                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 22 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    LOURIE MCCLARAN, Husband;
    KAREN MCCLARAN, Wife,

                Plaintiffs-Appellants,
                                                         No. 01-5069
    v.                                             (D.C. No. 99-CV-1026-C)
                                                         (N.D. Okla.)
    UNION CARBIDE CORPORATION;
    UCAR INTERNATIONAL, INC.;
    UCAR CARBON COMPANY, INC.,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellants Lourie and Karen McClaran challenge the decision of the

United States District Court for the Northern District of Oklahoma granting

summary judgment for appellees, contending there were disputed issues of fact.

We affirm.


                                  I. Background

      Mr. McClaran was severely burned on August 14, 1997, when a furnace he

was working on in the melt shop of Sheffield Steel Mill exploded. The explosion

was the result of water leaking from the furnace’s roof cooling system into the

molten steel within the furnace. The roof on this type of furnace is hollow,

allowing it to be cooled with internal sprays of water. When the roof cooling

system is functioning properly, the water is removed through a vacuum system.

In the event the vacuum system fails, there is an overflow drain on what is

referred to as the “tap side” of the furnace. In addition, water may also escape

through hatches designed to permit visual inspection of the roof. This roof

cooling system was manufactured, sold, and distributed by the Union Carbide

Corporation.

      After the accident, Sheffield Steel conducted an investigation into its

causes and determined they were twofold. First, there was a hole in one of the

vacuum lines, which prevented the vacuum system from functioning properly and

allowed water to collect in the roof. Second, there was a hole in the roof plate,

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allowing the collected water to enter the furnace itself, creating an admixture of

solid steel buildup, liquid steel, and water, which resulted in the series of

explosions that injured Mr. McClaran.

      The water did not escape through the tap side overflow drain because the

furnace was tilted to the opposite, or “slag” side. Further, there were two to three

feet of dust and debris blocking the inspection hatches at the time of the accident.

There was evidence that, in any case, these inspection hatches could not function

as an adequate back-up for the vacuum system.

      The Sheffield Steel accident report set forth several recommendations,

including that all leaks be fully investigated and corrected. Evidence showed that

Sheffield employees had noticed water escaping from the overflow drain on a

regular basis but did not investigate the cause of the problem. A subsequent

report by the Occupational Safety and Health Administration recommended that

an additional overflow drain be placed on the slag side of the furnace, if feasible.

      On August 4, 1999, the McClarans filed their complaint, alleging that

Mr. McClaran’s injuries resulted from a defect in the furnace roof system as

manufactured by Union Carbide. Union Carbide moved for summary judgment,

arguing that the McClarans had failed to produce any evidence that the furnace

roof system was defective when it left Union Carbide’s possession and control.

The district court agreed and entered summary judgment for Union Carbide.


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                                      II. Discussion

       Summary judgment is warranted when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law.     See

Fed. R. Civ. P. 56(c). We review the district court’s decision to grant summary

judgment de novo, applying the same standard as the district court.      Adler v.

Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998).

       In its summary judgment motion, Union Carbide asserted that the

McClarans failed to offer any proof that the roof system was defective as

manufactured. Union Carbide also argued that the proximate cause of the

explosion was the failure of Sheffield Steel employees to keep the inspection

hatches free of dust and debris, and otherwise inspect and maintain the furnace.

The McClarans countered that the defect in the furnace was the absence of a

second overflow drain on the slag side of the furnace, and that this defect was the

proximate cause of the accident.

       The district court applied the standard articulated in    Dutsch v. Sea Ray

Boats, Inc., 845 P.2d 187, 190 (Okla. 1992): to succeed on a theory of product

liability, the plaintiff must prove that (1) the product was the cause of the injury;

(2) the defect existed in the product at the time the product left the

manufacturer’s possession and control; and (3) the defect made the product

unreasonably dangerous to the user.


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      Here, the McClarans argued that the accident would not have occurred if a

slag side overflow drain had been included in the design, and that failure to

include the drain was a defect that was present when the roof-cooling system left

the possession and control of Union Carbide. As the district court emphasized,

however, the slag side drain was only necessary if the vacuum system failed. The

McClarans presented no evidence that the vacuum system was prone to failure or

otherwise inherently defective as manufactured.


                                  III. Conclusion

      Having reviewed the briefs and appendices filed by the parties, we

conclude the district court did not err in granting summary judgment for

defendants. Accordingly, we AFFIRM the judgment of the United States District

Court for the Northern District of Oklahoma.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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