Back in 70s, Lancaster Silo & Block Company propane fire tragedy trial had been in constant news for a considerable amount of time. Throughout the trail, public opinion kept shifting to-and-fro between ‘manufacturer’s fault’ and ‘poor handling’. Lewis Barbe here shares the complete history of the incidence and the trial.
With three professional engineering licenses, Lewis Barbe is a specialist in Safety Engineering and provides expert witness consulting in product liability, railroad litigation, and workplace safety.
Lewis Barbe - Trusted Consultant and Expert WitnessLewis Barbe
Lewis Barbe is an experienced safety engineer and occupational health professional who serves as a trusted consultant and expert witness. He has decades of experience in occupational safety and health and has provided expert testimony in various legal cases. Barbe has an extensive educational background from several universities and has held various positions in engineering organizations over his career. He is currently a registered safety engineer in three states and operates as a reputable consulting expert in occupational safety and health fields.
As the Manager of Accident Prevention at Westinghouse Electric, Lewis Barbe, a safety engineer, received the National Safety Council Award for establishing a world safety record.
Week 1 ContentSaylor Advanced Business Law and the Legal .docxcelenarouzie
Week 1 Content
Saylor: Advanced Business Law and the Legal Environment
· Introduction to Law and the Legal System
· Courts and the Legal Process
· Constitutional Law and Commerce
Saylor: The Legal and Ethical Environment of Business
· The Rule of Law
· Importance of Rule of Law to Business
Alternative Dispute Resolution (ADR)
The U.S. Constitution
State Court Listings by Jurisdiction
Week 2 Content
Saylor: Advanced Business Law and the Legal Environment
· Tort Law
Civil and Criminal Law Comparison
Elements of Negligence Summary
Premises liability
Introduction to Torts (video - 15 mins)
Week 3 Content
Review assigned materials in Week 2
Products Liability
Case Examples: Liriano v. Hobart Corp.; Daniell v Ford Motor Company; Klein v Pyrodyne Corp. (Links located below.)
Case Examples
Warranties and Products Liability
Liriano v. Hobart Corp. 92 N.Y.2d 232 (1998) Court of Appeals of the State of New York (failure to adequately warn, defective and negligent design)
Facts:
In 1961, Liriano, a 17 year-old employee in the meat department at Super Associated grocery store (Super), was injured on the job while feeding meat into a commercial meat grinder whose safety guard had been removed. His right hand and lower forearm were amputated.
The meat grinder was manufactured and sold by Hobart Corporation (Hobart) with an affixed safety guard that prevented the user's hands from coming into contact with the grinder. No warnings were on the machine or otherwise provided to state it was dangerous to operate the machine without the safety guard in place. Subsequently, Hobart became aware that a significant number of purchasers of its meat grinders had removed the safety guards; in 1962, Hobart began issuing warnings on its meat grinders concerning removal of the safety guard.
At trial, Super conceded the safety guard was intact at the time it acquired the grinder and that the guard was removed while in its possession. It is further conceded that Hobart actually knew, before the accident, that removals of this sort were occurring and that use of the machine without the safety guard was highly dangerous.
Liriano sued Hobart for negligence and strict product liability for defective product design and failure to warn. The case was removed to the United States District Court for the Southern District of New York, and Super was impleaded as a third-party defendant, seeking indemnification and/or contribution.
The District Court dismissed all of Liriano's claims except those based on failure to warn. The trial court ruled failure to warn was the proximate cause of Liriano's injuries and apportioned liability 5% to Hobart and 95% to Super. On partial retrial, Liriano was assigned 33 1/3% of the responsibility.
Hobart and Super appealed, arguing that they had no duty to warn, as a matter of law, and that the case should have been decided in their favor.
Opinion:
The appellate court agreed, essentially, with the rationale of the lower courts on the .
Learn details of pike v hough case with lewis barbeLewis Barbe
- The plaintiff's decedent was killed when he was struck by a backing paydozer while working as a spotter directing dump trucks.
- The paydozer had a large blind spot of 48 feet by 20 feet to the rear where the operator could not see anyone, and it did not have rearview mirrors or backup alarms.
- An expert witness testified that rearview mirrors could reduce the blind spot to 12 feet and that backup alarms should also be installed.
- The court held that whether the paydozer was negligently designed without adequate safety devices like rearview mirrors and alarms, and whether the manufacturer should be held strictly liable, were questions for the jury to decide, not issues that
The EPA document outlines regulations for portable refillable containers and repackaging of pesticide products. It discusses requirements for markings, tamper-evident devices, one-way valves, and compliance with DOT standards. The regulations establish new conditions for registrants to authorize repackaging and require them to provide residue removal and acceptable container information to refillers. Implementation of the rules in 2011 will impact many non-compliant minibulks currently in use. Outstanding issues include clarifying durable marking and one-way valve standards.
This document summarizes the respondent's response to the appellant's appeal of a previous court decision. It addresses three main issues: 1) The appellant argues the previous decision did not consider economic efficiency, but the respondent argues the decision achieved Pareto optimality. 2) The appellant argues the infringement was justified under section 1 of the Charter, but the respondent argues section 1 does not apply. 3) The appellant argues liability was placed on the wrong party, but the respondent argues statutory law and tort law place liability on the appellant. The respondent believes the appellant's arguments are redundant and do not address the main issues.
With three professional engineering licenses, Lewis Barbe is a specialist in Safety Engineering and provides expert witness consulting in product liability, railroad litigation, and workplace safety.
Lewis Barbe - Trusted Consultant and Expert WitnessLewis Barbe
Lewis Barbe is an experienced safety engineer and occupational health professional who serves as a trusted consultant and expert witness. He has decades of experience in occupational safety and health and has provided expert testimony in various legal cases. Barbe has an extensive educational background from several universities and has held various positions in engineering organizations over his career. He is currently a registered safety engineer in three states and operates as a reputable consulting expert in occupational safety and health fields.
As the Manager of Accident Prevention at Westinghouse Electric, Lewis Barbe, a safety engineer, received the National Safety Council Award for establishing a world safety record.
