Kreutner et al. v. Waterloo Oxford Co-operative Inc. et al [Indexed as: Kreutner v. Waterloo Oxford Co-operative Inc.]

50 O.R. (3d) 140

[2000] O.J. No. 3031

Docket No. C33362

Court of Appeal for Ontario

McMurtry C.J.O., Borins and Feldman JJ.A.

August 18, 2000

Civil procedure -- Summary judgment -- Genuine issue for trial -- Plaintiffs' home damaged in fire and explosion occurring after gas from propane tank escaped -- Plaintiffs alleging negligent manufacture and design of valve installed in propane tank -- Purpose of motion for summary judgment to isolate and then terminate claims and defences that are factually unsupported -- Plaintiffs' claims dismissed on motion for summary judgment -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.

Negligence -- Product liability -- Design defect -- Plaintiffs' home damaged in fire and explosion occurring after gas from propane tank escaped -- Plaintiffs alleging negligent design of valve installed in propane tank -- Plaintiffs required to identify design defect in valve, establish that defect created substantial likelihood of harm and show that there existed alternative design that was safer and economically feasible to manufacture -- Plaintiffs' claim factually unsupported -- Claim dismissed on motion for summary judgment.

Negligence -- Product liability -- Failure to warn -- Plaintiffs' home damaged in fire and explosion occurring after gas from propane tank escaped -- Plaintiffs alleging failure to warn -- Plaintiffs required to establish that manufacturer knew or ought to have known of danger inherent in product's use -- Plaintiffs' claim factually unsupported -- Claim dismissed on motion for summary judgment.

The plaintiffs' home was being painted by painters of the defendant SMP when, in attempting to reconnect a propane tank to a barbeque, the painters tipped over the tank. Gas escaped and it was ignited by a swimming pool heater, which was under the deck on which the barbeque was located. The plaintiffs' home was seriously damaged in the resulting explosion and fire. The plaintiffs sued SMP and WCC Inc., the manufacturer of the tank, and S Corp., the manufacturer of the valve installed in the tank. The allegations against S Corp. were that it had defectively manufactured and designed the valve and that it had failed to provide any warning of the danger arising from defective design. S Corp. moved for a summary judgment dismissing the plaintiffs' claims. Its motion was supported by the uncontradicted evidence of an expert who opined that there was no design defect. The motion was resisted by the plaintiffs, who provided a report obtained six years after the accident that contained a theory of how the explosion and fire occurred, but contained no opinion about the design of the valve.

Whitten J. granted, in part, S. Corp.'s motion for a summary judgment; he dismissed the plaintiffs' claim based on S. Corp having negligently manufactured the value but he did not dismiss the claims with respect to the allegations of negligent design and failure to warn. S Corp. appealed unsuccessfully to the Divisional Court. Leave having been granted, S Corp. appealed to the Court of Appeal for Ontario.

Held, the appeal should be allowed.

The essential purpose of a motion for summary judgment is to isolate and then terminate claims and defences that are factually unsupported. In the case of a defendant's motion for summary judgment, although the defendant has the onus of establishing the absence of a genuine issue for trial, the plaintiff bears an evidentiary burden of showing that its claim is adequately supported by the evidence. The motions judge is entitled to assume that the record contains all evidence that the parties will present if there is a trial. In the immediate case, for the claim based on defective design to succeed, the plaintiffs were required to identify the design defect in the valve, establish that the defect created a substantial likelihood of harm, and that there exists an alternative design that is safer and economically feasible to manufacture. The plaintiffs, however, presented no evidence of a design defect or of an alternative feasible design for the valve. For their claim based on a failure to warn, the plaintiffs were required to establish that the manufacturer knew or ought to have known of a danger inherent in the product's use. The plaintiffs, however, provided no evidence of any such danger and, in any event, the manufacturer of the tank attached a warning to the tank about the dangers inherent in the use of propane. The plaintiffs' claims for design defect and failure to warn were therefore not factually supported. This case presented a paradigm of when a defendant has successfully established the absence of a genuine issue for trial. In the result, the appeal should be allowed and the claims against S Corp. should be dismissed in their entirety.

