STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-187
WILBERT BATES, ET UX.
VERSUS
E. D. BULLARD COMPANY, ET AL.
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-131-09 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
AFFIRMED.
Lawrence J. Centola, III Martzell & Bickford 338 Lafayette St. New Orleans, LA 70130 (504) 581-9065 Counsel for Plaintiffs/Appellants: Wilbert and Edna Bates Katherine Marie Loos Attorney at Law P. O. Drawer 51345 Lafayette, LA 70505-1345 (337) 534-4770 Counsel for Defendant/Appellee: Southern Silica of Louisiana, Inc.
Scott W. Browne Coffey & Browne, L.L.P. 2390 Eastex Freeway, Ste 100 Beaumont, TX 77703 (409) 898-5800 Counsel for Defendant/Appellee: Specialty Sand Company PICKETT, Judge.
The plaintiff, who contracted silicosis as a result of his exposure to silica
dust in his employment as a sandblaster, and his wife appeal the trial court’s grant
of summary judgment dismissing their claims against the defendants that supplied
sand to his employer for sandblasting. For the following reasons, we affirm.
FACTS
Wilbert Bates was employed by SBA Shipyards for the period 1980-1989.
During that time, Mr. Bates’ work duties included cleaning and/or sandblasting,
both of which exposed him to silica dust. In June 2009, Mr. Bates was diagnosed
with silicosis, a lung disease caused by the inhalation of small pieces of sand
known as respirable silica which are a result of sandblasting. Mr. Bates and his
wife filed suit against numerous defendants, asserting strict liability, negligence,
and products liability claims against them.
In their suit, the Bates alleged that the sand “manufactured and/or sold” to
his employer by two defendants, hereinafter referred to as the sand defendants, was
unreasonably dangerous or defective because the sand defendants failed to warn
and instruct him and SBA of the hazards of the sand and failed “to properly design
products in that products were defective for failure to instruct and warn.” The sand
defendants, Specialty Sand Company and Southern Silica of Louisiana, Inc., filed
motions for summary judgment, asserting they had no duty to warn Mr. Bates or
SBA of the dangers of sand they sold to SBA for sandblasting.
After a hearing, the trial court granted summary judgment in favor of the
sand defendants. The Bates appealed, assigning four errors with the trial court’s
judgment. ASSIGNMENTS OF ERROR
The Bates assign these issues for our consideration:
1. Prior to the passage and effective date of the Louisiana Products Liability Act, did a manufacturer or supplier have a duty to warn the “end user” of their product of a danger associated with its product?
2. Are there issues of fact regarding Mr. Bates’s knowledge of the danger of contracting silicosis from sandblasting with silica sand?
3. Are there issues of fact regarding whether SBA was a “sophisticated user” of the defendants’ sand?
4. Did the Hazardous Communication Standard in 1983 establish a tort duty for the sand defendants to warn end users, such as Mr. Bates, of the dangers sand presents when used for sandblasting?
SUMMARY JUDGMENT Motions for summary judgments are subject to de novo review on
appeal. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773. The
appellate court asks the same questions the trial court asks to determine
whether summary judgment is appropriate, which is does any genuine issue
of material fact exist and is the mover entitled to judgment as a matter of
law? La.Code Civ.P. art. 966(B).
“A fact is material if it potentially insures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal
dispute.” Ardoin v. Cleco Power, L.L.C., 10-815, p. 3 (La. 7/2/10), 38 So.3d
264, 266. A genuine issue of fact is “one as to which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, there
is no need for trial on that issue and summary judgment is appropriate.”
King v. Ill. Nat’l Ins. Co., 08-1491, p. 6 (La. 4/3/09), 9 So.3d 780,784.
2 DISCUSSION
The basis of the sand defendants’ motions for summary judgment is the
fourth circuit’s opinion in Damond v. Avondale Industries, Inc., 98-1275 (La.App.
4 Cir. 8/19/98), 718 So.2d 551, writ denied, 98-2854 (La. 1/8/99), 735 So.2d 637.
Damond held that Pearl Specialty Sands, Inc., a supplier of sand, such as the sand
defendants, had no duty as a matter of law to provide the plaintiff sandblaster with
a warning of the dangers presented by sand when it is used for sandblasting. That
conclusion was based on a number of factors, including: 1) the defendant sold the
plaintiff’s employer ordinary sand which it had collected, dried, and separated
according to size; 2) sand is not unreasonably dangerous per se because it is a
natural substance used in its natural state as a playground on the beach, for filling
gardens, lawns, and children’s sandboxes and for mixing with concrete; and 3) the
danger presented by sand when used for sandblasting results from the manner in
which it is used, not the condition of the sand itself.
