DUFFY, Justice:
This appeal involves survival and wrongful death actions arising from a fire at the Delaware City Refinery of Getty Oil Company. In the Superior Court three plaintiffs asserted various claims against Getty and/or Koppers Company, Inc., and/or Catalytic, Inc.; one plaintiff (Rose T. Walker) and two defendants (Koppers and Catalytic) are not parties to the appeal.
Several motions for summary judgment were submitted to the Superior Court, which made the following rulings in its opinion and order dated August 16, 1976:
“To summarize,
defendant’s
(Koppers Company, Inc.)
motion for summary judgment is denied.
With respect to
plaintiffs’
(Carol Stanley, Executrix of the Estate of William J. Heal, and Caroline M. Heim, Widow of Edward F. Heim, et al.)
motion against Getty for partial summary judgment, the Court finds Getty negligent as matter of law and thus grants said motion
for summary judgment against Getty. However, Getty
may still present arguments regarding degree of fault and assumption of the risk in an effort to limit or avoid liability.” (Emphasis in the original.)
Appeals and cross-appeals were filed and we have considered them on an accelerated basis because a lengthy trial is scheduled in the Superior Court at the March Term.
Upon consideration of the briefs and the contentions of counsel made at oral argument, we have reached the following conclusions on the issues submitted:
(1)
Strict liability:
The Trial Court found that it “should have more factual guidance than is present in this record” before determining this issue. Clearly, that ruling determined neither a substantial issue nor did it establish a legal right and, therefore, it is not appealable under settled law.
Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park,
Del.Supr., 261 A.2d 520 (1969).
(2)
Statutory negligence under 16 Del.C. §
6611:
The Trial Court stated that:
“The purpose of this statute, as clearly expressed, is to protect people and property from harm caused by fire or explosions. The injuries to decedents in this case would have been avoided had Getty maintained its equipment (i. e. its oily water sewer system) so that a large cloud of gas did not escape from it on November 8, 1971. Getty’s Zone 1 superintendent, Bastón, stated that the build-up of gas vapor in the sewer was caused by an unsafe act of a Getty foreman. Even without such an admission, the pressure [sic] of such a dangerous amount of gas in the air and the resultant explosion makes such a conclusion axiomatic.”
Getty argues that the statute is vague and overbroad, and that in applying it the Superior Court did not announce any standards by which liability is to be measured or tested. For present purposes, we agree with that contention but it is not helpful to Getty. We say this because the undisputed material facts before the Trial Court establish that Getty was negligent.
For purposes of this appeal it is unnecessary to formulate specific criteria under § 6611. In our view, the Act can be regarded (without prejudice to Getty) as codifying the prudent-man rule, which is to say that Getty was obliged to conduct its refinery in a reasonably careful way. William E. Baston’s report and testimony, which are not contradicted, show that the discharge of gasoline into the sewer system was an “unsafe act,”
inconsistent with Getty’s “standard operating procedures,”
creating an “unusual” condition in the refinery.
The discharge of the large amount of cooling water into the sewer system, under the then prevailing conditions, compounded this “carelessness” and resulted in discharge of the explosive vapor.
The re-
suit, surely, was negligence on Getty’s part
vis-a-vis
these plaintiffs.
Thus, whether Getty’s conduct is tested by common law negligence standards or under a similar standard for § 6611, the result is the same: Getty was negligent.
(3)
Proximate
cause: The Superior Court did not discuss proximate cause but since it determined that the liability claim against Getty should go to the jury, it necessarily concluded that plaintiffs were not entitled to a ruling of law in their favor on the causation issue. We reach a different conclusion.
It is undisputed that a cloud of gas was ignited and exploded. There is a dispute as to the source of and responsibility for the ignition, but this is not before us. The only reasonable conclusion from what is before us is that the explosion took place almost instantly with the appearance of the cloud and that the explosion caused the deaths. In short, Getty’s negligence provided the fuel for the explosion.
Under these circumstances the only reasonable conclusion is that Getty’s negligence, already established, was a proximate cause of the deaths. We so hold. But we make no judgment about fault on Koppers’ part or any degree of fault as between Getty and Koppers.
