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Mahoney v. Carus Chemical Co.

Decided: May 21, 1986.

THOMAS P. MAHONEY, AND BARBARA MAHONEY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
CARUS CHEMICAL COMPANY, INC., AND CARUS CORPORATION-CARUS CHEMICAL CO. DIVISION; HUNGERFORD & TERRY, INC.; AND INVERSAND COMPANY, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Pollock, O'Hern, Garibaldi and Stein. Opposed -- Justices Clifford and Handler. The opinion of the Court was delivered by Stein, J. Clifford, J., dissenting in part. Handler, J., dissenting in part.

Stein

[102 NJ Page 566] In this appeal we consider whether the immunity afforded by the fireman's rule insulates from liability a defendant whose willful and wanton misconduct is the proximate cause of the fire that compelled the fireman's presence at the fire scene and caused him to sustain injury. A related issue concerns the

application of the fireman's rule to the manufacturer of a defective product that is alleged to have caused the fire in which the firefighter was injured.

I

Plaintiff Thomas P. Mahoney was a volunteer firefighter with the Highland Chemical Engine Company of Pitman, New Jersey. On June 19, 1978, duty called him to the scene of a fire at the Inversand Company chemical plant in Sewell, New Jersey. Based on his prior knowledge of the Inversand business, he knew the fire to be chemical in nature. He concedes that he understood the severe risk of entering a building engulfed by a chemical fire, including the risk of the structure falling. While straddling the threshold of the burning building, a structural wall collapsed on him, trapping him inside the building and causing his injuries. He sued Inversand, Inversand's parent, Hungerford & Terry, Inc., and Carus Chemical Company, Inc. (Carus), the Illinois corporation that supplied Inversand with the highly-combustible substance that allegedly caused the fire.*fn1 Plaintiff was prepared to prove at trial that as a result of the accident at the fire-fighting scene, he was critically injured, suffering massive burns on his body, crushing injuries to his right-upper extremities, fractures of the right arm and pelvis, and multiple abrasions and contusions. The trial court, relying on the "fireman's rule," Krauth v. Geller, 31 N.J. 270 (1960), granted summary judgment in favor of all defendants. The Appellate Division affirmed. We granted plaintiff's petition for certification. 96 N.J. 314 (1984).

Our principal focus is on his claim against Carus. The gravamen of that claim, as disclosed by the complaint and documents obtained during discovery, is that the fire at the Inversand warehouse spontaneously ignited in one of a shipment

of fiber-paper drums containing potassium permanganate powder (brand name "Cairox") manufactured by Carus and received by Inversand approximately two hours before the fire; that Carus, based on a series of similar fires, knew that shipment or storage of Cairox in fiber-paper drums created a significant danger of spontaneous ignition; that the risk of spontaneous ignition of Cairox in fiber-paper drums was so substantial that Carus, in internal memoranda and in a communication to customers a month before the Inversand fire, had announced its decision to replace the fiber-paper drums with metal containers; that the shipment to Inversand included 86 metal drums of Cairox, none of which burned, and 100 fiber-paper drums, virtually all of which burned; and that Carus had continued to ship Cairox in fiber-paper drums in order to exhaust its supply of such drums before making the switch to metal containers.

Documents submitted by plaintiff in opposition to defendants' summary judgment motions set forth a detailed factual background in support of the allegations in the complaint. According to plaintiff, Carus is the sole United States manufacturer of potassium permanganate, a chemical used both as an oxidizing agent and as a disinfectant. Plaintiff contends that potassium permanganate is a dangerous compound because it readily causes fire when placed in contact with combustible materials. Plaintiff's documents included excerpts from scientific manuals that plainly identified the fire hazard inherent in potassium permanganate, describing it as a "[p]owerful oxidizing material [that] [r]eacts violently with finely divided easily oxidizable substances [and] [i]ncreases flammability of combustible materials."

Potassium permanganate's hazardous properties were confirmed by plaintiff's consulting engineer in a report that was part of the trial court record:

Potassium permanganate belongs to a class of chemical compounds known as inorganic oxidizers. These oxygen-rich compounds accelerate the burning of combustible materials. KNnO[4] [potassium permanganate] is one of the compounds

used to promote and accelerate the burning of solid propellants. KMnO[4] invariably intensifies the burning of combustible materials by acting as a "chemical supercharger". The speed of its reactivity is exponential with rising temperatures.

In NFPA's Fire Protection Guide on Hazardous Materials (3rd ed.), it is recognized that KMnO[4] reacts violently when mixed or combined with combustible materials.

According to plaintiff, Carus did not ship potassium permanganate in fiber-paper drums until December, 1975. Carus allegedly considered using fiber drums in 1965, but rejected the idea because it recognized that "[t]here is a greater potential fire hazard when fiber is used in place of metal as a container." It is uncontroverted, however, that in late 1975 Carus began using fiber-paper drums to ship potassium permanganate. Plaintiff alleges that this was an economic decision predicated on Carus's estimate that it could save $35,000 annually by using the less expensive, fiber-paper drums. Plaintiff also alleges that Carus recognized the increased hazard to its own premises when it acknowledged that "[i]t is most likely that we would have to install a sprinkler system in the Cairox warehouse if we switch to fibre containers." It is also uncontroverted that the bottom and sides of the fiber drums used for shipping potassium permanganate were "combustible," and in its answers to interrogatories, Carus conceded that potassium permanganate "increases [the] flammability of combustible materials" and "should be kept away from [certain] combustible materials."

An internal Carus memorandum entitled "Reported Fires Involving Cairox in Fibre Drums" was also part of the trial court record. This document revealed that beginning in February, 1976, two months after Carus initiated the shipment of potassium permanganate in fiber drums, a series of spontaneous, unexplained fires occurred at various Cairox storage locations causing partial or total destruction of the fiber drums as well as considerable damage to surrounding property. Pertinent portions of this document reveal the following information:

REPORTED FIRES

INVOLVING CAIROX (registered) IN FIBRE DRUMS

Geographic Specific Place the Probable Cause

Date Location Fire Occurred of Ignition Damage

25/26

Feb. '76 50 miles north trailer with 30 spontaneous total loss of

of Sault Ste. drums KMnO[4] reaction between trailer and

Marie, Canada (3,000kg) KMnO[4] and cargo, and

isopropyl ethyl other damage

thiono carbamate;

physical damage

to fibre drum

(apparently) was

involved also

23

May '76 Huntington, railroad freight no clues partial loss of

B.C. car with cargo, damage

18,933-lb. KMnO[4] to car

8

Feb. '78 Booneville, railroad freight damaged total loss of

AR car with 450 containers? freight cars

fibre drums friction? with cargo

KMnO[4] (60,220

lb.)

31

Mar. '78 Doraville, GA trailer 220 50-kg no clues total loss of

(Ashland) drums trailer and

cargo

10

Apr. '78 Sparrows warehouse possible ...


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