Harris v. Peridot Chemical (New Jersey), Inc.

• Citation: 712 A.2d 1181,313 N.J.Super. 257
• Parties: Fred HARRIS and Ella McAdams-Smith, Plaintiffs-Respondents, v. PERIDOT CHEMICAL (NEW JERSEY), INC., Defendant-Appellant.
• Decision Date: 22 June 1998
• Court: New Jersey Superior Court – Appellate Division

Page 257

313 N.J.Super. 257

712 A.2d 1181

Fred HARRIS and Ella McAdams-Smith, Plaintiffs-Respondents, v. PERIDOT CHEMICAL (NEW JERSEY), INC., Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued May 6, 1998.

Decided June 22, 1998.

Gage Andretta, Roseland, for defendant-appellant (Wolff & Samson, attorneys; David Samson, of counsel; Mr. Andretta and Thomas Sabino, on the brief).

Brian E. Mahoney, for plaintiffs-respondents (Ginarte, O'Dwyer, Winograd & Laracuente, attorneys; Richard M. Winograd, Newark, of counsel and on the brief; Mr. Mahoney, on the brief).

Before Judges BAIME, WEFING and BRAITHWAITE.

The opinion of the court was delivered by

BAIME, P.J.A.D.

Plaintiffs Ella McAdams-Smith and Fred Harris brought this action to recover damages for injuries sustained as a result of their exposure to sulfur dioxide (SO sub2 ) and hydrogen sulfide (H sub2 S) which were allegedly emitted by a chemical facility owned and operated by defendant Peridot Chemical, Inc. (Peridot). Following a protracted trial, a jury found that defendant was negligent and awarded plaintiffs approximately two million dollars. Defendant appeals. We affirm but remand the matter to the Law Division for recalculation of post-judgment interest.

I.

Plaintiffs were employed by Hoechst-Celanese as chemical operators responsible for loading and unloading petrochemicals to and from trucks, rail cars and ships. At approximately 8:30 a.m. on September 9, 1991, Smith was working on an elevated platform located a short distance from the boundary line fence separating her employer's facility from defendant's plant. Although her memory of the precise events was somewhat unclear, Smith recalled that she was loading a tank truck with formaldehyde or glycol, when she was suddenly overcome by the odor of "rotten eggs." Harris, who was working some distance away, noticed the same odor and, upon observing Smith in distress, immediately called for assistance using a "walkie talkie."

Smith was transported by ambulance to a nearby hospital where she received emergency room treatment. She was discharged later the same day. Over the ensuing months, Smith developed persistent headaches, dizziness, nausea and diarrhea. She also began to suffer lengthy spells of coughing marked by a sensation that her throat was closing. During this period, plaintiff was treated with oral steroids and bronchodilators. Her condition was diagnosed as "bronchitis due to sulfur dioxide and hyperactive airways." Although she continued to experience these symptoms, Smith ultimately felt her condition was improving and thus returned to work.

A second incident occurred shortly before noon on July 7, 1992. Smith and Harris were unloading butylene glycol, an odorless and essentially harmless chemical, from a tank car when Smith suddenly smelled and tasted "rotten eggs." Harris was at the top of the car when he heard Smith scream, "they are releasing this stuff." Initially, Harris was unable to smell anything unusual, but when he "turned [his] head toward" defendant's plant he too experienced the sensation of "smell[ing] and tast[ing] ... rotten egg[s]." Harris recalled that the odor of the substances "took [his] breath away." Despite his own distress, Harris noticed Smith "staggering" about "like a drunk person." Upon reaching Smith, Harris observed that her "eyes [had rolled] back in[to] her head" and she was "gasp[ing] for air." Other workers in the area came to the rescue and evacuated Smith and Harris from the work site.

Harris and Smith were taken by ambulance to separate hospitals. Smith was admitted to the intensive care unit, where she was maintained on a respirator for several days. Her admitting diagnosis was "sulfur dioxide inhalation." Pulmonary studies disclosed marked airway obstruction and impaired diffusing capacity. Lung examinations revealed "inspiratory crackles" indicative of alveoli damage. Smith was discharged nine days after her admission with a diagnosis of "sulfur dioxide inhalation." Within weeks of her discharge, Smith's hair fell out in large patches or "chunks."

Harris was admitted with complaints of upper and lower respiratory symptoms and neurologic sequelae such as general weakness and dizziness. The admitting diagnosis was "severe fume inhalation." Harris was treated with oxygen, steroids and bronchodilators. He was released after an eleven day confinement, but was readmitted shortly thereafter with complaints of respiratory distress. The principal diagnosis upon readmission was "occupational asthma, upper airway edema secondary to sulfur dioxide, diabetes mellitus, chemical conjunctivitis" and "hypertension." Harris was discharged seven days after his readmission.