Week 1 ContentSaylor Advanced Business Law and the Legal .docxcelenarouzie
Week 1 Content
Saylor: Advanced Business Law and the Legal Environment
· Introduction to Law and the Legal System
· Courts and the Legal Process
· Constitutional Law and Commerce
Saylor: The Legal and Ethical Environment of Business
· The Rule of Law
· Importance of Rule of Law to Business
Alternative Dispute Resolution (ADR)
The U.S. Constitution
State Court Listings by Jurisdiction
Week 2 Content
Saylor: Advanced Business Law and the Legal Environment
· Tort Law
Civil and Criminal Law Comparison
Elements of Negligence Summary
Premises liability
Introduction to Torts (video - 15 mins)
Week 3 Content
Review assigned materials in Week 2
Products Liability
Case Examples: Liriano v. Hobart Corp.; Daniell v Ford Motor Company; Klein v Pyrodyne Corp. (Links located below.)
Case Examples
Warranties and Products Liability
Liriano v. Hobart Corp. 92 N.Y.2d 232 (1998) Court of Appeals of the State of New York (failure to adequately warn, defective and negligent design)
Facts:
In 1961, Liriano, a 17 year-old employee in the meat department at Super Associated grocery store (Super), was injured on the job while feeding meat into a commercial meat grinder whose safety guard had been removed. His right hand and lower forearm were amputated.
The meat grinder was manufactured and sold by Hobart Corporation (Hobart) with an affixed safety guard that prevented the user's hands from coming into contact with the grinder. No warnings were on the machine or otherwise provided to state it was dangerous to operate the machine without the safety guard in place. Subsequently, Hobart became aware that a significant number of purchasers of its meat grinders had removed the safety guards; in 1962, Hobart began issuing warnings on its meat grinders concerning removal of the safety guard.
At trial, Super conceded the safety guard was intact at the time it acquired the grinder and that the guard was removed while in its possession. It is further conceded that Hobart actually knew, before the accident, that removals of this sort were occurring and that use of the machine without the safety guard was highly dangerous.
Liriano sued Hobart for negligence and strict product liability for defective product design and failure to warn. The case was removed to the United States District Court for the Southern District of New York, and Super was impleaded as a third-party defendant, seeking indemnification and/or contribution.
The District Court dismissed all of Liriano's claims except those based on failure to warn. The trial court ruled failure to warn was the proximate cause of Liriano's injuries and apportioned liability 5% to Hobart and 95% to Super. On partial retrial, Liriano was assigned 33 1/3% of the responsibility.
Hobart and Super appealed, arguing that they had no duty to warn, as a matter of law, and that the case should have been decided in their favor.
Opinion:
The appellate court agreed, essentially, with the rationale of the lower courts on the .
Learn details of pike v hough case with lewis barbeLewis Barbe
- The plaintiff's decedent was killed when he was struck by a backing paydozer while working as a spotter directing dump trucks.
- The paydozer had a large blind spot of 48 feet by 20 feet to the rear where the operator could not see anyone, and it did not have rearview mirrors or backup alarms.
- An expert witness testified that rearview mirrors could reduce the blind spot to 12 feet and that backup alarms should also be installed.
- The court held that whether the paydozer was negligently designed without adequate safety devices like rearview mirrors and alarms, and whether the manufacturer should be held strictly liable, were questions for the jury to decide, not issues that
The EPA document outlines regulations for portable refillable containers and repackaging of pesticide products. It discusses requirements for markings, tamper-evident devices, one-way valves, and compliance with DOT standards. The regulations establish new conditions for registrants to authorize repackaging and require them to provide residue removal and acceptable container information to refillers. Implementation of the rules in 2011 will impact many non-compliant minibulks currently in use. Outstanding issues include clarifying durable marking and one-way valve standards.
This document summarizes the respondent's response to the appellant's appeal of a previous court decision. It addresses three main issues: 1) The appellant argues the previous decision did not consider economic efficiency, but the respondent argues the decision achieved Pareto optimality. 2) The appellant argues the infringement was justified under section 1 of the Charter, but the respondent argues section 1 does not apply. 3) The appellant argues liability was placed on the wrong party, but the respondent argues statutory law and tort law place liability on the appellant. The respondent believes the appellant's arguments are redundant and do not address the main issues.
Michael K. Murphy discusses arranger liability under CERCLA and recent cases applying the Supreme Court's 2009 decision in Burlington Northern & Santa Fe Railway Company v. United States. The document analyzes the text of CERCLA Section 107, the Burlington Northern decision which found intent is required for arranger liability, and recent cases involving various fact patterns such as transformers, broke, wastewater, and dry cleaning equipment. Recent cases have inconsistently applied Burlington Northern and examined issues like waste vs useful product, knowledge and intent, and ownership and control in determining arranger liability.
This document summarizes the proceedings of an arbitration hearing between Chevron Corporation, Texaco Petroleum Company, and the Republic of Ecuador. The hearing addressed the tribunal's jurisdiction over claims related to an arbitration between the US and Ecuador concerning an investment treaty. Counsel for the respondent argued that the tribunal does not have jurisdiction unless the claimants can demonstrate that a 1995 release agreement extends to claims by third parties related to oil extraction operations in Ecuador. The respondent's counsel asserted that the claimants had not met their burden of proof regarding the scope of the release.
Legal Aspects of FMEA, overview of Canadian Law,
Due Diligence vs Negligence, Criminal Negligenced and what everyone needs to know about duty of care
www.6sengineering.com
1) REC provides a 10-year limited warranty for its TwinPeak solar panels covering defects in material and workmanship.
2) The warranty guarantees at least 97% of the panels' nameplate power output for the first year, declining annually to at least 80.2% by year 25.
3) Warranty claims must be submitted through authorized distributors and REC requires proof of purchase and return authorization to process claims.
An ebook published by the law firm Porter Wright Morris & Arthur LLP. Contains several blog posts they've published on the topic of oil and gas lease issues for landowners. Our favorite article: My Sister is a Fractivist and Won’t Sign an Oil and Gas Lease. What Can We Do?
