Sprankle v. Bower Ammonia & Chemical Co.

• Decision Date: 18 August 1987
• Docket Number: No. 86-4244,86-4244
• Citation: 824 F.2d 409
• Parties: , 23 Fed. R. Evid. Serv. 1029, Prod.Liab.Rep.(CCH)P 11,519, 13 O.S.H. Cas.(BNA) 1382 Raymond L. SPRANKLE, Plaintiff-Appellant, Cross-Appellee, v. BOWER AMMONIA & CHEMICAL CO., Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 409

824 F.2d 409

56 USLW 2131, 23 Fed. R. Evid. Serv. 1029,

Prod.Liab.Rep.(CCH)P 11,519,

13 O.S.H. Cas.(BNA) 1382

Raymond L. SPRANKLE, Plaintiff-Appellant, Cross-Appellee, v. BOWER AMMONIA & CHEMICAL CO., Defendant-Appellee, Cross-Appellant.

No. 86-4244.

United States Court of Appeals, Fifth Circuit.

Aug. 18, 1987.

Joe Sam Owen, Chester A. Nicholson, Ben F. Galloway, Gulfport, Miss., for plaintiff-appellant, cross-appellee.

David B. Strain, Gulfport, Miss., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before WISDOM, JOHNSON, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Raymond L. Sprankle (Sprankle) developed respiratory problems while employed by Reichhold Chemicals, Inc. (Reichhold), allegedly due to anhydrous ammonia that leaked from storage tanks furnished and maintained at Reichhold's plant by defendant-appellee Bower Ammonia & Chemical Company (Bower). Sprankle brought this diversity action against Bower to recover damages for his injuries, asserting four theories of liability. The district court refused to charge the jury on Sprankle's theories of negligent failure to warn and strict liability for an abnormally dangerous activity. Sprankle's remaining theories of liability, for negligent failure to maintain the storage tanks and for strict liability due to failure to warn, were submitted to the jury, which found for Bower, and the district court entered judgment in its favor. Sprankle appeals, claiming that the district court erred by directing a verdict on the negligent failure to warn and the strict liability for abnormally dangerous activity theories, and also by refusing to admit certain evidence. We affirm.

Facts and Proceedings Below

From August 1978 through June 1981, Sprankle worked for Reichhold at its chemical plant in Gulfport, Mississippi, initially as an "outside operator," and later as the supervisor's assistant. At the Gulfport facility, where it manufactured chemical resins, Reichhold used anhydrous ammonia as a neutralizing agent in producing the resins. The ammonia was combined with other chemicals and mixed in large reactors, or "kettles," that were owned and operated by Reichhold. The ammonia used by Reichhold was supplied by Bower and stored in tanks owned and largely maintained by Bower, which were located outside in a courtyard at the Reichhold plant. Ammonia was taken from the storage tanks by Reichhold pipes and delivered to the kettles.

Early in the morning on May 30, 1981, while Sprankle was walking up a staircase that originated in the courtyard near the Bower storage tanks and that led to the top of the kettles on the third floor inside the Reichhold facility, he encountered a pocket of ammonia gas. Sprankle subsequently developed respiratory problems. He received medical treatment for these problems, and he also sought and received benefits pursuant to Mississippi workers' compensation laws.

Sprankle filed this diversity suit against Bower on March 5, 1984. In his complaint, Sprankle alleged that the ammonia he inhaled came from the Bower storage tanks and that the exposure caused his respiratory problems. Sprankle sought recovery under four theories of liability: (1) strict liability for engaging in an abnormally dangerous activity, (2) strict products liability for failure to warn of the dangers of exposure to anhydrous ammonia, (3) negligent failure to warn, and (4) negligent failure to maintain the storage tanks.

The district court declined to submit to the jury Sprankle's theories of negligent failure to warn and strict liability for an abnormally dangerous activity, ruling thereon in Bower's favor as a matter of law. The remaining claims were submitted to the jury on special interrogatories, which asked:

"1. On May 30, 1981, was the anhydrous ammonia in a defective condition, unreasonably dangerous to the plaintiff because of the failure to give adequate warnings to the plaintiff, and if so, did it proximately cause or contribute to the plaintiff's injuries?

"2. Was Bower Ammonia and Chemical Company negligent, and if so, did such negligence proximately cause or contribute to the plaintiff's injuries?

"3. If your answer to Questions No. 1 and No. 2 is "No", your job is done. If your answer to either Question No. 1 or No. 2, or both, is "Yes", then what sum of money will reasonably compensate the plaintiff for his claimed injury and damage?"

