BEFORE ROY NOBLE LEE, P.J., PRATHER AND ANDERSON, JJ.
PRATHER, JUSTICE, FOR THE COURT:
The central issue in this appeal is the applicability of the doctrine of strict liability in tort to the construction of an oil well by an oil company for its own use. Getty Oil Company, the owner/operator of an oil well, is charged with selling a defective" product "with a wellhead equipment design defect into the stream of commerce, which" product "caused the injury to the plaintiff James D. Holifield. From the granting of a summary judgment by the Circuit Court of Jones County to Getty Oil Company *fn1, James D. Holifield appeals, alleging the following errors:
(1) Summary judgment was not proper because of the presence of material factual disputes.
(2) The trial court erred in holding that the doctrine of strict liability did not apply in this case.
(3) Summary judgment was improperly granted prior to the completion of discovery.
(4) The trial court erred in granting Getty's motion for summary judgment based on alleged negligence for failure to exercise reasonable care to protect foreseeable users from injury by the wellhead equipment.
The facts here center around an oil well site known as the Matt-Eddius 32-4 Number One, Clark County, Mississippi. The oil well equipment was constructed when the well was owned and operated by Skelly Oil Company (Skelly). Skelly merged with the defendant Getty Oil Company, a Delaware Corporation, in 1977, with Getty assuming the liabilities of its predecessor, Skelly. In 1982 Getty Oil Company conveyed all its interest in this well to Austin Oil Company, Inc., a
Mississippi Corporation. The sale was of all the equipment, including the wellhead and was sold without warranty as to fitness for use in its" as is "condition. The well was in fact not producing and was temporarily abandoned. Getty intended to permanently plug and abandon the well; however, Frank Austin, of Austin Oil Company, both also defendants, negotiated the purchase of the well for a stated price without competitive bids.
On January 9, 1983, James D. Holifield was employed by Emsco Wireline and was working at the well site in question. Another company, Pitts Swabbing Company, was also working at the site conducting a" swabbing operation "during which operation there was expelled from the well hydrogen sulfide gas (H2S gas). Holifield inhaled some of this poisonous gas and suffered permanent physical and emotional injury, for which this suit is brought.
WAS SUMMARY JUDGMENT PROPER BECAUSE OF THE PRESENCE OF MATERIAL FACTUAL DISPUTES?
The first theory of recovery in this suit is on the basis of strict liability in tort. The plaintiff alleged that the wellhead equipment, known in the industry as the" Christmas tree ", contained a design defect rendering the equipment unreasonably dangerous for its intended use. The valve of the wellhead was closed by use of a handle; however, the valve handle turned into a ladder placed close to the handle so as to prevent full closure. In order to completely close the valve, it was necessary to remove the handle and close the valve manually with thirteen revolutions of a crescent wrench. The plaintiff alleged that his injury was caused by the inability to close and seal the master valve due to the positioning of the ladder and handle. It is alleged that this positioning constituted a design defect present when the well was constructed by Skelly and for which Getty was strictly liable by its assumption of Skelly's liabilities. These facts are undisputed except as to the presence of a design defect.
Upon motion for summary judgment, affidavits in support and in opposition thereto, briefs of counsel and arguments, the trial court found that as a matter of law there was no genuine issue of any material fact and granted summary judgment in favor of Getty on the strict liability theory of recovery. Applicable to the disposition of this assignment is Rule 56 (c), Miss. R. Civ. P. which provides as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The standard of review applied by this Court when analyzing the granting of a summary judgment motion under M. R. C. P. 56 is found in the case of Pearl River County v. Southeast Collection Agency, 459 So.2d 783 (Miss. 1984), in which this Court stated:
Summary judgment is appropriate only where the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The power to grant summary judgment is not discretionary with the trial court and the above test must be met in all cases.
In Brown v. Credit Center, Inc., 444 So.2d 358 (Miss. 1983), this Court stated:
The argument that there exists no genuine triable issue of material fact is the functional equivalent of a request for a peremptory instruction. It merely occurs at an earlier stage in the life of a civil action. The trial court must review carefully all of the evidentiary matters before it - admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied. Compare generally, Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975); City of Jackson v. Locklar, 431 So. 2d 475, 478-479 (Miss. 1983).
The legal argument upon which Getty's motion for summary
judgment was based was that this action is not covered by products liability law. The seminal case in which this Court adopted Sec. 402A of Restatement of Torts, in which strict liability was enunciated, was the case of State Stove Mfg. Co. v. ...