APPEAL from an order of the Divisional Court that affirmed an order dismissing in part a motion for summary judgment.

Cases referred to Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.); Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634, 14 B.C.L.R. (3d) 1, 129 D.L.R. (4th) 609, 190 N.R. 1, [1996] 2 W.W.R. 77, 26 B.L.R. (2d) 169, 27 C.C.L.T. (2d) 1 (sub nom. Hollis v. Birch); Rentway Canada Ltd. v. Laidlaw Transport Ltd. (1989), 49 C.C.L.T. 150, 16 M.V.R. (2d) 86 (Ont. H.C.J.), affd [1994] O.J. No. 50 (C.A.)

Robert B. Bell and Robert L. Love, for appellant, Sherwood Corporation. Edward J. Vanderkloet, for respondents.

The judgment of the court was delivered by

[1] BORINS J.A.: -- This is an appeal by the defendant Sherwood Corporation ("Sherwood"), with the leave of this court, from the order of the Divisional Court dismissing its appeal from the order of Whitten J. dismissing, in part, its motion for summary judgment. It is the position of Sherwood that the Divisional Court erred in finding that there was a genuine issue for trial with respect to the plaintiffs' allegations that it had defectively designed a valve which controls the flow of propane from a propane tank and that it had failed to warn of the dangers arising from the defective design.

[2] Sherwood is one of several defendants who were sued by the insurer of George Alan Kreutner ("Kreutner") whose home was seriously damaged by a propane explosion and fire which occurred while Kreutner's home was being painted by the defendant Simm Master Painters. Sherwood manufactured the valve which was installed in a propane tank manufactured by another defendant, Worthington Cylinders of Canada Inc. Kreutner used the propane tank to fuel his barbecue, which was located on a wooden deck at the rear of his home. While the defendant painters were attempting to reconnect the propane tank to the barbecue the tank tipped over and propane gas that leaked from it was ignited by Kreutner's swimming pool heater, which was located under the deck below the barbecue. The resulting explosion and fire were the cause of the damage to Kruetner's home.

[3] Kreutner sought recovery from Sherwood on the grounds that it had defectively designed and manufactured the valve and that it had failed to provide any warning of the danger arising from the defective design.

[4] Sherwood moved for summary judgment dismissing the plaintiffs' claims. The motion was supported by the evidence of its expert, James Petersen, whose opinion that there was no defect in the design of the valve was not contradicted by any expert evidence adduced by the plaintiffs. The best the plaintiffs could do was to produce a report from Walters Engineering, obtained more than six years after the accident, which contained a theory of how the explosion and fire may have occurred, but contained no opinion about the design of the valve. Indeed, in the ten years since the explosion, the plaintiffs have been unable to identify any defect in the design of the valve.

[5] As plaintiffs' counsel conceded that he was unaware of any defect in the manufacture of the valve, Whitten J. granted partial summary judgment dismissing the plaintiffs' claim based on this allegation. However, he dismissed the motion for summary judgment with respect to the allegations of defective design and failure to warn. No reasons for the decision were given.

[6] Writing on behalf of the Divisional Court, Blenus Wright J. referred to the report of Walters Engineering which he said suggested, as a theory of how the explosion occurred, that even though a valve may appear closed when a propane tank is in an upright position and no escape of propane gas is evident, the valve may in fact be slightly open, and when the tank is tipped over it is possible that the valve may leak propane gas. Wright J. continued:

We are of the view that the various possible causes of the fire and explosion should be left for determination by the trial judge. It is our view that since there is some evidence that the design of the valve and/or the failure to warn about tipping over a propane tank could be a contributing cause to the fire and explosion there is a genuine issue for trial. We see no reason to interfere with the decision made by Whitten J. to allow those issues to proceed to trial. Therefore the appeal is dismissed.

