Lawing v. Trinity Manufacturing, Inc.

749 S.E.2d 126, 406 S.C. 13, 2013 WL 4451075, 2013 S.C. App. LEXIS 207
CourtCourt of Appeals of South Carolina
DecidedAugust 21, 2013
DocketAppellate Case No. 2009-112467; No. 5166
StatusPublished
Cited by4 cases

This text of 749 S.E.2d 126 (Lawing v. Trinity Manufacturing, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawing v. Trinity Manufacturing, Inc., 749 S.E.2d 126, 406 S.C. 13, 2013 WL 4451075, 2013 S.C. App. LEXIS 207 (S.C. Ct. App. 2013).

Opinion

FEW, C.J.

Scott Lawing suffered severe burns over almost half his body when a large amount of a highly-flammable chemical caught fire at his jobsite. He brought a products liability lawsuit against several entities in the supply chain for the chemical. After a six-week jury trial, the trial court awarded substantial damages to Lawing and two of his co-workers. Lawing nevertheless appeals, arguing the trial court made two erroneous rulings. First, Lawing contends the court erred in [17]*17finding he was not a “user” of the chemical and granting summary judgment against him on his strict liability claim. Second, he contends the court should not have charged the jury on the sophisticated user doctrine. We affirm the trial court’s decision to charge the sophisticated user doctrine, but reverse the decision to grant summary judgment because we find the trial court employed too restrictive a definition of the term “user.” We remand for a new trial on Lawing’s strict liability claim.

I. Facts

Engelhard Corporation was a world leader in refining precious metals. Before Engelhard was purchased in 2006, Engelhard operated a 400,000 square-foot facility in Seneca, where it produced a precious metal catalyst for use in the automobile industry and reclaimed precious metals from recycled materials.1 Engelhard’s refining processes involved the use of sodium brómate, which is an oxidizer. When heated to 700 degrees Fahrenheit, sodium brómate releases oxygen, which increases combustion in an existing fire. Engelhard was using approximately 132 tons of sodium brómate per year in its refining operations at the time of this accident.

Beginning in 2002, Engelhard bought sodium brómate from Univar, USA, a chemical distribution company. In December 2003, Engelhard submitted a purchase order to Univar for 170 tons of sodium brómate to cover Engelhard’s anticipated needs for 2004.

Univar ordered the sodium brómate from Trinity Manufacturing, a chemical manufacturer. Trinity did not make sodium brómate, so it contracted with its subsidiary, Matrix Outsourcing, to obtain the product. Matrix ordered the sodium brómate from a Chinese exporting company, which, in turn, bought the chemical from a manufacturer in that country.

The manufacturer packaged the sodium brómate in white plastic bags that held twenty-five kilograms each. The bags had printing on both sides. On one side, “PRODUCT: SODIUM BROMATE 99.7% MIN.” appeared in black ink near the top. Other information appeared below that, including the [18]*18product code; the gross weight, tare weight, and net weight; and “MADE IN CHINA.” On the other side of the bags, the manufacturer printed the standard symbol for an oxidizing agent. The symbol is a yellow diamond with black outlines. Inside the diamond is a drawing of a flame on top of a line, followed by “OXIDIZING AGENT” and “5.1” in black ink. The United States Department of Transportation requires this symbol to be used in labeling oxidizers such as sodium brómate. See 49 C.F.R. § 172.426 (2008) (requiring “the OXIDIZER label must be as follows,” with image of symbol, and “the background color on the OXIDIZER label must be yellow”).

Someone in the Chinese portion of the supply chain stacked the bags onto wooden pallets and shrink-wrapped the bags onto the pallets. Each pallet contained thirty-six bags. The shipment involved in the accident consisted of twenty pallets.

The shipment traveled from China to the port in Charleston. From there, a trucking company delivered the shipment directly to Engelhard in February 2004. Upon the shipment’s arrival at the facility, Engelhard inspected it. One of the Engelhard employees who unloaded the shipment testified that when he looked at the pallets, some had bags with black writing on them and others had bags with the oxidizer symbol. However, he testified, “we were able to determine the difference and notice that they were the same thing because they do say ‘sodium brómate’ on them.” After inspection, Engelhard accepted the shipment, and its employees moved it to a storage area.

Matrix provided Engelhard a material safety data sheet (MSDS) for the sodium brómate. Among other things, the MSDS said, “DANGER! OXIDIZER. Contact with other material may cause fire,” and sodium brómate “[m]ay accelerate burning if involved in a fire. Containers may explode with heat. Prolonged exposure to fire or heat by the material may result in explosion.” The MSDS also instructed users not to store sodium brómate next to combustible materials and to keep it from contacting organic matter.

Engelhard was already aware of the dangers described in the MSDS. Engelhard employed between fifteen and twenty chemical engineers in its laboratory at the facility in Seneca. [19]*19One engineer testified he knew that sodium brómate, as an oxidizer, “was always dangerous.” Another testified the engineers “knew [sodium brómate] would support combustion and was an oxidizer.” In addition, Frank Lamson-Scribner, the facility’s operations and production manager, was asked at trial whether anyone working in the facility realized there was a risk that the sodium brómate could cause a fire like the one that occurred. He testified, “I think there are people in the plant that knew what the sodium brómate did.”

Engelhard used roughly 500 chemicals in its operations at the Seneca facility, including between five and ten different oxidizers. Lamson-Scribner testified that between fifty and seventy-five of those 500 chemicals were hazardous. To protect employees, Engelhard provided safety training on hazardous materials and hazard communications. It taught employees that an MSDS contains information about a chemical and instructed them to look up the MSDS if they had a safety concern. Employees could access copies of MSDSs using computers located in several areas of the facility. Engelhard also trained employees to recognize and understand labels and symbols on chemical containers. One of the labels covered in that training was the oxidizer symbol. Finally, Engelhard taught employees that oxidizers can be hazardous if exposed to combustion.

In May 2004, Engelhard moved several pallets of the sodium brómate out of storage to a staging area in a hallway near some of the refining machinery.

The following month, Engelhard shut down the facility to perform maintenance. Lawing, a maintenance worker, was part of a team assigned to replace a metal pipe suspended from the facility’s ceiling in a pipe rack. To remove the old pipe, the team would have to cut it into pieces using a blowtorch. This would cause hot molten bits of metal to fall from the pipe as it was being cut. The pipe rack passed directly over the staging area where Engelhard had chosen to store the pallets.

At the time of the accident, Engelhard had adopted a written procedure requiring that before employees could do any maintenance work that could create an ignition source for combustible or flammable materials, an Engelhard permit [20]*20supervisor had to issue an internal “hot work” permit. One of the requirements for obtaining the permit was that immediately before the work was to begin, the supervisor of the work had to inspect the work area for the presence of any combustible materials. The procedure further required that “[a]ll such materials ... be removed to a safe location for the duration” of the project.

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Related

Lawing v. Univar, USA, Inc.
781 S.E.2d 548 (Supreme Court of South Carolina, 2015)
Holland ex rel. Knox v. Morbark, Inc.
754 S.E.2d 714 (Court of Appeals of South Carolina, 2014)

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Bluebook (online)
749 S.E.2d 126, 406 S.C. 13, 2013 WL 4451075, 2013 S.C. App. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawing-v-trinity-manufacturing-inc-scctapp-2013.