The fourth circuit further determined the supplier did not have a duty to
warn the purchaser/employer’s employee’s because the purchaser/employer was
subject to and presumed to know the Occupation and Safety Health Act (OSHA)
29 C.F.R. § 1910.1-1450, which are detailed regulations that require employers
engaged in various industries, including shipyards, provide respiratory protection
for their employees. The court concluded the purchaser/employer was a
“sophisticated user” to whom no duty to warn was owed. More importantly, the
court determined that the supplier did not have a duty to warn the
purchaser/employer’s employees because, although the supplier may have known
the sand it sold to the employer would be used for sandblasting, “it had no control
over how [the employer] would conduct its operations” and because there was no
3 practical means by which the supplier could provide such warning to the
purchaser/employer’s employees. Id. at 553.
Damond relied in part on its earlier decision in Longo v. E.I. DuPont De
Nemours & Co., 93-756 (La.App. 4 Cir. 1/18/94), 632 So.2d 1193, writ denied, 94-
673 (La. 4/29/94), 637 So.2d 464, where the court had reached the same result with
regard to DuPont whose product, Teflon, had been incorporated in the plaintiff’s
oral implant that had been used to replace her right temporomandibular joint. The
implant failed and had to be replaced with one of plaintiff’s ribs. The plaintiff
sued DuPont, alleging it was liable to her under the theory of strict liability. The
court determined DuPont had no duty to warn the plaintiff of potential dangers
Teflon presented because, although DuPont may have known the implant
manufacturer would incorporate Teflon in a product it manufactured, it had “no
control over the design, composition, testing or manufacture” of the product. Id. at
1197.
The fourth circuit reached the same result in Cowart v. Avondale Industries,
Inc., 01-894 (La.App. 4 Cir.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-187
WILBERT BATES, ET UX.
VERSUS
E. D. BULLARD COMPANY, ET AL.
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-131-09 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
AFFIRMED.
Lawrence J. Centola, III Martzell & Bickford 338 Lafayette St. New Orleans, LA 70130 (504) 581-9065 Counsel for Plaintiffs/Appellants: Wilbert and Edna Bates Katherine Marie Loos Attorney at Law P. O. Drawer 51345 Lafayette, LA 70505-1345 (337) 534-4770 Counsel for Defendant/Appellee: Southern Silica of Louisiana, Inc.
Scott W. Browne Coffey & Browne, L.L.P. 2390 Eastex Freeway, Ste 100 Beaumont, TX 77703 (409) 898-5800 Counsel for Defendant/Appellee: Specialty Sand Company PICKETT, Judge.
The plaintiff, who contracted silicosis as a result of his exposure to silica
dust in his employment as a sandblaster, and his wife appeal the trial court’s grant
of summary judgment dismissing their claims against the defendants that supplied
sand to his employer for sandblasting. For the following reasons, we affirm.
FACTS
Wilbert Bates was employed by SBA Shipyards for the period 1980-1989.
During that time, Mr. Bates’ work duties included cleaning and/or sandblasting,
both of which exposed him to silica dust. In June 2009, Mr. Bates was diagnosed
with silicosis, a lung disease caused by the inhalation of small pieces of sand
known as respirable silica which are a result of sandblasting. Mr. Bates and his
wife filed suit against numerous defendants, asserting strict liability, negligence,
and products liability claims against them.
In their suit, the Bates alleged that the sand “manufactured and/or sold” to
his employer by two defendants, hereinafter referred to as the sand defendants, was
unreasonably dangerous or defective because the sand defendants failed to warn
and instruct him and SBA of the hazards of the sand and failed “to properly design
products in that products were defective for failure to instruct and warn.” The sand
defendants, Specialty Sand Company and Southern Silica of Louisiana, Inc., filed
motions for summary judgment, asserting they had no duty to warn Mr. Bates or
SBA of the dangers of sand they sold to SBA for sandblasting.
After a hearing, the trial court granted summary judgment in favor of the
sand defendants. The Bates appealed, assigning four errors with the trial court’s
judgment. ASSIGNMENTS OF ERROR
The Bates assign these issues for our consideration:
1. Prior to the passage and effective date of the Louisiana Products Liability Act, did a manufacturer or supplier have a duty to warn the “end user” of their product of a danger associated with its product?
2. Are there issues of fact regarding Mr. Bates’s knowledge of the danger of contracting silicosis from sandblasting with silica sand?
3. Are there issues of fact regarding whether SBA was a “sophisticated user” of the defendants’ sand?
4. Did the Hazardous Communication Standard in 1983 establish a tort duty for the sand defendants to warn end users, such as Mr. Bates, of the dangers sand presents when used for sandblasting?
