Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Warner v. Eastern Tanks, Inc.

Superior Court of Rhode Island

June 27, 2014


Washington County Superior Court

For Plaintiff Fred L. Mason, Jr., Esq.

For Defendant James H. Reilly, Esq., David W. Zizik, Esq., Michelle M. Hawes, Esq.



Before this Court are Defendant/Third-Party Plaintiff Valley Heating and Cooling Inc. (Valley) and Third-Party Defendant Viking Supply Company's (Viking) motions for summary judgment pursuant to Super. R. Civ. P. 56. Valley asserts it is entitled to judgment as a matter of law on Counts I-VI of Plaintiffs James and Nancy Warner's (Plaintiffs or the Warners) Amended Complaint alleging negligence, breach of contract, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, breach of express warranty and strict products liability. Viking asserts that it is entitled to judgment as a matter of law on Valley's Third-Party Complaint seeking indemnity. After a hearing thereon and upon consideration of the parties' memoranda, this Court will now render a Decision.


Facts and Travel

This case arises out of a loss resulting from an oil leak of an exterior oil tank on the Warners' property located at 161A East Beach Road in Charlestown, Rhode Island (the Property).

Located in close proximity to the Atlantic Ocean, the Warners sought to replace their old oil tank with one that could withstand the corrosive salt-air environment within which their home is situated. Thus, in or around April 2009, Valley sold and installed an Eastern Tanks, Inc. brand 275-gallon exterior oil tank to the Warners. (Pls.' Am. Compl. at ¶ 5.) Valley had initially bought the tank from Viking, a retailer for the now-defunct Eastern Tanks, Inc., a co-defendant in this suit. (Third-Party Compl. at ¶ 3.) On or about December 18, 2010, however, the oil tank "malfunctioned and/or failed, causing a loss and resulting [in] severe and substantial property damage to the [property.]" (Id. at ¶ 6.)

Thomas Dombrowski (Dombrowski), a professional engineer with Engineering Design & Testing Corp., conducted an initial investigation of the oil tank on January 13, 2011, and concluded that the leak was "the result of an unintended contact of the tank wall with a hard object such as a rock." (Viking's Mem. in Supp. of Mot. for Summ. J., at Ex. F. (Dombrowski Report)). The Warners also had John Certuse (Certuse), a professional engineer with ISE Engineering Inc., perform a second investigation on February 8, 2011. While Certuse could not definitively pinpoint the exact cause of the tank's failure, he concluded that, "[t]he common denominator for the failure of the tank, in our opinion, is due to corrosive conditions likely within the tank [.]" See Supplemental Report of ISE Engineering Inc. in Supp. of Mem. of Law in Supp. of Obj. to Mot. for Summ. J. (Certuse Report). He further opined that the corrosive condition could have been caused by any number of events, including water that leaked from an overlap in the gutter system located directly above the tank, impurities from an older tank that transferred to the new tank, or "a manufacturer initiated condition [.]" Id. at 3.

The Warners filed suit against Eastern Tanks, Inc. and Valley alleging negligence (Count I), breach of contract (Count II), breach of implied warranty of fitness for a particular purpose (Count III), breach of implied warranty of merchantability (Count IV), breach of express warranty (Count V), and strict liability (Count VI). See Pls.' Am. Compl. Valley then filed a Third-Party Complaint against Viking seeking indemnity to the extent Valley is held liable to the Warners. See Third-Party Compl.

After conducting discovery, Viking moved for summary judgment on Valley's Third-Party Complaint. Valley similarly moved for summary judgment on the Warners' Amended Complaint. Both motions came on for hearing before this Court on June 16, 2014.


Standard of Review

In reviewing a motion for summary judgment, the preliminary question before this Court is whether there is a genuine issue as to any material fact which must be resolved. R.I. Hosp. Trust Nat'l Bank v. Boiteau, 119 R.I. 64, 376 A.2d 323 (1977); O'Connor v. McKanna, 116 R.I. 627, 359 A.2d 350 (1976). If an examination of the pleadings, affidavits, admissions, answers to interrogatories, and other similar matters reveals no such issue and the moving party is entitled to judgment as a matter of law, then the suit is ripe for summary judgment. Super. R. Civ. P. 56(c); see also Neri v. Ross Simons, Inc., 897 A.2d 42, 47 (R.I. 2006); Casey v. Town of Portsmouth, 861 A.2d 1032, 1036 (R.I. 2004). In ruling upon a motion for summary judgment, this Court must review such evidence in the light most favorable to the nonmoving party. Casey, 861 A.2d at 1036 (quoting Duffy v. Dwyer, 847 A.2d 266, 268-69 (R.I. 2004) (quotation marks omitted)).

In the face of summary judgment, the party who opposes the motion "carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996); see also McAdam v. Grzelczyk, 911 A.2d 255, 259 (R.I. 2006). It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Although inferences may be drawn from underlying facts contained in material before the trial court, neither conclusory statements nor assertions of inferences not based on underlying facts will suffice. See Minuto v. Metro. Life Ins. Co., 55 R.I. 201, 179 A. 713, 715 (1935) ("[g]eneral denials or expressions of the defendant's belief, or conclusions and inferences of law, and the like" are not sufficient to withstand summary judgment).



Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.