Heck v. Beryllium Corp.

226 A.2d 87, 424 Pa. 140, 1966 Pa. LEXIS 430

• Court: Supreme Court of Pennsylvania
• Decided: September 27, 1966
• Docket: Appeal, 184
• Status: Published

Opinions

Opinion by

Mr. Justice Cohen,

Plaintiff contracted a disease caused by inhalation of beryllium and, alleging defendant’s liability for the resultant loss, instituted this suit. The lower court after a jury verdict for the plaintiff, granted judgment notwithstanding the verdict. The trial court also found that a new trial would be proper and that the verdict was excessive, but it denied the motion for a new trial because it had granted judgment n.o.v.

Between 1939 and trial plaintiff resided within several miles of a plant of the defendant Beryllium Corporation. During that time, except for the period 1942-1943 when she laundered the workelothes of her brother who was then employed at the plant, she inhaled beryllium only from emissions of the substance from the plant. The record shows that the defendant knew of the toxicity of beryllium in 1947 and perhaps earlier. However, the toxicity level which was unsafe was not known to defendant until the Atomic Energy Commission, on March 30, 1950, issued tentative recommendations stating that the average monthly concentration should not exceed .01 micro-grams per cubic meter (mc3) for out-plant areas. The testimony shows that a safety factor of eight to ten was used in determining the recommended figure.¹

Plaintiff was only able to show (because of limitations on data available) that from the years 1951 to 1955 the defendant’s emissions of beryllium exceeded the .01 mc3 standard at the location where plaintiff resided (although such emissions did not exceed the safety factor). Thus, her showing of any negligence was limited to that period.

In its opinion the lower court held, first, that defendant was not negligent before March 30, 1950. This ruling is correct. However, relying on the testimony of plaintiff’s expert to the effect that if plaintiff had not been exposed before 1951 an exposure from that time to the date of trial in the intensity of her exposure from 1951 to 1955 would not have caused her illness, the court then held that any negligence of defendant after March 30, 1950, could not have been causative. This was error.

Since the recommendation of maximum safe concentrations was not set forth until 1950, at least eleven years after defendant commenced its emissions exposing plaintiff and others, the jury could reasonably have found that, because of the unknown extent of the pre1951 exposure and the highly dangerous nature of the substance, the defendant had a duty to adhere to the minimum figure of .01 mc3. Malitovsky v. Harshaw Chemical Company, 360 Pa. 279, 283, 61 A. 2d 846, 848 (1948); Restatement 2d, Torts, §289, comment j (1965). Thus, the jury could have found that defendant’s emission of a greater amount constituted negligence towards any person within the area of that exposure even though the emission did not exceed the safety factor. Once a finding of negligence became permissible, defendant became “liable for all harm, caused by [its] negligent act though increased by an unknown physical condition. . . .” Offensend v. Atlantic Refining Company, 322 Pa. 399, 403, 185 Atl. 745, 747 (1936); Restatement 2d, Torts, §461 (1965). The lower court erred in not considering plaintiff’s physical condition as of March 31, 1960, occasioned by her previous exposure to the emissions even though such earlier emissions were non-negligent.

So also, we consider the testimony of plaintiff’s expert that the 1951 to 1955 “. . . exposures may be the critical ones, more so than [the] earlier ones and certainly have to be dealt with,” sufficient to require the submission to the jury of the issue of whether the emissions from 1951 to 1955 in fact were a substantial cause of plaintiff’s contraction of the disease. Majors v. Brodhead Hotel, 416 Pa. 265, 271, 205 A. 2d 873, 877 (1965); Restatement 2d, Torts, §§431 (a), 432(1), 433(a) (1965).

However, we grant a new trial in this matter because we believe the instructions of the trial judge to have been overly broad with regard to the issues of negligence and causation. While it was proper for the lower court not to bind the jury to either the .01 mc3 standard or the safety factor, the language of the charge permitted the use by the jury of some lower figure. Since, other than by the AEC recommendation the defendant had no guide for its conduct and no knowledge that, its emissions might be harmful, the jury should have been instructed that an emission of less than .01 mc3 could not constitute negligence.

Further, the trial court did not charge that the jury must find substantial causation only from the 1951 to 1955 emissions in order to find for the plaintiff. On the evidence presented, the defendant could not have known prior to March 30,1950, to what extent its emissions could be harmful. Consequently, it could be negligent only as to emissions subsequent to that date; and, of course, it is the negligent conduct which must be causative. Restatement 2d, Torts, §430 (1965). As noted above, however, the jury is entitled, once it finds negligence on defendant’s part, to consider plaintiff’s physical condition on March 31, 1950, as affected by the prior emissions, in determining if the post-March 31, 1950, emissions caused plaintiff’s disease.

Judgment reversed and case remanded for a new trial.

1 The safety factor thus would have permitted emissions of up to .08 mc3 or .10 mc3.