Ferris v. Monsanto Co.

• Decision Date: 21 May 1980
• Parties: Gail Marie Gosselin FERRIS, Administratrix, v. MONSANTO COMPANY; Ley Construction Company, Third-Party Defendant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 644

405 N.E.2d 644

380 Mass. 694

Gail Marie Gosselin FERRIS, Administratrix, v. MONSANTO COMPANY; Ley Construction Company, Third-Party Defendant.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Feb. 4, 1980.

Decided May 21, 1980.

Gerard L. Pellegrini, Springfield, for plaintiff.

Philip A. Brooks, Springfield, for Monsanto Co.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

KAPLAN, Justice.

John Ferris, twenty-six years old, employed as a painter by a subcontractor at Monsanto Company's Springfield plant, died of asphyxiation through the discharge of nitrogen into a pipe connected to his air hood. This was an action for "wrongful death" (G.L. c. 229, § 2) by Ferris's widow, administratrix of his estate, against Monsanto, charging it with breach of its duty to exercise reasonable care, with some emphasis on alleged failure to give adequate warning of danger. ¹ Monsanto impleaded Ley Construction Company, the general contractor at the plant. After trial, a jury returned a special verdict which in answer to a question found Monsanto not negligent. Motion by the plaintiff to set aside the verdict and for a new trial was denied, and judgment entered for Monsanto in the main action and for Ley on the third-party claim. The administratrix appeals from the judgment for Monsanto and the new trial denial. Monsanto takes a protective appeal from the judgment for Ley. We hold that the plaintiff is entitled to a vacation of the judgment for Monsanto and to an opportunity for a new trial because of misdirection by the judge who introduced misleading considerations of "trespass" in his instructions to the jury. Correspondingly the judgment for Ley should be vacated.

We set out the evidence at some length, noting that there is no claim that either plaintiff or defendant was entitled to a directed verdict. The instructions are then described, and finally we examine their adequacy or fairness.

1. Monsanto contracted with Ley, as general contractor, to "restructure" part of the plant, and Ley subcontracted the painting work to H. L. Ross Co., Inc., which employed the decedent Ferris as a painter. Among the painting jobs was the sanding, priming, and painting of the inner surfaces of four silos located atop building No. 92. The silos were being adapted for the blending in pressurized atmosphere of resins for use in manufacturing plastic bottles. The paint to be applied was a hard epoxy, of a toxic composition. When the paint was sprayed, a source of compressed air was needed both to propel the paint through the spray gun and to supply air to the hood used by the painter to protect against the toxic fumes. Workmen entering such spaces as the silos were evidently required to secure daily permits.

Each silo, forty-five to fifty feet tall, with a diameter of fifteen to twenty feet, sat on a platform which rested on the roof of No. 92. To provide the compressed air, the subcontractor Ross company at first moved by crane to the roof of No. 92 a two horsepower electrical compressor with hoses reaching into the silo. But it turned out that because of the situation of the electrical source the compressor voltage dropped, reducing the air supply in the silo to an unworkable level.

Accordingly, John Olcott, foreman of a group of three then assigned to work on the silos (the others were Achilles Schiavetta and Bruce Adams), asked permission of Monsanto's "corporate engineering division" to use a Monsanto air line which originated at a compressor within building No. 92 and came out on the roof in the form of an "instrument air" pipe. Permission was granted to the Ross company by the engineer William Lancaster. ² To tap into the pipe, it was necessary to uncap the end of the pipe, insert a shut-off valve to control the pressure, and put on a reducer to allow the painter's 3/8 inch hose to attach to the 3/4 inch Monsanto pipe. The other end of the painter's hose ran up to the entrance to the silo where one or more "Y" joints could be attached so that multiple hoses might be used for the air hoods and spray guns. The painters began using Monsanto air for their air hoods sometime in June, 1974. Other workers, including Ferris, joined the project under these conditions in June or July. But only in early August when Ferris and Adams began to apply the epoxy paint was air required to work the spray guns.

Toward the end of July, Monsanto began installing a so-called "flip-flop" system, preparatory to providing sixty pounds per square inch air pressure in the silos necessary for the blending process. An auxiliary line was connected to the instrument air pipe so that, when pressure dropped below the indicated level, pure nitrogen would be pumped into the pipe to raise the pressure.

