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Andre v. Union Tank Car Co.

Decided: December 10, 1985.

JOSE ANDRE AND IRISABELA ANDRE, HIS WIFE, PLAINTIFFS,
v.
UNION TANK CAR COMPANY, INC.; "A" MANUFACTURING COMPANY, A FICTITIOUS NAME REPRESENTING A DEFENDANT WHOSE IDENTITY IS UNKNOWN TO PLAINTIFFS; "B" DISTRIBUTING COMPANY, A FICTITIOUS NAME REPRESENTING A DEFENDANT WHOSE IDENTITY IS UNKNOWN TO PLAINTIFFS, DEFENDANTS



Sachar, J.s.c.

Sachar

This failure-to-warn products liability case presents for consideration the effect of the Federal Railroad Safety Act, 45 U.S.C.A. § 421 et seq., and its preemptive effects, as well as the strict liability in tort duty to warn, placed on the manufacturer of a railroad tank car in the absence of any such federal preemption. The court concluded that under either federal preemption or strict tort liability, defendant owes no duty to plaintiffs under the facts of this case.

Plaintiffs, Jose and Irisabela Andre, instituted this action for damages resulting from Jose Andre's fall from a tank car manufactured by defendant, Union Tank Car Company (hereinafter referred to as Union). Jose Andre seeks damages for physical injuries, which he claims resulted from a defect in the tank car. Irisabela Andre, his wife, seeks damages for loss of consortium.

Jose Andre, an employee of Essex Chemical Co., Newark, N.J., (hereinafter referred to as Essex) was injured on the job when he fell from the top of a tank car on May 30, 1981. At the time of Andre's accident, he was a master mechanic with Essex. One of his responsibilities at Essex was to vent tank cars loaded with incoming chemicals to the plant. Venting is the process employed to relieve any internal pressure in the tank car and simultaneously permits air to enter the tank car as the tank car is being emptied of its cargo.

By way of background, Essex is a major chemical company. It conducts its operation through numerous plants. Essex's products are based on three principal materials: sulfur, phosgene and florine. The sulfur-based products are sulfuric acid, alum and liquid sulfur dioxide. The phosgene-based products, a highly toxic gas, is the base for another major product group called organic intermediates, and the third category, florine, is a toxic-containing gas. One florine reaction product is hydrogen floride, a highly corrosive acid. Essex's plant in Newark where Andre was employed produces the sulfur-based product group.

As a major chemical company, Essex employs numerous individuals to oversee that the commodities employed are properly handled, including chemical engineers and at least one safety engineer.

The sulfur used at the Newark plant comes from several sources. One such source is what is referred to as the frash process, in which underground sulfur is melted with hot water and pumped to the earth's surface; this fresh sulfur is not hazardous and does not produce any hazardous gas. Another such method of obtaining sulfur is by separating it from petroleum, coal or natural gas by chemical processing at the refinery. Sulfur obtained by the later process readily combines with a hydrogen source to produce hydrogen sulfide. Hydrogen sulfide is an extremely hazardous gas. It has the capacity to numb the sense of smell and based on the concentration level (parts per million (p.p.m.)), can cause dizziness, unconsciousness, cessation of respiration and death. According to the Material Safety Council, Handling Liquid Sulfur, toxic effects of hydrogen sulfide (Table 4.3), a concentration level of hydrogen sulfide between 500-700 p.p.m. will cause loss of consciousness and possible death within one-half to one hour and a concentration level of between 700-1,000 p.p.m. will cause rapid unconsciousness, cessation of respiration and death.

The tank car that Andre was venting contained sulfur, derived from petroleum. The shipper of the sulfur in question, Chevron, Alberta, Canada, knew that Canadian sulfur, derived from petroleum, contains approximately 200 to 500 p.p.m. hydrogen sulfide and that its sulfur may have contained substantially higher counts.

Further, at the time that Chevron loaded the tank car in Canada, there was every indication that the sulfur, being so loaded, was contaminated (capable of producing hydrogen sulfide). The contents of a companion tank car, sent by Chevron to Essex at approximately the same time, when tested, indicated a presence of hydrogen sulfide in a concentration in excess of 1,000 p.p.m., and sustained that level for at least fifteen minutes.

After loosening the second of six bolts of the manway cover atop the tank car, Andre detected an unpleasant odor and immediately ran to the other side of the manway platform. The next thing he remembered, he was lying on the railroad tracks. Andre contends that the presence of hydrogen sulfide in the tank car caused him to lose consciousness and fall from the tank car. At the beginning of the trial, he alleged Union was responsible for his injuries, based on three theories: negligence, defective design of the tank car, and failure to warn of the danger present in the tank car. During trial, Andre voluntarily dismissed his claims of negligence and defective design, but proceeded on the issue that Union had an obligation to place some form of warning on the tank car to alert him to the potential danger of hazardous gas within the tank car.

The tank car in question, XTLCX-60983, was manufactured by Union and leased, along with five other tank cars, to Essex. These six tank cars were put into service by Essex in May 1981. All six tank cars were built to D.O.T. (Department of Transportation) specification 111A100W3, a standard tank car design recognized and accepted by the United States Department of Transportation (U.S.D.O.T.). The tank cars were approved by the A.A.R. (Association of American Railroad) Tank Car Committee for sulfur and for nonregulated commodities and commodities authorities in D.O.T. part 173 for which there are no special requirements and which are compatible with this class of car. The tank car was further certified to be in conformance with all applicable D.O.T. and A.A.R. requirements including, but not limited to, specifications, regulations, rules of interchange, and D.O.T. railroad safety appliance standards.