The principal question presented at trial concerned the origin or source of the noxious fumes that caused injury to the plaintiffs. Plaintiffs contended that chemical processes at defendant's plant caused sulfur dioxide and hydrogen sulfide to be released in an airborne state. They asserted that these noxious gases migrated to their work site directly south of defendant's facility. Defendant claimed that the sulfur dioxide produced by chemical reactions at its plant were recaptured by its internal system and could not have migrated to plaintiffs' work stations at the neighboring Hoechst-Celanese plant. Defendant further contended that its facility did not have the capacity to produce hydrogen sulfide, and that the injuries sustained must have resulted from other sources including perhaps plaintiffs' failure to exercise reasonable care while loading or unloading chemicals at their work site. Much of the evidence presented at trial thus focused upon the operational procedures and chemical processes utilized by defendant and neighboring facilities.

The accidents occurred in a heavily industrial section of Newark situated along the banks of the Passaic River. Hoechst-Celanese operated a huge chemical plant at its Newark terminal. Plaintiffs' work site, known as the "east farm," was located on the east side of Doremus Avenue immediately south of the Peridot facility. While Hoechst-Celanese distributed a variety of petrochemicals and manufactured formaldehyde in various forms, none of its chemicals included sulfur or was sulfur-based. Moreover, none of those chemicals smelled like sulfur. Sulfur dioxide presents a pungent sulfur smell akin to the odor of a burnt match. Hydrogen sulfide smells like "rotten eggs." Plaintiffs' evidence indicated that no such odors emanated from any process carried on at the Hoechst-Celanese facility.

Reichold Chemicals, Inc. is located directly to the south of the Hoechst-Celanese facility. Reichold Chemicals never produced or manufactured sulfur-based products at its Newark plant. By defendant's own account, Reichold Chemicals was never the source of sulfur-like odors. The record contains nothing to suggest that Reichold Chemicals was the source of the noxious fumes that caused plaintiffs' injuries.

Quantum Chemical Company is located directly to the north of defendant's plant. Uncontradicted evidence disclosed that Quantum Chemical did not produce sulfur products. Nor was Quantum Chemical the source of pungent sulfur odors. Additional evidence was presented indicating that no facility upwind of defendant's plant was a likely or even remotely suspected source of sulfur gases. Moreover, no source or facility northwest of Peridot originated sulfur-like odors.

In contrast, defendant was engaged in the business of manufacturing, processing, shipping and storing sulfur-based chemicals. The five basic chemicals produced at defendant's Newark facility were sulfuric acid, liquid sulfuric oxide, ultra high purity sulfuric acid, aluminum sulfate and magnesium oxide. Virtually all of defendant's processes involved sulfur-based chemicals.

Defendant generated magnesium oxide for Philadelphia Electric Company. Production of magnesium oxide (MgO) was conducted in the MgO regeneration unit on the east side of Doremus Avenue. The MgO unit was situated nearest to the south-side fence or boundary of defendant's facility, directly adjacent to the Hoechst-Celanese east farm. Defendant's MgO unit is an irregular assemblage of structures and equipment. The unit was designed to recycle magnesium sulfite (MgSO sub3 ) to yield magnesium oxide for reuse by Philadelphia Electric as a stack scrubbant. The magnesium sulfite, in the form of fine powder, was trucked to the MgO plant. It was then air-blown with special equipment into silos, and then placed in a large pre-heated brick-lined vessel known as a calciner where it was subjected to extremely high temperatures and converted into sulfur dioxide in gaseous form and magnesium oxide in powder form. Those substances then followed an elaborate route through additional equipment. The sulfur dioxide exited the system through an interface valve into an on-site sulfuric acid plant where it contributed to the production of marketable sulfuric acid. The magnesium oxide was processed into a silo and later transported to Philadelphia Electric's facility. When the MgO unit was operating steadily, "more than 8,000 pounds of sulfur dioxide" could be processed in one hour. In just six minutes, the unit could produce 250 pounds of sulfur dioxide.

The MgO plant had several valves or pressure release points through which emissions could be released into the atmosphere. We need not describe in detail the mechanical design of the various valves, release points and stacks. Suffice it to say that six atmospheric outlets or emission points were clustered at a location directly upwind of Hoechst-Celanese's east farm.

According to testimony presented by defendant's plant manager, there had never been an occasion when the safety relief valves opened because of over-pressure during operations. Moreover, when the system was not working, it would be purged of existing processed gases by three giant blowers or movers,...