Hebel v. Conrail, Inc., 385S81

• Decision Date: 14 March 1985
• Docket Number: No. 385S81,385S81
• Citation: 475 N.E.2d 652
• Parties: Robert HEBEL, personal representative for Richard C. Hebel, Deceased, Appellant (Plaintiff Below), v. CONRAIL, INC., Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 652

475 N.E.2d 652

Robert HEBEL, personal representative for Richard C. Hebel Deceased, Appellant (Plaintiff Below), v. CONRAIL, INC., Appellee (Defendant Below).

No. 385S81.

Supreme Court of Indiana.

March 14, 1985.

Douglas C. Holland, Lawrenceburg, for appellant.

John F. Stroup, Lawrenceburg, Nicholas C. Nizamoff, White & Raub, Indianapolis, for appellee.

ON CIVIL PETITION TO TRANSFER

PRENTICE, Justice.

The evidence favorable to the judgment of the trial court is as follows:

On February 22, 1977, at approximately 6:00 a.m., a boxcar in Defendant's (Conrail) freight train heading east toward Guilford, Indiana, derailed approximately one-half mile west of Guilford, punching a hole in the lower east end of a tank car behind it containing 35,000 gallons of acrylonitrile, a hazardous chemical used in the manufacture of plastics. The derailed boxcar and punctured tank car came to rest approximately 1800 feet west of a parking lot on the outskirts of Guilford, adjacent to the railroad tracks. The tank car contents flowed east on the north side of the railroad tracks, then south through a culvert (located 1100 feet west of the parking lot) under the tracks to Tanners Creek; by 9:00 a.m., the tank car was almost empty.

At approximately 7:00 a.m., the train crew notified Conrail's train dispatcher in Indianapolis of the derailment. Shortly thereafter, pursuant to Conrail procedure, Conrail's Indianapolis supervisor of train operation notified Chemtrek, the Bureau of Explosives, State Board of Health and the Environmental Protection Agency concerning this chemical spill.

Around 9:00 a.m., in response to the Lawrenceburg trainmaster's phone call, 3 representatives of the tank car owner, Monsanto, arrived in Guilford and proceeded to the derailment site. Monsanto's senior representative, the safety superintendent of the Addyston, Ohio plant, after observing the derailment site and tank car from as close as 5 feet, experienced no discomfort from any chemical fumes and did not feel that it was necessary to wear air packs or self-contained breathing apparatus.

At about 11:00 a.m., 3 members of the Indiana State Board of Health Emergency Response Team arrived in Guilford and began monitoring the air for the presence of acrylonitrile vapors. Air sample readings taken by the Emergency Response Team members from the parking lot to the tank car did not indicate the presence of acrylonitrile vapors until 20 feet east of the tank car, and readings taken over water and chemical filled ditches between the railroad cars and the culvert under the tracks also failed to indicate the presence of chemical vapors. Based upon their findings, the team was of the opinion there was no acrylonitrile vapor problem and did not recommend, nor feel it necessary under the circumstances to use self-contained breathing apparatus.

The operations officer of the hazardous materials company hired by Conrail to clean up the derailment spill was also of the opinion that masks or self-contained breathing apparatus were not necessary nor needed.

During the afternoon of February 22, the entire train, except for the derailed boxcar, was removed from the Guilford area; by 8:00 p.m., the remaining boxcar had been rerailed and also removed from the area.

The next day, February 23, Plaintiff's decedent, Richard C. Hebel (Hebel), who was a Conrail policeman, was assigned to work at the Guilford derailment site beginning at 4:00 p.m. that day and ending at 4:00 a.m. on February 24. At 4:10 p.m. on February 23 in the parking lot, Hebel asked the Lawrenceburg trainmaster if he (Hebel) needed to go down there and he (trainmaster) said he didn't see any reason why Hebel would have to do down to the derailment site. During Hebel's tour of duty, he was seen only at the parking lot on the outskirts of Guilford, 1800 feet east of the actual derailment site. At the end of his shift at 4:00 a.m. on February 24, Hebel called his supervisor and related that the scene was reasonably secure, that there hadn't been any trespassers there, and that in his judgment, it didn't warrant another officer's coming down and relieving him. Hebel did not sound unusual nor did he make any complaint about how he was feeling.

During February 23 and 24 and while Hebel was on duty at the parking lot, there were no persons overcome by the chemical vapors; there were no chemical odors in the parking lot; there was no chemical liquid east of the culvert, and the closest vapor concentration was west of the culvert, which was 1100 feet west of the parking lot. Three people, including two bulldozer operators working at the site of the spill, had been overcome by the fumes and taken to the hospital on the 22nd, following approximately twelve hours of working in the immediate area of the chemical. Conrail did have knowledge of these casualties.