Union argues that it is prohibited from labeling its tank cars, except as specifically mandated by the federal regulations. In particular, D.O.T. specification 111A100W3 required Union to stencil on the side of the tank car dome, "not for flammable liquids."

Plaintiff argues that sulfur, according to the hazardous materials regulations of the U.S.D.O.T., is not hazardous and thus

there is no labeling or placarding requirement on the tank car to conflict with or to prevent Union from so labeling. The problem readily apparent to the court is that plaintiff failed to produce evidence indicating that the tank car was intended to carry only one type of sulfur or at least one type of commodity posing the same dangers. This tank car was constructed to carry numerous commodities, hazardous and nonhazardous. According to its specifications, the tank car was capable of carrying hazardous materials which include poisons, such as nitroaniline, phenol and potassium oxanide; corrosives, such as sodium hydroxide, spent mixed acid and sulfur chloride; and oxidigers, such as barium chlorade, calcium chlorade and sodium chlorade. In total, there were 63 hazardous commodities that this tank car was designed to carry. Another problem the court encountered was that this tank car was not designed to carry hydrogen sulfide, the alleged cause of plaintiff's injuries, which is subject to regulation by the Hazardous Materials Regulations, 49 C.F.R. § 172.101. Further evidence supporting the conclusion that the tank car was not limited to sulfur or commodities posing the same or similar dangers was the service agreement between Union and Essex.

The tank car in question was intended to be used in the United States, Canada and Mexico. According to the car service agreement, the lessee, Essex, could have loaned, let or sublet the tank car to its subsidiaries or affiliated companies, or to its consignees or suppliers in connection with the handling of commodities sold, bought or supplied for account of lessee, Essex. Additionally, there is no mention in the agreement that the use of the tank car was for sulfur or limited, in any respect, to any specific class of commodities, except as specified by D.O.T. regulations. The leased period for the tank car was five years, according to the service agreement, with an automatic renewal for an additional five-year period, unless notice requesting cancellation was received. This evidence lent support and credibility to the position that the requested placarding by plaintiff would pose a conflict with the federal regulatory scheme of warnings and placards mandated when certain hazardous materials would be carried in the tank car.

Plaintiff's expert, Louis Howarth, a mechanical engineer, qualified as an expert in engineering and safety, but not as an expert in chemistry. He initially testified that there was a defect in the design of the tank car. He admitted that he had no prior experience with tank cars or railroading and had no knowledge of who, other than Union, manufactured tank cars. He alleged the tank car was defectively designed in its failure to remove the hydrogen sulfide from the tank car through a ventilation system with a vacuum hose which would pull fumes down into a catalytic exchanger away from those unloading the tank cars. Admittedly, this device, which he alone devised in theory, exists nowhere in the world. He then went on to put the duty of creating such a device and applying it on Essex and not on the tank car's manufacturer, Union.

On the issue of labeling and warnings, Howarth opined that a label should have been placed on the dome of the tank car to the effect that it contained toxic gases, may contain hydrogen sulfide, the need for a respirator, and an international symbol of a skull and crossbones. He testified that this label should have been placed on the tank car by the shipper, Chevron, and the manufacturer, Union. His opinion was based on his assertion that the tank car was designed exclusively for nonregulated commodities. He stated that he only knew that it was designed to carry sulfur. Further, he stated that the designer was in the best position to put these labels on the car and that no government regulation prohibited it.

Defendant's expert, Fred Schwartz, Jr., testified that the shipment of hydrogen sulfide was an illegal shipment involving the shipment of a regulated commodity with a nonregulated material. He also testified that no manufacturer in the tank car business puts such warnings as proposed by Howarth on tank cars. Both he and defendant's other expert, George Stanton, maintained that a warning that is not necessarily applicable is not only contrary to applicable D.O.T. and O.S.H.A. regulations, but results in the obfuscation of warnings when needed. On cross-examination, plaintiff did not challenge

defendant's experts' contentions of the multiple uses that the tank car could be put to. Both of defendant's experts stated that the tank car was not the problem but that the contents of the tank car produced the problem. Schwartz testified that a temporary label could have been placed on the shipment by the shipper, in this case Chevron, who knows from its experience the contents thereof, as well as by Essex, which would keep information as to the nature of the product being shipped. According to the National Safety Council data sheet on Handling Liquid Sulfur, the amount of hydrogen sulfide present in any given shipment of sulfur can be predicted by the unloader on the basis of past experience with sulfur from the same source.

As previously stated, the use of the tank car was not limited to sulfur during the lease period. Chevron processed the sulfur and loaded it into the tank car. It knew that its sulfur contained hydrogen sulfide and Essex knew or should have also known of the presence of hydrogen sulfide. Defendant in this case merely supplied the container to carry the commodity. It had no knowledge of the presence of hydrogen sulfide or any other danger which could be present in the tank car until the tank car was actually loaded. Admittedly, Union did not load, carry or unload the tank car in question.

I.

Federal ...


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