SUMMARY JUDGMENT Motions for summary judgments are subject to de novo review on
appeal. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773. The
appellate court asks the same questions the trial court asks to determine
whether summary judgment is appropriate, which is does any genuine issue
of material fact exist and is the mover entitled to judgment as a matter of
law? La.Code Civ.P. art. 966(B).
“A fact is material if it potentially insures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal
dispute.” Ardoin v. Cleco Power, L.L.C., 10-815, p. 3 (La. 7/2/10), 38 So.3d
264, 266. A genuine issue of fact is “one as to which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, there
is no need for trial on that issue and summary judgment is appropriate.”
King v. Ill. Nat’l Ins. Co., 08-1491, p. 6 (La. 4/3/09), 9 So.3d 780,784.
2 DISCUSSION
The basis of the sand defendants’ motions for summary judgment is the
fourth circuit’s opinion in Damond v. Avondale Industries, Inc., 98-1275 (La.App.
4 Cir. 8/19/98), 718 So.2d 551, writ denied, 98-2854 (La. 1/8/99), 735 So.2d 637.
Damond held that Pearl Specialty Sands, Inc., a supplier of sand, such as the sand
defendants, had no duty as a matter of law to provide the plaintiff sandblaster with
a warning of the dangers presented by sand when it is used for sandblasting. That
conclusion was based on a number of factors, including: 1) the defendant sold the
plaintiff’s employer ordinary sand which it had collected, dried, and separated
according to size; 2) sand is not unreasonably dangerous per se because it is a
natural substance used in its natural state as a playground on the beach, for filling
gardens, lawns, and children’s sandboxes and for mixing with concrete; and 3) the
danger presented by sand when used for sandblasting results from the manner in
which it is used, not the condition of the sand itself.
The fourth circuit further determined the supplier did not have a duty to
warn the purchaser/employer’s employee’s because the purchaser/employer was
subject to and presumed to know the Occupation and Safety Health Act (OSHA)
29 C.F.R. § 1910.1-1450, which are detailed regulations that require employers
engaged in various industries, including shipyards, provide respiratory protection
for their employees. The court concluded the purchaser/employer was a
“sophisticated user” to whom no duty to warn was owed. More importantly, the
court determined that the supplier did not have a duty to warn the
purchaser/employer’s employees because, although the supplier may have known
the sand it sold to the employer would be used for sandblasting, “it had no control
over how [the employer] would conduct its operations” and because there was no
3 practical means by which the supplier could provide such warning to the
purchaser/employer’s employees. Id. at 553.
Damond relied in part on its earlier decision in Longo v. E.I. DuPont De
Nemours & Co., 93-756 (La.App. 4 Cir. 1/18/94), 632 So.2d 1193, writ denied, 94-
673 (La. 4/29/94), 637 So.2d 464, where the court had reached the same result with
regard to DuPont whose product, Teflon, had been incorporated in the plaintiff’s
oral implant that had been used to replace her right temporomandibular joint. The
implant failed and had to be replaced with one of plaintiff’s ribs. The plaintiff
sued DuPont, alleging it was liable to her under the theory of strict liability. The
court determined DuPont had no duty to warn the plaintiff of potential dangers
Teflon presented because, although DuPont may have known the implant
manufacturer would incorporate Teflon in a product it manufactured, it had “no
control over the design, composition, testing or manufacture” of the product. Id. at
1197.
The fourth circuit reached the same result in Cowart v. Avondale Industries,
Inc., 01-894 (La.App. 4 Cir. 7/3/01), 792 So.2d 73, writ denied, 01-2719 (La.
1/4/01), 805 So.2d 211, where the plaintiff sued a supplier of sand used for making
molds at a foundry. The foundry was held to be a sophisticated user because
foundries are also subject to the above-cited OSHA regulations; therefore, the
supplier had no duty to warn the employer or its employees of the dangers
presented by sand when used for sandblasting.
The sand defendants attached to their motions affidavits which show that the
factors present in Damond are present here. The sand defendants’ affidavits show:
1) they obtain ordinary sand by dredging water bottoms; 2) after dredging, the sand
is separated from the gravel then separated into various sizes of sand; 3) the sand is
dried and screened, after which it is sold and delivered to purchasers. The sand is 4 utilized for different purposes and in different manners depending on the
purchaser, e.g., foundry sand, masonry sand, blasting sand, and fill sand.
Mr. Bates testified that the sand was delivered by eighteen wheelers which
deposited the sand into a large tank. In turn, the sand would be hauled by a smaller
truck to where it was needed for sandblasting.