(4)
Assumption of
risk: The Court ruled, without discussion, that Getty may present arguments, (presumably before the jury), regarding assumption of risk by the decedents. In our view, the uncontested evidence establishes that they did not assume the risk which is in issue. The governing law was stated by this Court in
Robinson v. Meding,
Del.Supr., 2 Storey 578, 163 A.2d 272, 276 (1960), as follows:
“ . . . [One] does not assume a risk which cannot be reasonably anticipated and which may be the result of the negligent act of another. . . . Usually this doctrine is not applicable unless there was knowledge, express or implied, of the existence of the risk with a corresponding appreciation of the extent of the danger. With such knowledge of the circumstances, plaintiff must have voluntarily exposed himself to the danger.”
Defendants may have assumed the risks incident to work at an oil refinery, where fires appear to be a common occurrence; but that is not this case. It was the negligent act of Getty which produced the “gas cloud” which was ignited and resulted in the deaths. There is nothing in the record which tends to show that decedents reasonably anticipated that risk or, indeed, that they assumed the risk of any negligence associated with it.
Robinson v. Med
ing,
supra.
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DUFFY, Justice:
This appeal involves survival and wrongful death actions arising from a fire at the Delaware City Refinery of Getty Oil Company. In the Superior Court three plaintiffs asserted various claims against Getty and/or Koppers Company, Inc., and/or Catalytic, Inc.; one plaintiff (Rose T. Walker) and two defendants (Koppers and Catalytic) are not parties to the appeal.
Several motions for summary judgment were submitted to the Superior Court, which made the following rulings in its opinion and order dated August 16, 1976:
“To summarize,
defendant’s
(Koppers Company, Inc.)
motion for summary judgment is denied.
With respect to
plaintiffs’
(Carol Stanley, Executrix of the Estate of William J. Heal, and Caroline M. Heim, Widow of Edward F. Heim, et al.)
motion against Getty for partial summary judgment, the Court finds Getty negligent as matter of law and thus grants said motion
for summary judgment against Getty. However, Getty
may still present arguments regarding degree of fault and assumption of the risk in an effort to limit or avoid liability.” (Emphasis in the original.)
Appeals and cross-appeals were filed and we have considered them on an accelerated basis because a lengthy trial is scheduled in the Superior Court at the March Term.
Upon consideration of the briefs and the contentions of counsel made at oral argument, we have reached the following conclusions on the issues submitted:
(1)
Strict liability:
The Trial Court found that it “should have more factual guidance than is present in this record” before determining this issue. Clearly, that ruling determined neither a substantial issue nor did it establish a legal right and, therefore, it is not appealable under settled law.
Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park,
Del.Supr., 261 A.2d 520 (1969).
(2)
Statutory negligence under 16 Del.C. §
6611:
The Trial Court stated that:
“The purpose of this statute, as clearly expressed, is to protect people and property from harm caused by fire or explosions. The injuries to decedents in this case would have been avoided had Getty maintained its equipment (i. e. its oily water sewer system) so that a large cloud of gas did not escape from it on November 8, 1971. Getty’s Zone 1 superintendent, Bastón, stated that the build-up of gas vapor in the sewer was caused by an unsafe act of a Getty foreman. Even without such an admission, the pressure [sic] of such a dangerous amount of gas in the air and the resultant explosion makes such a conclusion axiomatic.”
Getty argues that the statute is vague and overbroad, and that in applying it the Superior Court did not announce any standards by which liability is to be measured or tested. For present purposes, we agree with that contention but it is not helpful to Getty. We say this because the undisputed material facts before the Trial Court establish that Getty was negligent.
For purposes of this appeal it is unnecessary to formulate specific criteria under § 6611. In our view, the Act can be regarded (without prejudice to Getty) as codifying the prudent-man rule, which is to say that Getty was obliged to conduct its refinery in a reasonably careful way. William E. Baston’s report and testimony, which are not contradicted, show that the discharge of gasoline into the sewer system was an “unsafe act,”
inconsistent with Getty’s “standard operating procedures,”
creating an “unusual” condition in the refinery.