NY Court of Appeals Decision in Walter R Beardslee v Inflection EnergyMarcellus Drilling News
The decision in a case before New York's highest court, the Court of Appeals, that finds the concept of force majeure does not grant energy companies the right to extend oil and gas leases beyond the initial term even if a state government moratorium or ban is placed on shale drilling. In essence, it guts the force majeure clause in state contracts, rendering such a clause useless and screwing contract law in New York State. A very poor decision.
When an accident occurs, investigators must determine if a third party, such as a product designer or contractor, may be held liable due to a safety related oversight. This slideshow gives an overview of several real-world investigations and helps viewers evaluate the case for subrogation in each incident.
The document summarizes trends in oil and gas claims, including differences between traditional and fracking blowouts, issues with old plugged and abandoned wells interacting with CO2 injection fields, pollution claims that interact with control of well and general liability policies, additional insured claims, and relationship issues between operators and service companies due to liability claims. It also provides case studies on specific claims and discusses final remarks and contact information from industry experts.
This document summarizes trends in oil and gas claims, including differences between traditional and fracking-induced blowouts, issues with old plugged and abandoned wells interacting with CO2 injection fields, pollution claims involving both control of well and general liability policies, additional insured claims, and relationship problems between operators and service companies due to liability claims. Key points discussed include available casing repair endorsements, court rulings on coverage, new regulations in Texas, CO2 injection processes, cement and rock factors in well integrity, and case studies on claim amounts and abandoned well liabilities.
The document discusses a case involving arguments made during reexamination that affected the scope of patent claims, creating intervening rights for the accused infringer. The Federal Circuit initially found these "argument-based intervening rights" but later granted en banc review. The dissenting judge disagreed that arguments alone could change claim scope under the statute.
This document summarizes API Specification 5L, which provides requirements for the manufacture of line pipe to be used in pipeline transportation systems for liquid petroleum products and natural gas. It specifies requirements for materials, mechanical properties, dimensions, markings, coatings, inspection and testing. The specification defines two Product Specification Levels (PSL 1 and PSL 2) which have different requirements in terms of mechanical properties and non-destructive testing. The document contains numerous tables, figures and appendices that provide detailed specifications for line pipe.
Lewis Barbe Expert Witness - Guidrey CaseLewis Barbe
Lewis Barbe is a professional engineer who is focused on safety in the workplace. He also works as a consultant and is a recipient of Emeritus Status from the HFES.
Follow us at:
Website : http://lewiscbarbe.com
Twitter : https://twitter.com/lewisbarbe
This document provides an introduction to the petroleum industry, including:
- A brief history of the origins and development of the petroleum industry from illumination and transportation to modern exploration and extraction techniques.
- An overview of key concepts in petroleum geology like different trap types that can contain oil and gas reserves.
- A summary of common classification systems for petroleum reserves like the Petroleum Resources Management System.
- A discussion of the relationships between governments, petroleum companies and different licensing models like concessions, production sharing contracts, and service contracts.
- A high-level look at some other petroleum industry topics like the global oil market, investment decisions, ownership and a short history of the industry
Energy Bulletin - Uncertainty Rises for Energy Sector BankruptciesCohenGrigsby
In recent years, the energy sector has struggled with low commodity prices, oversupply, and logistical constraints — challenges which are poised to continue in the months ahead. These issues are putting a significant strain on the capital-intensive oil and gas sector, and a segment of the industry will labor to balance operating costs with profitability (or survival). Eventually, the financial constraints will require some operators to seek relief, either through an out-of-court restructuring, a reorganization, or liquidation under bankruptcy laws. As this wave of distressed enterprises progresses, there will be a residual impact on all facets of the infrastructure and supply chain supporting the oil and gas sector.
1) Reasonable royalty calculations are important in patent infringement cases, as they represent the minimum damages a patent holder is entitled to and are the most common form of damages sought, particularly by non-practicing entities.
2) There are two main approaches to calculating reasonable royalties - the analytical approach based on infringer's profits, and the hypothetical negotiation approach which aims to determine the royalty the patent holder and infringer would have agreed to.
3) The Georgia-Pacific factors provide a legal framework for assessing reasonable royalties, considering factors relevant to a hypothetical negotiation between willing parties such as existing royalty agreements, industry standards, and the merits of the invention.
Lewis barbe was declared as an expert in safety and accident reconstLewis Barbe
Lewis Barbe is a specialist in safety engineering and failure analysis. This PDF tells about Lewis Barbe’s achievement for being declared as an expert in safety and accident reconstruction.
The Second Circuit recently issued a decision holding that claims against diesel engine manufacturers relating to emissions exposures were preempted by the Clean Air Act. This broad interpretation of preemption under the Act could significantly limit further litigation over diesel exhaust health claims. However, the decision may allow other types of claims against different defendants to proceed. Additionally, the failure-to-warn portion of the ruling is open to challenge. Given the complexity of preemption under the Clean Air Act and the different standards that apply to various emission sources, the ongoing preemption issues surrounding diesel exhaust litigation are likely to be actively debated.
Lewis barbe is a board certified safety engineerLewis Barbe
Lewis Barbe is a board certified safety engineer who has received Emeritus Status from the Human Factors and Ergonomics Society in recognition of his contributions to public safety. As a specialist in workplace safety and ergonomics, Barbe understands the importance of ergonomics in reducing physical strain and injury in the workplace. With extensive experience as a member of ANSI committees and the American National Standards Institute, Barbe values maintaining a safe and productive work environment through workplace safety and risk prevention.
Lewis barbe expert witness case union pacific railroadLewis Barbe
Lewis Barbe was selected as the fire cause and origin consultant by the U.S. Department of Justice for the Union Pacific Railroad court case. The letter from the U.S. Attorney outlines the government's claims against Union Pacific for damages arising from the 2000 Storrie Fire, which burned over 56,000 acres. The government's investigation found the fire was caused by Union Pacific's negligent track repair work involving a saw that ignited vegetation. Union Pacific is liable under California law for fire suppression costs and other damages due to negligently starting the fire and failing to properly extinguish it.
