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Affirmed and Opinion filed March 27, = 2007.

 

In The

 

Fourteenth Court=20 of Appeals

_______________

 

NO. 14-04-01022-CV

_______________

 

ABEL ARGUELLESS, LAURA ARGUELLES, TERRIE = A.=20 AUGUSTINO, PETRA RENEE BARFIELD, WILLIAM A. BARFIELD, ADOLPH = BROWN,=20 DESMOND BURNETT, DORA A. BURNETT, RICKY A. CARTER, CARL RAY CRANE, = DENNIS=20 M. CURRY, STEPHANIE L. CURRY, PAUL KEVIN CUTRER, SONDRA DORFLINGER = CUTRER,=20 CHRISTY DURDEN, RANDAL WILLIAM DURDEN, ARTHUR ESCOBEDO, JANIE = ESCOBEDO,=20 DEREK TODD EVETT, KIMBERLY EVETT, KAREN GEORGE, ROCKY D. GEORGE, = LINO A.=20 GONZALEZ, MARIE S. GAYNOR GONZALEZ, BERTHA GUIDRY, LAMBERT GUIDRY, = LARRY=20 C. HAMMANS, MIRANDA HAMMANS, MAURICE F. HODGE, JOHN B. JACKSON, = JIMMY RAY=20 JONES, VICKY RENEE JONES, DIANA KELLY, JERRY W. KELLY, DIANA = KELLY, JERRY=20 W. KELLY, GEORGE P. LA FEAR, SHERRY ELIZABETH LA FEAR, DAN Q. LAM, = AMY=20 MARIE LAM, HILDA M. LEWIS, ANNA LAURA MARTINEZ, BALDEMAR GONZALEZ=20 MARTINEZ, ANGELA L. MERCIER, TERRY MARTIN MERCIER, EDNA ANN = NORMAN,=20 MICHAEL J. NORMAN, CHERYL J. REEDY, MICHAEL REEDY, BETTY SAENZ, = GILBERTO=20 M. SAENZ, JAMES AARON SHANKLE, MARCHELLE D. WATKINS, ANGELA KAY = WILLIAMS,=20 BRENDA CASTLE WILLIAMS, DARRELL E. WILLIAMS, JESSIE MAE WILLIAMS, = LONZY=20 WILLIAMS, MARY ANN WILLIAMS, REGINALD CALVIN WILLIAMS, TIMOTHY = OWEN=20 WILLIAMS, PACIFIC EMPLOYERS INSURANCE COMPANY, ADARIENNE BRADLEY, = JACK W.=20 CHRISTY, MICHAEL EDWARD COLE, RODOLFO COMA, DOUGLAS COUNTS, = WILLIAM DE LA=20 VERGEN, JACKIE EDWARDS, RICHARD E. FRIDAY, NICK GARCIA, IGNACIO = GARZA,=20 BRIAN GIBSON, FIDENCIO GONZALEZ, JOSEPH E. GONZALEZ, ROY GUERRA, = DAVID=20 HERNANDEZ, DEREK W. HOLMES, BARRY HOLCOMB, MARILYN G. JONES, = GERALD LOHSE,=20 EARL MCPHERSON, DANNY MEADOWS, JR., MICHAEL MORALES, FORREST E. = PROBST,=20 LEON RITTER JAN ALLEN STEWART, KENNETH VANCE, ANGELA ANN VAYDIK, = DAVID=20 YEARY, AND TONY LATAYNE GOTT, INDIVIDUALLY AND AS EXECUTRIX OF THE = ESTATE=20 OF RODNEY GOTT, Appellants

 

V.

 

KELLOGG BROWN = & ROOT,=20 INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE M. W. = KELLOGG=20 COMPANY, AND HALLIBURTON COMPANY, INDIVIDUALLY AND AS SUCCESSOR IN = INTEREST TO THE M. W. KELLOGG COMPANY, Appellees

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;            = =20 =             &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;          <= /B>

On Appeal from the 334th District=20 Court

 Harris County, = Texas

Trial Court Cause No.=20 02-14984-A

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;            =             &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;          =20

 

  O=20 P I N I O N

This case arises from = a=20 terrible explosion and fire at a large chemical complex, resulting = in=20 personal injury to many workers.  After some of the injured = workers=20 filed negligence claims against companies that allegedly had = provided=20 services to their employer, the trial court rendered a summary = judgment=20 that the workers take nothing on their claims against the service=20 providers.  On appeal, the workers assert that the judgment = in favor=20 of the service providers lacks finality and that the trial court = erred in=20 granting summary judgment because (1) there is substantial = evidence the=20 service providers owed the workers a duty of care, (2) there is=20 substantial evidence the service providers=3D alleged negligence = was a=20 proximate cause of the workers=3D injuries, (3) there = is=20 substantial evidence the employer=3Ds actions leading up = to the=20 explosion were not a new and independent cause of the explosion, = and (4)=20 there are fact issues on all matters raised by the service=20 providers.  We conclude the judgment is final.  We also = conclude=20 that, as a matter of law under the applicable standard of review, = any=20 breach of the duties owed by the service providers did not = proximately=20 cause the workers=3D injuries.  = Accordingly,=20 we affirm the trial court=3Ds judgment.  =

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p; =20 I.  Factual=20 Background[1]

Phillips Petroleum = Company=20 initiated operation of the K-Resin Unit in Phillips Petroleum=20 Company=3Ds Houston Chemical = Complex=20 (hereinafter AK- Resin = Unit@) in 1978 to produce = a=20 styrene-butadiene block copolymer called AK-Resin.@  K-Resin is a = clear,=20 flexible plastic that has many uses in the food and medical = packaging=20 industries.  Understanding the K-Resin manufacturing process = and the=20 operation of the K-Resin Unit is essential to the proper = resolution of the=20 issues in this appeal. 

