Betty Adams, Joseph Adams v. Union Carbide Corporation

737 F.2d 1453, 1984 U.S. App. LEXIS 20878

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 2, 1984
• Docket: 83-3239
• Status: Published

Opinions

KRUPANSKY, Circuit Judge.

Plaintiff Betty Adams, a former employee of General Motors Corporation (GMC), brought this diversity action against Union Carbide Corporation in the United States District Court for the Northern District of Ohio. Plaintiff alleged that Union Carbide failed to adequately warn GMC employees of the dangerous propensities of the chemical toluene diisocyanate (TDI), which Union Carbide manufactured and supplied to GMC for use in GMC’s automobile assembling process. Plaintiff further contended that as a result of defendant’s negligence, she developed a respiratory ailment known as “TDI asthma”. Plaintiff sought $500,-000 in damages. Plaintiff’s husband, Joseph Adams, also sought $50,000 in compensation for the loss of his wife’s services, companionship and consortium.

On March 10, 1983, the district court granted defendant’s motion for summary judgment. Plaintiff’s appeal to this court was predicated on the theory that material issues of fact were presented by this negligence action which should have been submitted to a jury rather than summarily resolved by the court below.

The record disclosed that plaintiff Adams was employed by the Fisher Body Division of GMC at its Elyria, Ohio plant between 1967 and 1978. TDI was first supplied to GMC for use in making automobile seat cushions in 1969. The chemical was delivered in bulk liquid shipments either by tank trucks or rail tank cars and transferred from the common carrier into GMC storage tanks. The TDI was then pumped, as needed, into a closed vessel system for automatic mixing with other chemicals. The only potential exposure GMC employees had to TDI vapors occurred when the seat cushions were removed from their open molds.

Union Carbide admitted that its officials were aware of respiratory hazards associated with exposure to TDI vapors as early as 1964. In 1969, defendant prepared a manual specifically addressing these conditions for GMC. Attached to this report were eight related articles on TDI’s use in manufacturing which had been prepared by various sources. Of special relevance to the case at bar was an article entitled “Chemical Safety Data Sheet SD-73” prepared by the Manufacturing Chemists Association. The article detailed the “properties and essential information for safe handling and use of TDI.” Included in this publication was a section entitled “Employee Safety,” which read in pertinent part:

5.1.1. Employee training is probably the most important safety measure a company can take____ An effective employee education should include the following items:

$ sf: * * *

(e) He should know when personal protective equipment is to be used and how to use it effectively.

5.1.2. It is the responsibility of supervision to train each worker, and, equally as important, to instill within him an attitude of safety. The supervisor must procure the necessary safety equipment and be sure that it is maintained in working order at all times.

5.1.3. Operating procedures, including all safety rules, should be posted in work areas where they may be read by employees.

In 1975, officials from GMC and Union Carbide met to discuss the handling of TDI to minimize personnel exposure. Additional guidelines were furnished to GMC following this conference.

Plaintiff Adams worked in various departments in the Elyria plant during the course of her employment, including Department No. 5, where automobile seat cushions were removed from their molds and exposure to TDI was possible. Plaintiffs medical records indicated that she had sought medical attention as early as 1969 for symptoms related to exposure to fumes and gaseous materials. In 1974, plaintiffs doctor advised GMC that Adams not be assigned to any area where the air was contaminated with fumes because of her bronchopulmonary condition. GMC’s plant physician discussed this letter with the plaintiff and suggested she continue working in Department No. 5 on a trial basis. One year later, in February, 1975, plaintiffs treating physician again wrote to GMC and recommended that plaintiff be permanently reassigned from Department No. 5 due to her chronic bronchitis.

Plaintiff was permanently restricted from Department No. 5 thereafter. Her employment records disclosed that she was placed on temporary disability several times by her treating physician due to bronchitis and flue. In September, 1978 plaintiff came under the care of a different treating physician, who certified that plaintiff was permanently disabled from work due to TDI hypersensitivity from work-related exposure.

