Henry v. Merck and Co., Inc., s. 86-2659
| Decision Date | 03 July 1989 |
| Docket Number | Nos. 86-2659,86-2661,s. 86-2659 |
| Parties | Gwendolyn C. HENRY and Hilery Henry, Jr., husband and wife, Plaintiffs-Appellees, v. MERCK AND COMPANY, INC., a New Jersey corporation and its wholly owned subdivision, Kelco, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edwin W. Ash of Ash, Crew & Reid, Okmulgee, Okl., for plaintiffs-appellees.
Harry M. Crowe, Jr. of Crawford, Crowe & Bainbridge, P.A., Tulsa Okl. (C.T. Harrington, Merck & Co., Inc., San Diego, Cal., with him on the brief), for defendants-appellants.
Before ANDERSON, BALDOCK and EBEL, Circuit Judges.
Gwendolyn and Hilery Henry brought this diversity action in the United States District Court for the Eastern District of Oklahoma against Merck & Company, Inc. and its wholly owned subsidiary Kelco (jointly referred to as "Kelco"). The complaint alleged that Kelco negligently stored sulfuric acid, and, as a result, Valerie Jones, one of Kelco's employees, stole the acid, removed it from Kelco's premises, and deliberately threw it in the face of Ms. Henry, causing serious injury. After a jury trial, the district court entered a judgment against Kelco of $450,000 for Ms. Henry for her injuries and $35,000 for Mr. Henry for loss of consortium. We reverse.
Kelco raises three issues on appeal: (1) whether Kelco had a duty to take action to prevent Ms. Jones' criminal acts; (2) whether the criminal acts of Ms. Jones were a supervening cause of Ms. Henry's injuries, relieving Kelco of liability; and (3) whether the owner of a dangerous instrumentality is liable for injuries caused thereby after it passes from his control. Because of our disposition of this case on the issues of duty and causation, we need not address the third issue. 1
Our review of the record convinces us that Kelco owed no duty to Gwendolyn and Hilery Henry to store its acid such that Ms. Jones could not have stolen it and used it in the subsequent assault. We also find that Ms. Jones' acts of stealing the acid and using it to injure Ms. Henry constituted a supervening cause of Ms. Henry's injuries, and Kelco's storage of the acid was, at most, a condition to the injury rather than a proximate cause. Accordingly, we hold that the district court should have granted Kelco's motion for directed verdict.
Kelco operates a chemical manufacturing plant at Okmulgee, Oklahoma, where it makes a product known as xanthan gum. Xanthan gum, a thickener used in food products and oil well drilling fluids, is manufactured by a fermentation process that is constantly monitored by laboratory technicians. The technicians test and monitor the fermentation materials in a laboratory consisting of several rooms that occupy the entire third floor of one of the buildings at Kelco's plant site. All laboratory personnel have access to the entire laboratory.
At the time of the incident at issue here, Kelco kept chemicals used in the laboratory under a "fume hood," a storage facility fitted with ventilation and drainage equipment. The fume hood was not locked and was accessible to all laboratory personnel.
Among the chemicals kept under the fume hood was a gallon bottle of 98% chromic sulfuric acid used for cleaning glassware in the laboratory. Sulfuric acid is produced in large quantities in the United States for use in fertilizer production, petroleum refining, metals processing, leather processing, and as battery acid. One of sulfuric acid's characteristics is its affinity to water, which allows it to be used as a dehydrating agent. That property makes sulfuric acid useful for commercial purposes, but also makes it hazardous to human flesh. Thus, although sulfuric acid is a stable product when used properly, its dehydrating effect can cause serious burn-like injuries to flesh.
Valerie Jones, the sister-in-law of plaintiff Gwendolyn Henry, had worked for Kelco as a technician in its laboratory for approximately four and one-half years at the time of the occurrence that gave rise to this action. Ms. Jones was a good worker, scored highly on her employee evaluations, and got along well with her coworkers. There was no indication that she was anything other than a responsible adult.
Although Ms. Jones did not use the sulfuric acid in the performance of her duties, she did have access to the fume hood because other chemicals she used on a daily basis were stored there. She was not required to travel away from the plant or to remove chemicals therefrom in the performance of her duties.
