Humble Sand & Gravel, Inc. v. Gomez

• Decision Date: 17 September 2004
• Docket Number: No. 01-0652.,01-0652.
• Parties: HUMBLE SAND & GRAVEL, INC., Petitioner, v. Raymond GOMEZ, et al., Respondents.
• Court: Texas Supreme Court

146 S.W.3d 170

HUMBLE SAND & GRAVEL, INC., Petitioner, v. Raymond GOMEZ, et al., Respondents.

No. 01-0652.

Supreme Court of Texas.

Argued October 30, 2002.

Decided September 17, 2004.

Appeal from the 60th Judicial District Court, Jefferson County, Gary Sanderson, J Richard O. Faulk, Gardere & Wynne, Houston, for Amicus Curiae American Chemistry Council.

J. Wade Birdwell, Wallach Andrews Florsheim & Stouffer, P.C., Fort Worth, for Amicus Curiae Texas Association of Defense.

Dan Lambe, Austin, for Amicus Curiae Texas Watch.

Joe Michael Dodson, Dodson Law Office, P.C., Beaumont, P. Michael Jung, Strasburger & Price, L.L.P., Dallas, for petitioner.

Bob K. Monk, Lance P. Bradley, McPherson Monk Hughes Bradley Wimberley, Port Arthur, Darren Brown, John Andrew Cowan, Greg Thompson, Provost & Umphrey, Beaumont, Robert E. White, Childs Bishop & White, Odessa, Stephen D. Susman, Susman Godfrey, L.L.P., Houston, for respondent.

Justice HECHT delivered the opinion of the Court, in which Justice OWEN, Justice JEFFERSON, Justice SMITH, Justice WAINWRIGHT, and Justice BRISTER joined.

Generally, a product supplier must warn expected users of foreseeable risks that make the product unreasonably dangerous,¹ but a supplier need not warn of risks that are common knowledge,² and when the product is supplied through an intermediary, a supplier may sometimes rely on the intermediary to warn the actual product users.³ We must apply these basic principles to the circumstances presented in this case. Specifically, the issue is whether a supplier of flint used for abrasive blasting had a duty to warn its customers' employees that inhalation of silica dust can be fatal and that they should wear air-supplied protective hoods, given the customers' knowledge of those dangers.

If the flint supplier in this case had such a duty, it is only because all similarly situated flint suppliers have the same duty, not because of some peculiar aspect of this one defendant's situation. Therefore, to determine whether a general legal duty exists, we must look beyond the particular circumstances of the injury here complained of, just as the parties themselves have done, to the broader industrial setting in which that injury occurred. The record before us establishes that by the 1980s, the dangers of using flint in abrasive blasting had been well known throughout the abrasive blasting industry as well as to health and safety professionals and government regulators for most of the twentieth century, but that blasting workers themselves remained largely ignorant of those dangers, and their employers were careless in enforcing workplace conditions that would protect workers' safety. The record also reflects that federal regulations have been imposed on employers to improve working conditions but not on flint manufacturers to warn of dangers involved in the use of their product. While the parties here no longer dispute that such a warning by the defendant supplier would have prevented the plaintiff's injury, missing from this record is any evidence that, in general, warnings by flint suppliers could effectively reach their customers' employees actually engaged in abrasive blasting. Without such evidence, we are unable to determine whether a duty to warn should be imposed on flint suppliers. Consequently, we reverse the judgment of the court of appeals⁴ and, in the interest of justice, remand the case to the trial court for a new trial.

I

Raymond Gomez contracted silicosis while working at and around abrasive blasting (often but less accurately called sandblasting) for about 6½ years, from 1984-1987 and again from 1991-1994, at plants in Odessa, where he was born and raised, and in Corpus Christi, where his wife was from. In 1995, Gomez filed suit in Jefferson County against more than twenty defendants, including four suppliers of flint used as the abrasive in the blasting work, two suppliers of blasting equipment, thirteen suppliers of protective gear worn by workers, and several jobsite owners. Gomez settled with all of the defendants except Humble Sand & Gravel Company, one of the flint suppliers, for a total of $389,200, and then following a jury trial obtained a judgment against Humble for about $2 million. Much of the evidence relevant to the issues now before us was undisputed at trial, but where it was conflicting, we of course recite that which was most favorable to Gomez.

