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Roth v. Norfalco

April 29, 2010

DAVID ROTH AND BETSY ROTH, PLAINTIFFS
v.
NORFALCO, LLC, DEFENDANT



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Defendant NorFalco's motion for summary judgment. (Doc. No. 40.) Plaintiffs have responded to the motion, and Defendant has filed a brief in reply. The motion is ripe before the Court for disposition, and for the reasons that follow, the motion will be granted.

I. BACKGROUND

P.H. Glatfelter Company ("Glatfelter") is a paper-manufacturing company. (Doc. No. 41-1 at 3-4.) Glatfelter purchases sulfuric acid to bleach wood pulp as part of the paper-making process. (Id. at 9; Doc. No. 41 ¶ 9.) At or about the time of the accident, Glatfelter purchased all of its sulfuric acid, approximately 40,000 pounds per day, from Defendant NorFalco, LLC. (Doc. No. 41 ¶¶ 11, 13.) The sulfuric acid was transported from NorFalco's factory in Canada to Glatfelter's paper mill by railcar tanks ("railcars"). (Id. ¶¶ 12, 14, 32, 46.) Once at Glatfelter's rail yard, the acid within the railcars would usually be unloaded into a sulfuric acid storage tank by Glatfelter employees, one of whom is Plaintiff David Roth ("Roth"). (Id. ¶¶ 12, 14, 46.)

Roth began working at Glatfelter in 1981. (Doc. No. 41-1 at 3-4.) He held various positions in Glatfelter's facility over the course of his employment, but only began working with sulfuric acid after April 16, 2002, when he began the position of Lubricator in the pulp mill. (Id. at 6.) As a Lubricator, Roth also served as the Back-up Chemical Unloader. He was trained how to unload sulfuric acid from the railcars by Jeff Lau, the Chemical Unloader at that time. (Id. at 14.) On August 3, 2004, Roth assumed the position of Chemical Unloader, which he held until the date of his accident, August 13, 2004. (Id. at 8.) Roth resumed the position of Chemical Unloader when he returned to work in August 2005. (Id. at 8.) As a Chemical Unloader, Roth's primary role was to unload the sulfuric acid from the railcars transported to Glatfelter by NorFalco. Roth explained his typical procedure to unload a railcar of sulfuric acid as follows.

Before unloading a railcar, Roth would check the acid level in the storage tank and then put on chemical resistant pants, rubber gloves and boots, and goggles for safety. (Id. at 41; Doc. No. 41-4 at 18.) He would then secure the railcar so that no other trains could enter the platform. (Id.) Once these preliminary activities were completed, he would "bleed off," or vent, the railcar to relieve pressure that may have built-up inside the car during transportation. (Id. ¶ 25.) To accomplish this, he would climb up the side of the railcar to unhook the "top fitting," a chain on the railcar that blocks access to the top of the railcar. (Id.)

The next step would be to remove the cap covering the air inlet. Before the cap can be safely removed, however, Roth would need to ensure that the Jamesbury valve over the air inlet was shut. Then, he would unscrew the cap covering the air inlet and crack the Jamesbury valve to allow the car to depressurize. (Id.) Once the Jamesbury valve was opened, he would observe that the railcar was depressurizing by running his hand across the valve to feel the air escape or by listening to the air escape. (Id. at 18-19.)

Once depressurized or "bled off," Roth's next step would be to unscrew a second cap on top of the railcar. (Id. at 19.) This second cap would be unscrewed in the same manner as the first. (Id.) Once the second cap was removed, an "elbow" specially made by Glatfelter for this purpose, would be screwed onto the second air inlet. (Id.) A rubber hose ("acid hose"), which transports the acid from the railcar to the storage tank, would be attached to the elbow. (Id.) After attaching the "acid hose" to the elbow, a second rubber hose ("air hose") would be attached to the first air inlet. (Id.) The air hose pumps air into the railcar to maintain pressure while the acid is unloaded from the railcar through the acid hose. (Id. at 20.) It usually would take approximately two hours to empty the sulfuric acid from the railcar into the storage tank. (Id. at 22.) Once the acid was unloaded, Roth would turn off the air pressure, close off the air inlet valve on the railcar, remove the rubber air hose, and crack the Jamesbury valve on that air inlet back open to ensure that all the air pressure is released from the railcar. (Id. at 22-23.) Then, the valves on the elbow would be shut and the acid hose removed, as well. (Id. at 23.)

Beginning on or before August 2004, the usual acid unloading process was changed because the acid storage tank was out of service. (Id. at 28, 31.) Instead of unloading the acid into the storage tank, the acid was unloaded through a flexible metal hose directly to the bleach plant. (Id. at 30.) Because the bleach plant was farther from the rail yard than the acid storage tank, unloading the acid required that additional air pressure be added to the air hose. (Id.) This alternative unloading method also required that the acid be unloaded in smaller portions, thus an entire railcar would not be unloaded at once. (Id.) Instead, a valve at the bleach plant would be used to control the amount of acid released at a particular time, resulting in a multi-day unloading process. (Id. at 32.)

On or about August 11, 2004, a railcar had been partially-unloaded in this manner when Roth had difficulties removing the remainder of the acid from the railcar. (Id. at 33-34.) Ralph Martin, Roth's supervisor, instructed Roth to deactivate the partially-unloaded railcar and to connect the hoses to a new, full railcar so that more acid could be unloaded. (Id.) Roth completed his usual shut-down procedure, but left the elbow on the railcar to identify it as the partially-unloaded car. (Doc. No. 41-18 at 3.) He also left the Jamesbury valve cracked open for the air to depressurize from the railcar. (Id.)

On Friday, August 13, 2004, Martin instructed Roth to remove the elbow from the partially-unloaded car and to place it on a full railcar. (Id. at 7-8.) Roth mounted the designated railcar and began to remove the elbow as instructed. (Id.) Acid began "flying out" of the inlet from where the elbow had been screwed into the car. (Id. at 8) Roth had not attempted to depressurize the car immediately prior to removing the elbow because he believed "[t]he car was already depressurized... There was no procedure for the second time on a car." (Id.) Acid splashed out of the car, hitting Roth in the chest and face and causing severe burns. (Id. at 9.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, the discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322.

With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. ...


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