Plaintiff filed her complaint on June 20, 1980, alleging that Union Carbide was negligent in failing to warn GMC and its employees of the “harmful, toxic and deleterious effects to TDI” and that as a result of defendant’s negligence, “she has been rendered totally disabled.” On May 11, 1982 defendant Union Carbide filed a motion for summary judgment which it supported with two claims: (1) that the warnings given by Union Carbide to plaintiff’s employer GMC satisfied its duty of reasonable care to the plaintiff, and (2) that the statute of limitations barred plaintiff’s action. The district court granted defendant’s motion for summary judgment based upon its finding that the case presented no unresolved material issue of fact, and that as a matter of Ohio law, defendant did not breach its duty to plaintiff. The lower court did not address the statute of limitations issue.

The grant or denial of summary judgment must be made in accordance with Fed.R.Civ.P. 56, which states in pertinent part:

(c) Motions and Proceedings There-on____ 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 a judgment as a matter of law.

The standard to be applied in determining motions for summary judgment was enunciated by this Circuit over 20 years ago and is still in accord with the overwhelming weight of authority:

In ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated.

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). See also United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Sankovich v. Life Insurance Company of North America, 638 F.2d 136 (9th Cir.1981).

After recognizing the above criteria for summary judgment as controlling, the trial judge in the instant case wrote:

A thorough examination of all evidence presented here compels the conclusion that no material issue of fact exists in this conflict. The parties neither dispute that defendant warned GM, Mrs. Adams’ employer, of the dangers related to TDI but did not warn Mrs. Adams directly, nor do they dispute the notations in GM’s medical records referring to ailments suffered by Mrs. Adams during the course of employment. There remains only the application of these undisputed facts to the appropriate legal standards.

The lower court then proceeded to apply the facts as established to the “appropriate legal standard”, which under Ohio law is found in the Restatement (Second) of Torts § 388.¹ Section 388 reads:

§ 388. Chattel Known to be Dangerous for Intended Use

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Comment n following the restatement advises that the manufacturer’s duty to warn may be discharged by providing information of the dangerous propensities of the product to a. third person (GMC in the instant case) upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who will be exposed to its hazardous effects. The comment adds that “[mjodern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.”

Although most negligence actions are resolved by submission to a jury, “it would be a mistake to conclude summary judgment is never appropriate in a negligence action.” Croley v. Matson Navigation Company, 434 F.2d 73 (5th Cir.1970). Croley and other decisions provide ample authority for the use of summary judgment in cases where the alleged negligence of a manufacturer is at issue. See, e.g., Gracyalny v. Westinghouse Electric Corporation, 723 F.2d 1311, 1316 (7th Cir.1983) (“a grant of summary judgment may be affirmed on any ground that finds support in the record”); Bryant v. Technical Research Company, 654 F.2d 1337 (9th Cir.1981); Aetna v. Loveland Gas & Electric, 369 F.2d 648 (6th Cir.1966); Millhouse v. General Tire and Rubber, 9 Ohio App.3rd 203, 459 N.E.2d 623 (1983).

The evidence which was before the court below demonstrated that TDI was delivered by Union Carbide to GMC in bulk liquid form. After the delivery, GMC had exclusive control over both the chemical and the GMC employees who came into contact with it.

While § 388 defines a manufacturer’s duty to warn those who may ultimately be exposed to its product, comment n to the restatement also explains that the duty can be discharged by the manufacturer’s reasoanble reliance on a third party — in this case GMC — to convey the information supplied by the manufacturer to the ultimate user — in this case employees such as Betty Adams. The fact that GMC repeatedly updated its information about TDI from Union Carbide, coupled with the fact that GMC itself had a duty to its employees to provide them with a safe place to work, supports the inescapable conclusion that it was reasonable for Union Carbide to rely upon GMC to convey the information about the hazardous propensities of TDI to its employees within the context, of comment n of the restatement.

The dissent’s rejection of the above conclusion is based upon a bootstrap-type analysis. First the dissent concludes that GMC did not adequately warn its employees of the dangerous propensities of TDI. (Post at 1462). The dissent thereupon erroneously relies upon GMC’s.failure to adequately advise its employees of the hazardous propensities of TDI as proof of Union Carbide’s negligence. However, the key issue in this case is not, as the dissent seems to hypothesize, whether the information supplied by Union Carbide actually reached GMC’s employees. Rather, the critical question is whether Union Carbide’s reliance upon GMC to relay the information to its employees was reasonable, when viewed in light of GMC’s duty to safeguard its employees’ health and in consideration of the fact that comprehensive information concerning the use of TDI was conveyed by Union Carbide to GMC for the express purpose of dissemination to GMC’s employees.

