Summary
finding that while the unloading of sulfuric acid from a tanker into hose and nozzle is a dangerous enterprise, it is not an ultrahazardous activity because the danger can be eliminated by the proper use of handling procedures
Summary of this case from ST. CYR v. FLYING J INCOpinion
No. 3D01-2064.
July 3, 2002.
An Appeal from the Circuit Court for Dade County, Philip Bloom, Judge.
Hardy Bissett, P.A., and G. William Bissett, Miami, for appellants.
Frost Tamayo Sessums Aranda, P.A, and John W. Frost, II and Peter W. Van Den Boom (Bartow); Michael Rudd, Miami, for appellees.
Before JORGENSON, SHEVIN, and SORONDO, JJ.
Plaintiffs below appeal from a final judgment. We affirm.
The trial court properly concluded that the "drum off unloading of sulfuric acid from a tanker through a hose and nozzle under pressure, into multiple individual fifty-five-gallon drums is a dangerous enterprise, but it is not an ultrahazardous activity; the danger attendant to that activity can be eliminated by the use of proper handling procedures. See Edwards v. Post Transp. Co., 228 Cal.App.3d 980, 279 Cal.Rptr. 231 (1991) (applying Restatement (Second) of Torts §§ 519, 520 and holding that delivery of sulfuric acid to storage tank not an ultrahazardous activity because risk could be eliminated through exercise of reasonable care); compare Old Island Fumigation, Inc. v. Barbee, 604 So.2d 1246 (Fla. 3d DCA 1992) (applying Restatement (Second) of Torts §§ 520, 522 and holding that fumigation is ultrahazardous activity because risk cannot be eliminated by exercise of utmost care).
We find no merit in the remaining points on appeal.
AFFIRMED.
JORGENSON and SORONDO, JJ., concur.
I agree with the court's disposition as to the ultrahazardous activity claim. However, I would reverse as to the trial court's failure to include CTL Distribution, Inc., on the verdict for the jury to determine CTL's independent negligence. Baltodano presented evidence that CTL had breached its independent duty to ensure Smith's compliance with the statutory regulations and to impose work conditions under which the, sulfuric acid could be safely offloaded. Accordingly, I would hold that the trial court erred in precluding the jury from making a determination as to CTL's independent negligence. See Phillips v. Parkside of Fountainbleau Condo. Ass'n, 634 So.2d 1101 (Fla. 3d DCA 1994).