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Michael K. Murphy discusses arranger liability under CERCLA and recent cases applying the Supreme Court's 2009 decision in Burlington Northern & Santa Fe Railway Company v. United States. The document analyzes the text of CERCLA Section 107, the Burlington Northern decision which found intent is required for arranger liability, and recent cases involving various fact patterns such as transformers, broke, wastewater, and dry cleaning equipment. Recent cases have inconsistently applied Burlington Northern and examined issues like waste vs useful product, knowledge and intent, and ownership and control in determining arranger liability.
This document summarizes the proceedings of an arbitration hearing between Chevron Corporation, Texaco Petroleum Company, and the Republic of Ecuador. The hearing addressed the tribunal's jurisdiction over claims related to an arbitration between the US and Ecuador concerning an investment treaty. Counsel for the respondent argued that the tribunal does not have jurisdiction unless the claimants can demonstrate that a 1995 release agreement extends to claims by third parties related to oil extraction operations in Ecuador. The respondent's counsel asserted that the claimants had not met their burden of proof regarding the scope of the release.
Legal Aspects of FMEA, overview of Canadian Law,
Due Diligence vs Negligence, Criminal Negligenced and what everyone needs to know about duty of care
www.6sengineering.com
1) REC provides a 10-year limited warranty for its TwinPeak solar panels covering defects in material and workmanship.
2) The warranty guarantees at least 97% of the panels' nameplate power output for the first year, declining annually to at least 80.2% by year 25.
3) Warranty claims must be submitted through authorized distributors and REC requires proof of purchase and return authorization to process claims.
An ebook published by the law firm Porter Wright Morris & Arthur LLP. Contains several blog posts they've published on the topic of oil and gas lease issues for landowners. Our favorite article: My Sister is a Fractivist and Won’t Sign an Oil and Gas Lease. What Can We Do?
NY Court of Appeals Decision in Walter R Beardslee v Inflection EnergyMarcellus Drilling News
The decision in a case before New York's highest court, the Court of Appeals, that finds the concept of force majeure does not grant energy companies the right to extend oil and gas leases beyond the initial term even if a state government moratorium or ban is placed on shale drilling. In essence, it guts the force majeure clause in state contracts, rendering such a clause useless and screwing contract law in New York State. A very poor decision.
When an accident occurs, investigators must determine if a third party, such as a product designer or contractor, may be held liable due to a safety related oversight. This slideshow gives an overview of several real-world investigations and helps viewers evaluate the case for subrogation in each incident.
The document summarizes trends in oil and gas claims, including differences between traditional and fracking blowouts, issues with old plugged and abandoned wells interacting with CO2 injection fields, pollution claims that interact with control of well and general liability policies, additional insured claims, and relationship issues between operators and service companies due to liability claims. It also provides case studies on specific claims and discusses final remarks and contact information from industry experts.
This document summarizes trends in oil and gas claims, including differences between traditional and fracking-induced blowouts, issues with old plugged and abandoned wells interacting with CO2 injection fields, pollution claims involving both control of well and general liability policies, additional insured claims, and relationship problems between operators and service companies due to liability claims. Key points discussed include available casing repair endorsements, court rulings on coverage, new regulations in Texas, CO2 injection processes, cement and rock factors in well integrity, and case studies on claim amounts and abandoned well liabilities.
The document discusses a case involving arguments made during reexamination that affected the scope of patent claims, creating intervening rights for the accused infringer. The Federal Circuit initially found these "argument-based intervening rights" but later granted en banc review. The dissenting judge disagreed that arguments alone could change claim scope under the statute.
This document summarizes API Specification 5L, which provides requirements for the manufacture of line pipe to be used in pipeline transportation systems for liquid petroleum products and natural gas. It specifies requirements for materials, mechanical properties, dimensions, markings, coatings, inspection and testing. The specification defines two Product Specification Levels (PSL 1 and PSL 2) which have different requirements in terms of mechanical properties and non-destructive testing. The document contains numerous tables, figures and appendices that provide detailed specifications for line pipe.
Lewis Barbe Expert Witness - Guidrey CaseLewis Barbe
Lewis Barbe is a professional engineer who is focused on safety in the workplace. He also works as a consultant and is a recipient of Emeritus Status from the HFES.
Follow us at:
Website : http://lewiscbarbe.com
Twitter : https://twitter.com/lewisbarbe
This document provides an introduction to the petroleum industry, including:
- A brief history of the origins and development of the petroleum industry from illumination and transportation to modern exploration and extraction techniques.
- An overview of key concepts in petroleum geology like different trap types that can contain oil and gas reserves.
- A summary of common classification systems for petroleum reserves like the Petroleum Resources Management System.
- A discussion of the relationships between governments, petroleum companies and different licensing models like concessions, production sharing contracts, and service contracts.
- A high-level look at some other petroleum industry topics like the global oil market, investment decisions, ownership and a short history of the industry
Energy Bulletin - Uncertainty Rises for Energy Sector BankruptciesCohenGrigsby
In recent years, the energy sector has struggled with low commodity prices, oversupply, and logistical constraints — challenges which are poised to continue in the months ahead. These issues are putting a significant strain on the capital-intensive oil and gas sector, and a segment of the industry will labor to balance operating costs with profitability (or survival). Eventually, the financial constraints will require some operators to seek relief, either through an out-of-court restructuring, a reorganization, or liquidation under bankruptcy laws. As this wave of distressed enterprises progresses, there will be a residual impact on all facets of the infrastructure and supply chain supporting the oil and gas sector.
1) Reasonable royalty calculations are important in patent infringement cases, as they represent the minimum damages a patent holder is entitled to and are the most common form of damages sought, particularly by non-practicing entities.
2) There are two main approaches to calculating reasonable royalties - the analytical approach based on infringer's profits, and the hypothetical negotiation approach which aims to determine the royalty the patent holder and infringer would have agreed to.
3) The Georgia-Pacific factors provide a legal framework for assessing reasonable royalties, considering factors relevant to a hypothetical negotiation between willing parties such as existing royalty agreements, industry standards, and the merits of the invention.
