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Wright v. Excel Paralubes Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

January 31, 2017

DUSTIN BLAKE WRIGHT
v.
REVCO INDUSTRIES INC., ET AL

          KAY MAG. JUDGE.

          MEMORANDUM RULING

          JAMES T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.

         Before the court is a "Motion for Summary Judgment" (R. #100) filed by Defendant, International Enviroguard, Inc. ("Enviroguard"), who moves for summary judgment on the grounds that there are no genuine issues of material fact in dispute and Enviroguard is entitled to judgment as a matter of law. Enviroguard maintains that Plaintiff is unable to meet his requisite burden of proof for his claim that the product manufactured by Enviroguard is unreasonably dangerous under the Louisiana Product Liability Act.[1]

         FACTUAL STATEMENT

         Plaintiff, Dustin Wright, an employee of Wyatt Field Service Company ("Wyatt"), was injured on 2/24/2012 in an industrial fire at a refinery operated by ConocoPhillips Company, Inc. and Excel Paralubes, Inc. ("Conoco/Excel"). Conoco/Excel hired Wyatt, Mr. Wright's employer, to perform demolition and reconstruction work in a vacuum tower. Wyatt was cutting and removing steel beams from the inner compartments of the tower at the time of Plaintiff's accident.

         The demolition was performed by a violent and destructive process known as air carbon arc gouging, which heats metal to the point that it becomes hot molten slag. The slag can rise to a temperature of thousands of degrees; this process generates fire, sparks and molten metal which is ejected over a broad area.

         As a safety precaution, and prior to Wyatt performing the work, Conoco/Excel drained the tower of flammable oil, although there is some evidence to suggest that not all of the flammable oil was removed. Conoco/Excel hired Defendant, Airgas Onsite Safety Services ("Airgas") to insure that explosive gases were not present during the demolition and construction.

         Wyatt's employees wore several layers of personal protective clothing while on the job. First, over the direct clothing (blue jeans and shirt), was a full length flame-resistant cloth coverall made of flame-resistant fibers which diminishes after 50 laundering cycles. Worn over these coveralls was a disposable outer Pyroguard® FR garment manufactured by Enviroguard. This outer garment was a disposable, one-time use garment manufactured to be worn over the coveralls to extend the life of the coveralls by protecting it from excessive exposure to dirt, grease, grime and chemicals. The outer garment is designed for only a few hours of work-life, and is discarded and replaced with a new clean set possibly multiple times daily. The outer garment had a warning label which states that it should not be used for primary fire protection and to "AVOID CONTACT WITH OPEN FLAME."[2]

         Enviroguard makes no express warranty. The garment label states that Enviroguard "makes no warranty or claims with respect to specific applications. The end user is responsible for selecting the appropriate garment for use. Improper use may result in injury or death."[3]

         On February 24, 2012, Mr. Wright was assigned to assist Wyatt welder, Derrick Johnson, with the removal of steel beams within the tower using the air carbon arc gouging machine. The arc gouging machine was "blowing fire" and "threw a lot of flames out." A few small fires erupted on the fire blanket which Mr. Wright stomped out. A large piece of slag then fell on the fire blanket, creating another fire. Mr. Wright contends the fire was started when sparks/fire/slag from the air gouging machine ignited oil residue on the fire blanket that was left in the compartment by Conoco/Excel. Mr. Wright was injured while trying to put out the fire by stomping on it. While there is evidence that Mr. Johnson blew the fire and fire blanket onto Mr. Wright's legs with the arc gouger in an attempt to extinguish the fire, this is disputed by both Mr. Wright and Mr. Johnson's recent deposition testimony.

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.[4] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[5] A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.[6] As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim."[7] Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.[8] The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.[9] There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party.[10] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[11]

         LAW AND ANALYSIS

         Under the LPLA, a manufacturer of a product "shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant..."[12 ...


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