The Bates argue the sand defendants have not established they are entitled to
summary judgment because they have not shown that SBA is a “sophisticated
user.” They contend Damond is not applicable. A sophisticated user is defined as
one who is “familiar with the product,” Hines v. Remington Arms Co., Inc., 94-
455, p. 10 (La. 12/8/94), 648 So.2d 331, 337, or as one who “possesses more than a
general knowledge of the product and how it is used.” Asbestos v. Bordelon, Inc.,
96-525, p. 44 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 955. As a result of their
familiarity with a product, sophisticated users are presumed to know the dangers
presented by the product; hence, there is no duty to warn them. Hines, 648 So.2d
331.
The Bates further argue there is a genuine issue of material fact as to whether
SBA knew the dangers of sand used for sandblasting. Counsel for the sand
defendants point out that as early as 1944 the dangers posed to those who work in
silica dust were considered by the United States Supreme Court to be “a matter of
common knowledge” that the defendant employer “was bound to know.” Urie v.
Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1029 (1949) (quoting Sadowski v.
Long Island R. Co., 292 N.Y. 448, 456-457, 55 N.E.2d 497 (1944)). Additionally,
OSHA regulations applicable to shipyards for sand/silica have been in place since
1971. 29 C.F.R. § 1915.3-4. Being a shipyard, SBA is required to comply with
applicable OSHA regulations and presumed to know the regulations. Damond,
718 So.2d 551. As a result, SBA knew or should have known the danger sand 5 presents when used for sandblasting. Ducote v. Liberty Mut. Ins. Co., 451 So.2d
1211 (La.App. 4 Cir.), writ denied, 457 So.2d 15 (La.1984). For these reasons,
there is no genuine issue of material fact that SBA is a “sophisticated user” of sand
to whom no duty to warn was owed by the sand defendants.
We further find, as the fourth circuit did in Damond, that SBA is legally
obligated to comply with safety regulations to protect its employees from the
dangers presented by sandblasting. See La.R.S. 23:131. Likewise, we cannot say it
would be practical for the sand defendants to warn SBA’s employees of the
dangers sand presents when used for sand blasting. Accordingly, we agree with
the fourth circuit’s conclusion that the sand defendants did not have a duty to warn
SBA or Mr. Bates of the danger sand presents when used for sandblasting.
The Bates also urge that Damond is not applicable to all of their claims
because it applies only to cases that occurred after the effective date of the
Louisiana Products Liability Act (LPLA), September 1, 1988. They assert instead
that Mr. Bates’ employment with SBA began in 1980 and that their claims include
pre-LPLA claims and LPLA claims. To the contrary, Damond was decided solely
on pre-LPLA product liability law outlined by the supreme court in Halphen v.
Johns-Manville Sales Corp., 484 So.2d 110 (1986).
Next, the Bates claim that the Hazard Communication Standard, 29 C.F.R. §
1910.1200 disseminated by the Occupational Safety and Health Administration in
1 La.R.S. 23:13 provides:
Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees.
6 November 1983 resulted in a duty being imposed on the sand defendants to notify
Mr. Bates and other like employees of SBA of the danger sand presents when it is
used for sandblasting. This assertion has no merit. Courts have determined that
OSHA is a regulatory provision enforced by fines or criminal prosecutions. It does
not create a private right of action. Fullen v. Philips Elec. N.A. Corp., 266
F.Supp.2d 471 (N.D. W.V. 2002); Wickham v. Am. Tokyo Kasei, Inc., 927 F.Supp.
293 (N.D. Ill. 1996); Dukes v. Sirius Const., Inc., 73 P.3d 781 (Mont. 2003).
Lastly, the Bates claim summary judgment was improvidently granted
because discovery was incomplete. The record shows otherwise, however. Suit
was filed February 2009, and Mr. Bates was deposed in May 2009. The sand
defendants did not file their motion for summary judgment until December 2010.
In their memorandum opposing the motion for summary, the Bates stated the
deposition of Specialty Sand Company was being scheduled for January 2011, but
the corporate deposition of Southern Silica of Louisiana, Inc. was the subject of a
motion to compel. No motion to compel discovery is in the record, and there was
no mention of a request for a continuance during the hearing on the motions for
summary judgment. For these reasons, we find the Bates have not shown summary
judgment was improvidently granted on this basis. See LeCroy v. Byrd Reg’l
Hosp., 10-904 (La.App. 3 Cir. 2/2/11), 56 So.3d 1167.
DISPOSITION
The judgment granting summary judgment in favor of Specialty Sand
Company and Southern Silica of Louisiana, Inc. dismissing Wilbert and Edna
Bates’s claims against them is affirmed. All costs are assessed to Wilbert and
Edna Bates.