• Kentucky Federal Court Grants Summary Judgment to Asphalt Kettle Manufacturer Following Worker’s Death
  • June 17, 2014
  • Law Firm: Sutherland Asbill Brennan LLP - Washington Office
  • Following an explosion of an asphalt kettle that severely injured an employee of a roofing contractor working on a public school project, the worker subsequently died from a pain medication overdose and his estate brought suit against the asphalt kettle manufacturer alleging design defect, failure to warn, and breach of warranty claims. An asphalt kettle is used in the asphalt roofing industry to heat solid blocks of asphalt and pump the melted asphalt to a rooftop through a hot line pipe; the operator of the machine is charged with monitoring the kettle’s temperature and adjusting the flow of propane to the kettle’s burners to maintain the asphalt temperature below its flashpoint temperature and above its application temperature.

    The asphalt kettle in question came equipped with an Automatic Temperature Control Sensor that would automatically monitor the temperature and shut off the machine when it reached the limits set by the operator, which obviated the need for the kettle operator to manually monitor the temperature. The worker’s employer, however, had disconnected the automatic sensor approximately one year before the incident because of a concern that the sensor malfunctioned. The instruction manual for the kettle contemplates that it can be operated without the automatic sensor in manual mode but instructs users to monitor the kettle temperature closely to avoid overheating problems if the sensor is disconnected.

    The U.S. District Court for the Western District of Kentucky granted summary judgment to the asphalt kettle manufacturer on all of the estate’s claims. Specifically, the design defect claim was based on the theory that the kettle was defectively designed because it allowed the automatic sensor function to be bypassed. The court, however, determined that the estate’s proffered expert should be excluded on the grounds that the estate failed to raise a material factual dispute as to the admissibility of her expert’s testimony. The court also concluded that the expert was not qualified to give expert testimony on the design of the asphalt kettle, explaining he never operated or designed a kettle, saw them in operation only “in passing,” did not have an opinion as to the cause of the asphalt vapors in the incident, and did not know what was considered “state of the art” in the commercial hot asphalt roofing industry. Moreover, the court found the proffered testimony not reliable because the expert had performed no testing and because he based his testimony regarding how kettles in the industry have been manufactured for the past fifty years on one conversation with another company’s employee who told him that kettles generally “run with temperature gauges.” The expert also failed to identify how the kettle in question differed in design from other asphalt kettles on the market, given that many kettles on the market do not come equipped with the automatic safety sensor.

    The court granted summary judgment to the manufacturer on the estate’s other claims as well, explaining that the breach of warranty claims failed as a matter of law because there was no privity of contract between the manufacturer and the worker.