On appeal from the Superior Court of New Jersey, Law Division, Camden County, L- 02113-99.
Before Judges Braithwaite, Lintner and Parker.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2002
These consolidated appeals arise from a grant of summary judgment dismissing plaintiffs' products liability claims against defendant, Dunlap Mellor & Company. The claims arise from an accident that occurred when co-workers at an asphalt company used a fifty-five gallon drum that once contained methanol supplied by defendant as a workbench for cutting sheet metal with an acetylene torch. An explosion resulted that killed James Beading and severely injured Barry Szieber. *fn1 Szieber and his wife filed suit after which Beadling's estate did the same. Both complaints alleged that the warning labels placed on the drum by defendant were deficient due to their inappropriate location and the soft, porous nature of the paper on which the principal label was printed. *fn2 The two suits were consolidated. Szieber and his wife filed a stipulation of dismissal. Thereafter, Travelers Property Casualty, a member of The Citigroup, (Travelers) substituted as subrogee for Barry Szieber and filed an amended complaint incorporating the allegations found in the Szieber complaint and asserting that it was entitled to seek recovery of its workers' compensation lien arising out of benefits paid to Szieber, pursuant to N.J.S.A. 34:15-40. *fn3
On appeal, plaintiffs essentially argue that the federal regulations do not preempt New Jersey products liability law and that, in any event, the labels did not comply with the federal requirements. They further contend that summary judgment was improvidently entered because there were sufficient facts to establish liability, mainly that defendant placed the labels on top of the drum in violation of the American National Standards Institute (ANSI) standards and use of a more durable label would have prevented the label that was used from becoming obscure. Plaintiffs also maintain that the opinions of their experts were not "net opinions" and were sufficient to create a genuine issue of material fact regarding the adequacy of the labels. Finally, they assert that defendant's negligence was a proximate cause of the accident because the use of a chemical solvent drum as a workbench was a foreseeable misuse that imposed a duty of care on defendant.
Although we are convinced that the contents of the warning itself were adequate and complied with the federal regulations, we are equally convinced that the federal regulations do not speak specifically to the location of the warning and neither expressly preempt, nor conflict with, the applicable ANSI standards respecting the appropriate placement or durability of the warning on drums used in an industrial environment. Further, we are satisfied that the opinions given by plaintiffs' experts do not qualify as net opinions and should not have been disregarded by the motion judge. We, therefore, reverse and remand the order granting summary judgment to defendant.
We need not recount the facts at length. On the morning of the accident, Beadling and Szieber were in the maintenance shop at the Crowfoot Asphalt plant making braces for conveyor belt rollers. They placed a sheet of steel on top of a fifty- five gallon drum that once contained methanol, a flammable organic liquid used in fuel, windshield washer fluid and antifreeze. Beadling held the steel sheet in place while Szieber cut it with an acetylene torch. Sparks from the torch caused fumes in the drum to ignite, resulting in an explosion and fire.
The force of the explosion threw Beadling twenty-three feet across the shop and set him on fire. He died within a matter of minutes from smoke inhalation and thermal burns. Szieber sustained multiple fractures, partial thickness burns to nine percent of his body surface, and smoke inhalation injuries. He was hospitalized for approximately three weeks, during which time he underwent skin grafts, orthopedic surgery and respiratory therapy.
The Winslow Township Police Department, the Camden County Fire Department and the Federal Occupational Safety and Health Administration (OSHA) all conducted investigations of the accident. OSHA subsequently cited and fined Crowfoot Asphalt for failing to implement basic safety precautions by training its employees in the safe use of cutting and welding equipment and for failing to implement a written hazard communication program in the workplace.
Business records revealed that Crowfoot Asphalt obtained the fifty-five gallon drum of methanol involved in the accident from Expert Lubricants & Services, which had previously purchased it from defendant. At that time, Expert Lubricants & Services provided Crowfoot Asphalt with a Material Safety Data Sheet (MSDS) for methanol.
Michael Gooch, an employee of Crowfoot Asphalt, stated in a deposition that Beadling was the person primarily responsible for removing small amounts of methanol from the drum and placing it in compressor airline hoses in the winter to prevent moisture within them from freezing. He recalled seeing the drum that was involved in the accident in the outside yard turned upside down.
Bruce F. Lewis, an employee of Expert Lubricants & Services, stated that when drums were received from a supplier it was their general practice to check to ensure that they were properly labeled. Drums from defendant had a large label on top, a small one on the side, and flammable and poison labels on the side. According to Lewis, the top label provided all the warning information "[e]verything down to a torch," meaning "do not cut or anything like that."
Barry Mellor, defendant's owner, stated that he was personally responsible for off-loading chemical solvents from tanker trucks into fifty-five gallon drums. Therefore, the drum that was involved in the accident was probably filled by him with methanol. It was his practice to stencil the word "METH" and a lot number on top of the drum prior to filling. Immediately after filling, an eight-and-a-half by eleven-inch adhesive-backed label was placed on top of the drum. The label contained a flammability warning, a picture of a drum and a torch with a red "X" over them, and printed warnings concerning the use of methanol. Mellor also applied vinyl "Flammable" and "Poison" labels to the top of the drum.
At the request of Travelers, engineering consultant Frank Schwalje conducted an inspection of the maintenance shop on the date of the accident, after fire and police investigators made their inspections. He was told that the drum involved in the accident had been stored outdoors and was moved inside by Beadling for use as a temporary workbench. It was approximately thirty-five inches in height and twenty-three- and-one-half inches in diameter and was painted blue on the sides with a yellow top head and a blue bottom head. The word "methanol" was hand-written in yellow marker on the side near the top of the drum and underneath in black ...