On September 3, 1984, Ms. Jones stole a cupful of the concentrated sulfuric acid from the gallon bottle under the fume hood in Kelco's laboratory. 2 After work, she took the acid from Kelco's premises, drove to the Henrys' home and, after a brief verbal altercation, threw sulfuric acid in Ms. Henry's face. 3 Ms. Henry suffered severe and permanent injuries from the sulfuric acid. Ms. Henry has never been employed by Kelco, and Kelco had no prior relationship with her.
The Henrys brought suit against Kelco under theories of strict liability and negligence. The district court granted summary judgment in favor of Kelco on the strict liability claim, but allowed the negligence claim to go to the jury. After the Henrys' presentation of evidence, Kelco moved for a directed verdict on the ground that there was insufficient evidence to support their negligence claim. The district court denied Kelco's motion, finding that there was sufficient evidence to make it possible for reasonable minds to differ as to the conclusions to be drawn from the evidence. Kelco renewed its motion for a directed verdict on the same ground at the end of its case. The district court again overruled the motion and allowed the jury to render a verdict. The jury returned a verdict of $450,000 for Ms. Henry for her injuries, and $35,000 for Mr. Henry for loss of consortium. Kelco appeals from both judgments. 4
Our standard of review in assessing whether the district court should have granted a directed verdict "is the same standard applied by the trial court in passing on a motion for directed verdict." Motive Parts Warehouse v. Facet Enterprises, 774 F.2d 380, 385 (10th Cir.1985). "A directed verdict is justified only if the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion." McKinney v. Gannett Co., Inc., 817 F.2d 659, 663 (10th Cir.1987) (citations omitted).
The Oklahoma Supreme Court has held that three elements are essential to a prima facie case of negligence:
(1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly exercise or perform that duty and (3) the plaintiff's injuries are proximately caused by the defendant's failure to exercise his duty of care.
McKellips v. St. Francis Hosp., Inc., 741 P.2d 467, 470 (Okla.1987) (). In this appeal, were are concerned with the first and third elements, duty and causation.
The first issue is whether Kelco, under Oklahoma law, owes a duty to an unrelated injured party to store its sulfuric acid in a careful way so as to deter the theft and subsequent use of the acid in a criminal manner to injure the third party.
The existence of a duty is an essential element of a negligence claim; without it the claim must fail. As the Oklahoma Supreme Court said in Nicholson v. Tacker, 512 P.2d 156, 158 (Okla.1973):
It is an established rule of law that there can be no actionable negligence where the defendant has breached no duty owed to the plaintiff. Just because the defendant has created a risk which harmed the plaintiff that does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable.
Whether a duty exists is a legal question to be determined by the court. Brown v. C.H. Guernsey & Co., 533 P.2d 1009, 1013 (Okla.App.1973). If no duty exists, there is nothing for the jury to decide, and a directed verdict must be granted in favor of the defendant. Hunter Constr. Co. v. Watson, 274 P.2d 374, 377 (Okla.1953). Thus, as a matter of law, even if Kelco carelessly stored the acid, and that carelessness facilitated Ms. Jones' violent act against Ms. Henry, Kelco is entitled to a directed verdict if it owed no duty to Ms. Henry to prevent the injury.
The general rule is that, absent special circumstances, no duty is imposed on a party to anticipate and prevent the intentional or criminal acts of a third party. Oklahoma follows that rule. Joyce v. M & M Gas Co., 672 P.2d 1172, 1173 (Okla.1983). In Joyce, the Oklahoma Supreme Court held that a motorist who left the keys in his truck when it was parked outside his house did not owe a duty to an unrelated victim who was injured when a thief stole the truck and negligently ran into the victim. In so holding, the court said that the victim failed to demonstrate "special circumstances" that created in the motorist a duty to prevent the acts of the thief. Id. at 1174.
Oklahoma recognizes only two types of special circumstances that create a duty to anticipate and prevent the acts of a third party: (1) "where the actor is under a special responsibility toward the one who suffers the harm"; and (2) "where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would have taken into account." Joyce, 672 P.2d at 1174. 5
A special responsibility may arise from a relationship with the victim coupled with a foreseeability of the specific risk to the victim. An example of a relationship that might give rise to a duty to anticipate and prevent the acts of third party is a landlord-tenant relationship. See Lay v. Dworman, 732 P.2d 455 (Okl...
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