Gomez left school after the ninth grade because his wife was pregnant with their first child. Within the year, at age 18, he started work for Spincote Plastic Coating Co. in Odessa, where he stayed six months before moving to Corpus Christi to work at Spincote's plant there for three years. Spincote was in the business of using abrasive blasting to clean and condition oilfield tubing. This involved spraying steel tubing with particles of flint shot through a nozzle with compressed air under pressures around 100 p.s.i. Flint is very hard stone composed mostly of crystalline silica (silica dioxide (SiO₂), commonly called quartz), which in its natural, undisturbed state is not at all dangerous. But when flint particles are blasted against metal at high pressure, they not only scour and abrade the surface, they shatter into an airborne dust of smaller particles. Some of this dust is coarse enough to rebound against workers, injuring exposed skin, and to hang in the air, obscuring visibility. But some particles of free silica are so fine — 5 microns (or about 200 millionths of an inch) in diameter, something like 1/20th the diameter of a human hair—as to be invisible to the naked eye. The visible dust can clog the nose and mouth but is too coarse to be inhaled into the lungs and is relatively harmless. But the microscopic particles of free silica are both respirable and toxic. Inhaled over months or years, free silica particles cause silicosis, an incurable disease involving a fibrosis and scarring of the lungs and other complications that can eventually result in disability and death. Silicosis is caused only by inhaling free silica. Inhalation of free silica particles cannot be prevented by ordinary, loose-fitting, disposable paper masks; the particles are too small. People working around silica dust must wear air-fed hoods or respirators covering their heads or faces to protect themselves.

The parties here agree, and the record establishes, that the health risks from inhaling silica dust have been well known for a very long time. One of Gomez's expert witnesses, Dr. Eula Bingham, former Assistant Secretary of Labor in charge of the Occupational Safety and Health Administration (OSHA) from 1977-1981, observed that Hippocrates (460-377 B.C.) linked respiratory disease to mining and stonemasonry, and that the first systematic treatise on occupational disease, De Morbis Artificum, written by Bernardino Ramazzini in 1700, identified silicosis as a pneumoconiosis ("a disease of the lungs caused by the habitual inhalation of irritant... particles"⁵) common to stonemasons. Dr. Bingham and another of Gomez's expert witnesses, Dr. Vernon Rose, a certified industrial hygienist, testified that for more than 300 years silicosis has been treated as an occupational disease of flint knappers—workers who chip flint into desired shapes, such as gunflints.⁶ The chipping releases free silica particles into the air. Both Dr. Bingham and Dr. Rose testified that the link between silicosis and abrasive blasting using silica flint was firmly established by physicians and public health officials in the United States and Europe in the early twentieth century.

A tragedy in the 1930s forced the attention of this nation and others to the dangers of silicosis. While constructing Hawk's Nest Tunnel through a mountain near Gauley Bridge, West Virginia, workers dug three miles through rock formations rich in silica. Hundreds died from silicosis and were buried nearby in unmarked graves, as Congressional hearings afterward revealed.⁷ Several years later, according to Dr. Bingham, England banned the use of silica in abrasive blasting, and over time other European countries followed suit. Since these events, Dr. Bingham affirmed, it has been "well known throughout the medical and industrial worlds that [silicosis] is an occupational disease" associated with abrasive blasting. Dr. Rose agreed that "[t]his indisputable body of knowledge has been out there for all of industry and employers in the industrial workplace to know for a long time".

Studies of the health hazards of abrasive blasting with flint also determined that such work could be done relatively safely if workers were required to use suitable air line respirators—devices that fit over the face or head with a clean air supply for workers to breathe. Dr. Bingham and Dr. Rose testified that the American National Standards Institute, a consensus group made up of various industry participants including manufacturers, suppliers, employers, unions, and customers, first adopted safety standards calling for the use of respirators in abrasive blasting in 1938. OSHA regulations for abrasive blasting originally promulgated in the early 1970s also require the use of respirators, or air-fed hoods, "constructed [to] cover the wearer's head, neck, and shoulders to protect him from rebounding abrasive."⁸ These regulations also require employers to develop written procedures for selecting respirators, to instruct employees in their use, to keep respirators clean and well-maintained, and to conduct frequent random inspections to ensure employee compliance.⁹ Given these safety standards and regulations and the long-held concerns that led to their adoption, Dr. Rose testified that one "would expect a professional in ... the abrasive blasting industry to know about the hazards of abrasive blasting" and "the requirements to provide air-supplied respiratory equipment to the workers". Frank Bogran, a witness called by Gomez, who had run a major abrasive blasting...