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Messer v. B&B Hot Oil Serv., Inc.

Supreme Court of North Dakota

August 17, 2015

Neal and Bonnie Messer, Plaintiffs and Appellants
v.
B& B Hot Oil Service, Inc. and JB's Welding, Defendants, JB's Welding, Appellee

Page 374

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

Randall J. Bakke (argued) and Shawn A. Grinolds (on brief), Bismarck, ND, for plaintiffs and appellants.

Lawrence E. King, Bismarck, ND, for defendant and appellee, JB's Welding.

Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Carol Ronning Kapsner, Lisa Fair McEvers. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Page 375

Gerald W. VandeWalle, Chief Justice.

[¶1] Neal and Bonnie Messer appealed from a district court judgment and order granting defendants summary judgment and dismissing their claims under theories of strict products liability and negligence against JB's Welding. We reverse and remand.

I

[¶2] The Messers owned a building located in close proximity to a building owned by Steve Forster and Daniel Krebs. An explosion occurred in the Forster/Krebs building and subsequently damaged the Messers' building. B& B Hot Oil Service, Inc. held a lease on the west half of the Forster/Krebs building. B& B stored two hot oil trucks inside the building. The trucks were a 2005 vehicle designed and manufactured by Energy Fabrication, and a 2009 vehicle referred to as the " knockoff" truck jointly constructed by B& B and JB's Welding through reverse engineering of an EnerFab vehicle.

[¶3] The deposition testimony was that a hot oil truck holds various chemicals to flush and clean oil wells and lines, including propane. An investigation into the explosion determined both trucks were storing propane at the time of the explosion, and the source of the explosion allegedly started in the B& B leased space. The EnerFab truck's propane levels were found to be near capacity while the reverse engineered truck's propane levels were significantly lower. The investigation also indicated that the explosion was a result of a propane leak from the reverse engineered truck.

[¶4] The Messers filed claims against both B& B and JB as a result of the explosion. The Messers claim JB is liable for damage to their building under both theories of strict products liability as a manufacturer of the reverse engineered truck and negligence in construction of the truck. They alleged that the EnerFab vehicle design includes an electronic failsafe control valve for the propane storage which acts as a shutoff safety feature in case manual control valves fail to close or leak, and the reverse engineered truck did not include a failsafe control valve. They further allege JB was responsible for installation of prefabricated propane lines as well as " fireboxes" or " burner boxes" used to heat the hot oil contained in the vehicle.

[¶5] JB moved for summary judgment and dismissal of the claims. At the hearing, the Messers presented the affidavit of an expert witness who stated that an " LP gas system to shut the gas off in the event of a leak . . . should have been addressed and designed into the system in conjunction with the firebox ...


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