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Sykes v. Propane Power Corp.

Decided: May 6, 1988.

BARBARA SYKES, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX FOR THE ESTATE OF WILLIAM SYKES, AND BARBARA SYKES, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
PROPANE POWER CORP., PROPANE POWER AND HEAT CORP., MCKESSON ENVIRO-SYSTEMS COMPANY, AS SUCCESSOR OF INLAND CHEMICAL CORPORATION, NIMCO SHREDDING CO., RAYMOND M. GILLIAM, JOHN R. BERGER, B.W. FLOERSCH, ZOOK ENTERPRISES, INC., VULCAN MATERIALS COMPANY, AND MCKESSON CORPORATION, DEFENDANTS, AND SULLIVAN ENGINEERING GROUP, INC., AND LEROY E. SULLIVAN, III, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Essex County, one opinion of which is reported as Sykes v. Zook Enterprises, Inc., 215 N.J. Super. 461 (Law Div. 1987).

Michels, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiffs Barbara Sykes, Administratrix Ad Prosequendum and Administratrix of the Estate of William Sykes and Barbara Sykes, individually, appeal from a summary judgment of the Law Division entered in favor of defendants Sullivan Engineering Group, Inc. (Sullivan Engineering) and Leroy Sullivan, III (Sullivan) and from an order denying her motion for reconsideration in this action seeking to recover damages for the wrongful death of William Sykes (Sykes). Although plaintiff was never formally married to Sykes, she also appeals from two trial court orders entered in favor of defendants McKesson Corporation and Zook Enterprises, Inc. that dismissed all claims asserted by her individually for loss of consortium and for damages under the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., as the purported "wife" of the decedent.

The facts giving rise to this appeal may be summarized briefly as follows. During 1978-1979, Sullivan worked for Environics, Inc. (Environics), where his primary responsibility was assisting industrial facilities to comply with environmental regulations. At this time, he was assigned by Environics to assist defendant Inland Chemical Corporation (Inland Chemical) in obtaining an operating permit from the New Jersey Department of Environmental Protection (DEP) for its chemical recovery plant in Newark, New Jersey. As manager of the Inland Chemical project, Sullivan was required to compile data pertaining

to the existing operation of the plant in order to bring it into compliance with newly-promulgated DEP regulations. This data was embodied in a comprehensive Engineering Plan prepared and sealed by Sullivan, as a licensed professional engineer, on April 16, 1979. Thereafter, Inland Chemical received a temporary operating permit from the DEP which ran from June 27, 1980 to March 31, 1981.

After the temporary DEP permit expired, defendant McKesson Envirosystems Company (McKesson), a wholly-owned subsidiary of defendant McKesson Corporation, acquired Inland Chemical on December 1, 1981. McKesson thereupon began operating the Newark chemical recovery plant without first obtaining authorization from the DEP. Following detection and intervention by the DEP, a proposed administrative consent order was drawn up which conditioned the continued operation of the plant upon proof of compliance with the applicable provisions of N.J.A.C. 7:26-7.1 et seq. through 12.1 et seq. (regulations pertaining to the New Jersey Division of Waste Management). In pertinent part, McKesson was required to submit a series of detailed drawings revealing the layout and location of the facilities involved in the chemical recovery process.

On April 12, 1982, McKesson entered into a contract with Sullivan, who had since left Environics to form Sullivan Engineering, to assist in the development of these drawings. In accordance with the proposed order, Sullivan prepared and signed Topographic Plot and Storage Tank Location Plan Drawings which were then sent by McKesson to the DEP on April 19, 1982. Additionally, the Engineering Plan of April 16, 1979, as well as an Environmental Impact Statement which Sullivan had originally developed for Inland Chemical were re-submitted by McKesson at this time. Finally, with the assistance of William Shortreed of McKesson, Sullivan took photographs of the processing systems and then prepared "process flow diagrams" depicting the schematic relationship between the components in each system. These drawings were submitted to

McKesson's counsel on August 11, 1982, two days after the final administrative consent order became effective.

On October 10, 1982, Sykes, a McKesson employee, sustained fatal injuries when a chemical distillation unit in the plant exploded. The causes and environmental impact of the explosion and fire which ensued were the subject of an intensive investigation by McKesson, culminating in a 27-page "Final Accident Report" dated December 23, 1982. According to this report, the "T-1" distillation unit was being used to recover dimethyl sulfoxide (DMSO) from an industrial waste product "stock" at the time the explosion occurred. The probable cause of this explosion was determined to be "excessive acidity [in the stock] leading to an uncontrollable decomposition of DMSO . . ." in the unit reboiler. In large part, the accident was attributed to the operators' failure to make regular PH analyses of the stock and to take prompt corrective measures when the system began to malfunction.