A.       =20 The K-Resin=20 Process         =20      

One of the raw = materials used=20 in the reactors at the K-Resin Unit is a diene monomer called=20 1,3-butadiene (hereinafter Abutadiene@).  Because it = is a=20 monomer, butadiene will polymerize or react with itself.  The = butadiene arrives at the K-Resin Unit by a dedicated pipeline and = is=20 stored in a 200,000-gallon spherical tank.  As it arrives = through the=20 pipeline and is stored in this tank, the butadiene contains an = inhibitor=20 called ATBC@ that inhibits = butadiene from=20 reacting with itself to form polymers.[2] =20 Butadiene that contains such an inhibitior is called inhibited or = wet=20 butadiene, and butadiene that lacks any such inhibitor is called=20 uninhibited or dry butadiene.  The wet butadiene in the = spherical=20 tank recirculates continuously through a refrigerated chiller to = maintain=20 a temperature of approximately 45 degrees Fahrenheit.  The = presence=20 of the inhibitor in the butadiene and the low temperature prevent = the=20 butadiene from reacting with itself to form polymers while it is = stored in=20 the spherical tank.

To create the desired = product,=20 steps are taken to ensure the butadiene is free of inhibitor = before it is=20 fed to the reactors.  The wet butadiene is moved from the = spherical=20 tank to activated alumina molecular sieves or dryers, which remove = impurities, including inhibitor, from the butadiene.  Because = the dry=20 butadiene is normally fed to the reactors intermittently and = because there=20 are usually several reactors in operation, the dry butadiene is=20 distributed to either the East or the West Dry Butadiene Tank to = ensure=20 that there is adequate dry butadiene to feed to the = reactors. =20

At the time of the = explosion,=20 each of the Dry Butadiene Tanks was eight feet in diameter and=20 approximately forty feet tall.  Each tank had a capacity of = 13,000=20 gallons.  Only one Dry Butadiene Tank was used at a = time.  When=20 a tank was not in service, Phillips employees would empty it, = remove a=20 form of butadiene polymer known as Apopcorn = polymer@ from inside, and = then place=20 the tank on stand-by to go into service in place of the other = tank. =20 The dry butadiene in the tank that is in service circulates = continuously=20 through a charge filter and then a chiller.  The filter = removes rust,=20 polymers, and any other particulates that may be in the dry = butadiene. The=20 cooler keeps the butadiene cool while the substance is awaiting = transfer=20 to the reactors.  This low temperature is necessary to = prevent the=20 butadiene from reacting with itself to form polymers while it is = being=20 stored in the Dry Butadiene Tanks.  While butadiene has a = tendency to=20 react with itself to form various polymers, at low temperatures = the rates=20 of these reactions are very slow.  However, as the = temperature=20 increases, the reaction rates increase rapidly. 

The Dry Butadiene = Tank being=20 used to feed the reactors is isolated from the other tank as the = dry=20 butadiene is pumped to the reactor as and where needed.  The=20 Butadiene Charge Pump moves the dry butadiene through a charge = filter to a=20 reactor.  In the reactor, the dry butadiene is combined with = styrene=20 to produce K-Resin.

           &= nbsp;           &n= bsp;   =20 The Danger of Popcorn Polymerization in Dry=20 Butadiene

APopcorn = polymer@ is a butadiene = polymer in=20 which there is considerable cross-linking within the = polymer.  This=20 cross-linking causes the popcorn polymer to be hard and also = insoluble in=20 the butadiene.  Popcorn polymer grows when the molecular = bonds in its=20 cross-linked structure break to form an active site where = butadiene can=20 react, attach, and become part of the popcorn.  This growing = process=20 causes a popping sound, which is the origin of the name = Apopcorn = polymer.@  As the popcorn = polymer=20 grows, stresses are formed within the popcorn that cause = additional bonds=20 to break and form more active sites, which can cause further = growth of the=20 popcorn polymer.  The formation of popcorn polymer is only a = problem=20 in the part of the K-Resin process that occurs after the butadiene = passes=20 through the dryers.  Before this point in the process, the = butadiene=20 contains inhibitor, which prevents popcorn growth.  But after = the=20 butadiene passes through the dryers into the Dry Butadiene Tanks, = the=20 butadiene has no inhibitor, and popcorn polymer can form. =20 Butadiene=3Ds ability to react = with itself=20 to form popcorn polymer affects temperature, and, more = importantly,=20 pressure. 

At any given time, a = Dry=20 Butadiene Tank containing butadiene contains a combination of = liquid and=20 vapor butadiene in the tank.  APopcorn = seeds@ form when small = amounts of=20 oxygen are allowed into the tank.  The reaction that creates = a=20 popcorn seed liberates heat.  Once the popcorn seed forms, it = is then=20 free to react with the dry, liquid butadiene that surrounds = it.  By=20 reacting with the surrounding liquid butadiene, the popcorn seed = can=20 grow.  Each reaction in which the popcorn seed grows = liberates=20 heat.  Consequently, the continuing popcorn polymer growth = generates=20 heat that increases the temperature inside the tank.  = Temperature=20 increases, in turn, cause the pressure inside the tank to = increase. =20 The rate of growth of popcorn polymerization accelerates as the=20 temperature and pressure increase inside the tank.  Because = the=20 growth of popcorn polymerization increases temperature and = pressure, this=20 process feeds on itself.  Once the temperature and pressure = inside=20 the tank reach high enough levels, the reaction rate continues to=20 accelerate until it eventually accelerates very rapidly.  = This rapid=20 acceleration, in turn, causes the pressure to increase = dramatically in a=20 very short period of time.  This rapid increase in pressure = can=20 rupture the vessel in which the butadiene self-reactions are = occurring.[3]

