p ro o f , in the form of admissible evidence, that could carry the burden of proof of his claim a t trial" such that a reasonable jury could find in plaintiff's favor. See Mitchell v. Data

G e n e ra l Corp., 12 F.3d 1310, 1316 (4th Cir.1993); Anderson, 477 U.S. at 252. B. A N A LY S IS

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D ef en d an ts move for summary judgment on the grounds that: (1) plaintiff's n e g lig e n c e claim is scientifically implausible and lacks any evidentiary support; (2) p lain tiff 's comparative negligence bars his claim as a matter of law; and (3) plaintiff's wife's lo s s of consortium claim should be dismissed for plaintiff's failed negligence claim. Plaintiff claims that APAC's negligence caused the liquid asphalt to spray out several f e et from the back of the tanker trailer and burn his left forearm. The accident occurred on O c to b e r 3, 2005, and plaintiff filed his lawsuit on September 4, 2008. Plaintiff never notified A P A C about a potential lawsuit or requested that APAC preserve evidence, such as the co u p lin g s, until he filed this lawsuit nearly three years after the accident. Per APAC's p roc ed u re, the company routinely discards couplings and other equipment. Plaintiff's d e c is io n to wait nearly three years to file this lawsuit has rendered virtually impossible the e x a c t cause of the accident because the actual couplings are no longer available to inspect. T h e re f o re , plaintiff rests his sole claim of negligence on the theory that the APAC employee d id not properly secure the coupling, causing it to spray asphalt onto plaintiff. I n order to prove negligence in South Carolina, plaintiff must prove by a p re p o n d e ra n c e of the evidence that 1) the defendants had a legal duty of care; 2) the d e f e n d a n ts failed to discharge that duty; and 3) defendants' breach proximately caused him in ju ry. Ajaj v. United States, 479 F.Supp.2d 501, 549 (D.S.C.2007); Goode v. St. Stephens U n ite d Methodist Church, 494 S.E.2d 827, 834 (S.C.1997). Plaintiff's decision to ignore the offloading process by leaving the transfer station to

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re tu rn to and remain in the cab of the truck, oblivious to the manner and means of the o f f lo a d in g of the asphalt, coupled with his own failure to examine the coupling sufficiently to confirm that it was properly secured, together with his decision, in the face of his prior k n o w le d g e that the coupling allegedly always leaked at the Sumter plant, and to round the c o r n e r of his trailer within the zone of danger created by the possibility of injury from the le a k in g asphalt, arguably rises to the level of a cognizable breach of duty for comparative n e g lig e n c e . However, the court need not reach the issue of plaintiff's comparative

n e g lig e n c e because plaintiff has failed to support his claim of negligence against defendants. A c c o r d in g to APAC's mechanical engineering expert, Dean Harris, liquid asphalt d ra in s out of the tanker trailer because of gravity and the internal pressure of the liquid, w h ic h is "quite low, less than 2 ½ psig." Harris Affidavit at ¶ 7, and Harris Report at 8 (¶ 10) (c o m p a r in g the 2 ½ psig of liquid asphalt to the fluid pressure of city water, which is between 4 0 and 60 psig). Because of this low internal pressure, there must have been a "sufficiently lar g e , but restrictive opening in the couplings" in order for liquid asphalt to "spew" like it did d u rin g the Incident. Id. at ¶ 12. For such an opening to exist between the couplings, the e x p e rts agree that the female and male coupling cannot be completely connected, and one of th e female coupling's dog-ears must be released or unclamped. If the female coupling is " o n ly half latched" to the male coupling, the couplings "cock at a slight angle" to each other an d there is a "crescent shaped gap on the side whose [dog-ear] is unlocked." Harris Report a t 12. If one of the female coupling's dog-ears is opened while the trailer's drain valve was

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in the on position and enabling disbursement of liquid asphalt, a fan-shaped stream of fluid w o u ld have exited from the coupling's gap. Id. Additionally, "[i]f this opening is on the top s id e of the coupling, it is possible that the low fluid pressure [of the asphalt] would produce a vertical rise of a couple of feet of fluid." Id. Defendants argue that the witness testimony, in addition to plaintiff's own testimony about the nature of the asphalt spew, support the fin d ing that the most probable cause of plaintiff's injuries was plaintiff's own operator error. D e f e n d a n ts argue that no other explanation for the release of liquid asphalt plausibly a c c o u n ts for the upward spewing of liquid asphalt. The court finds significant the fact that other truckers use the same coupling without in c id e n t before and after the accident, including plaintiff's supervisor Curtis. Immediately a f te r the accident, Curtis testified that he used the same couplings to successfully unload the re m a in in g liquid asphalt in plaintiff's tanker trailer, thereby refuting any speculation that the c o u p lin g s were defective. Therefore, the court dismisses plaintiff's unsupported allegation th a t the accident was the result of a defective female coupling. It is improbable and there is no evidence to suggest that plaintiff's burn injury occurred because dried, solidified liquid asphalt inside of APAC's female coupling prevented th a t coupling from properly locking to the male coupling. According to APAC's expert, it is "not possible to lock [or clamp the female coupling's dog-ears] if the coupling is not fully inse rted ." Harris Report at 11. Plaintiff's employer, Curtis, concurred, testifying that if there is solidified asphalt in the female coupling a trucker "wouldn't be able to lock it" to the male

