Clements v. Ashland Oil, Inc.

657 S.W.2d 223, 1983 Ky. LEXIS 302

• Court: Kentucky Supreme Court
• Decided: June 15, 1983
• Status: Published

Opinions

JAMES M. COLLIER, Special Justice.

The location of this tragic accident was the Ashland Oil bulk plant in Lexington. The relevant part of the Ashland facility was a loading dock. The dock included a roof under which tanker trucks could pull on either side of a platform for loading. Underneath the roof were drop tubes, each of which dispensed a different kind of petroleum product to waiting tankers. The flow of the liquid was controlled by a “meter” beside each tube.

About noon on October 10, 1973, three tankers were in the precincts of that loading dock. Each tanker consisted of a tractor and a tank trailer. The first of these, driven by Tobe Collins, was filling on the east side of the docks. Directly behind Collins, and waiting his turn to load, was another rig driven by Rovie D. Himes. The tractors to these rigs belonged to Sanders Trucking, Inc.; the trailers to Lewis Transport, Inc. On the west side an employee of Marathon Oil Company, Alan T. Clements, had positioned his tanker for loading.

What happened at the dock is the subject of some variances as related by eye witnesses. Enough evidence is uncontradicted, however, to dispose of the case. Collins had finished loading gasoline, and had turned that drop tube over to Clements. Collins was in the process of loading diesel. Clements placed the gasoline drop tube into his tank, started the meter, then walked toward the rear of the platform. The tube catapulted out of the tanker, spraying gasoline over Clements, the trucks, and the platform. Fire erupted, engulfing the dock and all three trucks. The dock was destroyed along with the three tractors and two of the trailers. Most tragic of all, Himes and Clements were killed by the flames. Collins miraculously escaped.

A round of litigation ensued. Everybody claimed everything against everybody else. All claims were consolidated and tried together. One trial occurred in 1977. It ended in a hung jury. A second trial was conducted in 1979, which ended in awards against Ashland as follows:

1. To the Estate of Clements $74,649.90

2. To Hartford Accident and Indemnity Company (for various payments in the Clements estate) 27,420.00

3. To the Estate of Himes 175,007.09

4. To Commercial Union Insurance Company (for various payments made to the Himes estate) 27,375.08

5. To Sanders Trucking, Inc. 17,863.40

6. To Lewis Transport, Inc. 7,901.56

Ashland appealed. The Court of Appeals reversed the awards to the Clements estate and to Hartford, but affirmed the other. Both Ashland and the Clements-Hartford faction moved this Court for discretionary review, which was granted. We affirm the reversal of the Court of Appeals of the judgment in favor of the Clements-Hartford faction, but reverse its affirmation of the other judgments against Ashland.

This protracted trial elicited much testimony from experts as to why this accident happened. All counted as significant certain undisputed facts. Nobody associated with Ashland was around when the holocaust broke. Clements was the person who had assumed command of the gasoline load-mg equipment. He was an experienced hand, who had had extensive training in the safe use of the facilities. He was supposed to place the drop tube deep into the tank then secure it to the tank with a chain attached to the tube. The specific purpose of this precaution was to keep the force of the surging liquid from erupting the tube from the tank, spraying gasoline about.

An added precaution dictated that Clements stand by the meter during filling so he could shut off the flow of gasoline in the event of emergencies. All experts agreed securing the tube and standing by the meter were essential safety precautions.

Whether Clements followed the first of these precautions, securing the tube, is unknown from the evidence. The testimony is undisputed that he did not stand by the meter. We agree with the Court of Appeals that the acts of Clements on this occasion were negligent as a matter of law.

We now address the question of whether there was any negligence on the part of Ashland. Two criticisms were aimed at Ashland. The first was the condition of the facility; the second was a lack of enforcement of the stand-by-the-meter rule. On the facility, two experts on behalf of claimants testified there was safer equipment. One did not like the static electric drain-off system Ashland supplied. He did not condemn the one used as below the standard of care, he merely felt there might have been a better one. The other expert felt the same way about the chain mechanism used to secure the tube. He advocated some sort of harness contraption in place of the chain. This expert acknowledged he had, without complaint from himself, worked at a loading dock for another oil company for years which had used the chain device. Most important of all, he admitted that if Clements had fastened the chain as he should, then the tube would not have come out of the tank. Neither expert for claimants testified to facts that put the equipment furnished by Ashland below the applicable standard of care. One is not required to use the “safest” equipment, so long as what is furnished is “safe”. Jones v. Hutchinson Manufacturing, Inc., Ky., 502 S.W.2d 66 (1973).

The question of standing by the meter could bring the house down on every claimant. If it was negligent not to stay by the meter, then all three drivers present were negligent, as well as Ashland. All the drivers there, Clements, Collins, and Himes, knew the necessity of following safety precautions, were knowledgeable of existing conditions, including the tendency of drivers to wander from the meter, and were experienced in loading gasoline. If Ashland were negligent in its control and maintenance of the dock, then not only Clements but also Collins and Himes would be con-tributorily negligent, so all claimants would be entitled to a directed verdict on all claims against them, and nobody would collect anything. Under the evidence, such a harsh result is not necessary. The only one negligent for not staying by the meter was Clements. Therefore, neither Himes nor Collins, nor their employer, nor Ashland was negligent when Clements chose to wander. From the uncontradicted evidence it is obvious Clements was in control of the series of events which led to this catastrophe. Such catastrophies do not happen unless someone is negligent. Therefore, there was a presumption Clements was negligent. Wallace v. Norris, 310 Ky. 424, 220 S.W.2d 967 (1949). This presumption was never overcome. The jury found Clements negligent. That negligence as a matter of law was the direct cause of the damages suffered by all. Therefore, the trial court should have instructed the jury to find for Ashland as well as for the Estate of Himes, Commercial Union, Sanders Trucking, and Lewis Transport on their claims against the Clements estate and Marathon.

This case is remanded to the trial court to:

1. Enter a judgment N.O.V. for Ash-land;

2. Enter a judgment on behalf of the Himes Estate, Commercial Union, Sanders Trucking, and Lewis Transport for the amounts awarded them by the jury against the Clements Estate and Marathon;

3. Retry the claim of Ashland against the Clements Estate and Marathon only on the question of how much damages should be awarded Ashland.

STEPHENS, C.J., AKER, LEIBSON, STEPHENSON and WINTERSHEIMER, JJ., and JAMES M. COLLIER and RICHARD L. FRYMIRE, Special Justices, sitting.

All concur except LEIBSON, J., who dissents and files herewith a separate dissenting opinion.