Lewis barbe was declared as an expert in safety and accident reconstLewis Barbe
Lewis Barbe is a specialist in safety engineering and failure analysis. This PDF tells about Lewis Barbe’s achievement for being declared as an expert in safety and accident reconstruction.
The Second Circuit recently issued a decision holding that claims against diesel engine manufacturers relating to emissions exposures were preempted by the Clean Air Act. This broad interpretation of preemption under the Act could significantly limit further litigation over diesel exhaust health claims. However, the decision may allow other types of claims against different defendants to proceed. Additionally, the failure-to-warn portion of the ruling is open to challenge. Given the complexity of preemption under the Clean Air Act and the different standards that apply to various emission sources, the ongoing preemption issues surrounding diesel exhaust litigation are likely to be actively debated.
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Juan Jose Salinas' leg was torn off after falling into a screw conveyor at a cement plant. He sued Westinghouse Electric Corporation, who designed the motor control center that started and stopped the conveyor motor. A jury awarded Salinas $800,000. Westinghouse appealed, arguing juror misconduct. During deliberations, one juror looked up the definition of "apparatus" in a dictionary and shared it with others. The trial court granted a new trial based on misconduct. The appellate court reversed, finding the misconduct was harmless because the definition was paraphrased, not verbatim, and the term was open to interpretation by both parties. The judgment in favor of Salinas was affirmed.
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Lewis Barbe was selected as the fire cause and origin consultant by the U.S. Department of Justice for the court case U.S.A. vs Union Pacific Railroad. The U.S. intends to file a lawsuit against Union Pacific to recover costs from the 56,000 acre Storrie Fire in 2000, which Union Pacific employees negligently ignited during track repair work. The U.S. believes Union Pacific is clearly liable for fire suppression costs and resource damages totaling over $72 million based on evidence that Union Pacific violated industry standards and California law.
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Lancaster Silo v. Northern Propane Gas Co. Case Trail with Lewis Barbe
1.
2. THIS OPINION IS UNCORRECTED AND SUBJECT TO
REVISION BEFORE PUBLICATION IN THE NEW YORK
REPORTS
------------------------------------------------------------
SUPREME COURT STATE OF NEW YORK
APPELLATE DIVISION FOURTH DEPARTMENT
Northern Propane Gas Company, Respondent.
------------------------------------------------------------
Lancaster Silo & Block
Company, Lancaster Silo,
Inc., Coral Pools, Inc.,
Appellants,
-vs-
#183/1980 Appeal No. 1
Lancaster Silo & Block
Company, Lancaster Silo,
Inc., Coral Pools, Inc.,
Appellants,
-vs-
#184/1980 Appeal No. 2
Golay & Company, Respondent.
Lancaster Silo & Block
Company, Lancaster Silo,
Inc., Coral Pools, Inc.,
Appellants,
-vs-
#185/1980 Appeal No. 3
3. ------------------------------------------------------------
PRESENT:
HON. RICHARD J. CARDAMONE, Justice
Presiding
HON. RICHARD D.
SIMONS, HON. EMMETT
J. SCHNEPP, HON.
JOHN H. DOERR, HON.
G. ROBERT WITMER, Associate Justices
------------------------------------------------------------
Appeals from Judgment of Erie Supreme Court,
Kramer, J. - Negligence, Explosion.
------------------------------------------------------------
APPEARANCES:
GROSS, SHUMAN, BRIZDLE, LAUB & GILFILLAN
2600 Main Place Tower
Buffalo, New York 14202
Attorneys for Appellants
(David Laub, Esq., of counsel)
COX, BARRELL, WALSH, ROBERTS & GRACE
3350 Marine Midland Center
Golconda Corp., Rego
Division, Bastian-Blessing
Company, Respondent.
ARGUED:
March 19, 1.980
DECIDED:
May 23, 1980
4. Buffalo, New York 14203
Attorneys for Respondent Northern Propane Gas
Company
(Gerald Grace, Esq., of counsel)
DAMON, MOREY, SAWYER & MOOT
1800 Liberty Bank Building
Buffalo, New York 14202
Attorneys for Respondent Colay & Company
(James Kieffer, Esq., of counsel)
BARTH, SULLIVAN & LANCASTER
200 Prudential Building
Buffalo, New York 14202
Attorneys for Respondent Golccnda Corp., Rego
Division, Bastian-Blessing Company
(John Sullivan, Esq., of counsel)
5. SCHNEPP, J.
On February 2, 1971 propane gas leaking from a portable
cylinder tank exploded soon after the tank had been stored in a
small washroom alongside a gas water heater which operated with
a constant pilot light. The explosion and resultant fire
occurred on the business premises of the plaintiff, Lancaster
Silo, Inc. ("Lancaster"), and destroyed the building owned by
the laintiff, Lancaster Silo & Block Company, and personal
property of the plaintiff, Coral Pools, Inc., stored in the
building.
Propane gas "bottled" in cylinders is used by ancaster as
a fuel to propel fork lift trucks used in its business of
manufacturing farm silos and components thereof. At about 7:00
A.M. on February 2, 1971 Harold Brauen, an employee of Lancaster,
preparing to operate a fork lift truck, opened the valve of a
full tank of propane, which he had installed on the truck the
previous day, and noticed that gas was leaking from the cylinder.
He turned thevalve which stopped the gas flow, checked the
connections which appeared to be in order, turned the gas on
again, and observed that it was still leaking. After repeating
this process he closed the valve, removed the tank from the truck
and placed it in a washroom alongside other propane tanks that
were being stored there. Immediately after he set the tank down,
Brauen heard the noise of something flying off the tank past his
ear and the sound of propane gas escaping. He left the room
quickly and the explosion occurred. Fortunately, Brauen escaped
6. injury.