[7] To determine whether the record before the motions judge contained evidence which raised a genuine issue for trial as to whether Sherwood had defectively designed the valve, it is necessary to consider what the plaintiffs must prove in order to succeed on this claim.

[8] For the purpose of this appeal, it is unnecessary to state definitively the ingredients of a claim based on the defective design of a product. However, to succeed in this case the plaintiffs are required to identify the design defect in Sherwood's valve, establish that the defect created a substantial likelihood of harm and that there exists an alternative design that is safer and economically feasible to manufacture: Rentway Canada Ltd. v. Laidlaw Transport Ltd. (1989), 49 C.C.L.T. 150, 16 M.V.R. (2d) 86 (Ont. H.C.J.), affirmed [1994] O.J. No. 50 (C.A.).

[9] The only evidence in the record bearing on the design of the valve is that of Sherwood's expert, Petersen, who opined that there is no defect in the design. In my view, this evidence is uncontradicted. The plaintiffs have failed to produce any expert opinion that identifies a defect in the valve's design, or that states a safer valve could easily be manufactured at a reasonable cost that would have prevented the explosion and fire. As I have stated, the best the plaintiffs were able to do in response to Petersen's opinion was to procure Walters' report theorizing on the cause of the explosion and fire.

[10] In Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.), this court considered the purpose of Rule 20 of the Rules of Civil Procedure, the summary judgment rule. At p. 262 the court stated: "The essential purpose of summary judgment is to isolate, and then terminate, claims and defences that are factually unsupported." In the case of a defendant's motion for summary judgment as in this appeal, the plaintiff bears the evidentiary burden of demonstrating that its claim is adequately supported by evidence. As the court said at p. 267:

At the summary judgment stage, the court wants to see what evidence the parties have to put before the trial judge, or jury, if a trial is held. Although the onus is on the moving party to establish the absence of a genuine issue for trial, as rule 20.04(1) requires, there is an evidentiary burden on the responding party who may not rest on the allegations or denials in the party's pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. The motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.

[11] In my view, in concluding that there was a genuine issue for trial in respect to the claims based on defective design and the failure to warn, the Divisional Court erred in confusing causation and proof. Without evidence to prove there was a design defect in the valve, it was unnecessary for the court to consider whether the purported design defect was a contributing cause of the explosion which resulted in the fire. As I have pointed out, not only have the plaintiffs been unable to adduce any evidence of design defect, they have adduced no evidence of any alternative safer design which is economically feasible to manufacture. Moreover, the evidence in the record points to the explosion having been caused by the negligence of the painters in their handling of the propane tank and Kreutner's contributing negligence in locating the swimming pool heater below the deck, beneath the barbecue.

[12] In my view, this case presents the paradigm of when a defendant has successfully established the absence of a genuine issue for trial. On the basis of the record, it is clear that the plaintiffs' claim, founded on an alleged defective design, is not factually supported. It follows that Sherwood should have succeeded in its motion for summary judgment in respect to the defective design claim.

[13] A similar result should have been reached respecting the plaintiffs' claim founded on the allegation of Sherwood's failure to warn. A manufacturer's duty to warn consumers arises only where there is a danger it knows, or ought to know, is inherent in the product's use: Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634, 129 D.L.R. (4th) 609. The plaintiffs have provided no evidence of any such danger, with the result that their claim founded on an alleged failure to warn is not factually supported. In any event, the manufacturer of the propane tank, Worthington, attached to the propane tank a clear warning respecting dangers inherent in the use of propane.

[14] In the result, the appeal is allowed, the order of the Divisional Court is set aside and there will be an order dismissing the plaintiffs' claims against Sherwood in their entirety. Sherwood is entitled to its costs of the motion for summary judgment, its motion for leave to appeal to the Divisional Court, the appeal to the Divisional Court, its application for leave to appeal to this court, its appeal to this court, as well as its costs of the action.

Order accordingly.