On August 5, about a week before the flip-flop system was to become functional, Jack Barry, a Monsanto engineer, revoked the permission the Ross company had been given and told Schiavetta (who had become foreman, Olcott having been transferred) to stop using that air. On August 7 Lancaster repeated the order. And in early August a memorandum from the corporate engineering division stating that Monsanto air lines should not be used was posted in the workmen's lunchroom. Schiavetta told his men to stop using Monsanto air and, according to Schiavetta, they complied.

On the question whether a reasonable effort was made to convey knowledge to those affected about a reason of safety for the order forbidding use of Monsanto air, we have the following. There was conflicting testimony whether Schiavetta knew of that reason or informed the men of it. Anthony F. Nunes, head foreman for Ley at building No. 92, testified that Schiavetta admitted to having received the memorandum. Schiavetta said he did not recall the memorandum. He testified he never knew there was a safety reason or that any but normal air ran in the pipe: Barry had not given a reason for his order. There was some evidence (from a government inspection report) that when Lancaster told Schiavetta not to use the air he gave reasons unrelated to safety. James Basile, a Ley employee, head safety officer at the project for converting No. 92, testified that he told Schiavetta about the flip-flop system during the second week of August, and that at the time he (Basile) did not know that the auxiliary source would pump nitrogen. But by mid-August, according to Basile, it was "known knowledge in the plant" that the flip-flop was going in with some sort of chemical backup. Basile also said that around August 14 Barry told him the painters were again using Monsanto air (it is not indicated how often or to what extent) and that he should tell them to get off it. Basile said he told this to Schiavetta but did not mention that the backup was nitrogen, although by this time Basile knew it. Basile testified further that he overheard Schiavetta tell his men around August 14 they should stay off the Monsanto line because of the flip-flop installation, but Schiavetta said merely that the air they were taking was reducing pressure on instruments connected to the air line which interfered with their calibration.

According to Basile, Ferris was one of the group to whom Schiavetta made these remarks. Ferris was shop steward and would be expected to attend safety meetings conducted by Basile on Friday afternoons after work. At perhaps three of these meetings after the memorandum was sent down, Basile stressed, so he said, the fact of the "change over" as the reason why the painters should stay off the air line; but it does not appear he disclosed a safety reason. He said Ferris was present at one, at least, of the meetings.

It seems that to the time of the accident the valve and reducer remained in place on the Monsanto pipe on the roof of No. 92. From the mere appearance of the pipe an onlooker would not surmise that there was a lethal danger of nitrogen; nor was any warning posted on or near the pipe.

We now approach more specifically the fatal accident on August 21. When permission to use Monsanto air was revoked, another source had to be found for the painters. Barry and Lancaster were able to secure from Ley a large gas-powered compressor which was placed on the ground some forty to fifty feet from No. 92, on the other side of railroad tracks alongside the building, with a hose running from one of the three compressor outlets up the side of the building, and Y joints appropriately arranged. There was no trouble until Monday, August 19. On that and the following day, Ley construction workers tapped into other outlets on the compressor to power jackhammers breaking up an asphalt driveway near No. 92. This reduced the air pressure available to the painters Ferris and Adams at work using the epoxy paint spray. They complained to Schiavetta who talked to the Ley operators. The Ley people said the use was temporary and Schiavetta took no further steps.

The night of August 20, Ferris, Schiavetta, Adams, and others worked an overtime shift to paint safety lines within building No. 92. This job required compressed air for spraying but not for air hoods. For fear that a freight train in bad light might run over the hose lying on the track, Schiavetta told Adams to take up the hose and hook it to the Monsanto pipe on the roof of No. 92 and run it into the building, and that connection was made, the valve and reducer being still in place. Schiavetta knew this was against instructions but he testified it was the first time he had transgressed. On finishing the overtime work, Schiavetta had Adams unhook the hose and leave it coiled on the roof. He said he told Ferris and Adams the line had to be unhooked because Monsanto air could not be used next day.

Next morning Schiavetta, Ferris, and Adams returned for the regular shift. About 8 A.M. Schiavetta had Adams drop the hose down to him on the ground so he could hook it to the Ley compressor. Between 8 and 10 A.M., while Schiavetta was...