           &= nbsp;           &n= bsp;    =20 The Pressure Safety Valves on the Dry Butadiene=20 Tanks

Because of the danger = of=20 overpressurization, the East Dry Butadiene Tank (AEast Tank@) had a pressure = safety valve=20 (ASafety = Valve@), a safety device = located near=20 the top of the tank that was designed to protect the tank from = failing due=20 to overpressure.  Once the pressure inside the East Tank = reached a=20 certain level C 85 psi C the Safety Valve = automatically=20 would lift to relieve pressure from inside the tank.  = Automatic=20 activation of the Safety Valve would allow the butadiene vapor to = flow out=20 of the tank and move on to the flare, a process that would dispose = of the=20 butadiene safely.  The Safety Valve, however, could be=20 disabled.  Located downstream of the Safety Valve was a block = valve=20 (ABlock = Valve@).  Closing the = Block=20 Valve disabled the Safety Valve.  Although the Safety Valve = might=20 lift when the pressure inside the tank reached 85 psi, the Block = Valve=20 would not allow the pressure to exit the tank.  Consequently, = if the=20 Safety Valve were disabled, pressure could continue to increase = inside the=20 tank until the tank ruptured.

B.       =20 The Explosion and Fire

To analyze the issues = in this=20 case, we must consider the events that occurred in the weeks = preceding the=20 explosion and fire in the Phillips complex on March 27, = 2000.  In=20 mid-February 2000, the East Tank was in use; however, K-Resin unit = personnel heard the popping sounds associated with the growth of = popcorn=20 polymer coming from inside the East Tank.  In response, = Phillips=20 decided to take the East Tank out of service so that it could be = emptied=20 and cleaned of popcorn polymer.  Accordingly, on February 19, = Phillips took the East Tank off-line and put the West Dry = Butadiene Tank=20 (AWest Tank@) in service.  = Phillips=20 operators isolated the East Tank from the process by closing = various=20 isolation valves.  They then connected a nitrogen hose to the = upper=20 portion of the tank, connected a drain hose to the bottom of the = tank, and=20 pressured the liquid from the tank to a flare to be burnt = off.  This=20 nitrogen purge was intended to remove the remaining liquid and = vapor=20 butadiene from the East Tank. 

On March 4, the = nitrogen purge=20 was relocated to the bottom of the East Tank.  Although = Phillips was=20 trying to isolate the East Tank, the operator did not realize that = the=20 isolation valve that normally would be used to isolate the East = Tank from=20 the West Tank had been severely leaking and that operators had = been=20 relying on an emergency isolation valve to separate the two = tanks. =20 Because the operator relied on the severely leaking valve and = opened the=20 emergency isolation valve, thousands of gallons of dry butadiene = flowed=20 from the West Tank back into the East Tank and the levels of the = two tanks=20 equalized at approximately 32%.  The emergency isolation = valve was=20 then closed and the butadiene level in the East Tank was lowered = to=20 approximately 27%.  Also on March 4, in response to an = isolation list=20 issued by a Phillips employee, Phillips closed the Block Valve = located=20 downstream of the Safety Valve, thus disabling the Safety Valve.=20

From March 3 to March = 6, the=20 lower part of the East Tank was seen to be Aiced = over,@ indicating the = presence of=20 liquid, dry butadiene in the East Tank.  On March 6, another = K-Resin=20 operator opened the emergency isolation valve between the East = Tank and=20 the West Tank, so that the levels in the two tanks again = equalized. =20 The K-Resin operators made various attempts to drain and clear the = East=20 Tank of butadiene.  On March 14, while conducting a relief = device=20 audit, a Phillips maintenance supervisor observed that the Block = Valve was=20 still locked in the closed position, meaning that the Safety Valve = was=20 disabled.  On March 16, a K-Resin operator observed a sweat = line on=20 the East Tank, indicating that it still contained liquid = butadiene. =20 The same day, a K-Resin operator observed a reading of 70-75 psi = on a=20 pressure gauge on the East Tank, indicating the operators had lost = the=20 nitrogen purge on the East Tank.  On March 20, an operator = heard=20 popping sounds coming from inside the East Tank.  On either = March 25=20 or 26, an operator verified that the Block Valve was closed.[4] =20 Additionally, on March 26, an operator observed a reading of = between 70=20 and 75 psi on a pressure gauge for the East Tank, indicating that = Phillips=20 still had not established a nitrogen purge on the East Tank.  =

On March 27, the = pressure=20 inside the East Tank increased rapidly and there was a rupture and = catastrophic failure of the East Tank at 1:22 p.m. This rupture = released=20 flammable butadiene and caused other tanks in the immediate area = to=20 rupture, releasing additional flammable material.  This = release of=20 flammable material caused a fire that killed one person and = severely=20 injured several others.  Other Phillips employees received = lesser=20 injuries.  In a report Phillips issued following its = investigation=20 into this casualty, Phillips described this catastrophic failure = on March=20 27 as follows:

Vessel overpressure = due to=20 polymerization and dimerization within isolated vessel & no = relief or=20 cooling . . . [East Tank] contained uninhibited [butadiene] for = too long a=20 period at ambient temperatures without cooling or adequate = relief. =20 Popcorn polymer was present.

After this deadly = occurrence,=20 the Block Valve was recovered and was found to be in the closed=20 position.