Lancaster possessed the propane gas cylinder pursuant to a
rental agreement with the defendant, Northern Propane Gas Company
standard. Further, plaintiffs submitted proof that it was unsafe
to have a left-hand and a right-hand thread on the same fitting
because this permitted the valve to come loose when the wheel
was turned in a clockwise direction to shut off the gas. Plain-
tiffs also offered evidence that Narthernjaropaneand
inadequately tested and inspected the filled tanks to detect lea
s, that it impro•erly maintained and re aired he valve assembly,
that the Rego excess-flow valve and internal componentswere
defective, and that no warnings were provided as to the dan-
gers of storingpxopanegas near an open flame.
- Inasmuch as the underlying error of the court was its failure
to charge "strict liability", some reference to the present state
of the law dealing with the liability of manufacturers, makers of
component parts, distributors and retailers of materials for
damage caused by their products is relevant to our discussion of
the issues in this case. It is well established that the plain-
tiff in a damage action based on the defective nature of a
product may sue on any one or more of four theories:
(1) negligence, (2) breach of express warranty, (3) breach of
implied warranty, or (4) strict tort liability.
This case was tried not only on the theories pecifically -
delineated in plaintiffs' complaint, negligence and breach of
7. warranty, but1-§gSILithS§.4.,di.tiknalLbt2EZ22EltEicllighllitY
in tort. As the law of strict products liability has developed,
a defective product may consist of: (1) a mistake in manufac-
t5lag [i.e., a "flaw", see Codling v Paglia, 32 NY2d 330], (2)
an improper design [a "design defect", see Micallef v MiehleCo.,
Div. of Miehle-Goss Dexter, 39 NY2d 376, 384-387; Bolm . Triumph
Corp., 33 NY2d 151, supra], or (3) an inadequate or
absentaiLlz_for the use of the product [see Torrogrossa v.
Towmotor Co., 44 NY2d 709;
Wolfgruber v. Upjohn, 72 AD2d 59] (Robinson v. Reed-
Prentice Div. of Package Machinery Co., 49 NY2d 471, 478-
479, supra).
Plaintiff.' maj.or contentions are that a design defect
existed in the Rego valve end that no notice was provided warning
of the dangers attendant upon the use of the propane cylinder.
A product is said to be defectively designed when it presents an
"unreasonable risk of harm" (Robinson v Reed-Prentice Div. of
Package Machinery Co., supra , p 479) and liability may be
imposed for "unreasonably dangerous design defects" (Bolm v
Triumph Corp.,,33 NY2d 151, Supra). Thus, in a design defect
case there is almost no difference between a prima facie case in
negligence and one in ' strict liability (Bolm v Triumph Corp.,
71 AD2d,429, supra; cf. Micallef v Miehle Co., supra; Mead v
Warner Pruyn Div., Finch Pruyn Sales, Inc., 57 AD2d 340; Ferry v
Luther Mfg. Co., 56 AD2d 703). In a negligence action the
plaintiff must establish that a manufacturer failed to exercise
8. reasonable care in making his product. Proof that will establish
strict liability will almost always establish negligence. In a
design defect case the court is concerned with the balancing of
the alternative designs available against the existing risk
while taking into account the cost of the proposed alternative
(Bolm v Triumph Corp., 71 AD2d 429, supra; see Micallef v Miehle
Co., Div of Miehle-Goss DeJaer,s see , also, XPetnn, Manufacturpr's
Tinhiiitv: The MPenino of "Defect" in the Manufacture and Design
of Products, 20 Syracuse
Supplement [1979], pp_102-103).
Other defects complained of by plaintiffs include the remaining
variants of strict liability delineated in Robinson v Reed-
Prentice Div. of Package Machinery Co. (49 NY2d 471,.
478-479, supra). Evidence of a defective excess press sure
valve and a jammed turning wheel was offered to show a "flawed"
product as described in Codling•v Paglia (32 NY2d 330).
This variant of strict liability can be established without any
showing of negligence, and it is irrelevant that a
manufacturerused all reasonable care if the conditions described
in Codling are met. Finally, the claim that the product as
marketed lacked sufficient warnings, while also a branch of
strict liability in tort, is determined under traditional
negligence analysis (Wolfgruber v Upjohn, 72 AD2d 59), as we
point out later in this opinion.
L Rev 559; see generally, 1 NY PJI 2:141, Cumulative
9. The differences in the proof between strict tort liability
and negligence entitle plaintiffs to an appropriate charge on
each of the_theories on which they have offered proof.
Although plaintiffs' complaint does not specifically allege a
cause of action based on strict tort liability, it identifies
the specific instrumentalities in issue and the alleged acts of
wrongdoing of the defendants. Moreover, the case was actually
tried on a strict tort liability theory. Indeed, both the
defen- dants Golay and Northern Propane claim on this appeal
that the trial court in essence charged the doctrine of strict
liability in tort. The court, however,
rtf2!tdplAinIiffalr_eqmeI_Ip charge strict liability (1 NY PJI 2d,
2:141, Cumulative Supplement [1979], pp 99-100; see Codling v
Paglia, 32 NY2d 330). The court erred in this regard
notwithstanding plaintiffs' failure formally to denominate a
strict products liability cause of action in the complaint. In
the first place, a liberal attitude prevails in overlooking
technical deficiencies in denominating causes of action in the
pleadings (Diemer v Diemer, 8 NY2d 206). Also, we note that
courts have been liberal in permitting amended complaints to
allege strict products liability (Gardner v Fyr-Fyter Co., Inc.,
55 AD2d 816; Murphy v General Motors, 55 AD2d 486, 488; see also,
Velez v Craine & Clark Lbr. Co., 33 NY2d 117).
Secondly, the charge should reflect the proof adduced at trial
10. (8 Carmody-Wait 2d §57:10). None of the defendants could claim
any surprise at plaintiffs' request to charge strict products
liability (Lipner v Levy, 44 AD2d 797). In fact, the record is
replete with colloquy evincing the defendants' acknowledgment of
and acquiescence in the fact that products liability was
part of the case. Lastly, the evidence bearing or
liability was admitted for the most part without
objection by the defendants. Although plaintiffs failed to move
to conform the pleadings to the proof (CPLR 3025, subd [c]), we
find that the pleadings were amended either by consent or
acquiescence (4 Weinstein-Korn-Miller, NY Civ Prac, § 4404.17,
pp 44-60).
