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ARTICLE ID 29613

$________ GROSS - NEGLIGENT FAILURE OFCHEMICAL STORAGE FACILITY TO PROVIDE APPROPRIATE EQUIPMENT AND PROCEDURES FOR TRANSFER OF CHEMICAL TO DECEDENT'S TANK - DEATH OF TRUCKER FROM CHEMICAL EXPLOSION.

Hudson County, New Jersey

This was a death action involving a 39-year-old decedent truck driver in which the plaintiff contended that as a result of the negligence of the defendant bulk chemical storage facility, which failed to provide a safe procedure for obtaining the 88% strength of the chemical Mortheline which was being pumped onto the decedent’s truck and which failed to provide a safe procedure and equipment for cleaning the hoses on the decedent’s truck after the chemical was on-board, a fatal explosion occurred when the decedent was cleaning the lines after he had utilized his pump to circulate and mix the ________% chemical supplied by the defendant.

The plaintiff contended that the dangers of cleaning the lines situated on the decedent’s truck would have been easily avoided by the defendant’s use of a second tank containing pre-mixed chemical for those customers using the diluted chemical, enabling him to directly receive the shipment of diluted chemical into his tank from the defendant’s lines. The plaintiff further contended that if the defendant were to permit a system in which the trucker’s pumps would be used, it should have provided necessary equipment to safely clean the lines. It was undisputed that the explosion occurred as the pump was being used to clean the lines on the decedent’s truck by "blowing back" the chemical residue into the decedent’s tank after the chemical itself had completed circulating through the pumping system. The plaintiff’s expert engineer had indicated that one of the likely causes was the heat build-up stemming from the use of the pump without liquid and that such a heat build-up caused the ignition. The plaintiff had also named the manufacturer of the pump, alleging that it should have provided warnings to avoid running the pump when dry and this aspect settled prior to trial for the policy limits of $________.

The plaintiff was receiving a blend of 88% Mortholine, a flammable chemical, and the pump on the decedent’s employer’s truck was used to circulate and mix the ________% chemical with water.

This procedure required a cleaning of the decedent’s lines after the chemical mixture was delivered into the plaintiff’s tank. The plaintiff contended that since the defendant supplied only the ________% of the chemical strength and an 88% mixture to its customers, the defendant should have taken the simple step of providing a second large storage tank for the 88% mixture, obviating the need to mix the dangerous chemical on the truck.

The plaintiff’s expert also contended that if the decedent’s equipment were to be utilized, the defendant should have supplied proper equipment for cleaning the lines, including a hose to wash out the line, avoiding the need to the use the pump for such purposes and a sealed safety receptacle to receive the chemical residue, obviating the need to place it in the plaintiff’s tank.

The defendant’s expert contended that a mechanical defect in the pump supplied by the settling defendant was the sole cause of the incident. The plaintiff had contended that although a mechanical defect was possible, other factors, including a spark, contact with the hot manifold of the truck, or the continued use of the pump to circulate the residue only, which would also build up the heat, were more probable. The defendant’s expert contended that although the pump manufacturer should have supplied warnings to avoid use with residue only, the entire danger of using the pump would have been avoided if the defendant had provided two separate vats or the proper equipment of cleaning. The plaintiff also maintained that even if a failure to warn on the part of the settling pump manufacturer had contributed to the accident, it was clear that the defendant chemical facility who was storing and supplying the actual chemical in question had a particularly substantial obligation to advise as to the safe manner of proceeding and for providing necessary equipment to the workers.

The plaintiff’s expert contended that in the industry, the bulk chemical storage facility would have the duty of supervising the transfer of the chemicals to the trucks and provide appropriate equipment such as a safety receptacle and hoses to clean the lines on the truck. The defendant denied that the facility would have such a duty.

The plaintiff also contended that in its contract with the chemical manufacturer, the defendant had acknowledged a duty to advise users of the dangers associated with handling the chemical and to require all persons who come in contact with the chemical to use all necessary safety devices or procedures. The defendant maintained that it had complied with the contract by supplying a material safety data sheet prepared by the manufacturer to any individual handling the chemical. The plaintiff countered that although the sheet contained warnings of the explosive nature of the chemical was supplied, it did not adequately specify safety procedures, further arguing that a generalized statement as to the use of a receptacle was insufficient.

The plaintiff contended through the investigating police officer who indicated that he arrived within 1-2 minutes of the explosion and that the decedent was conscious and moaning and crying out that he could not breathe for several minutes until losing consciousness. The officer also testified that the burns to the face and head were so severe that he was initially mistaken as to the decedent’s race. The plaintiff further presented one of the defendant’s employees who testified that he observed the decedent immediately after the explosion and that the decedent was running while on fire and screaming for help. The witness indicated that the officer arrived 3-5 minutes after the explosion. The decedent left a wife who was pregnant with their first child and a nine- year-old son from a prior marriage. The plaintiff presented the ex-wife who testified that although she and the decedent had their own interpersonal difficulties, the decedent was a devoted father who was in touch with his son on an almost daily basis despite the divorce. The ex-wife testified that the decedent often played with his son and attended sporting events with him.

The plaintiff’s economist related that the death occasioned past lost wages of $________ and offered projections of future lost wages, based upon retirement at age 65, which amounted to $________. The plaintiff contended that the decedent may well have worked longer and the employer testified that there is no mandatory retirement age and that he currently has a 75-year-old worker.

The plaintiff also maintained that the decedent was very handy around the home, had performed repairs and would maintain and repair family automobiles. The plaintiff’s economist contended that the past loss of household services amounted to $________ and offered projections from which the jury could infer $________ in such future losses. The plaintiff contended that these figures did not take into account the replacement value of intangibles such as guidance and advice. The plaintiff contended that in view of the history of a very close relationship with the son from the prior marriage despite the divorce, it was clear that the loss of guidance and advice to the daughter conceived shortly before the death would have been extensive as well. The jury found the non- settling defendant 70% liable, the settling pump manufacturer 30% liable and awarded $________, including $________ for survival and $________ for wrongful death. Plaintiff’s expert chemical engineer: Burton Davidson from Rutgers Univ., New Brunswick, N.J.

Plaintiff’s economist: M. Marcus from Rutgers Univ. Defendant’s expert chemical engineer: William Cruice from Rockaway, N.J.

Lelak vs. Powell Duffryn, Inc., et al. Docket no. W-________-88; Judge Dorothea O’C. Wefing, 3-20-91. Attorney for plaintiff: Dennis M. Donnelly of Blume, Vazquez, Goldfaden, Berkowitz & Donnelly of Newark, N.J.; Attorneys for defendant: Robert Brown and Timothy G. Hourican of Staten Island, N.Y.

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