           &= nbsp;           &n= bsp;           &nb= sp;        =20 II.  Procedural=20 Background

Various Phillips = employees=20 injured in the explosion and fire as well as various family = members of=20 some of these employees filed this suit asserting negligence = claims=20 against defendants/appellees Kellogg Brown & Root, Inc., = Individually=20 and as Successor in Interest to the M. W. Kellogg Company, and = Halliburton=20 Company, Individually and as Successor in Interest to the M. W. = Kellogg=20 Company (hereinafter collectively referred to as AKellogg@).  Other = Phillips=20 employees intervened asserting negligence claims, and = Phillips=3Ds workers=3D compensation = insurance carrier=20 intervened asserting a subrogation claim.  Any differences = among the=20 claims of these plaintiffs and intervenors are not material to the = disposition of this appeal, and, for simplicity, all of the=20 plaintiffs/appellants and intervernors/appellants are collectively = referred to herein as the AWorkers.@ 

A.       =20 The Workers=3D Negligence=20 Claims

The Workers grounded = their=20 negligence claims against Kellogg on services Kellogg had provided = to=20 Phillips in 1995 and 1996, several years before the = explosion.  The=20 Workers allege that Phillips hired Kellogg Ato evaluate the = pressure relief=20 system and to consider and recommend all possible relieving = scenarios for=20 the K-Resin Unit.@  The Workers = allege that=20 knowing Athe potential for and = risks of=20 popcorn polymer with dry butadiene, [Kellogg] failed to consider = all=20 credible overpressurization scenarios when evaluating the [dry = butadiene=20 storage tanks] at issue in this case.@  The Workers = assert that=20 the result of Kellogg=3Ds negligence = Awas an inadequate = pressure=20 relief and overpressurization detection system and the explosion = and fire=20 that severely injured [the  Workers].@  Based on these = services,=20 the Workers allege negligence against Kellogg, asserting the = following in=20 their live petition:

[Kellogg] proximately caused the = incident=20 complained of herein and the severe injuries to [the Workers] = through the=20 enumerated negligent acts or omissions:

1.        =20 Failure to consider all credible overpressurization scenarios for = pressure=20 relief system [sic] on the Dry [butadiene] storage = tanks;

2.        =20 Failure to consider any scenario other than external fire or = liquid=20 overfill;

3.        =20 Failure to properly perform the overpressurization scenarios = for =20 external time [sic] and liquid overfill;

4.        =20 Failure to properly design the pressure relief valve and=20 overpressurization detection system for the Dry [butadiene] = storage=20 tanks;

5.        =20 Failure to warn Phillips of the inadequacies of the pressure = relief valve=20 rupture disk and overpressurization detection system for the Dry=20 [butadiene] storage tanks;

6.        =20 Failure to advise Phillips of engineering controls required to be=20 implemented on reactive systems;

7.        =20 Failure to consider and recommend engineering solutions to prevent = overpressurization;

8.        =20 Failure to identify the overpressurization risks of a highly = reactive=20 Butadiene system;

9.        =20 Failure to provide qualified engineers to complete the Design=20 Project;

10.       = Failure to=20 provide trained engineers to complete the Design Study;

11.       = Failure to=20 train its engineers on the reactivity and hazards of = Butadiene;

12.       = Failure to=20 train and educate its engineers on the pressure relief design = methods for=20 reactive systems;

13.       = Failure to=20 identify the proper maximum allowable working pressure on the dry=20 butadiene storage tanks;

14.       = Failure to=20 train and educate its engineers on engineering standards and codes = applicable to preparing pressure relief designs for reactive=20 systems;

15.       = Failure to=20 consider and recommend alternative engineering safeguards in the = event the=20 pressure safety valve failed;

16.       = Failure to=20 recognize and specify the proper rupture disk for the dry = [butadiene]=20 storage tanks;

17.       = Failure to=20 advise Phillips to remove a rupture disk not specified for = polymerization=20 service; and

18.      =20 Failure to consider and recommend automatic engineering controls = to=20 prevent overpressurization and runaway reactions.

B.       =20 The Summary Judgment Motions and Ruling

Kellogg filed motions = for=20 summary judgment,[5] = asserting=20 the following grounds:

           &= nbsp;           &n= bsp;           &nb= sp;     =20 Traditional Summary-Judgment Grounds

(1)       = As a=20 matter of law, Kellogg=3Ds contractual duty was limited to = evaluating the=20 size of the Safety Valve.

(2)       = If=20 Kellogg=3Ds duty was so limited, then any alleged = breach, as=20 a matter of law, could not have proximately caused the = Workers=3D injuries because, as a matter of law, = the Safety=20 Valve was disabled at the time of the = incident.

(3)      =20 If, as the Workers contend, Kellogg=3Ds alleged duty = extended to=20 recommending additional engineering controls, any alleged breach = of that=20 duty, as a matter of law, could not have proximately caused the=20 Workers=3D injuries because (a) = it is=20 impossible for the Workers to prove that Phillips would have = adopted a=20 recommendation that would have prevented this incident; (b) the = evidence=20 conclusively disproves the requisite element of causation; and (c) = Phillips=3Ds own conduct was a = new and=20 independent cause.

           &= nbsp;           &n= bsp;           &nb= sp;    =20 No-Evidence Summary Judgment Grounds

(1)       = There is=20 no evidence Kellogg had any relevant duty other than to size the = Safety=20 Valve.

(2)       = There is=20 no evidence any failure to properly size the Safety Valve caused = the=20 incident.

(3)       = There is=20 no evidence that the disabling of the Safety Valve was foreseeable = to=20 Kellogg.

(4)       = There is=20 no evidence Kellogg had any duty to recommend engineering controls = to=20 Phillips.

(5)      =20 Even if Kellogg=3Ds duty extended to = recommending=20 additional engineering controls, there is no evidence Phillips = would have=20 implemented any control that would have prevented this incident, = nor is=20 there any evidence of the requisite causal link between=20 Kellogg=3Ds conduct and the=20 incident.

The Workers responded = to these=20 motions with voluminous summary-judgment evidence, including two = very=20 lengthy experts=3D affidavits from = Peter Howell=20 and Georges Melhem, both chemical engineers.  After striking=20 substantial portions of these two affidavits, the trial court = granted a=20 take-nothing summary judgment against the Workers without = specifying any=20 ground.  The Workers appeal.