The discharge of the large amount of cooling water into the sewer system, under the then prevailing conditions, compounded this “carelessness” and resulted in discharge of the explosive vapor.
The re-
suit, surely, was negligence on Getty’s part
vis-a-vis
these plaintiffs.
Thus, whether Getty’s conduct is tested by common law negligence standards or under a similar standard for § 6611, the result is the same: Getty was negligent.
(3)
Proximate
cause: The Superior Court did not discuss proximate cause but since it determined that the liability claim against Getty should go to the jury, it necessarily concluded that plaintiffs were not entitled to a ruling of law in their favor on the causation issue. We reach a different conclusion.
It is undisputed that a cloud of gas was ignited and exploded. There is a dispute as to the source of and responsibility for the ignition, but this is not before us. The only reasonable conclusion from what is before us is that the explosion took place almost instantly with the appearance of the cloud and that the explosion caused the deaths. In short, Getty’s negligence provided the fuel for the explosion.
Under these circumstances the only reasonable conclusion is that Getty’s negligence, already established, was a proximate cause of the deaths. We so hold. But we make no judgment about fault on Koppers’ part or any degree of fault as between Getty and Koppers.
(4)
Assumption of
risk: The Court ruled, without discussion, that Getty may present arguments, (presumably before the jury), regarding assumption of risk by the decedents. In our view, the uncontested evidence establishes that they did not assume the risk which is in issue. The governing law was stated by this Court in
Robinson v. Meding,
Del.Supr., 2 Storey 578, 163 A.2d 272, 276 (1960), as follows:
“ . . . [One] does not assume a risk which cannot be reasonably anticipated and which may be the result of the negligent act of another. . . . Usually this doctrine is not applicable unless there was knowledge, express or implied, of the existence of the risk with a corresponding appreciation of the extent of the danger. With such knowledge of the circumstances, plaintiff must have voluntarily exposed himself to the danger.”
Defendants may have assumed the risks incident to work at an oil refinery, where fires appear to be a common occurrence; but that is not this case. It was the negligent act of Getty which produced the “gas cloud” which was ignited and resulted in the deaths. There is nothing in the record which tends to show that decedents reasonably anticipated that risk or, indeed, that they assumed the risk of any negligence associated with it.
Robinson v. Med
ing,
supra. We hold that on the basis of the undisputed facts in the record and what was before the Trial Court on the motions for summary judgment, decedents did not assume the risk of Getty’s negligence which caused the gas cloud.
Reversed and remanded for proceedings consistent herewith.
ON MOTIONS FOR REARGUMENT
Getty has moved for reargument, contending that there is a genuine issue of material fact on the assumption of risk issue and, for that reason, summary judgment should not have been granted as to that defense. Koppers makes the same argument and, additionally, seeks clarification as to whether the defense is available to it at trial. We consider the motions
seriatim.
I
To support its contention that a genuine issue of material fact remains to be resolved, Getty tenders the deposition testimony of Kenneth Caudill, a Getty employee who was a witness to the fire. His deposition was taken on January 17, 1977, one month after the case was submitted to this Court and nearly six months after submission to the Superior Court.
Obviously, that testimony was not considered by the Superior Court and no effort was made to make it available to this Court before our ruling was announced on February 24.
As a matter of general practice this Court refuses to consider evidence which was not part of the record below. On appeal, our function is to review the record, not to provide a forum for making it. However, the circumstances here are exceptional and, given the age of the case, the imminence of trial and the significance of our ruling on the trial, we will measure the impact of Caudill’s testimony against the soundness of our conclusion on the assumption of risk issue.
We have closely examined those parts of Caudill’s testimony submitted with Getty’s motion for reargument and we conclude that it is inadequate for the purpose argued by Getty. While Caudill testified that, “on his own,” he told “[p]eople . to leave the area,” he could not identify any of the decedents; the generality of his testimony does not create an issue as to whether there was knowledge of the particular risk by any decedent, an appreciation of the extent of the danger and a voluntary exposure to it.
Robinson v. Meding, supra.
See representative portions of Caudill’s testimony in the Appendix. Substantively, it adds little to the record. Therefore, viewing Caudill’s testimony in a light most favorable to Getty, as we must on a motion for summary judgment,
Oliver B. Cannon & Sons, Inc.
v.
