
    Billy Wayne BURR, et al., Plaintiffs—Appellants, v. INTERNATIONAL PAPER COMPANY, et al., Defendants—Appellees.
    No. 97-1373.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 28, 1998.
    
      John Edward Morton, Alexandria, for Billy Wayne Burr, et ux.
    Robert Murray Mahony, Lafayette, for International Paper, et al.
    James Morgan Passman, Alexandria, for M.L. Smith, Jr., Inc.
    Before YELVERTON, SAUNDERS, WOODARD, GREMILLION and PICKETT, JJ.
   | iYELVERTON, Judge.

Plaintiffs, Billy Wayne Burr and his family, appeal the trial court’s summary judgment in favor of defendant, M.L. Smith, Jr., Inc. The lawsuit arose out of an accident in which plaintiff was injured while welding on a pressurized water tank which exploded.

Plaintiff alleges that the defendant-employer is subject to liability for exemplary damages under La.Civ.Code art. 2315.3 (repealed) and Billiot v. B.P. Oil Co., 93-1118 (La.9/29/94); 645 So.2d 604. Finding that the materials involved in this matter could not be classified as either hazardous or toxic, the trial court granted the defendant’s motion for summary judgment. We affirm.

On May 4, 1994, the date of plaintiffs accident, M.L. Smith, Jr., Inc., was participating in a boiler job at the International Paper Company in Pineville, Louisiana. Plaintiff, who was employed by M.L. Smith, Jr., Inc., was instructed to weld and repair a small pinhole in a water tank. The tank contained a small amount of water. While plaintiff was welding the pinhole, the tank was pressurized with air in order to test whether, in fact, the pinhole had been repaired. The tank became over-pressurized resulting in an explosion causing serious personal injury to plaintiff.

La.Civ.Code art. 2315.3 authorized exemplary damages if plaintiffs injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic materials. Plaintiffs demand was based on this article.

Plaintiffs single assignment of error on appeal is that the issue of whether the combination of air and water under high pressure conditions was hazardous should have been determined by a jury. He argues that it was not an appropriate matter for summary judgment.

In Chustz v. J.B. Hunt Transport, Inc., 95-0356 (La. 11/6/95); 662 So.2d 450, the supreme court rendered summary judgment, reversing the district court, and dismissed the plaintiffs exemplary damage claims under Article 2315.3. The court held that an 18-wheeler transporting lubricating oil was-not hauling a hazardous substance as a matter of law.

In Giordano v. Rheem Manufacturing Co., 96-0739, 96-0758 (La.4/8/96); 671 So.2d 324, a natural gas hot water heater exploded causing damages. The trial judge denied the defendant’s motion for summary judgment on the subject of punitive damages and this circuit, in an unpublished writ disposition, denied the defendant’s writ application, but the supreme court granted writs and summarily granted summary judgment dismissing the plaintiffs claim for punitive damages under Article 2315.3.

The same thing happened in Smith v. Arcadian Corp., CW95-1216 (La.App. 3 Cir.1995) (unpublished); reversed, 96-0614 (La.5/3/96); 672 So.2d 698, involving the failure of a high-pressure reactor used in a fertilizer plant. The trial judge had dismissed the punitive damage claims on summary judgment. This circuit granted a writ and reversed and reinstated the punitive damage claim. The supreme court granted writs, reversed this circuit, and reinstated the dismissal of the punitive damage claims. Both Giordano and Smith were terse memorandum writ reversals that the supreme court obviously believed needed no explanation other than the citation to Chustz.

It is clear that the question of what is a hazardous substance may be appropriate for summary judgment. The supreme court in Chustz, 662 So.2d at 451, gave the definition that “[hjazardous substances are those that present substantial danger to public health and the environment.” Applying this definition, we find, as did the trial judge, that water and air in a tank under pressure is not a hazardous substance as a matter of law.

The judgment is affirmed at appellant’s cost.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

. hSAUNDERS, Judge,

dissenting.

In Chustz v. J.B.Hunt Transport, Inc., 95-0356 (La 11/6/95); 662 So.2d 450, the law is stated as follows:

Although this statute does not define hazardous or toxic substances, the words must be given their generally accepted meaning. LSA-C.C. art. 11. Hazardous substances are those that present substantial danger to public health or the environment. A toxic substance is a substance poisonous to living organisms. Thus, the terms “hazardous” and “toxic” refer to substances which cause injury or death to human beings and/or create an environmental hazard.

Id. at 451. [Emphasis added.]

The majority draws from this language a most perplexing interpretation of La.Civ. Code art. 2315.3 which underscores the language “... to public health or the \ ¡¡environment ” and reads out the reference to “injury or death to human beings ...” I cannot agree with this interpretation.

(1) La.Civ.Code art. 2315 and its subdivisions are the foundation of tort law in Louisiana. The vast majority of claims under 2315 and its subdivisions are filed on behalf of individuals against other individuals or other legal entities. Article 2315.3 itself refers specifically to “plaintiffs injuries,” clearly envisioning any 2315 plaintiff and making no distinction between an individual plaintiff and the public generally. The idea that an individual cannot proceed under these articles is simply without foundation.

(2) While the court does define hazardous substances as “those that present substantial danger to public health or the environment,” it proceeds in the same paragraph to elaborate on this definition by telling us that a hazardous substance is one which “causes injury or death to human beings.” “Injury” and “death” are suffered by individuals, not by the public generally.

(3) The court makes it clear that the reason the plaintiff in Chustz cannot recover has nothing to do with his status as an “individual” rather than the “public.” Chustz could not recover because “cases of petroleum lubricating oil are not hazardous substances or toxic.” Id. at 451. Had they been — Chustz would have recovered.

(4) Regardless of whether or not a distinction can be made between an individual and the “public,” a combination of substances which cause an explosion of the magnitude as the one which injured Burr must be considered hazardous. This explosion was, at least arguably, great enough to cause injury or death to an individual, the environment, and/or the public generally.

|accordingly, under the Chustz’ definition, regardless of how one reads Chustz, we are dealing with a hazardous substance. Summary judgment is clearly inappropriate and I respectfully dissent. 
      
      . Although Article 2315.3 has been repealed, effective April 15, 1996, it was in full effect at the time of Mr. Burr's accident, which occurred on May 4, 1994.
     
      
      . Overruled by Adams v. J.E. Merit Const., Inc., 97-2005, (La.5/19/98); 712 So.2d 88, 90.
     