 

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;      =20 III.  Issues=20 Presented

 

On appeal, the = Workers assert=20 the trial court erred in granting summary judgment.  They = identify=20 under this single issue the following sub-issues:

(1)       = Does the=20 trial court=3Ds judgment lack finality?

 

(2)       = Did the=20 trial court err in granting summary judgment because there is = substantial=20 evidence Kellogg owed the Workers a duty of care?

 

(3)       = Did the=20 trial court err in granting summary judgment because there is = substantial=20 evidence Kellogg=3Ds negligence was a proximate cause of = the=20 Workers=3D injuries?

 

(4)       = Did the=20 trial court err in granting summary judgment because there is = substantial=20 evidence Phillips=3Ds actions were not a new and independent = cause of=20 the explosion? and

 

(5)      =20 Did the trial court err in granting summary judgment because there = are=20 fact issues on all matters raised by Kellogg?

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p; =20 IV.  Standards = of=20 Review

In=20 reviewing a traditional motion for summary judgment, we take as = true all=20 evidence favorable to the nonmovant, and we make all reasonable = inferences=20 in the nonmovant=3Ds=20 favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 = (Tex.=20 App.CHouston=20 [14th Dist.] 2000, pet. denied).  If the movant=3Ds motion=20 and summary-judgment evidence facially establish its right to = judgment as=20 a matter of law, the burden shifts to the nonmovant to raise a = genuine,=20 material fact issue sufficient to defeat summary = judgment.  = Id.

In reviewing a = no-evidence=20 motion for summary judgment, we ascertain whether the nonmovant = pointed=20 out summary-judgment evidence of probative force to raise a = genuine issue=20 of fact as to the essential elements attacked in the no-evidence = motion.=20  Id.; Johnson v. Brewer & Pritchard, P.C., = 73=20 S.W.3d 193, 206B08 (Tex. 2002).  = We take=20 as true all evidence favorable to the nonmovant, and we make all=20 reasonable inferences therefrom in the nonmovant=3Ds favor. =20 Dolcefino, 19 S.W.3d at 916.  A no-evidence motion for = summary=20 judgment must be granted if the party opposing the motion does not = respond=20 with competent summary-judgment evidence that raises a genuine = issue of=20 material fact.  Id. at 917.  When, as in this = case, the=20 order granting summary judgment does not specify the grounds upon = which=20 the trial court relied, we must affirm the summary judgment if any = of the=20 independent summary-judgment grounds is meritorious.  FM = Props.=20 Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. = 2000). =20

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;    =20 V.  Analysis

A.       =20 Does this court have appellate jurisdiction?    =

In their first = sub-issue, the=20 Workers challenge this court=3Ds appellate = jurisdiction by=20 asserting the trial court=3Ds judgment lacks = finality=20 because Kellogg did not attack all of their theories for recovery = under=20 their negligence claims.  The Workers note their allegations = of=20 eighteen different acts of alleged negligence.  See ante = at=20 pp. 9-10.  The Workers then argue that, in the motions for = summary=20 judgment, Kellogg challenged only seven of these acts of = negligence and=20 did not challenge the other eleven acts of negligence. Therefore, = the=20 Workers assert, the judgment lacks finality, citing Lehmann v. = Har-Con=20 Corp., 39 S.W.3d 191 (Tex. 2001). 

A judgment issued = without a=20 conventional trial is final only if it either actually disposes of = all=20 claims and parties before the court, or it states with = unmistakable=20 clarity that it is a final judgment.  See Lehmann v. = Har-Con=20 Corp., 39 S.W.3d 191, 192, 200 (Tex. 2001).  Kellogg did = not=20 assert a counterclaim against the Workers, and the trial court = rendered=20 judgment that the Workers take nothing on their claims, stating = that it=20 disposed of all claims asserted by the Workers.  Although a = second=20 group of parties had intervened, asserting claims based on the = same=20 explosion against different defendants, the trial court severed = all the=20 Workers=3D claims against = Kellogg into a=20 separate case to make its summary judgment final. The trial court = both=20 actually disposed of all claims and parties before the court and = stated=20 with unmistakable clarity that its judgment is final.  = Therefore, the=20 trial court rendered a final judgment, and this court has = appellate=20 jurisdiction.  See id.; Ritzell v. Espeche, 87 = S.W.3d=20 536, 538 (Tex. 2002) (holding that trial court=3Ds judgment was final = because it=20 stated that plaintiffs take nothing as to only claims pending in = the=20 case).  Accordingly, we overrule the Workers=3D first sub-issue.[6]

B.       =20 Did the trial court err in granting summary judgment because there = is=20 substantial evidence Kellogg owed the Workers a duty of=20 care?

In their second = sub-issue, the=20 Workers argue the trial court erred in granting summary judgment = as to=20 Kellogg=3Ds grounds attacking = duty=20 because there is substantial evidence supporting the negligence = duties the=20 Workers allege Kellogg assumed under its contract to provide = services to=20 Phillips.  In the relevant traditional summary-judgment = ground,=20 Kellogg essentially presumes for the sake of argument that Kellogg = otherwise would owe a negligence duty to the Workers if it had a=20 contractual obligation to Phillips; however, Kellogg asserts that = its=20 contractual obligation to Phillips as a matter of law did not go = beyond=20 evaluating the size of the Safety Valve and therefore any = negligence duty=20 based thereon is also so limited.  The Workers assert the=20 summary-judgment evidence raised a genuine fact issue as to a much = broader=20 duty assumed by Kellogg under its contract with Phillips. =20