Thereafter, plaintiff instituted this action sounding in negligence and strict liability in tort against McKesson, Sullivan Engineering and Sullivan, among others, to recover damages for the wrongful death of Sykes, her cohabitant of 22 years and father of their four children. Plaintiff based her theories of liability on a report prepared by her consulting engineer, Ralph Powell (Powell), who was of the opinion that the probable causes of the accident were (1) operational negligence of the employee-operators in failing to test the acidity of the chemical "feed stock"; (2) operational negligence of the employee-operators in failing to follow proper emergency procedures once the system began to malfunction; (3) design negligence in failing to equip the unit with an interlocking monitor/alarm/shutdown system, which even in the presence of employee-operator ignorance would have achieved the safe shutdown of the unit; (4) design negligence in improperly using a "single four-inch rupture disk" too small to handle the pressure within the unit, and (5) absence of a hazard evaluation study relevant to the unit's use as a DMSO recovery system. Powell was of the opinion

that these five categories of error were "traceable" to all of the defendants who were involved in the design of the distillation unit, employee training programs and sampling protocols, as well as the process system's instrumentation, interlock monitor/alarm/shutdown capabilities and safety relief system. Powell opined that these individuals appeared "to comprehend", among others, Sullivan and Sullivan Engineering.

Following completion of pretrial discovery, Sullivan Engineering and Sullivan moved for summary judgment. Judge Bedford in the Law Division granted the motion, holding that their work was not causally related to the explosion. In short, he found that Sullivan had been engaged solely for the purpose of preparing the drawings and documents required by the DEP and had not been hired to go through the plant as a safety engineer and advise McKesson about correcting hazards unrelated to environmental concerns. After Sullivan Engineering and Sullivan were dismissed from the suit, defendants McKesson and Zook Enterprises, Inc. filed motions to strike plaintiff's individual damages claims on the ground that although she was living with Sykes as man and wife, they were not legally married. Judge Villanueva in the Law Division granted these motions and dismissed all damage claims asserted by plaintiff individually against the remaining defendants. He held that plaintiff could not "recover (1) for loss of consortium because there was no marriage relationship; or (2) for her death claims because she falls outside any applicable classification under N.J.S.A. 2A:31-4 et seq." Sykes v. Zook Enterprises, Inc., 215 N.J. Super. 461, 463 (Law Div.1987).

Plaintiff now appeals from the summary judgment entered in favor of Sullivan Engineering and Sullivan, the subsequent order denying her motion for reconsideration and from the orders dismissing her individual damage claims.

I.

We turn first to the summary judgment entered in favor of Sullivan and Sullivan Engineering. The law is well-settled

that "[o]ne who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities." Levine v. Wiss & Co., 97 N.J. 242, 246 (1984), citing Restatement (Second) of Torts ยง 299A (1965). With respect to the community of professional engineers in this State, our Legislature has provided certain thresholds of competency and accountability to the public. Under N.J.S.A. 45:8-27, a license to practice professional engineering is required "[i]n order to safeguard life, health and property, and promote the public welfare. . . ." Thereafter, any "[p]lans, specification [sic], plats and reports" issued by the professional engineer must bear an authorized seal of licensure under N.J.S.A. 45:8-36.

Here, plaintiff contends that Sullivan breached a duty of care owed to Sykes by placing his seal upon documents reflecting an unsafe and negligently developed chemical processing system. In particular, plaintiff points to the fact that although Sullivan was hired by Inland Chemical as an environmental consultant, the "Engineering Plan" which he issued on April 16, 1979 and which was re-submitted in 1982 by McKesson included such topics as "Explosion and Disaster Plan," "Serious Injury Plan", and "Safety Standards and Policies" under the general heading of "Risk Analysis." Furthermore, although Sullivan prepared and affixed his seal to a "process flow diagram" of the "T-1" chemical distillation unit that exploded, he admitted in deposition that he had no background in chemical engineering, and did not know anything about (1) the types of chemical solvents that were processed through the T-1 unit; (2) the frequency or nature of the inspection procedures employed; (3) the sizing of the rupture discs that were used in the unit's reboiler or (4) any of the "design criteria [or] choices that were made."

In sum, it is argued that even if Sullivan were primarily qualified as an "environmental engineer", and hired by McKesson as such, the drawings which he prepared and sealed were inextricably related to the chemical recovery process which

caused the explosion. Therefore, she argues that since the DEP relied upon these documents in authorizing McKesson to continue operating the plant on the day the explosion occurred, a jury could have found that Sullivan's failure to detect the inherent problems in the ...


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