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c o u p lin g on the trailer. Curtis Depo. at 16:11-16. However, as noted above, such a scenario is entirely inconsistent with plaintiff's own testimony, by which plaintiff admitted that the A P A C employee "clamp[ed]" the coupling and connected the hose to the trailer's drain v a lv e . Pl.'s Depo. at 51, 86. Plaintiff also stated that from his "knowledge it looked like [the A P A C employee] hooked it up right." Id. at 51. Thus, it implausible that solidified liquid a sp h a lt inside of the female coupling prevented a proper connection between the couplings a n d resulted in liquid asphalt spraying plaintiff. F u r th e rm o re , it is contrary to the evidence that the liquid asphalt which spewed u p w a rd and burned plaintiff was caused by a defective rubber gasket inside of the female c o u p lin g .1 Such a scenario is implausible because the expert testimony reveals that a d e f e c tiv e rubber gasket only results in a downward drip of liquid asphalt from the couplings. A defective rubber gasket does not produce an upward spewing of the substance, and is, th e re f o re , an improbable cause of the accident. M o re o v e r, it is unlikely that the liquid asphalt spewed on plaintiff because the APAC e m p lo ye e allegedly did not clamp down the female coupling's dog-ears and securely fasten th e transfer hose to the trailer's drain. Plaintiff's own testimony disputes such a theory as p lain tiff testified that he saw the APAC employee "clamp" the hose down, id. at 51-53 and 8 6 , and "[f]rom [Plaintiff's] knowledge it looked like [the APAC employee] hooked it up

The court notes that the gasket was replaced at Curtis's request, but there is no evidence that the gasket was defective. Curtis testified that he "didn't check it," but asked that it be replaced, as it is routinely replaced after four or five unloadings. Curtis depo., p. 24-25. 10

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rig h t." Id. at 51. Furthermore, "[g]iven the downward angle of the trailer outlet and the w e ig h t of the [transfer] hose, it is doubtful that the hose would have remained connected to the trailer if the [dog-ears] were not locked." Harris Report at 10. According to APAC's e x p e r t Harris, if the dog-ears were not locked, the transfer hose "certainly would release [ f ro m the trailer] as soon as fluid was introduced into the hose." Id. Plaintiff's employer, C u rtis, concurs. In his deposition, Curtis testified that if the female coupling's dog-ears were n o t locked down, the transfer hose would have "jumped off" the trailer "as soon as" the A P A C employee "cut the pump on." Curtis Depo. at 46:5-15. However, based on plaintiff's te stim o n y, a substantial amount of time passed between the APAC employee's "clamping" th e transfer hose to the trailer and turning the trailer's valve on to release liquid asphalt into th e hose, Pl.'s Depo., at 53:14-18, and the accident. See id. and id. at 51 (describing the f o llo w in g events as happening between the APAC employee's connecting of the hose to the tra ile r and the Incident: (1) the APAC employee heated the transfer hose with a blow torch; (2 ) the APAC employee burned the truck's air line with the blow torch; (3) the APAC e m p lo ye e left the transfer station, id. 51, and (4) plaintiff walked to and from the truck's c a b ). Therefore, it is implausible that plaintiff's injuries occurred because the APAC e m p lo ye e did not clamp down and lock the female coupling's dog-ears. The court finds the evidence does not supported plaintiff's argument that an APAC e m p lo ye e was negligent in connecting the transfer hose to the tanker trailer's valve or in p ro v id in g defective or poorly maintained transfer equipment to plaintiff.

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P la in ti f f 's expert testimony is insufficient to save his negligence claim, as the c a u sa tio n testimony does not pass muster under Fed. R. Evid. 702. Admittedly not inspecting the original hose and coupling, nor the truck and associated male coupler, plaintiff's expert in sp e c ted "similar equipment," along with a new unused female coupler. With the benefit o f plaintiff's deposition and research he conducted on cam and groove couplings, including an article from bulktransporter.com and the coupling manufacturer's catalog, plaintiff's e x p e rt assumed the following facts in order for the incident to occur as plaintiff described: 1 ) the female coupling would be attached to the trailer adapter and look like it was properly sec u red and latched, 2) the coupling would be attached long enough to allow fluid to start f lo w in g , and 3) the coupling would then come loose when plaintiff walked around the back o f the trailer. Plaintiff's expert concluded that "[t]here are a number of couple conditions that could h a v e existed at the time of [plaintiff's] incident. Further, based on the information provided, I conclude that these conditions are possible given the equipment and the timing involved," a n d included the following summary: a. b. c. T h e closed cam levers come open for one reason or another and allow the c o u p ler halves to come apart; T h e cams in the female coupler are worn enough that the female coupler cams c a n slide over the male coupler groove; A gasket of the wrong thickness is installed in the female coupler and the p ro p e r compression is not applied to the cams to keep them locked in place, th e cams loosen and the coupling comes apart; A bad gasket is in the female coupler and the proper compression force is not a p p lie d to the cams to keep them locked in place, the cams loosen and the co u p lin g comes apart; or, 12

d.

e.

