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Volpe v. IKO Industries

January 24, 2002


The opinion of the court was delivered by: Presiding Justice Hoffman


Appeal from the Circuit Court of Cook County. Honorable Mary A. Mulhern and Donald P. O'Connell, Judges Presiding.

The plaintiffs, Rickey A. Volpe and Kathleen Volpe, appeal from circuit court orders: granting summary judgment in favor of the defendant, IKO Industries, Ltd. (Industries), on their complaint seeking recovery under a strict product liability theory; granting Industries' motion to strike the opinion testimony of their expert, William Cruice; and denying their motions for leave to file an amended complaint to allege an action in negligence. For the reasons which follow, we affirm.

Before analyzing the issues presented, we will set forth a brief recitation of the factual and procedural history of this case.

Industries is engaged in the business of manufacturing shingles and other roofing materials at a plant located in Brampton, Ontario. It is a privately held corporation owned by the Koschitzky family. The Koschitzky family either owns or controls additional roofing material manufacturing corporations in Canada and the United States, including IKO Chicago, Inc. (IKO Chicago), located in Bedford Park, Illinois.

The plaintiff, Rickey A. Volpe (Volpe), was employed as an oxidizer tank operator by IKO Chicago. On August 1, 1994, while at work, Volpe sustained severe burn injuries when an oxidizer tank erupted and spewed hot asphalt down upon him. An oxidizer tank prepares asphalt for use in the manufacture of shingles. The process is as follows. A raw material called "flux" is pumped from a storage tank into an oxidizer tank. Once in the oxidizer tank, the flux is heated to a high temperature by a super heater. Then, ferric chloride, a water based additive, is injected into the flux and air is blown from the bottom of the tank through the flux. The introduction of heat and air into the tank causes an exothermic chemical reaction, whereby the flux is transformed into asphalt, which is then applied to either dry felt or fiberglass to make shingles.

Sometime prior to 1990, IKO Chicago's general manager, Art Friedson, and its plant manager, Nelson Dunne, decided that the plant needed a second oxidizer tank. The second oxidizer tank is at the center of this controversy. David Koschitzky, the president of IKO Chicago, instructed his employees to consult John Evans, Industries' manager of corporate engineering, whenever new equipment or a modification of existing equipment was needed at the IKO Chicago plant. Andrew Soward, Industries' controller, explained at his deposition that Industries became involved whenever IKO Chicago wanted to make a capital improvement because of the expertise of Industries' employees. He further stated that Industries' employees assisted IKO Chicago with such projects because of the commonality of ownership among the companies. In accordance with this policy, IKO Chicago employees consulted Evans regarding the purchase and installation of the second oxidizer tank for the plant. Evans visited the IKO Chicago facility to inspect the oxidizing yard and the area where the second tank was to be constructed. He subsequently ordered the second oxidizer tank from O'Connor Tanks, Ltd. (O'Connor Tanks), a custom fabricator of tanks located in Scarborough, Ontario. O'Connor Tanks had previously manufactured tanks for the various Koschitzky manufacturing companies.

Mitchell Moneta, an IKO Chicago plant engineer, testified at his deposition that Evans informed him that the second tank would be the same as the existing one. He further testified that Evans approved the specifications for the oxidizer tank. In contrast, Evans testified at his deposition that he only called O'Connor Tanks to obtain a price quote for an oxidizer tank. He stated that he did not provide the specifications for the tank; rather, O'Connor Tanks already had a set of specifications from a prior purchase of an oxidizer tank by Industries. He did not know who sent those specifications. Isaac Shaposhnik, O'Connor Tank's operation manager, testified at his deposition that O'Connor Tanks does not design tanks; rather, every tank is built to the customer's specifications. His testimony was corroborated by Don Malcolm, the general manager of O'Connor Tanks. Malcolm testified at his deposition that Industries would send O'Connor Tanks a drawing of the tank that it wanted fabricated and that Evans had final approval of the specifications. According to Malcolm, the oxidizer tank was simply a container when it left O'Connor Tanks. He stated that O'Connor Tanks had nothing to do with process piping installed on the tank. He further testified that O'Connor Tanks did not share profits from the fabrication of the tank with any Koschitzky corporate entity.

