How Gas Laws Helped Me Prevail on Appeal

Vol. 20 •Issue 7 • Page 11
Legally Speaking

How Gas Laws Helped Me Prevail on Appeal

Many lessons I learned in respiratory therapy school have proven to be helpful in adult life. For example, Doug Johnson, RRT, and Clint Austin, RRT, two fellow students, used the Ideal Gas Law to explain why we made certain ventilator changes. A nurse would frequently get, “Hey, PV=NRT. It’s the law,” in response to a question about why we’d changed the PEEP or altered the FIO2. As a therapist, I never thought I’d be quoting the gas laws to the Supreme Court.

Recently I had the opportunity to exploit my superior knowledge of gas physics in a particularly tragic case in Missouri. Eric Burns, a cement truck driver, found his water pressure tank leaking. The tank had been cannibalized from an old truck. He went to his boss and asked him to replace the tank.

The boss decided to fix it instead by welding it. Not only was the boss, Mr. Smith, not a certified welder, but also he needed eyeglasses and refused to see a doctor for a prescription. Smith patched the tank by placing gobs of weld over rusted and corroded portions of the tank. When Burns asked Smith whether the truck was safe, Smith replied, “Run it ’til it blows.”

Cement trucks use pressurized water tanks to hose out the truck and clean off the equipment at the end of a job. The tanks contain hundreds of gallons of water and enough air pressure to create a serious explosion hazard.

Burns filled the tank, went to his job and was seriously injured when the water pressure tank explosively decompressed while he was returning to the cement plant.

Under Missouri law, Burns could not sue the company where he worked because workers’ compensation is the exclusive remedy. However, there is an exception which permits workers to sue other workers where the worker creates a dangerous environment. Burns sued Smith under this doctrine, and the case went to trial in 2005.

The trial court found for the plaintiff and awarded damages. The defendant appealed and the appeals court held that running a cement truck with a rusted, corroded water tank was not unreasonably hazardous. One judge disagreed, and the case was sent to the Supreme Court for review. Our firm represented Burns on appeal.

The defendant’s team argued Smith should not be liable because other cement companies weld water tanks to repair leaks and it was not reasonable for Smith to know his conduct in welding the water tank was dangerous.

“This argument overlooks the evidence of the inherent danger in such tanks. It also ignores Smith’s own directive to Burns ‘that he run it ’til it blows,’” I argued. “But far more importantly, Smith’s argument runs contrary to common sense, logic and the physics of gas under pressure.”

Instead of citing a law book or a statute, the brief filed in the case made reference to Boyle’s Law and the equation, PV=NRT. The Supreme Court heard the argument in September 2006, and issued its opinion on Feb. 13, 2007.

The Court said: All witnesses agreed that placing a weld over rust and corrosion creates a dangerous condition that would eventually fail, and that a welded, corroded leaking water pressure tank could explode. The plaintiff’s expert testified that it was a mistake to have attempted to weld this tank in particular, and even the defendant’s brother agreed that one is not supposed to weld over metal that is in such a condition due to the fact that the weld will not hold. When shown photographs of the irregular daubs of weld he had placed on the rusted tank—the location where it eventually exploded—the defendant was asked to explain why some of the daubs of weld were in a direction different than the main line of the weld. He then testified that this was because at age 54 he does not ‘see very good’ and that he really needs glasses—and therefore ‘has trouble when he tries to weld.’ He characterized his inability to see what he was welding as a ‘kind of a feeling in the dark thing.’

In the case at hand, the most compelling evidence that establishes the “something more” element is that the defendant instructed the plaintiff to “run it ’til it blows,” which was a not-too-subtle admission that the plaintiff was aware the water tank was dangerous and would eventually explode. By those words, the defendant intentionally directed the plaintiff to undertake an activity that he knew would result in a particularly dangerous event.

Whether the act of negligently welding an excessively corroded water tank would have been sufficient to satisfy the “something more” requirement need not be determined, because the defendant’s instruction to “run it ’til it blows” surely did.

Sadly, the court’s opinion did not make reference to the laws of gas physics. But clearly the defendant’s statement to “run it ’til it blows” shows the defendant appreciated the hazards described by PV=NRT.

This case underscores the importance of understanding and appreciating hazards when working with compressed gases and tanks under pressure both inside and outside the hospital. As individuals who work regularly with compressed gas cylinders, therapists should never underestimate the power of compressed gas and the potential for harm. Therapists, by virtue of their skill, training and education, are held to a higher standard with respect to compressed gases than are janitors and non-professionals.

Therapists should never instruct a patient to disregard safety warnings or to, in effect, “run it ’til it blows.” Therapists should be careful to explain the dangers of tanks when placing the devices in a patient’s home and should be especially careful to point out the fire safety hazards. When teaching patients at home about gas cylinders, therapists should warn patients specifically about the dangers of explosive decompression if the tank falls and the yoke is damaged. Failure to warn could result in therapists being liable for placing a dangerous product in the patient’s home.

Remember: PV=NRT. It’s the law!

A.L. DeWitt is affiliated with the law firm of Bartimus, Frickleton, Robertson and Obetz, Jefferson City, Mo. This column provides an overview of legal issues and is not a substitute for the advice of qualified legal counsel.