Plaintiffs further requested that the court charge on the
obligations of the defendants appropriately to label the
cylinder
and give specific warnings of the dangerous propensities_
of_pro-pane gas. As noted above, the failure to warn about the
dangers attendant upon the use of the product may also make the
product defective (Robinson v Reed Prentice Div. of Package
Machinery Co.49 NY2d 471, 478-479, supra). There is little
difference between a failure-to-warn case in negligence and one
brought under strict liability for a product defect. The only
element plaintiff need not prove in the strict iability case is
the scienter of the defendant, i.e., that he knew of or should
have known of the harmful character of the product without a
11. warning (see generally, 1 NY PJI 2d, 2:141, Cumulative Supplement
[1979], p 103).
At trial, the key issue was not whether the actual storage place
was unsafe (no party disputed that a washroom in which a water
heater was operating with a pilot light was an unsafe place to
store propane), but rather (1) whether Northern Propane had a
duty to warn; and (2) wIlifIlle_plaintiff knew or should have
known about the specific hazard of storing propane near the water
heater. There was a closely balanced question of fact on the
issue
of contributory negligence related to plaintiffs' alleged misuse
and mishandling of the cylinder of propane gas. The court, there-
fore, included in its instructions a charge on contributory neg-
ligence and plaintiffs' burden on that issue. In marshalling
the evidence and outlining the theories of liability, however,
the court entirely omitted discussion of Northern Propane's pos-
sible duty to warn and reference to the plaintiffs' perception
of the hazard. Thus, there was no fair balance in the charge as
to opposing contentions of the parties (see Green v Downs, 27
NY2d 205). The charge as given practically amounted to a
directed
verdict for the defendant on the issue of contributory gligence.
Specific guidelines have not been formulated respecting
thedLltyt22EEp (e.g., Torrogrossa v Towmotor Co., 44 NY2d
709,711, supra)1 T
he generally accepted rule, however, is that the
reasonableness vel non of a set of warnings is a question of fact
for the jury (Wolfgruber v Upjohn Corp., 72 AD2d 59; supra;
12. Young v Elmira Transit Mix, 52 AD2d 202, 205; Rainbow v Elia
Building Co., 49 AD2d 250, 253; see Bolm v Triumph Corp.,
33 NY2d 151, 156). Warnings must clearly alert the user to
avoid
Basic guidelines concerning the duty to warn are found in
section 388 and Comment K thereto in the Restatement, Torts
[2d). Comment K provides as follows:
"When warning of defects unnecessary. One
who supplies a chattel to others to use for any
purpose is under a duty to exercise reasonable
care to inform them of its dangerous character in
so far as it is known to him, or of facts which
to his knowledge make ie likely to be dangerous,
if, but only if, he has no reason to expect that
those for whose use the chattel is supplied will
discover its condition and realize the danger
involved. it is not necessary for the supplier to
inform those for whose use the chattel is
supplied of a condition which a mere casual
looking over will disclose, unless the
circumstances under which the chattel is supplied
are such as to make it likely that even so casual
an inspection will not be made. However, the
condition, although readily observable, may be
one which only persons of special experience
would realize to be dangerous. In such case, if
the supplier, having such special experience,
knows that the condition involves danger and has
no reason to believe that those who use it will
have such special experience as will enable them
to perceive the danger, he is required to inform
them of the risk of which he himself knows and
which he has no reason to suppose that they will
realize."
13. (1)
A number of courts have adopted these guidelines (e.g. eed
v Pennwalt Corp., 22 Wash App 718; Baylie v Swift & Co., 27 Ill
App 3d 1031; McPhail v Municipality of Culebra, 598 F2d 603
(1st Cir]; Barnes v Litton Indus. Prod., 555 F2d 1184 [4th
Cir]; Jacobson v Colorado Fuel & iron Corp., 409 F2d 1263 [9th
Cir]).
certain uses of the product which would appear to be normal
and reasonable. The degree of danger is a crucial factor in
determining the specificity required in a warning. Yet, there
isj.o necessity to warn a consumer already aware - through
common know-
,
ledge or learning - of a specific hazard. 'Nevertheless, in a
proper case the court can decide as a matter of law that there is
no duty to warn or that the duty has been discharged as a matter
of law (Wolfgruber v Upjohn Co., supra, p 62; Biss v Tenneco
Inc., 64 AD2d 204, mot lv app den, 46 NY2d 711) . Here the court
refused to consider a elarge on the duty to warn and erred when it made no
ruling whatever with relation to the duty, if any, on the part of
these defendants.
Plaintiffs further urge that the court erred in ruling
that evidence was inadmisgihie of a design modification in
1975 by Rego increasing the length of the threaded shank of
the wheel assembly's bonnet to .63.8_13aches. The governing
rule with respect to post-accident remedial measures was
recently stated by this Court in Bolm v Triumph Corp. (71
AD2d 429, 437).: "exislence of subsequent modification should
be admissible if it is probative sILIdatlats.amatives were
14. available to the manufacturer at the time the product was made
so that the jury may determine whether be acted •rudentl in
decidin• upon its final design". ReRo's post-accident design
modification should have been admitted into evi-
dence under the Bolm rationale because it was clearly feasible
and Iilthin the state of
the—art of the time of manufacture (see
.Bolm v Triumph Corp., supra, p 438,& n. 2). Lancaster presented
proof that national standards within the industry in 1965
(twoyears before manufacture of the valve in question) required
longer threads on the wheel assembly's bonnet. Since design
defects are measured by traditional objective reasonable per
son negligence standards (Bolm v.Triumph,h AD2d
429,supra;Martin v -
Dierck Equip.Co,43 NY2d 583, 590; Micallef
v Miehle Co., 39 NY2d 376, 387, supra; Biss v Tenneco, Inc., 64
AD2d 204, 205-207, supra),the essential inquiry is whether the
design chosen was a reasonable one from among the feasible
choices of which Rego
was aware or should have been aware. Whether or not Rego knewof
the national consensus standard is not dispositive. If a given
design is within the state of the art, plaintiff can argue that
a deviation from that standard is negligence.2
It may well be,
as a factual matter, that the standard selected (.436 inches)
was sufficiently close to the consensus standard of 1965 so as
not to be negligent. There was a conflict in expert testimony
at trial. Plaintiffs' expert witness testified. .that the
reduced number of threads on the shank increased the propensity
of the valve to loosen and come off. Defendant's expert opined
15. that all that was necessary was that a valve have four full
turns of threads, which the .436 inch valve actually surpassed.