Although Hebel later told his doctor he was off work at least a few days after the "acute incident" ending at 4:00 a.m. on February 24, he missed no work until March 19 when he was off work one day. After that, Hebel worked for the remainder of 1977 missing work only on April 23 and October 25-26 due to sickness. On May 17, 1977, Hebel took his annual physical examination required by Conrail and acknowledged to the examining physician that he had had no medical complaint or problems since his last previous examination on May 24, 1976.

Although Conrail's primary safety rule was that all personal injuries be immediately reported by the employee to his supervisor, Hebel's supervisor was not notified or aware that Hebel was claiming injury as a result of an alleged chemical exposure on February 23-24, 1977, until the supervisor read about the filing of Hebel's suit in October, 1978. In the 1 1/2 year period between the Guilford derailment and the filing of his suit, Hebel never informed his supervisor that he was claiming injury as the result of an exposure at the derailment site.

On November 1, 1978, after he filed suit, Hebel gave a history of his alleged chemical exposure to Dr. Brooks, as follows: he was guarding an overturned tank car which contained acrylonitrile; he had to stay there and guard that car; he noted a brownish fog-like emission emitting from around the tank car and was in very close proximity to the car. Based upon what Hebel told him, it was Dr. Brook's opinion that Hebel's underlying peripheral vascular disease was aggravated by the alleged acrylonitrile exposure which accelerated his death, in November, 1979. The doctor also testified, on cross-examination, that it was possible that the progression of Hebel's peripheral vascular disease in 1978 and 1979 could have occurred as it did without exposure to acrylonitrile. Defense witness, Dr. Thomas Bright, a physician and toxicologist, testified that the symptoms reported by Hebel to his doctor were inconsistent with a typical exposure to acrylonitrile. It was also Dr. Bright's opinion that the progression of Hebel's peripheral vascular disease in 1978 to his death in 1979 was not unusually rapid, but was a classic case of the disease of a diabetic smoker, not connected with exposure to the chemical.

This action was brought initially by Hebel on October 12, 1978, in Dearborn Circuit Court under the Federal Employer's Liability Act (FELA), 45 U.S.C. Sec. 51 et seq. Hebel died on November 7, 1979; and on June 30, 1980, Plaintiff, Robert Hebel, as personal representative for Hebel, was substituted as party plaintiff.

Trial by jury resulted in judgment for the Defendant and against the Plaintiff. The Plaintiff appealed and the Indiana Court of Appeals, First District, reversed. Hebel v. Conrail, Inc., (1983) Ind.App., 444 N.E.2d 870 (reh'g denied March 1, 1983). The case is now before us on a Petition to Transfer filed by Conrail on March 21, 1983.

Also on March 21, 1983, twelve railroad companies operating within the State of Indiana filed their joint motion for leave to file Brief Amici Curiae in support of Conrail's petition to transfer, which motion was sustained and said brief ordered filed August 3, 1983. On August 8, 1983, the cause was argued orally both on the Petition to Transfer and the merits and taken under advisement.

We have been greatly hampered in our review of this case by reason of Plaintiff's inarticulate briefing and the assignment of numerous alleged errors which, if committed, were, nevertheless, not preserved for review. We address assigned issues V and IV because of our desire to reach the merits of appeals wherever it appears that justiciable issues exist and because these issues were addressed in detail by the Court of Appeals and, in our judgment, decided erroneously.

ISSUE V--STRICT LIABILITY CLAIM

With regard to this claim, Plaintiff, in his "Statement Of The Issues Presented For Review," assigns: "Whether the Trial Court erred in not allowing into evidence, violations of federal safety statutes." In his "Summary of the Argument," Plaintiff charges not that evidence of violations was rejected but rather that the trial court did not allow him "to present the federal safety standard [relative to the presence of] acrylonitrile in the workplace into evidence"--a charge differing from the one set forth in the statement of issues.

In his argument, Plaintiff launches into a syllogism that the OSHA standards were for the protection of workers in the workplace, including him, that the violation of such regulations was negligence per se under the Federal Employer's Liability Act, and that the trial court erred in directing a verdict upon that issue. This was the thesis of the Court of Appeals; thus, although it appears to us that because of procedural deficiencies, namely that we cannot determine from Plaintiff's brief, or the record, the provisions of the regulations that Defendant allegedly violated, the issue is not before us. Apparently, the Court of Appeals took the burden of making this determination upon itself--an admirable effort to do...