In effect, the dissent is interpreting GMC’s failure to relay the information to its employees as negligence attributable to Union Carbide. The negligence of GMC under the circumstances disclosed by the record in this case cannot vicariously be imposed upon Union Carbide.

Based upon the foregoing factual analysis of the case, there remained no “genuine issue as to any material fact” which required jury consideration, and therefore the grant of summary judgment was proper. This court’s reasoning and ultimate conclusion is reflected in Millhouse v. General Tire and Rubber Co., 9 Ohio App.3rd 203, 459 N.E.2d 623 (1983), wherein a company called Mobile Wash had contracted to clean defendant’s tank cars, certain of which had contained the chemical TDI. An employee of Mobile Wash was overcome with fumes and died while cleaning a TDI tanker. The Administratrix of the decedent’s estate commenced an action against General Tire, alleging, inter alia, that it was negligent in failing to warn Mobile Wash Employees of the dangerous propensities of TDI. The trial court granted summary judgment for the defendant and the state appellate court affirmed. The court held that there were no material issues of fact in the case because uncontroverted evidence disclosed that defendant had notified Mobile Wash that the tank cars had contained TDI, and that Mobile Wash supervisors had been warned of the hazards inherent to TDI. While the Millhouse decision was predicated on the defendant’s duty to warn employees of an independent contractor, it’s resolution is directly analogous to a situation, like the case at bar, where a manufacturer’s duty to warn employees of a company which uses its product is at issue.

In a case strikingly similar to the case at bar, Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969), the Kansas Supreme Court upheld the grant of summary judgment in favor of the defendant manufacturer on the basis that adequate warnings had been given to the immediate vendee, thereby satisfying the manufacturer’s duty to warn the vendee’s employees of dangers related to exposure to TDI. As in the case at bar, the defendant had sold TDI-to the plaintiff’s employer and had warned the employer of the chemical’s dangerous propensities.

Similarly, in Reed v. Pennwalt Corp., 22 Wash.App. 718, 591 P.2d 478, appeal dismissed 93 Wash.2d 5, 604 P.2d 614 (1979), a jury verdict for defendant was upheld on appeal.² There the defendant supplied a food processing plant with caustic soda. This chemical was shipped in tank cars and unloaded into holding tanks owned by the food processor. It was later diluted according to a formula controlled by the processor. There was no evidence that the defendant had any control over the use of the chemical in the plant. The Washington Court of Appeals determined that the supplier’s duty to warn had been fulfilled by providing adequate warning to the immediate vendee. As in the case at bar, the Reed court also noted that since the product was used in. a different form than its original state, it was reasonable to expect that the vendee had a safety program designed to communicate adequate information about the substance to its employees.

And again, in Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383, 1393 (1976), the Kansas Supreme Court upheld summary judgment in favor of defendant, a manufacturer of propane gas, based upon the lower court’s finding that the manufacturer fulfilled its duty to the ultimate consumers when it verified that the distributor to whom it sold the product in bulk was adequately trained and informed of the hazardous characteristics of the gas, and would convey that knowledge to consumers. See also Marker v. Universal Oil Products, 250 F.2d 603 (10th Cir.1957) (developer of a petroleum refining process had right to rely upon duty of employer who used the process to protect its own employees).

In sum, the lower court’s findings of fact and application of the law is well reasoned and in line with respected precedent. The decision of the district court is hereby Affirmed.

1 . A court sitting in diversity is bound to apply the law of the state’s highest court. Coleman v. Western Electric Co., 671 F.2d 980, 983 (6th Cir.1982). The district court determined that the Ohio Supreme Court has not ruled specifically on the duty of a manufacturer of dangerous products to warn third parties, such as the plaintiff in this action, of its dangerous propensities. However, the lower court concluded that if the Ohio Supreme Court had spoken on the issue, it would probably follow the reasoning of Sams v. Englewood Ready-Mix Corp., 22 Ohio App.2d 168, 259 N.E.2d 507 (1969), which accepted § 388 of the restatement of torts. Neither party challenges this conclusion.

2 . Although the jury verdict on Reed distinguishes it from the case at bar, the point of law which Reed makes regarding the discharge of the manufacturer’s duty to warn is directly applicable to the instant case.