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Crow v. Cosmo Specialty Fibers, Inc.

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

April 17, 2017

STEVEN CROW, et al., Plaintiffs,


          ROBERT J. BRYAN United States District Judge

         THIS 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 herein.


         AirGas 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.

         This 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[1] of Mr. Crow's injury.

         According 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.

         AirGas 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.


         Summary 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).

         The 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).


         (1) Negligence allegations (Dkt. 1 at ¶4.1)

         To 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).

         Plaintiffs' 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. ...

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