Humphrey v. Day & Zimmerman Int'l, Inc.

Decision Date31 January 2014
Docket NumberC/A No. 6:12–1458–TMC.
Citation997 F.Supp.2d 388
CourtU.S. District Court — District of South Carolina
PartiesRobert Wayne HUMPHREY, Jr., and Crystal Marie Humphrey, Plaintiffs, v. DAY & ZIMMERMAN INTERNATIONAL, INC., Defendant.


Gary W. Poliakoff, Poliakoff and Associates, Raymond P. Mullman, Jr., Spears Poliakoff and Poole, Spartanburg, SC, for Plaintiffs.

Daniel Bowman White, Stephanie G. Flynn, Frances Groberg Zacher, Gallivan

White and Boyd, Greenville, SC, for Defendant.


TIMOTHY M. CAIN, District Judge.

This matter is before the court on a summary judgment motion filed by Defendant Day & Zimmerman International, Inc. (Defendant). (ECF No. 29). Plaintiffs Robert Wayne Humphrey, Jr. (Humphrey), and Crystal Marie Humphrey (collectively Plaintiffs) filed a response opposing the motion (ECF No. 31), and Defendant filed a reply (ECF No. 33). A hearing was held on the matter on October 3, 2013, and the court took the matter under advisement. For the reasons below, the court grants the motion.

I. Background/Procedural History1

This action arises out of an incident that occurred at Cytec Carbon Fibers, LLC, (“Cytec”), a chemical plant in Greenville, South Carolina. Defendant contracted with Cytec to provide labor and maintenance at Cytec's facilities. On December 30, 2009, one of Defendant's employees, while attempting to remove a potable water line, negligently cut into a line containing Acrylonitrile (“AN”), a hazardous chemical used to manufacture carbon fiber. Subsequently, while attempting to remove the damaged AN line, Humphrey, a contract employee of Cytec, was injured after being exposed to AN.

On December 30, 2009, two of Defendant's employees, Richard Lee Page (“Page”) and Travis Palm (“Palm”), were at Cytec to replace a potable water line suspended with various other lines approximately fifteen feet above the floor of an uncovered, concrete diked area. The pipe was located in an area which was cramped and difficult to access. Additionally, the area was exposed to the weather, which on that day was extremely cold and rainy and, at times, sleeting. The water line that was to be removed ran parallel with a one-inch AN line that was surrounded by a two-inch water jacket. The AN and water lines were approximately the same size and looked similar. Defendant had not provided its employees any specific training on how to identify, mark, or cut lines. Because Page was in a hurry to complete the task before the end of the day and the upcoming holiday and failed to identify and mark the water pipes, Page accidentally cut approximately halfway into the AN line at approximately 1:00 p.m. AN began spraying five feet into the air. Page and Palm immediately informed the other workers in the area, and the area was evacuated. Page and Palm then reported the incident to Cytec's control room. The spill alarm was activated, and the valves to the AN line were closed at most thirty minutes later. It was estimated that enough AN was released to fill a 55–gallon drum between a quarter to half way up.

Both the Emergency Response Team (“ERT”) at Cytec and the local Fire Department responded to the alarm. After 1 1/2 hours, the Fire Department returned control of the site to Cytec. The concrete area was washed and testing of the air at ground level showed the air was okay from an atmospheric standpoint.2

During this time, Cytec employees had discussed how to repair or remove the AN line. Humphrey, and two other Cytec employees, Michael Partridge (“Partridge”) and Bryan Maness (“Maness”), prepared to remove the AN line, and were instructed as to how the line should be removed and the personal protective equipment which would be needed.3 Humphrey and the others knew some AN was on the insulation and more was still in the line which could be released during removal. Humphrey had received training about hazardous chemicals, including AN, and the use of air packs.

First, Humphrey and Partridge shaved in preparation for using the air packs and to ensure a good seal of their face masks. Humphrey then put on a white jumpsuit which was used for blowing dust, but Terry McCall, Cytec's Safety Engineer, insisted Humphrey change into a yellow chemical jumpsuit. Humphrey complied and also put on a pair of rubber boots, chemical gloves, a hard hat, and an air pack with a tank and full shield face mask. Humphrey, however, did not duct tape his wrists or ankles or pull the hood over his head, which he had been trained to do. Furthermore, the jumpsuit was too small for Humphrey.4 At his deposition, Humphrey testified that he was not concerned about what he wore because he “looked at that chemical like it was a water,” and he “didn't respect it.”

