BEHRENDT V. GULF UNDERWRITERS INSURANCE CO.
768 N.W.2d 568 (2009)
NATURE OF THE CASE: Behrendt (P) appealed a decision, which affirmed a grant of summary
judgment for Gulf (D), a company and its insurer, in P's action after he was injured when a
tank exploded while he was using it at his job in an oil change business.
FACTS: Silvan manufactures tanks to be used under pressure. Pressurized vessels are
subject to strict manufacturing codes and third-party inspection; after each tank is tested,
inspected and certified, it is labeled and registered with the National Board of Boilers and
Pressure Vessel Inspectors. Holes were cut in any scrapped tanks to make them worthless as
pressurized vessels. Linczeski needed a piece of equipment to collect oil drained from
vehicles. He went to his father-in-law, Fisher, who worked at Silvan (D). Fisher and a
co-worker, Sommers, welded pieces of scrap metal to create a large flat-bottomed cylinder
with a domed top. The tank was several feet high and held about 55 gallons of oil, was
delivered to Linczeski. Linczeski got Harding, a plumber, to plug several holes in the side
of the tank. The plumber also fitted the tank with valves--one for the top that allowed oil
to be drained into the tank but could be closed to keep oil from splashing out when the tank
was moved, and one at the bottom of the tank to allow oil to be drained out of the tank.
Wheels were added to the bottom to make it easy to move around, and studs were added to the
side so that wrenches could be hung on the tank. Linczeski's modifications included having
one of the plugs that had originally plugged a hole taken off the tank and substituting
instead a fitting that could be hooked up to an air hose. Air pressure could then be used to
empty the tank. Several years later, P, an employee of Linczeski's, was using the tank with
air pressure. It exploded, and he was injured. P sued Silvan, alleging negligence; he also
sued Fisher for negligence and, in connection with Fisher's alleged negligence, alleged
vicarious liability against Silvan for Fisher's acts as its employee. Silvan (D) moved for
summary judgment. It was granted and P appealed. The court of appeals affirmed; D did not
owe P a duty and it was unforeseeable that a tank not fit for pressurization would be taken
by an employee of D and used for a pressurized application. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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