McGlinchey v. Union Carbide Corp.

55 Pa. D. & C.2d 659, 1970 Pa. Dist. & Cnty. Dec. LEXIS 20
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedDecember 16, 1970
Docketno. 1225
StatusPublished

This text of 55 Pa. D. & C.2d 659 (McGlinchey v. Union Carbide Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGlinchey v. Union Carbide Corp., 55 Pa. D. & C.2d 659, 1970 Pa. Dist. & Cnty. Dec. LEXIS 20 (Pa. Super. Ct. 1970).

Opinion

ALEXANDER, J.,

This action was instituted by the administratrix of the estate of Ronald J, Brittingham to recover damages from defendant, Union Carbide Corporation, by reason of the death of Mr. Brittingham on November 30, 1967. The matter was tried by the court, sitting without jury, from June 5 to June 11, 1970. We reserved decision, pending the submission of briefs by both parties. Due to illness, the transcription of the notes of testimony was delayed, and all briefs were not received until October 23, 1970.

[660]*660The death occurred during a joint experiment conducted by defendant and Matlack, Inc., Brittingham’s employer. The purpose of the experiment, which was conducted at Matlack’s facility, was to determine the feasability of using nitgrogen as a pressurized propellant to unload a special liquid chemical (TDI) from Matlack’s tank trucks. Matlack had been using compressed air for this purpose, and was seeking to alleviate problems caused by the moisture contained in the compressed air.

Defendant was the prospective seller of the nitrogen, and its employes were fully familiar with the product. As such, defendant is held to the standard of an expert: Guffie v. Erie Strayer Co., 350 F.2d 378 (3d Cir., 1965). Matlack, a common carrier specializing in the transportation of commodities in bulk, had no prior experience with the use of nitrogen for this purpose.

To conduct the experiment, Matlack arranged two of its tank trucks side by side. At the start, tank no. 1 was filled with water ( to simulate the TDI) and tank no. 2 was empty. A small tank of liquid nitrogen was then connected to tank no. 1. The pressure created by the release of nitrogen into tank no. 1 forced the water into tank no. 2.

Testimony was taken from most of the participants at the experiment: Gordon G. Hollingsworth, manager of engineering, and Thomas W. Patterson, sales representative, who were employes of defendant, as well as John O’Brien, vice president in charge of maintenance; Donald Huttlin, trailer equipment engineer, Seth Hendricks, shop foreman, and Paul Young, workman, who were employes of Matlack.

There is no dispute as to the facts which led to the death in this case. During the experiment, a valve on tank no. 1 malfunctioned, and a temporary adjust[661]*661ment was made by Brittingham. When the experiment was over, Brittingham entered tank no. 1 through the 20-inch manhole on the top, presumably to make further repairs to the valve. Due to the fact that the tank was filled with pure nitrogen,1 Brittingham w;as asphyxiated. No one from either company warned Brittingham that it was dangerous to enter the tank; nor did anyone of defendant’s employes give any warning to any of Matlack’s employes.

LIABILITY

Plaintiff’s theory of liability is a breach by defendant of its duty to warn Matlack and/or its employes of the dangers involved in the use of nitrogen. Counsel agree that the applicable Pennsylvania law was stated by the Court of Appeals for the Third Circuit in Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 299 (1961):

“. . . one who supplies a product to another and knows or should know that the foreseeable use is dangerous to human life unless certain precautions are taken, and who realizes or should realize that the user will not in the exercise of reasonable vigilance, recognize the danger, is under a duty to warn . . .”

Defendant relies on the latter portion of the above-quoted test which relieves the supplier of the duty to warn in situations where the user will, “in the exercise of reasonable vigilance recognize the danger.” Defendant contends, alternatively, that its employes had no reason to believe anyone would, or could, enter the tank, and, as such, was under no duty to warn that the atmosphere inside the tank would not support life.

[662]*662The basic questions, then, are whether the dangers which attended the use of nitrogen were, or should have been, apparent to Matlack, and whether defendant’s employes knew, or should have known, that someone might enter the tank.2 Each of these questions is a factual one, and thus we proceed to a more careful examination of the pertinent evidence.

1. Matlack’s Knowledge of the Dangerous Attributes of Nitrogen

Two of Brittingham’s superiors who were present at the experiment, O’Brien and Huttlin, testified that they knew an atmosphere of pure nitrogen would not support life and that, at the end of the experiment tank no. 1 contained pure nitrogen. However, each one also testified that, on the day in question, he “didn’t think of it.” Whether O’Brien and Huttlin (and, hence, Matlack) were thus guilty of a breach of a duty owed to Brittingham is not before us. But assuming there was such a breach, would this automatically relieve defendant of the duty to warn? We think not and, hence, must determine what evidence, if any, supports defendant’s assertion that its employes could reasonably have assumed that Matlack appreciated the danger.

We find that this experiment was the first occasion at which Matlack used nitrogen for the purpose of unloading a tank truck and, further, that this was known by defendant. We find that defendant realized the necessity of a warning as to the danger of asphyxia, and that it sought to do this through small decals af[663]*663fixed to the nitrogen cylinders. However, we find that the printed warning was ineffective, in that it was not read by any of the Matlack employes. Accordingly, we conclude that the evidence does not support a finding that defendant reasonably could have assumed that a meaningful warning to Matlack would have been superfluous.

2. Union Carbide’s Knowledge of the Possibility of Someone Entering the Tank

Defendant’s contentions that defendant’s employes had no reason to believe someone could enter the tank is based largely on testimony that defendant’s tank trucks do not permit such entry. However, defendant’s employe, Hollingsworth, admitted that he was on the top of the tank and saw the manhole cover, although he stated he wasn’t sure, at the time, what it was. On this point, O’Brien, Matlack’s employe, stated that “it was obvious that there was [a manhole],” and that he was sure Hollingsworth had seen it. Our examination of exhibits P-1 and P-2 leads us to accept O’Brien’s testimony over Hollingsworth’s. As such, we find that defendant was on sufficient notice of the possibility of human entry into the tank to require some further action.

With regard to both factual questions discussed above, we feel compelled to note an additional finding. In our opinion, proper preparation for a joint experiment of this type should have included a discussion between experts from both companies to determine what dangers might exist. If one person had the knowledge and experience of both O’Brien and Hollingsworth, we are confident such a “person” would have seen that proper precautions were taken. The fact that no attempt was made to pool the knowledge and experience of these two men we deem to be the fault of both companies.

[664]*664Both parties rely on the case of Beebe v.

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55 Pa. D. & C.2d 659, 1970 Pa. Dist. & Cnty. Dec. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcglinchey-v-union-carbide-corp-pactcomplphilad-1970.