United States District Court, D. Kansas
CHESTER W. PEAK, et al., Plaintiffs,
CENTRAL TANK COATINGS, INC., Defendant.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiffs Chester Peak, by and through his next friend and guardian, Gina Peak, Donald "Rex" Lowe, Justin D. Gibson, Justin T. Ehm, Danial A. Johnson, Nathan W. Roth and City of Kirwin, Kansas filed this personal injury and property damage action against Defendant Central Tank Coatings, Inc., seeking compensatory and punitive damages, alleging negligence, strict liability, negligent hiring, training, and retention and willful and wanton conduct. Plaintiff Chester Peak also seeks damages for loss of consortium. This case comes before the Court on Defendant's Motion for Summary Judgment (Doc. 90) and Plaintiffs' Motion for Summary Judgment (Doc. 92). The motions are fully briefed and the Court is prepared to rule. For the reasons stated below, the Court grants Defendant's motion and denies Plaintiffs' cross-motion.
I. Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in a light most favorable to the nonmoving party. Plaintiffs Peak, Lowe, Gibson, Ehm, Johnson and Roth were volunteer firefighters (the "Firefighters") for the Kirwin Volunteer Fire Department. Defendant contracted with the City of Kirwin (the "City") to repair and repaint the City's water tower. Defendant assigned a group of workmen to perform the job on the water tower.
When the workmen arrived to perform the job, they brought Defendant's tractor trailer on site. A stack of paint thinner was located directly behind the trailer that had warning signs labeled, "Flammable Liquid." There was also a container box mounted on Defendant's trailer with various tools, paint thinner, and an oxygen/acetylene tank. The container box was not labeled with any signs or warnings as to its contents.
On July 13, 2010, the workmen worked on the roof of the water tower between 1:00 p.m. and 3:00 p.m. The workmen remained on the scene until 5:00 p.m. to weld new pieces for the roof of the water tower. At the time the workmen left the job site, they had not observed any fire or smoke. At 6:55 p.m. after two witnesses saw smoke coming from the roof of the water tower, they called for emergency assistance and the Firefighters were dispatched to the site. When the Firefighters arrived, the rear tires of the trailer were on fire and charred wooden materials appeared to have fallen from the water tower to the ground.
The Firefighters focused their efforts on extinguishing the trailer fire. Some Firefighters observed the stack of paint thinner with warning labels indicating that they contained flammable materials. Lowe had discussions with Johnson and Roth about the contents of the container box, which was padlocked. Lowe explained to Johnson and Roth that they should not cut the lock off of the container box because either the interior of the box could be ablaze, or opening the box could release heat and ignite a fire.
In the same area as the trailer, Roth observed the torch hoses and assumed they were connected to an oxygen/acetylene tank inside the container. Ehm knew that oxygen and acetylene combined could create an explosion and the presence of the hoses concerned him and Roth. Ehm stated that if he had seen the hoses prior to spraying the tires, he would have allowed the fire to burn out instead of extinguishing it. Gibson and Johnson did not recall seeing the torch hoses or warning labels.
The paint thinner buckets labeled as flammable and torch hoses connected to the container box prompted Larry Stones,  another responding firefighter, to call Defendant's workmen to inquire about the contents of the container. Stones was unable to reach the workmen via telephone and Roth told the other Firefighters, excluding Peak who was not nearby, to back away from the trailer because they needed to determine whether there were any hazards associated with the container.
As the Firefighters retreated from the trailer, the container box exploded, injuring Peak and damaging the fire truck. Investigation reports from the Kansas State Fire Marshal and Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives concluded that the wood members of the roof of the water tower fell to the ground, igniting combustibles and the tires on the trailer. The reports also revealed that the paint thinner inside the container box likely provided the fuel for the explosion.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party." A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as ...