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Crow v. Cosmo Specialty Fibers, Inc.

United States District Court, W.D. Washington, Tacoma

March 22, 2017

STEVEN CROW, et al., Plaintiffs,
v.
COSMO SPECIALTY FIBERS, INC., et al., Defendants.

          ORDER ON DEFENDANT COSMO SPECIALTY FIBERS, INC.'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN United States District Judge

         THIS MATTER comes before the Court on Defendant Cosmo Specialty Fibers, Inc.'s Motion for Summary Judgment. Dkt. 78. The Court has considered Cosmo's motion, Defendants Trans-Systems, Inc.'s and James J. Williams Bulk Service Transport's (TSI-JJW's) Response (Dkt. 90), Plaintiff's Response (Dkt. 84), Cosmo's Reply (Dkt. 95), and the remainder of the file herein.

         Cosmo's motion seeks summary judgment of dismissal. According to Cosmo: (1) dismissal of the negligence claim is warranted, because there is no evidence that Cosmo caused Plaintiffs' harm; (2) dismissal of the negligent hiring, training, and supervising allegations is warranted, because the requisite negligence claim fails and there is no evidence that any Cosmo employees acted outside of the scope of their employment; and (3) dismissal of the strict liability allegations is warranted because Cosmo at most stored (but did not transport) aqua ammonia, which is not an abnormally dangerous activity.

         FACTUAL BACKGROUND

         The case arises out of alleged injuries to Plaintiff Steven Crow from an exposure incident, where he was allegedly exposed to hazardous fumes or gas released on September 27, 2012. On that date, Mr. Crow and three fellow Weyerhauser coworkers worked at the Weyerhauser Truck Shop, which is adjacent to a pulp mill operated by Cosmo. Dkt. 57 at 7. According to Cosmo's records, a tanker truck operated by TSI-JJW entered the pulp mill at 12:10pm and departed at 1:46pm. Dkt. 59 at 9. The delivery log sheet of the tanker truck driver, Devin Godwin, indicates that aqua ammonia was delivered to Cosmo's pulp mill storage tanks (“the delivery site”) between 12:20pm and 1:20pm. Dkt. 41-1 at 21.

         Mr. Godwin testified about the aqua ammonia delivery on the date of the exposure incident. Mr. Godwin offloaded aqua ammonia at the delivery site and, consistent with Cosmo's written procedures, began to vent excess vapor pressure through Cosmo's scrubber. When the pressure lowered to 5 psi, he was unable to vent the remaining pressure through the scrubber. Dkt. 79 at 21, 22, 25, 26, 29 (Godwin Dep. at 22, 23, 26, 27, 30). An unidentified Cosmo employee informed Mr. Godwin that Cosmo's scrubber was broken down. Id. at 22 (Godwin Dep. at 23). Thereafter, “[t]hey told [Mr. Godwin] that [he] could release the last five pounds out where [he] was parked at into the atmosphere.” Id. at 28 (Godwin Dep. at 29). Mr. Godwin could not later identify the person who gave him permission to vent, other than to refer to the person as a “Cosmo environmentalist.” Id. at 26, 28 (Godwin Dep. at 27, 29).

         After receiving permission from Cosmo to vent, “that's when [Mr. Godwin] got in the truck and drove through . . . Cosmo's facility with [his] vent open to that secluded spot.” Dkt. 65 at 21 (Godwin Dep. at 61). Mr. Godwin testified that he drove from the delivery site to a “secluded location” for the first time on the date of the exposure incident. Dkt. 79 at 39 (Godwin Dep. at 66). He subsequently vented at the secluded location on multiple occasions. Id. at 46 (Godwin Dep. at 76). Mr. Godwin testified that did not “contact the environmental operator at Cosmo or anyone else at Cosmo to see if that was okay to do.” Id. at 39 (Godwin Dep. at 66). He further explained:

Q: No one at Cosmo told you it was allowed to drive with your vents open to some remote area on their property to further vent pressure?
A: Yes.
Q: You made that decision on your own?
A: Yeah.
Q: You didn't call Jerrod [a TSI-JJW employee] for advice on that?
A: I didn't.

Id. at 33 (Godwin Dep. at 41). Mr. Godwin believed that there was “very little [aqua ammonia] that was coming out when I drove . . . from the offloading spot to that secluded ...


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