M & T Chemicals, Inc. v. Westrick Ex Rel. Westrick

525 S.W.2d 740

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 20, 1975
• Status: Published

Opinions

JONES, Justice.

On December 6, 1969, Donald Lee West-rick, age S, had a foot severed by the explosion of a metal drum. His mother, Joyce Westrick, filed an action against M & T Chemicals, Inc.; Johnny N. Davis, d/b/a Tip-Top Sanitation; and Charles Ryan, owner and operator of a mobile home park. The jury returned a verdict for $76,111.00 against M & T; and $38,-055.50 each against Davis and Ryan. In addition, M & T was awarded judgment for $76,111.00 against Davis by way of indemnity. M & T and Davis appeal from the judgment on the verdict entered against them. Davis appeals also from the judgment awarding indemnity to M & T on the basis of an alleged indemnity agreement. These appeals have been consolidated and considered together. Ryan satisfied the judgment against him and is not a party to this appeal.

M & T and Davis both insist that they were entitled to directed verdicts. To determine if this is so, it is necessary to consider certain pertinent facts.

M & T manufactures industrial chemicals and coatings. The products are placed in steel and fiber drums of various sizes and stored in several places throughout M & T’s plant. For several years prior to the accident, Davis contracted annually with M & T for the removal and disposition of trash and waste materials from M & T’s plant. M & T’s used drums generally were sold for reclaiming but occasionally they were thrown in the trash to be hauled by Davis.

After getting trash at M & T, Davis placed it on his private dump. Several times a week he crushed and bulldozed the trash into the ground.

On the date of the accident, Wilbur Horner, Bobby Gene McDole and Loren Lee Anderson trespassed on Davis’ lot and took three sealed drums. Horner, a part-time employee of Ryan, testified that he intended to use the drums as trash receptacles at Ryan’s trailer park, where young Westrick lived with his mother. Horner, McDole and Anderson took the drums to Ryan’s trailer park two or three miles from Davis’ lot. The drums originally contained a dirty solvent which was not inherently dangerous, but the application of heat or fire to a sealed drum containing the residue of solvent made it flammable and dangerous. The words “Dirty Solvent” were stenciled on the drum that exploded.

Horner, McDole and Anderson decided to use an aceylene torch to remove the tops from the drums. Although it was obvious to them that the drums had contained some kind of industrial liquid, they made no effort to flush the drums or otherwise to guard against the possibility of there being explosive or inflammable liquid or gas in the drums.

McDole and Anderson testified that they knew children were playing in the area. They had seen the children in the back of the trailer park while they were removing the tops from the drums. Horn-er, using the torch, cut the top from one drum. Nothing happened. The top of the second drum was partly cut off, again with no problem. Anderson then undertook to cut the top from the third drum, and it exploded. The top of that drum hit Donald Westrick, who was standing a few feet away.

A fundamental principle of negligence is that there is no liability without fault. Every person owes a duty to every other person to exercise ordinary care in his activities to prevent any foreseeable injury from occurring to such other person.

“Actionable negligence consists of a duty, a violation thereof, and consequent injury. The absence of any one of the three elements is fatal to the claim.” Illinois Central Railroad v. Vincent, Ky., 412 S.W.2d 874 (1967). Applying these standards militates against a finding of liability against either M & T or Davis. We are of the opinion that nothing done or omitted to be done by M & T or Davis reasonably could have been foreseen as a cause of injury to any third party, and therefore they are not chargeable with any violation of duty. The case presents a situation where third parties who were knowledgeable of the danger and risk caused the harm by their intentional conduct. In our view the law shifts the responsibility for the harm suffered by Donald Lee Westrick to the intentional actors in the factual pattern presented by this case.

The trial court should have sustained the motions of M & T and Davis for directed verdicts. When he failed to do so he should have sustained each of their motions for judgment n. d. v.

The judgments against M & T and Davis are reversed with directions that the judgments against M & T and Davis be set aside and judgments n. o. v. entered dismissing the claims against them.

JONES, PALMORE, STEPHENSON and STERNBERG, JJ., concur. REED, C. J., filed an opinion dissenting in part in which CLAYTON, J., joined. LUKOWSKY, J., dissents in separate opinion.