At approximately 3:15 p.m., Humphrey, Partridge, and Maness began to remove the AN line. Maness remained on the ground, and Humphrey and Partridge with harnesses were elevated by scissor lifts so they could access the line. To remove the AN line, Humphrey and Partridge had to break the bolts holding the line. To do so, Humphrey had to access the flange which required reaching up and stretching over the AN line. At some point, Humphrey's jumpsuit ripped at the waist, and Humphrey used duct tape to fix it. Humphrey continued to work on removing the AN line in the ripped jumpsuit for approximately four hours, and during this time, he often pulled up his pants at the waist through his jump suit.

As noted, the men wore air packs and face masks during the removal process. The tanks for the air packs had to be changed approximately every thirty minutes, and this was done, without removing their protective clothing or washing off. Additionally, Humphrey took a break for a drink and snack in the break room while still wearing his protective gear.

As Humphrey actually removed the AN line, AN ran out of the line like a fire hose and he testified he panicked. The AN went into his gloves, and at that time Humphrey's air pack alarm sounded alerting him that he had five minutes left of oxygen. By the time Humphrey was descending from the area, he was out of air, and he broke the seal between his mask and his face before he was out of the diked area. Humphrey washed his hands and face, and switched his air bottle and continued making the repairs. During the last 45 minutes of the removal, condensation began to develop on Humphrey's mask, and he again broke the seal around his face mask in an attempt to remove the condensation.

After the line was removed, Humphrey and Partridge washed the area and tools with water and showered. Humphrey noticed the skin on his hands and at his waist was irritated. Later, he developed blisters on his hands and waist. At approximately 8 p.m., Humphrey emailed Mike Garner, a Cytec Maintenance Unit Lead, to report that the AN line had been removed without any problems. Humphrey did not report that AN had gotten on his skin or request any medical attention.

The following day, Humphrey woke up weak and with a sore throat—like he had the flu. Humphrey went to work and continued to feel ill. On January 1, 2010, still not feeling well and after experiencing breathing problems, Humphrey went to the emergency room, but he left because there were too many other people waiting to be seen. On January 2, 2010, Humphrey's condition worsened, and he felt as if his body was “shutting down.” He returned to the emergency room, and he was admitted to the hospital where he stayed until Jan. 9th. He remained out of work until March. Humphrey continued to work at Cytec until September 2011, when he stopped working due to his health problems, including severe asthma.

Humphrey, now 38 years old, claims that as a result of his AN exposure, he has sustained permanent and severe injuries to his pulmonary, respiratory, and immune systems; incurred enormous medical bills and expenses; lost wages; experienced severe pain and suffering, mental anguish and emotional distress; a decrease in the quality of life; and is permanently and totally disabled from any future employment. Humphrey's wife, Crystal Humphrey, brings a claim for loss of consortium. Both are seeking actual and punitive damages.

II. Standard of Review

Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. A litigant “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.” Monahan v. County of Chesterfield, 95 F.3d 1263, 1265 (4th Cir.1996).

III. Discussion

Defendant moves for summary judgment on the grounds that: 1) Humphrey's own negligence proximately caused his injuries; 2) Humphrey impliedly assumed the risk; and 3) Humphrey's comparative negligence was the cause of his injuries. Humphrey alleges his injuries and damages were caused solely by the negligence of Defendant, and had Defendant not cut the AN line on December 30, 2009, Humphrey would not have been involved in the maintenance work during which he was exposed to the AN. It is important to note that most of the facts are undisputed and Defendant admits Page was negligent in cutting the AN line. Further, the parties stipulated at...

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    • United States
    • U.S. District Court — District of South Carolina
    • 10 Octubre 2021
    ...relies are distinguishable from the facts at issue. Defendant cites this court's decision in Humphrey v. Day & Zimmerman Int'l, Inc., 997 F.Supp.2d 388, 391 (D.S.C. 2014), aff'd sub nom. Humphrey v. Day & Zimmermann Int'l Inc., 589 Fed.Appx. 135 (4th Cir. 2015), which found it was “not reas......
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    ...§ 51-12-33(b) (2021).87. O.C.G.A. § 51-12-33(g) (2021).88. S.C. Code Ann. § 15-38-15; see Humphrey v. Day & Zimmerman Int'l, Inc., 997 F.Supp.2d 388, 397 (D.S.C. 2014) ("[i]n South Carolina, a plaintiff may only recover damages if his own negligence is not greater than that of the defendant......

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