Hutchins v. Silicone Specialties, Inc.

881 P.2d 64, 1993 WL 163449
CourtSupreme Court of Oklahoma
DecidedOctober 4, 1994
Docket76717
StatusPublished
Cited by21 cases

This text of 881 P.2d 64 (Hutchins v. Silicone Specialties, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hutchins v. Silicone Specialties, Inc., 881 P.2d 64, 1993 WL 163449 (Okla. 1994).

Opinions

WATT, Justice.

Plaintiffs sued Silicone Specialties for damages arising out of injuries sustained by Greg Hutchins, Darin Jeffries, and John Lynn. Plaintiffs claimed that defectiveness of a waterproofing product, Bituthene Primer P-3100, marketed by Silicone Specialties caused their damages.

FACTS AND PROCEDURAL HISTORY

In December 1985, Oakridge Builders, Inc. was the general contractor on a job to build an addition to the First United Methodist Church building in Bartlesville. Oakridge gave Professional Waterproofing a subcontract to waterproof the foundation of the [65]*65addition. Hutchins, Jeffries, and Lynn were employees of Professional Waterproofing.

A trench had been dug along the perimeter of the addition to expose its concrete foundation. It was upon the exposed concrete foundation that Professional Waterproofing was to apply waterproofing materials.

Rain fell frequently during this period. Consequently, the bottom of the trench filled with water. Hutchins, Jeffries, and Lynn built a wooden walkway above the surface of the water in the bottom of the trench to provide a dry surface upon which to stand and walk.

Professional Waterproofing’s first attempt to waterproof the foundation failed because the weather was too wet and cold. Silicone Specialties marketed two versions of Bitu-' thene primer, P-3000 for warm weather, and P-3100 for cold weather. Professional Waterproofing had used P-3000 primer in its first attempt at waterproofing the foundation. On December 12, Professional Waterproofing’s employees removed the failed P-3000 from the foundation and started to apply P-3100.1

The faded attempt at waterproofing put Oakridge behind schedule on the project. After Professional Waterproofing’s employees left for the day on December 12, Oak-ridge covered the trench with plastic sheeting and installed two kerosene-fired space heaters, one at each end of the trench. Oak-ridge hoped to dry the foundation wall sufficiently to allow Professional Waterproofing to successfully waterproof it. An Oakridge employee notified a Professional Waterproofing employee by telephone of what Oakridge had done, and Professional Waterproofing did not object.

The Accident

Hutchins, Jeffries, Lynn, and two other Professional Waterproofing employees returned to the job on December 15 to complete the installation of the P-3100 waterproofing system. The foundation remained so wet the men could not apply the P-3100 primer. Consequently, a Professional Waterproofing worker, Monty Thomas, started to dry the wall with a propane-powered weed burner. The weed burner produced a flame that was approximately two feet long.

Thomas dried part of the east end of the foundation, and Hutchins, Jeffries, and Lynn applied P-3100 primer to it. As Hutchins, Jeffries, and Lynn worked, vapors from the P-3100 accumulated around them beneath the plastic sheeting. Meanwhile, Thomas continued to use the weed burner on other portions of the foundation. Unknown to anyone until after the accident, kerosene used to fuel the space heaters had been spilled and floated on the water beneath the walkway in the bottom of the trench. When Thomas was approximately thirty feet from Hutchins, Jef-fries, and Lynn, his weed burner ignited the kerosene floating on the water. The burning kerosene moved the thirty feet between Thomas and the point at which Hutchins, Jeffries, and Lynn worked. The flame ignited the accumulated P-3100 vapors and the resulting fire seriously burned Hutchins, Jef-fries, and Lynn.

The P-S100 Primer

W.R. Grace, the manufacturer of the P-3100 waterproofing system, markets it only to professional users in the building trades. Silicone Specialties sold it only to such users. The label on the P-3100 primer container noted that it was “FOR PROFESSIONAL USE ONLY,” and the label bore explicit safety instructions.2 Hutchins, Jeffries, and [66]*66Lynn did not read the P-3100 primer label before using it. In their depositions Hutch-ins, Jeffries, and Lynn admitted that the P-3100 safety instructions clearly identified the very dangers to which they exposed themselves on the day of the accident. Hutchins, Jeffries, and Lynn concede the fact that if they had read the instructions before the accident they would not have used the P-3100 primer as they did.

The Trial Court’s Ruling

Following extensive discovery the trial court entered summary judgment for defendant. Plaintiffs appealed. Plaintiffs’ theory of recovery was exclusively grounded in manufacturers’ products liability.3 This appeal turns on whether there is evidence in the record from which a trier of fact could conclude that the P-3100 primer was unreasonably dangerous.

The trial court stated three reasons for its holding: (1) Plaintiffs’ admitted that they did not read the P-3100 primer directions before using it, and had they done so they would not have used the P-3100 primer as they did. (2) Plaintiffs violated the P-3100 primer instructions by using it in a plastic covered trench. (3) The fire caused by the torch igniting the kerosene was an intervening cause that insulated defendant from liability.4

ISSUE

There is but one issue before us. Did the trial court correctly grant summary judgment on the ground that there was no disputed issue of material fact concerning whether the P-3100 primer was unreasonably dangerous? We answer yes.

DISCUSSION

The Standard of Review

Title 12 O.S.1984 Supp., Ch. 2 App., Rules for Dist.Cts.Rule 13(e), and Erwin v. Frazier, 786 P.2d 61 (Okla.1989) provide our standard of review in summary judgment matters. The court should render summary judgment when there is no substantial controversy as to any material fact, and one of the parties is entitled to judgment as a matter of law. The court must also find that reasonable people could not reach different conclusions on the undisputed facts. All inferences to be drawn from the undisputed facts must be viewed in the light most favorable to the party opposing the motion. Nevertheless, the mere contention that facts exist, or might exist, to create a fact question is insufficient. Mengel v. Rosen, 736 P.2d 560 (Okla.1987).

Manufacturers’ Products Liability

To prevail on a manufacturers’ products liability theory plaintiffs were required to prove (1) the P-3100 primer caused their injuries, (2) a defect existing at the time the P-3100 primer left the manufacturer caused plaintiffs’ injuries, and (3) the defect made the P-3100 primer unreasonably dangerous to plaintiffs. Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okla.1974).

Plaintiffs argue that an opinion expressed by their expert supports their claim that P-3100 primer was defective. The expert stated three reasons why, in his opinion, P-3100 was defective. First, he said it was dangerous because the instructions did not state the flash point of P-3100. Second, he claimed the instructions did not explain how to ventilate the area where the P-3100 primer was to [67]*67be used. Finally, the plaintiffs’ expert contended that P-3100 was inherently and intrinsically dangerous because other primers containing non-flammable ingredients were available on the market. We disagree.

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881 P.2d 64, 1993 WL 163449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutchins-v-silicone-specialties-inc-okla-1994.