UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY ELIZABETH REEVES, Ancillary
Administrator C.T.A. of the Estate
of Robert Bruce Reeves,
Plaintiff-Appellant,

v.
                                                                 No. 96-1375
H. N. FUNKHOUSER & COMPANY,
INCORPORATED; OLD WORLD
INDUSTRIES, INCORPORATED;
INDUSTRIAL TERMINAL SYSTEMS,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
B. Waugh Crigler, Magistrate Judge.
(CA-94-94-H)

Argued: January 28, 1997

Decided: April 8, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel Leroy Fitch, WHARTON, ALDHIZER & WEA-
VER, P.L.C., Harrisonburg, Virginia, for Appellant. John David
McGavin, TRICHILO, BANCROFT, MCGAVIN, HORVATH &
JUDKINS, P.C., Fairfax, Virginia, for Appellees. ON BRIEF: Kevin
M. Rose, WHARTON, ALDHIZER & WEAVER, P.L.C., Harrison-
burg, Virginia, for Appellant. W. F. Drewry Gallalee, WILLIAMS,
MULLIN, CHRISTIAN & DOBBINS, Richmond, Virginia; John W.
Zunka, TAYLOR, ZUNKA, MILNOR & CARTER, LTD., Char-
lottesville, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert Reeves, a construction company employee, was killed by an
explosion that occurred when he cut into an empty 55-gallon drum
with an acetylene torch, intending to make a trash barrel. The drum
had previously been used to ship antifreeze to the construction com-
pany.

Reeves' widow brought this wrongful death action, alleging under
Virginia law that the manufacturer, the distributor, and the seller of
the original 55-gallon drum of antifreeze breached express and
implied warranties and were negligent. She alleged that at some point
before the drum left the defendants' control, gasoline was introduced
into the drum, causing it to explode when the drum was cut, and that
the defendants failed to warn of this hazard.

The defendants filed a motion for summary judgment on the
ground that Reeves' widow could not present any evidence that the
gasoline was introduced during the antifreeze manufacturing process
or that it was in the drum when it left the custody of the defendants.
On the contrary, they presented evidence suggesting that Reeves'
employer, a road contractor, may have used drums of the type
involved here earlier to store gasoline at the construction site or to

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transport it. They also presented evidence tending to support affirma-
tive defenses that Reeves had been contributorily negligent, had
assumed the risk of his injuries, and had misused the drum. The dis-
trict court granted the defendants' motion for summary judgment,
concluding that Reeves' widow failed to present any evidence that
gasoline was present in the drum when it left control of the defen-
dants. It also concluded that Reeves was, as a matter of law, contribu-
torily negligent or assumed the risk of his injuries. This appeal
followed.

We have reviewed the record carefully and have considered the
arguments of counsel, presented both in their briefs and at oral argu-
ment. Yet, we have been directed to no evidence, nor have we been
able to find any, from which a rational jury could conclude that the
defendants introduced gasoline into the drum or that the drum con-
tained gasoline when it left their possession. Although Reeves' widow
presented evidence that the drum did contain traces of gasoline at the
time of the explosion and that traces of gasoline could be found in the
antifreeze of some of the vehicles used by the construction company,
she was unable to demonstrate that the defendants were the source of
that gasoline. At most, she speculates that the gasoline could have
been in the drum before it reached the defendants, because the drum
was a reconditioned drum, and that the defendants' inspection proce-
dures may have been lacking. But she presented no evidence that the
drums ever had gasoline in them or that the manufacturing of anti-
freeze involved the use of gasoline.

While the accident was a tragic one, the evidence that Reeves'
widow was able to develop against these defendants is simply too
conjectural to sustain her burden. Accordingly, we affirm the district
court's entry of summary judgment without the need to review the
district court's decision on defendants' affirmative defenses.

AFFIRMED

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