Phillips and Kellogg = did not=20 execute a formal written contract for the services in question = that=20 Kellogg provided in 1995 and 1996 (hereinafter AServices@).  Kellogg = asserts that=20 one document defines the scope of work and that the other is only = an=20 internal document that was never given to Phillips.  Although = there=20 is summary-judgment evidence to support this position, during = discovery=20 both scope-of-work documents were produced from = Kellogg=3Ds files.  Under = the=20 applicable standard of review, we conclude there is a genuine fact = issue=20 as to whether the scope of Kellogg=3Ds contractual duty = includes the=20 services as described in both documents.  Under the first of = these=20 two documents, Kellogg=3Ds scope of work is as = follows:

!        =20 to organize all existing calculation sheets and specification = sheets and=20 compare them against a AK-Resin PSV Bypass Survey@ for completeness,

!        =20 for ARelief Devices@[7] with existing specification and = calculation=20 sheets, (a) to tabulate the process conditions which had been = utilized for=20 Relief Device sizing and (b) using verified process conditions, to = correct=20 any discrepancies by updating the calculation and specification = sheets and=20 Mechanical Flow Sheets accordingly,

!        =20 for ARelief Devices@ without existing specification and = calculation=20 sheets, (a) to tabulate any relief devices which do not have = calculation=20 or specification sheets and submit a request for process data for = each of=20 these devices to the K-Resin process engineer, and (b) to then = develop=20 calculation sheets and specification sheets based on the verified=20 process  information, with all equipment specifications to be = verified against the field equipment,

!        =20 for all ARelief Devices,@ to make one copy of the final = compilation for all=20 relief devices and to send the ARecord Copy@[8] to the Central Library,

!        =20 to make sure that all documentation and relief device sizing = complies with=20 Phillips Directives D-6-1 and D-6-2, which address, respectively, = (a) the=20 requirements and guidelines for documentation of pressure relief = systems=20 in new or modified facilities for processes covered by certain = OSHA=20 regulations, and (b) certain codes that shall be complied with in = the=20 engineering, design, procurement, and construction of pressure = relief=20 systems.

This document states = that all=20 documentation and relief-device sizing must comply with two = Phillips=20 directives.  Contrary to arguments made by the Workers, this=20 statement does not mean that Kellogg=3Ds scope of work = included=20 everything in these two directives.  Nonetheless, the first = directive=20 does state that, in creating documentation A[a]pplicable and = credible=20 relief scenarios shall be investigated and documented.@  The directive = continues:=20

Documentation shall include the scenario = used to=20 size each relief device as well as the scenarios used to size the = relief=20 headers and flare or vent stacks.[9] =20 Items to be included are:

1.  Affected = equipment,

2.  Relief limiting = instruments,

3.  Depressuring system (process=20 control),

4.  Cause of overpressure (i.e., = fire,=20 process upset, etc.)

5.  Calculated relief flow rates = for each=20 relief device affected, and

6.  Calculations = used to=20 develop scenarios and flows.

Under the second = document (the=20 one Kellogg asserts was an internal memorandum), there is a = genuine fact=20 issue as to whether Kellogg=3Ds contractual duty = also=20 included the following tasks:

!        =20 examine relief capacities and conditions for each relief valve and = include=20 the different relief capacities and conditions on the = specification=20 sheet,

!        =20 check to see all relieving conditions are considered and that the = proper=20 trim or disk was used where you have both liquid and vapor = relieving=20 possibilities,

!        =20 provide additions or corrections to specifications and=20 calculations,

!        =20 recommend new pressure safety valve or rupture disk specifications = for=20 problem valves

!        =20 review progress and findings at regular intervals with K-Resin = Instrument=20 Engineer.

In the trial court = and on=20 appeal, the Workers point to deposition testimony from various = Kellogg=20 engineers who state that Kellogg=3Ds scope of work = required it to=20 Alook[] at = allCall applicable=20 causes@ or Ato check to see all = relieving=20 conditions are considered.@  However, these = statements add nothing to the statement in the second document = that=20 Kellogg should A[c]heck to see all = relieving=20 conditions are considered.@[10]

Howell, one of the=20 Workers=3D experts, testified = that, in=20 his opinion, various statements from the scope-of-work documents=20 Atell a pressure = relief design=20 engineer that they are to determine the overpressure scenarios, = from them=20 determine the worst case scenario, and ensure that the pressure = relief=20 system can control that worst case scenario.@  Even if this = were=20 correct, Howell has no personal knowledge regarding = Kellogg=3Ds scope of work and = the=20 scope-of-work documents.  Moreover, the fact witnesses do not = state=20 that Kellogg was to design or redesign a Apressure relief=20 system@ for the K-Resin = Unit. =20 Therefore, what Howell believes this language means to a = pressure-relief=20 design engineer is not relevant to determining the scope of work = to which=20 Kellogg and Phillips agreed.[11] =20

Kellogg asserts that, = as a=20 matter of law, its scope of work was limited to evaluating the = size of the=20 Safety Valve.  This assertion lacks merit.  However, the = Workers=20 assert that the scope of work included, among other things, the = following:=20 (1) designing or redesigning the pressure relief valve and=20 overpressurization-detection system for the East Tank and the West = Tank;=20 (2) recommending any additional engineering controls that should = be added;=20 and (3) ensuring that the pressure relief system could control the = worst-case scenario. 

After considering=20 Kellogg=3Ds summary-judgment = grounds=20 attacking duty and the summary-judgment evidence under the = applicable=20 standards of review, we conclude there is no genuine issue of = material=20 fact and that, as a matter of law, Kellogg owes no negligence duty = as to=20 the preceding three matters and as to items 4, 6, 7, 9, 10, 11, = 12, 14,=20 and 18 in the Workers=3D list of eighteen = acts of=20 alleged negligence.  See ante at pp. 9B10; Entex, A Div. = Of Noram=20 Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10B11 (Tex. = App.CHouston [14th Dist.] = 2002, pet.=20 denied) (concluding that, as a matter of law, there could not = possibly be=20 a negligence duty based on a contractual duty if, as a matter of = law,=20 there was no contractual duty). 