The jury answered "no" to interrogatories 1 and 2, and pursuant to the conditioning instructions of interrogatory 3, did not answer that interrogatory. Based on the jury's answers, the district court entered judgment for Bower. This appeal followed. Discussion

I. Negligent Failure to Warn

Sprankle contends on appeal that because sufficient evidence was presented to raise a jury question as to whether Bower was negligent in failing to warn him of the risks associated with exposure to anhydrous ammonia, the district court erred in failing to submit this theory to the jury. We conclude that the district court's action in this respect does not constitute reversible error for two reasons.

First, since the evidence makes plain that Sprankle was aware of the precise danger of which he complains Bower failed to warn him, Bower cannot be held liable on this ground. Although the Mississippi courts have not spoken in depth on the subject, ¹ Mississippi apparently follows the general rule that in an action for negligent failure to warn, there is no right to recover where the party to be warned is already aware of the danger. ² In Hobart v. Sohio Petroleum Co., 255 F.Supp. 972 (N.D.Miss.1966), for example, a federal district court applying Mississippi law held that because the plaintiffs knew of the danger of suffocation associated with hydrogen sulfide gas, the defendant had no duty to warn them of this danger. In reaching this conclusion, the Hobart court summarized Mississippi law governing a claim brought under a negligent failure to warn theory:

"The Mississippi decisions are not inconsistent with the principles applicable in practically all other jurisdictions which impose a duty on distributors, shippers and other suppliers of inherently dangerous substances of conveying to users and other persons who may foreseeably be exposed to the hazard a fair and adequate warning of the dangerous potentialities. An inherently dangerous substance is one burdened with a latent danger or dangers which derives from the very nature of the substance itself, and the duty arises only with respect to hidden or concealed dangers. Even though the danger may be hidden, the duty encompasses only dangers which are unknown, and there is no duty to warn when the user has actual knowledge of the danger. Knowledge of the danger is equivalent to prior notice, and a failure to warn of a fact of which the user is already fully aware is not a breach of duty." Hobart, 255 F.Supp. at 974-75 (citations omitted).

Sprankle was fully aware of the hazards associated with exposure to anhydrous ammonia. Upon cross examination, Sprankle testified that during his employment with Reichhold he had refused to participate in the weekly cleaning of algae from Bower's ammonia tanks because "he knew what he was getting into"; he knew, in other words, that exposure to the ammonia was dangerous. Sprankle also testified that on several occasions prior to the May 30, 1981, incident he had inhaled ammonia fumes that came from ammonia stored in Reichhold's kettles. In his words, as a result of those earlier exposures, "you would either have a nose bleed or you would throw up, but it would burn you. You could feel a burning sensation as you would breathe it in." Additionally, on direct examination Sprankle specifically testified that he first became aware of the dangers of ammonia in 1979 when, as president of the International Chemical Workers Union, Local 806, he received a pamphlet--not authored or distributed by Bower--that explained the hazards and toxicology of ammonia. ³ The evidence clearly demonstrates that Sprankle was aware of the hazards to the respiratory system associated with inhalation of ammonia. There was no evidence on which a contrary finding could be based. We therefore determine that as a matter of Mississippi law, Bower had no duty to warn Sprankle of these dangers. ⁴

We also reject Sprankle's complaints in this respect for another reason. In substance, Sprankle's contention is that the jury charge and interrogatories wrongfully omitted his negligent failure to warn theory. However, we conclude that in light of the charge and interrogatories as a whole any theoretical error in this respect was harmless. The district court submitted for jury determination Sprankle's strict liability failure to warn theory. The jury found in favor of Bower on this theory. To do so, the jury either had to find that the ammonia tanks were not rendered defective by Bower's warning (i.e., that under the circumstances, the warnings given by Bower were sufficient) or that Bower's warnings, even if inadequate, did not proximately cause Sprankle's injury. Since both inadequate warning and proximate cause are factual elements on which a plaintiff must secure favorable jury findings in order to prevail in a warning claim brought under a negligence theory, as well as in one based on a strict liability theory, the jury's rejection of Sprankle's strict liability theory necessarily also constitutes a rejection by the jury of at least one essential factual element of Sprankle's negligent failure to warn theory.

Although conceptually different, ⁵ the two theories of liability each present the essential question whether an inadequate warning caused the plaintiff's injuries. See Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, 1190 (5th Cir.1978). The jury's finding under the strict liability theory that no failure to warn caused Sprankle's injuries thus cures...