Fouch v. Bicknell Supply Co.

756 S.E.2d 682, 326 Ga. App. 863, 2014 Fulton County D. Rep. 894, 2014 WL 1097951, 2014 Ga. App. LEXIS 209
CourtCourt of Appeals of Georgia
DecidedMarch 21, 2014
DocketA13A2252
StatusPublished
Cited by19 cases

This text of 756 S.E.2d 682 (Fouch v. Bicknell Supply Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fouch v. Bicknell Supply Co., 756 S.E.2d 682, 326 Ga. App. 863, 2014 Fulton County D. Rep. 894, 2014 WL 1097951, 2014 Ga. App. LEXIS 209 (Ga. Ct. App. 2014).

Opinion

Miller, Judge.

Enrico Fouch was diagnosed with silicosis and ultimately received a double-lung transplant due to his overexposure to silica sand while he worked for approximately 11 years as a sandblaster. Fouch subsequently filed suit against Mine Safety Appliances Company, Bicknell Supply Company, and Miles Supply of Elberton, Inc. (collectively, “the Defendants”), who manufactured or supplied safety equipment that Fouch used while sandblasting.1 Fouch alleged strict liability for [864]*864defective design and negligent failure to warn against the Defendants. The trial court granted the Defendants’ motions for summary-judgment, concluding that Fouch’s claims against Mine Safety Appliances or Bicknell Supply failed as a matter of law because he did not establish that they proximately caused his injuries. Specifically, the trial court found that Fouch failed to present evidence showing the amount of exposure he experienced while using these defendants’ products. The trial court also concluded that all of the Defendants were entitled to summary judgment on Fouch’s failure-to-warn claim because they did not have a duty to warn Fouch of the known risks associated with sandblasting.2

Fouch appeals from the trial court’s ruling, contending that the trial court erred in concluding that, in order to establish proximate cause, he was required to show the actual quantity of respirable silica he was exposed to while wearing the Defendants’ products. Fouch also contends that the trial court erred in concluding that the Defendants did not have a duty to warn him of the dangers posed by sandblasting. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations, punctuation and footnote omitted.) MCG Health v. Barton, 285 Ga. App. 577, 578 (647 SE2d 81) (2007).

So viewed, the evidence shows that Fouch worked as a sandblaster in the granite industry in Elberton, Georgia from 1996 to 2007. During that time, Fouch worked for two companies: Majestic Granite from 1996 to January 1999 and Superior Granite from January 1999 to October 2007.

At Majestic Granite, Greg Dubose taught Fouch how to sandblast and gave limited instruction on what protective gear Fouch could use for sandblasting. According to federal regulations dealing [865]*865with respiratory protection, the only acceptable respirator to be used during abrasive sandblasting is the Type CE air-supplied respirator with a blast hood or helmet as part of the respirator unit (hereinafter an “air-supplied hood”). Dubose did not instruct Fouch that it was necessary to sandblast in an air-supplied hood, and neither of them used an air-supplied hood while sandblasting. Instead, Fouch and Dubose sandblasted while using a nonair-supplied canvas hood and either a paper mask or an air-supplied respirator underneath the hood. Every time Fouch sandblasted in an enclosed sandblasting room, he wore the nonair-supplied hood and an air-supplied respirator. Fouch knew that it was harmful to inhale the dust caused from sandblasting and that he had to wear respiratory equipment to protect against this hazard. Fouch stated that, while at Majestic Granite, the respirator he used was cleaned only a few times and he was never given an air-supplied hood.

At Majestic Granite, Fouch used several different types of sand, and he remembered seeing warning labels on the front of those bags about the need to avoid inhalation of the dust caused by sandblasting. Fouch, however, did not remember reading the language contained in those warning labels that prolonged exposure to crystal and silica had been shown to induce silicosis.3

Majestic Granite purchased its respiratory equipment, including the nonair-supplied hoods, and sand from Miles Supply. The canvas hood contained a warning label advising that the hood did not provide respiratory protection, and only NIOSH-approved respirators should be used when sandblasting. Majestic Granite also purchased sand and equipment, including canvas hoods, from Bicknell Supply. Majestic Granite had a Dustfoe 66 respirator, which was manufactured by Mine Safety Appliances. The record contains no evidence of any discussions about what equipment Majestic Granite should purchase.

In January 1999, Fouch left Majestic Granite and began working for Superior Granite. Superior Granite provided Fouch with various [866]*866types of respiratory protection — a paper dust mask, a nonairsupplied hood, an air-supplied respirator, and a nonair-supplied respirator. At first, Fouch used an air-supplied respirator, but subsequently he refused to wear it because the air flowing into the mask stung his eyes and smelled bad. When confronted by his supervisor, Charles Worley, Jr., Fouch explained his reasons for not wearing the mask, and Charles Worley offered to buy a new respirator and instructed Fouch to select one from a catalogue. Around the same time, Superior Granite asked Fouch to sign a “Waiver of Responsibility,” indicating that he understood that exposure to sandblasting dust could be harmful to his health, the failure to wear respiratory protection could cause illness, that the equipment provided by Superior Granite would provide adequate protection, and he would hold Superior Granite harmless for his decision not to wear the equipment provided.

Fouch then selected and Charles Worley bought for Fouch a Dustfoe 66 respirator. Charles Worley believed that he first contacted Bicknell Supply to purchase the respirator, and when they did not have it, he went to Miles Supply. The Dustfoe 66 was later replaced with another unit and then with a Dustfoe 88 respirator. Eventually, Superior Granite replaced the Dustfoe 88 respirator with an air-supplied respirator.

Fouch used the Dustfoe respirators primarily for sandblasting, but he also used the Dustfoe during cleanup, shoveling, and sweeping of sand. Fouch wore three different Dustfoe respirators for a total period of approximately two years at Superior Granite. The Dustfoe respirators were not air-supplied, nor did they contain warnings that they were unfit for use in sandblasting.

Charles Worley had told Fouch of the dangers of sandblasting, and Worley testified that sandblasting with silica sand would not be a problem if the sandblaster wore respiratory protection, which, according to him, amounted to an air-supplied respirator and a mask. Charles Worley testified that Superior Granite primarily bought sand and respiratory equipment from Bicknell Supply and Miles Supply and that these suppliers sent salesmen to the job site. Business invoices reveal that Superior Granite purchased nonairsupplied hoods for sandblasting from both Bicknell Supply and Miles Supply. Miles Supply and Bicknell Supply never warned or advised Charles Worley as to what equipment he should use to protect a sandblaster, including the fact that an air-supplied hood was required for sandblasting in a sandblast room.

In late 2006 and early 2007, Fouch began having trouble breathing, had chest pains, began wheezing, and became easily fatigued. [867]*867When the problems continued, Fouch quit his employment at Superior Granite in October 2007.

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Cite This Page — Counsel Stack

Bluebook (online)
756 S.E.2d 682, 326 Ga. App. 863, 2014 Fulton County D. Rep. 894, 2014 WL 1097951, 2014 Ga. App. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fouch-v-bicknell-supply-co-gactapp-2014.