F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 22 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LOURIE MCCLARAN, Husband;
KAREN MCCLARAN, Wife,
Plaintiffs-Appellants,
No. 01-5069
v. (D.C. No. 99-CV-1026-C)
(N.D. Okla.)
UNION CARBIDE CORPORATION;
UCAR INTERNATIONAL, INC.;
UCAR CARBON COMPANY, INC.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellants Lourie and Karen McClaran challenge the decision of the
United States District Court for the Northern District of Oklahoma granting
summary judgment for appellees, contending there were disputed issues of fact.
We affirm.
I. Background
Mr. McClaran was severely burned on August 14, 1997, when a furnace he
was working on in the melt shop of Sheffield Steel Mill exploded. The explosion
was the result of water leaking from the furnace’s roof cooling system into the
molten steel within the furnace. The roof on this type of furnace is hollow,
allowing it to be cooled with internal sprays of water. When the roof cooling
system is functioning properly, the water is removed through a vacuum system.
In the event the vacuum system fails, there is an overflow drain on what is
referred to as the “tap side” of the furnace. In addition, water may also escape
through hatches designed to permit visual inspection of the roof. This roof
cooling system was manufactured, sold, and distributed by the Union Carbide
Corporation.
After the accident, Sheffield Steel conducted an investigation into its
causes and determined they were twofold. First, there was a hole in one of the
vacuum lines, which prevented the vacuum system from functioning properly and
allowed water to collect in the roof. Second, there was a hole in the roof plate,
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allowing the collected water to enter the furnace itself, creating an admixture of
solid steel buildup, liquid steel, and water, which resulted in the series of
explosions that injured Mr. McClaran.
The water did not escape through the tap side overflow drain because the
furnace was tilted to the opposite, or “slag” side. Further, there were two to three
feet of dust and debris blocking the inspection hatches at the time of the accident.
There was evidence that, in any case, these inspection hatches could not function
as an adequate back-up for the vacuum system.
The Sheffield Steel accident report set forth several recommendations,
including that all leaks be fully investigated and corrected. Evidence showed that
Sheffield employees had noticed water escaping from the overflow drain on a
regular basis but did not investigate the cause of the problem. A subsequent
report by the Occupational Safety and Health Administration recommended that
an additional overflow drain be placed on the slag side of the furnace, if feasible.
On August 4, 1999, the McClarans filed their complaint, alleging that
Mr. McClaran’s injuries resulted from a defect in the furnace roof system as
manufactured by Union Carbide. Union Carbide moved for summary judgment,
arguing that the McClarans had failed to produce any evidence that the furnace
roof system was defective when it left Union Carbide’s possession and control.
The district court agreed and entered summary judgment for Union Carbide.
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II. Discussion
Summary judgment is warranted when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c). We review the district court’s decision to grant summary
judgment de novo, applying the same standard as the district court. Adler v.
Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998).
In its summary judgment motion, Union Carbide asserted that the
McClarans failed to offer any proof that the roof system was defective as
manufactured. Union Carbide also argued that the proximate cause of the
explosion was the failure of Sheffield Steel employees to keep the inspection
hatches free of dust and debris, and otherwise inspect and maintain the furnace.
The McClarans countered that the defect in the furnace was the absence of a
second overflow drain on the slag side of the furnace, and that this defect was the
proximate cause of the accident.
The district court applied the standard articulated in Dutsch v. Sea Ray
Boats, Inc., 845 P.2d 187, 190 (Okla. 1992): to succeed on a theory of product
liability, the plaintiff must prove that (1) the product was the cause of the injury;
(2) the defect existed in the product at the time the product left the
manufacturer’s possession and control; and (3) the defect made the product
unreasonably dangerous to the user.
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Here, the McClarans argued that the accident would not have occurred if a
slag side overflow drain had been included in the design, and that failure to
include the drain was a defect that was present when the roof-cooling system left
the possession and control of Union Carbide. As the district court emphasized,
however, the slag side drain was only necessary if the vacuum system failed. The
McClarans presented no evidence that the vacuum system was prone to failure or
otherwise inherently defective as manufactured.
III. Conclusion
Having reviewed the briefs and appendices filed by the parties, we
conclude the district court did not err in granting summary judgment for
defendants. Accordingly, we AFFIRM the judgment of the United States District
Court for the Northern District of Oklahoma.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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