Terminix, Inc. v. Right Away Foods Corp.

771 S.W.2d 675, 1989 Tex. App. LEXIS 1386, 1989 WL 52210
CourtCourt of Appeals of Texas
DecidedMay 18, 1989
Docket13-87-549-CV
StatusPublished
Cited by13 cases

This text of 771 S.W.2d 675 (Terminix, Inc. v. Right Away Foods Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terminix, Inc. v. Right Away Foods Corp., 771 S.W.2d 675, 1989 Tex. App. LEXIS 1386, 1989 WL 52210 (Tex. Ct. App. 1989).

Opinions

OPINION

KENNEDY, Justice.

Terminix, Inc. and Terminix International, Inc. (Terminix) appeal a judgment against them and in favor of Right Away Foods Corporation (RAF), for damages resulting from Terminix’s fumigation of RAF’s packaging and food processing facilities with the chemical Phostoxin. A jury found that the damages were proximately caused by the gross negligence of Terminix and the ordinary negligence of the phostox-in supplier, Industrial Fumigants, and assigned the comparative degrees of negligence 80% to Terminix and 20% to Industrial Fumigants. The jury failed to find a third defendant, Degesch America, Inc. (Degesch), manufacturer of the chemical phostoxin, liable for RAF’s damages under theories of either negligence or strict products liability. The jury assessed actual damages in the amount of $63,824.19 and exemplary damages in the amount of $250,-000.00. Judgment was rendered on the verdict that RAF recover from Terminix 80% of its actual damages, or $51,059.35, plus prejudgment interest in the amount of $37,711.96 and full exemplary damages of $250,000.00, totalling $338,771.31. Termi-nix appeals by eleven points of error, challenging the legal and factual sufficiency of the evidence to establish Terminix’s liability, complaining that the evidence proved as a matter of law or by the great weight and preponderance that the negligence of RAF and Degesch contributed to RAF’s damages, and asking for a remittitur of the actual and exemplary damages. We reverse that portion of the judgment awarding exemplary damages and affirm the remainder of the trial court’s judgment.

RAF contracted with Terminix through Jack Brewer, manager of Terminix’s Har-lingen office, to do a fumigation job at RAF’s food processing plant in McAllen, Texas. RAF manufactures rations for the armed forces, and a representative of the United States Air Force requested that phostoxin be used for the fumigation. Phostoxin is a pesticide which comes in tablet form. When the tablets are left exposed in the area to be fumigated, they emit a deadly gas called phosphine.

Brewer testified that he is certified by the Structural Pest Control Board of Texas as a licensed pest control applicator. He stated that he has used phostoxin eight to twelve times in the past, and that he has had eight and a half to eleven years experience in the pest control business. His expertise comes mainly from on-the-job training under the supervision of Vernon Walters, presently an owner of Industrial Fumigants. Walters, who also testified at trial, has used phostoxin since the late 1960’s and has frequently been called upon as a consultant to supervise its application.

Brewer testified that this was the biggest phostoxin job that he had ever done, that he needed professional assistance, and that, in exchange for buying the phostoxin from Industrial Fumigants, he wanted Walters to advise him on the job. Brewer further testified that he tried to get authorization to hire Walters as a consultant, but Terminix did not have time to process the authorization before the job began, so the relationship remained informal. Walters testified, however, that he had offered his services as a supervisor to Brewer, but that Brewer said that it wasn’t necessary.

A couple of weeks before the fumigation, Brewer personally measured the dimen[678]*678sions of the building at 1000' by 300' by 22', or 6,600,000 cubic feet. Brewer gave these dimensions to Walters to calculate the amount of phostoxin needed to do the job, and Walters ordered an amount based on that volume. Brewer testified that he did not double check his measurements prior to fumigation.

Walters later found that the dimensions that Brewer gave him were incorrect, the building was really only half the volume he had used to calculate the phostoxin dosage, and therefore the dosage should have been half the amount of phostoxin used.

Brewer testified that he knew phosphine may react with certain metals such as copper, brass, silver and gold, and that a combination of excessive concentration, high temperature and high humidity would cause corrosion of these metal. The danger of high concentrations of phosphine reacting with these metals at high temperatures and humidity was confirmed by the testimony of Vernon Walters and Jeremiah Sullivan, president of Degesch, who holds a Ph.D. in Pharmaceutical Chemistry and is a certified fumigator in the states of Virginia and North Carolina.

Walters testified that regulating the phostoxin dosage is the only practical way to prevent corrosion and that temperature readings in the 90 degree range are considered high for purposes of application of phostoxin. Sullivan testified that the amount of phostoxin used by Brewer was twice the amount needed for a building the size of the RAP warehouse and that this dosage would cause a high concentration of phosphine. Sullivan further testified that corrosion may occur with temperatures in excess of 90 degrees, humidity in the 80% range, and a concentration of 725 parts per million, the highest recorded during the present fumigation.

The fumigation lasted for 72 hours, from Friday evening through Monday, with RAP employees returning to work on Tuesday. Brewer testified that he took a temperature reading when he started the job and thereafter monitored temperature by a thermometer on the outside of the building. Weather reports entered into evidence show temperatures ranged between 61 and 93 degrees during the period of the fumigation. Brewer also testified that he took phosphine concentration readings which were within the limits specified by De-gesch, and that he showed his readings to Walters once during the fumigation. Walters testified that, when Brewer approached him about the concentration readings, Walters found them to be “up to the point that is scary,” because of the danger of corrosion. Although Walters had used concentrations that high in the past, he had not used those concentrations around equipment that might corrode, as here. Walters testified that he was not certain these concentrations were high enough to corrode the equipment because he could not predict the exact point at which corrosion would occur; he was dealing rather in safety margins.

As for the preparation of RAF’s warehouse before the fumigation, Sullivan testified that those in charge should have removed everything that was removable and either sprayed fixed objects with a protec-tant or wrapped them with polyethylene, which phosphine will penetrate minimally during an average fumigation. Walters testified that if he had been in charge of the fumigation, he would have removed all of the office equipment that could be removed, and been very careful with the building measurements and the dosage. Walters further stated that, if the building had been prepared properly, the damage would not have occurred.

Brewer testified that, before RAP prepared the warehouse for fumigation, he took Walters through the plant, including the office area, the warehouse and the lab. Brewer stated that Walters recommended that they remove the photographic film and paper, telephones, computers, the copy machine, and anything with copper or silver contacts, and that they use 4-mil plastic bags, which RAF subsequently furnished, to cover things that couldn’t be removed. Brewer further stated that Walters told him all the electrical and electronic equipment should be removed if possible.

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771 S.W.2d 675, 1989 Tex. App. LEXIS 1386, 1989 WL 52210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terminix-inc-v-right-away-foods-corp-texapp-1989.