Sometime after the second oxidizer tank was installed at IKO Chicago, but before the accident resulting in Volpe's injuries, IKO Chicago's general manager, Reynold Hagle, decided to inject waste oil into the oxidizer tank during the oxidation process as a means of disposing of such waste. The waste oil tank accumulates material, including water, from pollution control devices throughout the IKO Chicago plant. Hagle testified at his deposition that he decided to modify the oxidation system to allow for the transfer of material from the waste oil tank into the oxidizer tank so that the material would burn off during the oxidation process. The waste oil entered the air line outside of the oxidizer tank and was blown into the tank along with air. IKO Chicago employees or outside contractors modified the oxidation system in this manner.

Volpe testified at his deposition that, when he arrived at work the afternoon of August 1, 1994, Joe Taylor, a co-worker, informed him that the plant had experienced a power outage earlier in the day. Taylor also stated that they were in the middle of a "blow" when the power went out so that the oxidizer tank was full of flux. The temperature inside the tank was 475 degrees at the time. All other parts of the oxidation system were off and all of the valves related to the operation of the tank were shut. Volpe testified that, when Taylor finally restarted the system several hours later and opened the blower valve, the oxidizer tank was rumbling more than usual and the vents on the "knock out box," which is used to vent fumes from the super heater, were blowing open and shut, indicating a tremendous amount of pressure. Shortly thereafter, the rupture disks on top of the oxidizer tank blew and hot asphalt spewed out of the rupture openings onto Volpe, causing serious burn injuries. According to Volpe, after the accident, Jim Meehan, an IKO Chicago maintenance mechanic, stated that he thought the valve of the waste oil tank was left in the open position the whole time that the oxidation system was not operational, allowing waste oil to flow freely into the oxidizer tank.

On July 24, 1996, Volpe and his wife, Kathleen Volpe, filed a complaint against Industries and numerous other defendants, alleging product liability claims and a claim for loss of consortium against each defendant. We note that the plaintiffs voluntarily dismissed the complaint against certain defendants and that the trial court entered summary judgment in favor of all remaining defendants, including Industries. The plaintiffs appeal only from the summary judgment entered in favor of Industries.

The plaintiffs' complaint alleged, inter alia, that Industries "purchased, shipped and/or sold" an oxidizer tank from O'Connor Tanks, for "delivery and use" at IKO Chicago. According to the complaint, at the time the oxidizer tank was designed, manufactured, sold, and distributed into the stream of commerce, it was in a defective and unreasonably dangerous condition because it lacked an adequate means of relieving pressure which was likely to build up during the use of the tank and because it lacked a means of deflecting the contents of the tank away from people in the event the tank became over-pressurized during use.

In answers to Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)) interrogatories, the plaintiffs identified William Cruice as an expert opinion witness who would testify at trial. According to those answers, Cruice would testify that the oxidizing tank was unreasonably dangerous for its intended use in that it failed to contain a mechanism to deflect material which might foreseeably escape the oxidizer through the rupture openings to an area unoccupied by workers.

At his deposition, Cruice testified that he has a masters degree in chemistry and is also a member of the American Institute of Chemical Engineers. According to Cruice, he has had experience with tanks which have rupture disks, although those tanks were not used for oxidizing. Cruice had "never seen an oxidizer tank and asphalt tank in [his] life other than the one that [he] went to see in Chicago." Although he acknowledged that the suggested deflector device would have to be of sufficient strength so as to withstand any force that would be applied against it as material erupted from the oxidizer tank, he admitted that he had not done any calculations to determine how strong the deflector would have to be. He did not have any drawings or plans of a deflector device intended for use on an oxidizer tank. Notwithstanding, he maintained that it would be feasible to install such a device. According to Cruice, a mechanical engineer would do the calculations to determine the anticipated forces against the ...

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