"[T]he reasonableness of choosing among varinnsalternatives and
2"
State of the art has been defined as 'the
safety, technical, mechanical and scientific
knowledge in existence and reasonably feasible
for use at the time of manufacture' (citation
omitted) and, also es the 'contemporaneous practical skill
in performance exercised by the designers of
products' (citation
omitted). Thus, state of the art refers to what
is realistically capable of achievement, not
merely industry custom (citations omitted)"
(see Bolm v Triumph Corp., 71 AD2d 429, 438, n.
2).
adopting the safest one feasible is not only relevant in the c-
lesign defect action, it is at the very heart of the case" (Bolm
Triumph, 71 AD2d 429, supra, p 437). The state of the art sets -
_he parameters of feasibility and it is certainly possible here -
,nat a jury might have been inclined to decide the case in favor
f plaintiffs when confronted with evidence that the defendant
,ater, without any apparent cost handicap, opted for a design
easible in 1965.
The trial court did not err in refusing to charge the doc-
"LirigILISs_ipaalogiALLIK.
The elements of res ipsa loquitur
16. --1the event must be of a kind which ordinarily does not ,,;cur in
the absence of someone's negligence; it must be ,used by an
agency or instrumentality within the exclusive conol of the
defendant; it must not be due to any voluntary
A/tion or contribution on the part of plaintiff; and
evidence to the true explanation of the event must be
more readily cessible to the defendant than the
plaintiff" (Fogal v
nesee Hospital, 41 AD2d 468, 474; see also, Dewitt Props. v
(;1ty of New York, 44 NY2d 417, 426). Plaintiffs have not demon-
frated defendants' control over the instrumentality which caused
tile accident (cf. Corcoran v Banner Super Market, 19 NY2d 425,
All). Here Lancaster was directly in "control" of the propane
took at the time it was placed near the hot water heater (cf.
Nocch v Carbide & Carbon Chemicals Corp., 265 App Div 1064).
vithermore, the conduct of Lancaster's employee Brauen consti-
totes_an Anr_orupning circumstance which makes the "inference" of
tw,Jigence supplied by the doctrine simply too tenuous (see
Minotti v State, 6 AD2d 990; Lawrence v Davos, Inc., 46 AD2d 41,
43; Felbot v New York Times Co., 32 NY2d 486).
The judgment should be reversed and a new trial should be
granted in accordance with this opinion.
17. Cardamone, J.P., Simons, Doerr and Witmer, JJ. concur.
off the valve assembly releasing the propane gas which was ignited
by the open pilot light under the water heater causing the explo-
sion and fire.
On August 22, 1972 plaintiffs instituted an action for
damages against Northern Propane alleging causes of action in
negligence and breach of warranty. Thereafter, Northern Propane
initiated third-party actions against Golay and Rego. Plaintiffs
moved on August 8, 1974 to amend their •leadin•s to assert their
claims directly against Golay and Rego. Special Term in granting
the motion held that as third-party defendants Golay and Rego
had full and timely notice of plaintiffs' claims and of the
transactions and events from which the claims arose. Thus,
the_court held that the claims were deemed to have been
interposed at the time of the third-party complaint for statute
of limitation purposes (CPLR, subd 203, subd [e]). On appeal we
affirmed this order "for the reasons stated at Special Term"
(Lancaster Silo & Block Co. v Northern Propane Gas Co., 54 AD2d
820). Plaintiffs allege_in their amended complaint that
defendant's breach of warranty and negligent design,
development,manufacture,asseMbly, and inspection of the cylinder
and valve assembly, and failure to provide warnings and
instructions necessary to assure safe usage, caused the
explosion and subsequent damage to plaintiffs. At trig , before
the case was submitted to the jury, the trial 'ustice
erroneously dismissed plaintiffs' direct complaints against
18. Golay and Rego, finding that the three-year statute of
limitations barred plaintiffs' claims. Our prior decision in
this case is the law of the case until
modified or reversed by a higher court, and the trial court is
bound by our decision (Bolm v Triumph Corp., 71
AD2d 429, 434; 10 Carmody-Wait 2d, NY Prac, §70:453; Siegel, NY
Prac, §448; cf. Knorr v City of Albany, 586
AD2d 904; Trybus v
Nipark Realty Corp., 26 AD2d 563; see also, McLaughlin, Practice
Commentary, 7B McKinney's Consol Stat, C:302:11, p 124).
At the close of the proof, the negligence cause of action
was submitted to the jury which returned a verdict of no cause of
action. Judgment was entered dismissing the complaint and third-
party actions. On this appeal plaintiffs clajm that the trial
court, in addition to the error outlined above, erred
in refusing to instruct the jury on the law of
strict liability in tort and the duty of the defendants to warn.
Plaintiffs also allege that the court erred in various
evidentiary rulings including its refusal to admit evidence of
post-accident modification of the valve by Rego. We reverse and
grant a new trial.
At the trial, plaintiffs offered proof that the length of the
threaded shank (.436 inches) of the Rego valve in issue which was
manufactured in 1967 did not provide adequate gripping qrrengrh
19. and did not conform to industry specifications. Plaintiffs demon-
strated that standards promulgated in 1965 by the Compressed Gas
Association, American National Standards Institute, fixed the
shank length of the hexagon nut at .687 inches.
PiaintillAELtglaL!d .proof that because of the shorter length of
the shank and its fewer threads, the Rego valve had a greater
propensity to come loose and allow gas to escape than a valve
which conformed with the industry