Dorr-Oliver Inc.,
Del.Super., 312 A.2d 322, 325 (1973), we remain convinced that there is not a genuine issue as to a material fact and that the uncontro-verted evidence demonstrates that the “decedents did not assume the risk of Getty’s negligence which caused the gas cloud.” Accordingly, Getty’s notion for reargument will be denied.
II
Koppers, the manufacturer of the electrostatic precipitator which is alleged to
have provided the spark that ignited the fumes, is a party to the actions in Superior Court but is not a party to the appeal. It is also a defendant in a separate action for wrongful death, brought by Rose T. Walker, which was consolidated by the Superior Court for trial with the
Heim
and
Stanley
suits but which was severed by this Court for appeal purposes. For that reason, nothing said in the opinion is intended to bind Koppers as a party (as Getty is bound). In short, the mandate will not be directed to Koppers. But we make no judgment as to whether our ruling has or has not any prec-edential effect on Koppers, based on other principles of law. That is a matter for consideration by the Trial Court in the first instance. Koppers’ motion for reargument, therefore, will be denied.
APPENDIX
Testimony of Kenneth Caudill:
“BY MR. SEMPLE:
Q I’m Mr. Semple. I represent Catalytic. You indicated earlier that all those people who were not searching for the leak were told to evacuate the area, correct?
A You say all? All to my knowledge that I had seen were told.
Q Well, who initiated the idea of evacuating the area?
A I don’t know.
Q Well, did someone direct you?
A No.
Q But you did in fact tell people to evacuate the area?
A Yes.
Q You did that on your own?
A Yes. [at 40-41]
BY MR. RUBENSTEIN:
Q What time of the day did you start evacuating people?
A I can’t tell you what time it was.
Q Was it 3:00, 4:00?
A I don’t know.
Q Who did you evacuate specifically?
A Pipefitters and millwrights.
Q You don’t know what time of the day it was?
A No, I couldn’t give you a specific time.
Q Did you tell them to leave the area?
A Yes. [at 48]
COUNSEL UNIDENTIFIED:
Q Who’s Vernon Brown?
A He’s a millwright.
Q Foreman?
A Right.
Q Did you recall giving instructions to Vernon Brown, the millwright foreman, to evacuate millwrights from the area?
A No.
Q You don’t recall or you didn’t?
A No, I didn’t.
Q You did not?
A I did not. [at 49]
COUNSEL UNIDENTIFIED:
Q Well, let me go about it a little differently. In order to evacuate an area of workmen, who in the level of supervision makes that decision?
A Only his boss. His boss tells him to leave.
Q All right. Who at Getty would make a decision to evacuate an area in the Getty line of supervision?
A Supervision? Well, I imagine anybody. That’s part of my job. That’s part of my responsibility to tell them to leave.
Q So you’re saying that you have the authority to request any workmen to leave an area if you think for any reason it’s unsafe?
A I have the responsibility to tell the man to leave if it’s not safe. Now, whether he listens to me or not, you know, is a different story.
Q All right. I take it that would include both Getty employees and Catalytic employees?
A When you refer to Getty employees, anybody.
Q Anybody?
A If it was somebody that wasn’t a regular operator of the unit, yes, I have and I will tell them to leave if it’s not safe.
Q All right. Do you remember how many people you instructed to leave?
A No.
Q Do you feel that you did instruct people to leave on that afternoon?
A I know I did. [at 53-54]
COUNSEL UNIDENTIFIED:
Q Well, my other question was you would only tell people to leave the area as you ran into them is that correct as you saw them, as you found them?
A Yes. Or how else could I tell them?
Q Well, what I’m asking you is whether or not you made an effort to find out who was going to be assigned to work in that area in order to see to it that they did not report for work in that area?
A Like I said before, it’s not my job to assign people to jobs and know where they’re working. It’s not my responsibility.
Q That’s not my question, Mr. Caudill. My question is that you felt people ought to be evacuated from the area; is that correct?
A Yes.
Q As you ran into people you would tell them to leave the area; is that correct?
A Yes. [at 56]”