                            STATE OF MICHIGAN

                            COURT OF APPEALS



CARMEL BROWN,                                                       UNPUBLISHED
                                                                    December 9, 2014
               Plaintiff-Appellant,

v                                                                   No. 316666
                                                                    Wayne Circuit Court
FERROUS PROCESSING AND TRADING                                      LC No. 10-015046-NI
COMPANY, CONESTOGA-ROVERS &
ASSOCIATES, INC., and WEAVERTOWN
ENVIRONMENTAL GROUP, INC., d/b/a
WEAVERTOWN GROUP INC.,

               Defendants-Appellees,

and

DEARBORN REFINING COMPANY,

               Defendant.


Before: CAVANAGH, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (dissenting)

       I respectfully dissent and would hold that the trial court erred in failing to find genuine
questions of material fact.

        I agree with the majority’s analysis of the law, but I would find ample evidence in the
record to establish a genuine question of material fact for trial. The work site was known to be
unstable and dangerous, and all who worked on site were expected to proceed with great caution.
The eyewitnesses to the injury consistently stated that flames came out of the tank while plaintiff
was cutting the tank with his torch. Defendants not only did not witness the accident, they
discarded plaintiff’s burned clothing instead of preserving it for possible analysis and testing.
Furthermore, there is apparently some dispute as to which tank was involved, one of which had
paperwork certifying that it had been cleaned and the other of which did not. A few days prior to
the injury, there was a documented flare-up on a tank undergoing processing that was found not
to have been properly cleaned.




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          The majority provides a list of matters about which plaintiff failed to provide testimony,
to wit:

          (1) that residual oil in a storage tank poses a risk of fire, (2) that oil is flammable,
          (3) the amount of oil required to start a fire, (4) that other types of flammable
          substances could have been in the storage tank, (5) that a torch-cutting process
          could ignite oil or another substance that remained in the tank, or (6) that, more
          likely than not, but for defendants’ failure to properly inspect and clean the
          storage tank of residual oil or another substance, plaintiff would not have been
          burned.

I simply fail to apprehend why at least some of those matters even require testimony, it being a
matter of common, everyday knowledge and experience that very few oils are not flammable,
and certainly the hydrocarbon oils that would have been stored in the tank are very well known
to be flammable. It consequently stands to reason that fire is likely to ignite flammable
substances, and the presence of flammable substances in an oxygenated environment poses a risk
of fire. These are not arcane scientific matters of great mystery to ordinary adults. It was known
that these tanks were used for storing oil; I likewise fail to apprehend why special testimony
would be required to show that, unless they had been specifically tampered with, anything other
than oil would be present inside, or to show that, unless they had been inspected and cleaned,
some residual oil would not remain inside. Expert testimony is only proper where the matters
being testified to would be outside the knowledge or understanding of jurors. The obvious
causal connection between storing oil in a container, failing to clean the container, exposing the
container to flame, and some manner of resulting combustion is not rocket science.

        I agree with the majority that plaintiff’s theory of the case must amount to more than a
possibility or mere conjecture to withstand summary disposition. Here, however, I perceive no
way to seriously dispute that the tanks by default were contaminated with potentially dangerous,
flammable oil that would naturally tend to combust when exposed to oxygen and flame,
something that requires no expertise to appreciate poses a danger to anything nearby. There is a
serious disagreement as to whether the tank had, in fact, been cleaned. Whether any party truly
understood what actually occurred, the evidence appears, within the confines of the established
factual dispute, to point far more naturally to plaintiff’s theory of the case than to defendants’
theory that molten metal must have splattered onto plaintiff’s clothes. I would find that there is a
genuine question of material fact and that plaintiff has established more than a merely possible
theory of causation. However, because the majority does not address any other issues, I decline
to do so at this time as well.



                                                                 /s/ Amy Ronayne Krause




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