In itia lly, the end of the female coupling has solidified asphalt in and around th e wrong thickness gasket or a badly worn gasket. The solidified asphalt is th ick enough that the cams initially tighten down properly. As the hot asphalt s ta rts flowing through the coupling, the solidified asphalt in the gasket b e c o m e s hot, liquifies and allows the compression force on the cams to be re d u c ed . The cams open up due to the jumping hose movement created by the p u m p and, not instantly but over a period of time, the coupling comes apart.

P la in tif f 's expert concludes that defendants "did not act in a reasonable manner if the f e m a le hose coupling was not properly inspected and maintained and came uncoupled due to excessive wear of the cams, a bad gasket or the installation of an improper gasket and the n e g lig e n c e of APAC is a cause of [plaintiff's] injuries." The plaintiff's expert has "essentially wandered into a metaphysical extrapolation" a s to how the coupling managed to come into a position to become uncoupled. Hardesty v. A m e ric a n Seating Co., 194 F.Supp.2d 447, 451 (D.Md. 2002). While the expert's "reasoning a n d chain of inferences leading to his causation conclusion may be minimally plausible," the c o u rt finds that it has not been shown to be based on "sufficient facts or data," Fed.R.Evid. 7 0 2 (1 ), that are "reasonably relied upon by experts in the particular field in forming opinions o r inferences upon the subject," Fed.R.Evid. 703. Thus, the court finds that plaintiff has not d e m o n s tra te d that the expert testimony on causation "is the product of reliable principles and m e th o d s ." Fed.R.Evid. 702(2), 703. Effectively, plaintiff's argument relies on res ipsa loquitur to prove defendants' n e g lig e n c e . Res ipsa loquitur means "the thing speaks for itself." O'Leary-Payne v. R.R. H ilto n Head, II, Inc., 638 S.E.2d 96, 100 (S.C. App.2006)(citing W. Page Keeton et al.,

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P r o s s e r and Keeton on Torts § 39, at 243 (5th ed. 1984)). According to this doctrine: T h e re must be reasonable evidence of negligence; but where the thing is s h o w n to be under the management of the defendant or his servants, and the a c c id e n t is such as in the ordinary course of things does not happen if those w h o have the management use proper care, it affords reasonable evidence, in th e absence of explanation by the defendants, that the accident arose from lack o f care. Id . at 100. H o w e v e r, res ipsa loquitur is a doctrine that is not recognized in South Carolina. Id. Even if the court were to permit the inferences of negligence by the defendants to be d ra w n from the expert's report, there is nothing in the evidence from which it can be inferred th a t the negligence of the defendants resulted in plaintiff's injury. That is to say, plaintiff has s h o w n no evidence that defendants' breach of some duty was the "thing which caused in ju ry." Negligence is not actionable unless it is the proximate cause of plaintiff's injury. H u g h e s v. Children's Clinic, P.A., 237 S.E.2d 753, 757 (S.C. 1977). The opinion of p l a in t if f ' s expert that defendants "did not act in a reasonable manner if the female hose c o u p lin g was not properly inspected and maintained and came uncoupled due to excessive w e a r of the cams, a bad gasket or the installation of an improper gasket," is insufficient to d e m o n s tra te a breach of some duty owed to plaintiff. Further, even assuming such a duty and b re a ch , plaintiff's own expert opines that such a breach would merely constitute a cause of p lain tiff 's injuries. Such argument fails to defeat defendants' motion for summary judgment, as plaintiff is required to show negligence with "reasonable certainty, not through mere c o n je c tu r e , and he may not attempt to prove negligence through the doctrine of res ipsa 14

lo q u itu r." Ajaj, 479 F.Supp.2d at 549. In sum, the court finds plaintiff's negligence claim against APAC fails as a matter of law because even when construed in a light most favorable to plaintiff, there is no reasonable o r plausible inference that would allow the jury to determine that plaintiff's injuries were the d ire c t and proximate result of any alleged APAC negligence. In light of the finding that p lain tiff has failed to establish a genuine issue of material fact, the court finds it unnecessary to address defendants' comparative negligence argument. Further, the court must dismiss p la in tif f 's wife's claim for loss of consortium, as it necessarily depends on plaintiff proving d e f e n d a n t s' liability for his injuries. See Creighton v. Coligny Plaza Ltd. P'ship, 512 S.E.2d 5 1 0 , 523 (S.C. App. 1998). I I I. C O N C LU S IO N F o r the foregoing reasons, the court finds there is no genuine issue of material fact, an d grants summary judgment in favor of defendants [dkt. #30]. IT IS SO ORDERED.

F eb rua ry 11, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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