Bridges v. Chemrex Specialty Coatings, Inc.

• Decision Date: 02 May 1983
• Docket Number: No. 82-3191,82-3191
• Citation: 704 F.2d 175
• Parties: Shelby BRIDGES, Plaintiff-Appellant, v. CHEMREX SPECIALTY COATINGS, INC., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 175

704 F.2d 175

Shelby BRIDGES, Plaintiff-Appellant, v. CHEMREX SPECIALTY COATINGS, INC., Defendant-Appellee.

No. 82-3191

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 2, 1983.

E. Gordon Schaefer, Jr., Metairie, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald O. Collins, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

This is a suit for damages brought by an injured worker against a product manufacturer. It falls in the diversity jurisdiction of the federal court, 28 U.S.C. Sec. 1332. Shelby Bridges was a foreman for the S & S Equipment and Construction Co. in the New Orleans area. On December 23, 1977, he was supervising a job involving the pouring of concrete curbing. After the curbs were poured, a coworker sprayed the concrete with Chem-cure, a chemical compound that helps the concrete to cure properly. The Chem-cure was packed in fifty-five gallon drums, labeled with both a red warning label indicating flammability and a detailed white warning label. The white label gave warnings obviously meant to protect users from dangerous practices. For example, the warnings included: "Keep away from heat and open flame," "Close container after each use and use only with adequate ventilation," and "Keep out of the reach of children." ¹

S & S's normal procedure for handling Chem-cure was to have an S & S worker transfer the Chem-cure from a fifty-five gallon drum to a smaller pressurized tank to make the spraying easier, apply the product to the newly-formed concrete, and put the large drums alongside the road as they were emptied. An S & S crew would reclaim the drums at the end of the day for proper disposal. On December 23, two empty, unsealed drums were set aside at the job site. Bridges noticed later in the day that one of the drums had caught fire. He extinguished the fire with dirt and then walked up to the second drum which had also by then caught on fire. At that moment the Chem-cure fumes in the second drum exploded, causing him injury. The exact cause of the fire and subsequent explosion was never determined, although neighborhood children had been playing with firecrackers nearby and were suspected of earlier vandalism at this job site. The fire and explosion possibly were caused by a firecracker thrown into the open drum.

Bridges filed this products liability suit against Chemrex Specialty Coatings, Inc., the manufacturer of Chem-cure. He claimed first, that Chemrex was negligent in failing to warn of Chem-cure's propensity to explode, and second, that Chemrex should be held strictly liable for marketing the product in an unreasonably dangerous condition--namely, without a warning label regarding its explosive nature. The case was tried to a jury. On a submission by interrogatories under Fed.R.Civ.P. 49(a), the jury found no basis for an award of damages to the plaintiff in strict liability. But the jury could not reach agreement on the negligence interrogatory. The district judge entered judgment for the defendant on the strict liability claim and ordered a new trial on the negligence claim. The second trial, also before a jury, determined that defendant was not negligent. Judgment ultimately was entered for the defendant on all counts.

Bridges brings a timely appeal. He challenges certain jury instructions at the first trial, the existence of sufficient evidence to uphold the findings of the first and second juries, and the court's acceptance of a "partial" verdict by a "confused" jury at the first trial. We affirm the judgment for defendant, Chemrex.

I. Jury Instructions

Bridges challenges a portion of the judge's charge to the jury, which read as follows:

A product is not unreasonably dangerous or defective merely becuase [sic] it is possible to be injured while using it. In the case of the Kem-Cure [sic] and its container, the law does not impose a duty to produce a product which is absolutely safe for the user under any and all conditions but merely requires that the products not be hazardous to normal use.

First, Bridges contends the instruction is proper only as to the negligence claim and is insufficient as to the strict liability claim. However, a recent decision of the Supreme Court of Louisiana has explained that strict liability and negligence concepts are substantially the same in Louisiana, except for the element of the defendant's knowledge of the risk involved. In Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 (La.1982), the court said:

In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.

In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner's duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts....

Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing's presenting an unreasonable risk of harm) is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case.

(Emphasis in original).

Since the full instruction on strict liability did not restrict plaintiff's right to recover by requiring knowledge of the risk on the part of defendant, we find no error as to the strict liability claim in the light of the court's full instruction. It was an adequate statement of the law.

Bridges also objects to use of the term "hazardous to normal use," arguing that the proper phraseology should be "unreasonably dangerous to normal use." The jury charge, however, included the phrase "unreasonably dangerous" many times before and after this single isolated use of the phrase "hazardous." We find no prejudicial error in the single use of the word "hazardous." Furthermore, any error would be to the benefit of Bridges, since the challenged instruction would allow recovery for any "hazard," not just unreasonable ones.

Finally, Bridges objects to the wording of an interrogatory submitted to the first jury. He asserts that the inclusion of the phrase "fail to warn" in the negligence interrogatory made warning an issue only in negligence, cancelling the inference of failure to warn as a defect under strict liability. We find no error. An inquiry by the jury during deliberations cleared up any possible ambiguity as to the words involved in the warning label under the strict liability interrogatory. The judge answered questions properly and with the approval of appellant's attorney.

II. Sufficiency of Evidence

Bridges next challenges the sufficiency of the evidence to support the two jury verdicts. The relevant inquiry, according to Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc) is whether any substantial, credible evidence exists for the verdict. We find ample evidence to support the juries' findings in this case.

Both parties concede that Chem-cure was a flammable liquid and was adequately labeled to warn of this danger. The parties further concede that under some circumstances Chem-cure, like many other flammable products, could explode. These circumstances, of course, fall far beyond the proper use of the substance. Yet a product can be unreasonably dangerous under Louisiana law for failure to warn even against unintended uses, if such uses are foreseeable. Louisiana Civil Code articles 2315 and 2317 look to the potential harm that can result through unintended uses. Amco Underwriters of Audubon Ins. Co. v. American Radiator and Standard Corp., 329 So.2d 501, 504 (La.App.1976). Warnings are therefore also required regarding foreseeable, though unintended, consequences. Cobb v. Insured Lloyds, 387 So.2d 13, 19 (La.App.), writ denied, 394 So.2d 615 (La.1980); Hoffoss v. Ralston-Purina...