C.       =20 Did the trial court err in granting summary judgment because the=20 summary-judgment evidence raises a genuine fact issue as to = whether=20 Kellogg=3Ds negligence was a = proximate=20 cause of the Workers=3D = injuries?

In their third = sub-issue, the=20 Workers assert the trial court erred in impliedly granting summary = judgment based on the traditional and no-evidence grounds = attacking=20 proximate cause.  Proximate cause consists not only of=20 foreseeability, but also cause in fact. Union Pump Co. v. = Allbritton,=20 898 S.W.2d 773, 775 (Tex. 1995).  Cause in fact means = that the=20 defendant=3Ds act or omission was = a=20 substantial factor in bringing about the injury which would =20 otherwise not have occurred.  Id.

When an event = intervenes=20 between the alleged negligent act and the injury, a question may = arise=20 whether this event constitutes a superseding cause that breaks the = causal=20 connection between the act and the injury.  Taylor v. = Carley,=20 158 S.W.3d 1, 9 (Tex. App.CHouston [14th Dist.] = 2004, pet.=20 denied).  Texas courts distinguish between a new and = independent=20 cause and a concurrent act.  A concurrent act cooperates with = the=20 original act in bringing about the injury and does not cut off the = liability of the original actor.  Id.  A new and=20 independent cause, sometimes referred to as a superseding cause, = however,=20 is an act or omission of a separate and independent agency that = destroys=20 the causal connection between the negligent act or omission of the = defendant and the injury complained of, and thereby becomes the = immediate=20 cause of such injury.  Id.  The issue of new and=20 independent cause is a component of the ultimate issue of = proximate cause=20 and not an affirmative defense.  Taylor, 158 S.W.3d at = 9. 

The Workers and their = expert=20 (Peter Howell) contend that Kellogg, in carrying out its duties = under the=20 1995 contract with Phillips, should have evaluated all possible=20 overpressure scenarios, determined that a fire-induced runaway = reaction=20 was the worst-case scenario, and recommended to Phillips that it = do the=20 following:

!        =20 replace the Safety Valve on the East Tank with a new and larger = pressure=20 safety valve sized according to this worst-case = scenario;

!        =20 replace the rupture disk with one that was designed for use in=20 polymerizing service;

!        =20 install a temperature monitor with a high-temperature alarm that = would=20 notify the K-Resin operator in the control room that the = temperature in=20 the East Tank was higher than the maximum determined safe=20 value;

!        =20 install a pressure monitor with a high-pressure alarm to warn that = the=20 pressure was greater than the maximum determined safe = value;

!        =20 install a quench system which, when automatically activated by = high=20 pressure or temperature would inject an inert solvent into the = tank that=20 would cool and slow the runaway reaction;

!        =20 install an oxygen analyzer that would sound an alarm if oxygen=20 concentration in the tank reached an unsafe level;

!        =20 add a pressure-control system to the tank that would automatically = vent=20 vapors if the pressure exceeded a predetermined safe value, that = would=20 continuously purge oxygen from the tank, and that would also have = a=20 high-pressure alarm; and

!        =20 add chemical seals to significantly enhance the reliability of = intricate=20 and vulnerable instruments and to protect them better from the = process=20 chemicals.     

The Workers assert = Kellogg=20 failed to comply with both its contractual duty to Phillips in = rendering=20 the Services in 1995 and 1996 and in complying with the negligence = duty=20 that it assumed to third parties by agreeing to perform these=20 services.  The Workers assert  Kellogg breached this = negligence=20 duty by failing to do all of the above.  However, for this = alleged=20 negligence in 1995 and 1996 to have caused the Workers=3D injuries in 2000, = the Workers=20 must show the following:

(1)       = Phillips=20 would have implemented the above recommendations and installed the = recommended new items prior to the incident on March 27, = 2000.

 

(2)       = The=20 recommended new items would not have been deactivated by Phillips = and=20 would have triggered Phillips to act differently than it = did.

 

(3)      =20 The recommended items would have prevented the catastrophic = failure of the=20 East Tank.

The summary-judgment = evidence=20 proves that Phillips was aware of the pressure in the  East = Tank=20 prior to its rupture.  Howell stated that the pressure alarm = would be=20 set at 75 psi, yet Phillips employees were aware that the pressure = was=20 70-75 psi in the East Tank in the week before the explosion, and = this did=20 not trigger any prompt action on their part to address the=20 situation.  The East Tank contained unchilled, dry butadiene = when=20 there was no nitrogen purge or activated pressure safety valve and = when=20 popping sounds associated with popcorn polymerization were heard = emanating=20 from the East Tank.  Despite all of these alarming signs that = prompt=20 remedial action was needed, Phillips did not respond timely or=20 appropriately.  Adding the monitors and alarms that Howell = believes=20 should have been recommended would only have  provided = Phillips with=20 the same information  it already had.[12]

The Workers also = assert, and=20 Howell testified, that one of Kellogg=3Ds duties was to take = into=20 consideration that Phillips employees might respond improperly and = to=20 recommend the installation of devices that would operate = automatically=20 without human intervention, thus taking into account human = error. =20 For example, the Workers argue that the closing of the Block Valve = on=20 March 4 is Aof course, the = precise kind of=20 worst case scenario that [Kellogg] was hired to consider and = prevent by,=20 among other things, designing and recommending redundant safety = systems=20 and human error proof systems.@  However, in = making this=20 argument the Workers overlook the fact that, if not disabled, the = Safety=20 Valve for the East Tank functioned automatically, without the need = for=20 human intervention, when the tank pressure reached 85 psi.  = None of=20 the systems Howell recommended are incapable of being disabled by = Phillips=20 employees.  Therefore, even if some of the systems he = described were=20 automatic, they would not eliminate the potential for human error = because,=20 just as Phillips=3Ds employees disabled = the Safety=20 Valve, they could have disabled or deactivated the described=20 systems.  It is evident from the circumstances surrounding = the=20 explosion that Phillips would have deactivated whatever = pressure-relief=20 devices were present for the East Tank, including = Howell=3Ds quench = system. =20 Therefore, the Workers=3D arguments regarding = allegedly=20 foolproof, automatic systems are not = persuasive.

