Behrendt v. Gulf Underwriters Insurance Co.

768 N.W.2d 568 (2009)

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Nature of the Case

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Facts

Silvan manufactures tanks to be used under pressure. Pressurized vessels are subject to strict manufacturing codes and third-party inspection; after each tank is tested, inspected, and certified, it is labeled and registered with the National Board of Boilers and Pressure Vessel Inspectors. Holes were cut in any scrapped tanks to make them worthless as pressurized vessels. Linczeski needed a piece of equipment to collect oil drained from vehicles. He went to his father-in-law, Fisher, who worked at Silvan (D). Fisher and a co-worker, Sommers, welded pieces of scrap metal to create a large flat-bottomed cylinder with a domed top. The tank was several feet high and held about 55 gallons of oil, was delivered to Linczeski. Linczeski got Harding, a plumber, to plug several holes in the side of the tank. The plumber also fitted the tank with valves--one for the top that allowed oil to be drained into the tank but could be closed to keep oil from splashing out when the tank was moved, and one at the bottom of the tank to allow oil to be drained out of the tank. Wheels were added to the bottom to make it easy to move around, and studs were added to the side so that wrenches could be hung on the tank. Linczeski's modifications included having one of the plugs that had originally plugged a hole taken off the tank and substituting instead a fitting that could be hooked up to an air hose. Air pressure could then be used to empty the tank. Several years later, P, an employee of Linczeski's, was using the tank with air pressure. It exploded, and he was injured. P sued Silvan, alleging negligence; he also sued Fisher for negligence and, in connection with Fisher's alleged negligence, alleged vicarious liability against Silvan for Fisher's acts as its employee. Silvan (D) moved for summary judgment. It was granted, and P appealed. The court of appeals affirmed; D did not owe P a duty, and it was unforeseeable that a tank not fit for pressurization would be taken by an employee of D and used for a pressurized application. P appealed.