United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT AIRGAS SPECIALTY PRODUCTS
INC.'S MOTION FOR SUMMARY JUDGMENT
J. BRYAN United States District Judge
MATTER comes before the Court on Defendant AirGas Specialty
Products Inc.'s Motion for Summary Judgment. Dkt. 92. The
Court has considered the responsive briefing filed by the
parties (Dkts. 100, 101, 103) and the remainder of the file
is the third defendant to file a motion for summary judgment.
The Court is very familiar with the underlying facts, which
need not be recited at length.
case originates from an industrial injury incident on
September 27, 2012, when Plaintiff Steven Crow was allegedly
exposed to hazardous fumes or gas while working at a location
adjacent to a pulp mill owned and operated by Cosmo. On the
subject date, a tanker truck owned and operated by TSI-JJW
delivered aqua ammonia to Cosmo storage tanks. Prior to
departing the premises, the truck driver has acknowledged, he
“vented” excess aqua ammonia vapor into the
atmosphere. Plaintiffs have pointed to this venting as the
cause of Mr. Crow's injury.
to the Complaint, AirGas was the supplier of the aqua ammonia
delivered to Cosmo on the subject date. Dkt. 1 at ¶2.5.
AirGas concedes its role as supplier, see Dkt. 92 at
2, but, AirGas argues, the delivery was the cause of injury,
and AirGas contracted with TSI-JJW for the delivery. Dkt.
93-1 at 3. In support of this argument, AirGas points to
several facts not disputed by the parties: (1) the aqua
ammonia was picked up at a Dyno Nobel facility in Oregon by
employees of TSI-JJW and/or Dyno Nobel; (2) the aqua ammonia
was delivered to Cosmo by employees of TSI-JJW and/or Cosmo;
and (3) AirGas had “no role” in the creation of
the Standard Operating Procedure (SOP) relied upon by TSI-JJW
and/or Cosmo for the pickup and delivery of the aqua ammonia.
Dkt. 92 at 2, 3.
seeks summary judgment of dismissal. AirGas argues: (1)
dismissal of negligence allegations is warranted, because
there is no evidence that AirGas breached a duty owed or
caused harm (see Dkt. 1 at ¶4.1); (2) dismissal
of vicarious liability allegations is warranted, because
there is no evidence that AirGas, as principal, maintained
control over TSI-JJW, as its agent (see id. at
¶6.1); and (3) dismissal of strict liability allegations
is warranted because the mere storage of aqua ammonia does
not incur liability, and even if so, AirGas never handled the
aqua ammonia, and the cause of the harm is the handling of
the aqua ammonia by employees of Cosmo and/or TSI-JJW
(see id. at ¶¶7.1, 7.2). Dkt. 92.
judgment is proper only 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). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the non moving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)(nonmoving party must present specific, significant
probative evidence, not simply “some metaphysical
doubt.”). See also Fed.R.Civ.P. 56(e).
Conversely, a genuine dispute over a material fact exists if
there is sufficient evidence supporting the claimed factual
dispute, requiring a judge or jury to resolve the differing
versions of the truth. Anderson v. Liberty Lobby,
Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service
Inc. v. Pacific Electrical Contractors Association, 809
F.2d 626, 630 (9th Cir. 1987).
determination of the existence of a material fact is often a
close question. The Court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial - e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254, T.W. Elect.
Service Inc., 809 F.2d at 630. The Court must resolve
any factual issues of controversy in favor of the nonmoving
party only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elect. Service Inc., 809 F.2d at 630
(relying on Anderson, supra). Conclusory, non
specific statements in affidavits are not sufficient, and
“missing facts” will not be
“presumed.” Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990).
Negligence allegations (Dkt. 1 at ¶4.1)
defeat summary judgment of a negligence claim, the plaintiff
must make a prima facie showing of “the existence of a
duty to the plaintiff, breach of the duty, and injury to
plaintiff proximately caused by the breach.” Lynn
v. Labor Ready, Inc., 136 Wn.App. 295, 306 (Div. II
2006); Hertog, ex rel. S.A.H. v. City of Seattle,
138 Wn. 2d 265, 275 (1999).
Response states that “Plaintiffs do not oppose the
dismissal of defendant AirGas . . . provided that the
Plaintiffs are not left facing an empty chair defense at
trial.” Dkt. 100 at 1. Plaintiffs then expand their
request, arguing that if AirGas is dismissed, “the
Court must also dismiss [TSI-JJW's] affirmative defense
of nonparty fault[.]” Id. ...