The Workers, with = supporting=20 testimony from Howell, also assert that Kellogg should have based = its=20 recommendations in part on Phillips=3Ds allegedly = well-known=20 reputation for poor safety practices in its facilities.  = Again,=20 because the Phillips employees control and interact with all of = the=20 devices in question and have the ability to ignore, disable, or = misuse=20 these devices, if anything, this argument weighs in favor of=20 Phillips=3Ds conduct being a new = and=20 independent cause. 

Regarding the = dangerous=20 situation in the East Tank and Phillips=3Ds awareness thereof, = Bryan=20 Hall, an operations supervisor at Phillips testified as=20 follows:

!        =20 If one knows that liquid butadiene was in the East Tank, it would = be=20 inappropriate and against procedures to close the Block = Valve.

 

!        =20 Closing the Block Valve while the East Tank contained butadiene = would=20 create an incredibly dangerous situation. 

 

!        =20 K-Resin operators should never disable the Safety Valve if the = East Tank=20 contains chemicals of any type; rather, they should do so only = after they=20 have cleared and purged the tank and it is ready for entry. =

 

!        =20 It would be a dangerous situation if a storage tank (1) contained = liquid,=20 dry, unchilled butadiene for five weeks with audible popping = sounds coming=20 from inside the tank, (2) had a pressure safety valve that had = been=20 disabled, and (3) had a pressure of 75psi and no nitrogen purge.=20

 

!        =20 Based on his training and fourteen years of experience in the = K-Resin=20 Unit, it would be dangerous to leave dry butadiene in a piece of = equipment=20 without chilling or a nitrogen purge for more than one = day.

 

!        =20 Phillips operators were educated and aware of the dangers of a = runaway=20 reaction if there is butadiene in a piece of equipment without a=20 continuous nitrogen purge.

Despite knowing the = dangers of=20 unchilled, dry butadiene, on March 4, Phillips both disabled the = Safety=20 Valve and opened an isolation valve that resulted in dry butadiene = flowing=20 back into the East Tank.  Regardless of which event happened = first,=20 at the end of that day, Phillips knew the East Tank contained = substantial=20 quantities of dry butadiene and that the Safety Valve had been=20 disabled.  Despite attempts to remove the butadiene in the = following=20 days, the external appearance of the East Tank continued to show = the=20 presence of butadiene.  Furthermore, a maintenance supervisor = observed that the Safety Valve was still disabled on March = 14.  On=20 March 16, a K-Resin operator noted a pressure reading that showed = Phillips=20 had lost the nitrogen purge on the East Tank.  On March 20, = an=20 operator heard popping sounds coming from inside the East Tank, = indicating=20 the presence of butadiene that was undergoing popcorn=20 polymerization.  By this time, more than a month had passed = since=20 popping sounds were first heard coming from the East Tank.  = Sixteen=20 days had passed since Phillips had disabled the Safety Valve, = knowing that=20 there was dry, unchilled butadiene in the East Tank, and four days = had=20 passed since Phillips lost the nitrogen purge.  Nonetheless, = Phillips=20 took no prompt action to address this very dangerous situation in = the East=20 Tank or to open the Block Valve.  On March 25 or 26, an = operator=20 verified that the Block Valve was closed, yet Phillips took no = action to=20 open it before the catastrophic failure of the East Tank on March=20 27.  In its subsequent investigation into this incident,=20 Phillips=3Ds investigation team = concluded=20 that Athe vessel relief = system was=20 designed and sized per Phillips standards.  It is the opinion = of this=20 team that if the [Safety Valve] had relieved at its design = conditions, the=20 resulting evaporative cooling and pressure reduction would have = prevented=20 the vessel failure.@[13] =

In his deposition, = Howell=20 testified that Phillips knew it should not leave butadiene in idle = equipment at ambient temperature for more than one day, yet = Phillips left=20 dry butadiene in the East Tank at ambient temperature for 39 days, = which=20 he believed shows willful disregard by Phillips for the safety of = its=20 employees.  Howell also testified that Phillips violated the = law when=20 it closed the Block Valve, thereby disabling the Safety Valve. =

In determining = whether an=20 intervening force rises to the level of a superseding cause, Texas = courts=20 consider the following six factors:

(1)       = the fact=20 the intervening force brings about harm different in kind from = that which=20 otherwise would have resulted from the actor=3Ds negligence;

(2)       = the fact=20 the intervening force=3Ds operation or its consequences appear = after the=20 event to be extraordinary, rather than normal, in view of the=20 circumstances existing at the time of the force=3Ds operation;

(3)       = the fact=20 the intervening force is operating independently of any situation = created=20 by the actor=3Ds negligence or is not a normal result = of such a=20 situation;

(4)       = the fact=20 the operation of the intervening force is due to a third=20 person=3Ds act or to his failure to = act;

(5)       = the fact=20 the intervening force is due to an act of a third person that is = wrongful=20 toward the other and thus subjects the third person to liability = to him;=20 and

(6)      =20 the degree of culpability of a wrongful act of a third person = which sets=20 the intervening force in motion.