Industrial Chemical & Fiberglass Corp. v. Chandler

• Decision Date: 30 September 1988
• Citation: 547 So.2d 812
• Parties: INDUSTRIAL CHEMICAL AND FIBERGLASS CORPORATION v. Lynn B. CHANDLER, et al. INDUSTRIAL CHEMICAL AND FIBERGLASS CORPORATION v. Peggy Ann ENSLEY, et al. 86-381, 86-385.
• Court: Alabama Supreme Court

Page 812

547 So.2d 812

75 A.L.R.4th 123

INDUSTRIAL CHEMICAL AND FIBERGLASS CORPORATION v. Lynn B. CHANDLER, et al.

INDUSTRIAL CHEMICAL AND FIBERGLASS CORPORATION v. Peggy Ann ENSLEY, et al.

86-381, 86-385.

Supreme Court of Alabama.

Sept. 30, 1988.

Opinion After Remand Jan. 16, 1989.

Rehearing Denied June 23, 1989.

T. Thomas Cottingham, F.A. Flowers and Marion W. Tilson of Burr & Forman, Birmingham, for appellant.

Lloyd W. Gathings of Gathings & Tucker and Lanny S. Vines of Emond & Vines, Birmingham, for appellees.

ADAMS, Justice.

Industrial Chemical and Fiberglass Corporation, a distributor of fiberglass products and supplies, appeals from a judgment based upon a jury verdict awarding Lynn B. Chandler and Peggy Ann Ensley $2.5 million each on their claims against Industrial Chemical, alleging, first, under the Alabama Extended Manufacturer's Liability Doctrine, that its negligent failure to warn wrongfully caused the deaths of their husbands, Terry D. Chandler and Dewey E. Ensley, Jr., employees of J.M. Foster, Inc., and, second, that it breached its implied warranty of merchantability in providing J.M. Foster certain chemicals for use in the construction and repair of an acid regeneration plant in Fairfield.

J.M. Foster contracted to repair the cracked floors of three cylindrical fiberglass tanks, which were 35 feet high and 11 feet in diameter. The only openings were a 24-inch hole at the top of the tank, through which laborers were lowered on a bosun's chair, and a six-inch hole at the base of the tank for ventilation. The project's general contractor ordered the repair materials and the required chemicals by telephone from Industrial Chemical in Atlanta, Georgia. An employee of J.M. Foster was sent to bring them to the construction site. The materials and chemicals consisted of fiberglass cloth and mat, polyester resin, cobalt naphthenate, methyl ethyl ketone peroxide (MEKP), and acetone.

Reichold Chemicals, Inc., the manufacturer of the MEKP, had provided Industrial Chemical with MEKP's "Material Safety Data Sheet and Technical Bulletin," but testimony indicated that the safety data sheet and technical bulletin were not forwarded to the construction site or given to the J.M. Foster employee who picked up the chemical. MEKP's technical bulletin warns that it should be used only with glass, polyethylene, or ceramic containers; that metals contacting MEKP may cause it to decompose; and that spillage should be wiped up immediately. Testimony further indicated that the material safety data sheet warned against contact between MEKP and copper, brass, lead, iron, or zinc. The MEKP container label warned that its contamination could result in explosive decomposition, and the resin was marked flammable.

The repair procedure was to mix the resin with the cobalt naphthenate outside at the project site and lower it on a handline through the top manhole into the tank. A container of MEKP, which caused the resin to harden when mixed with it, was placed in a bucket galvanized with zinc and also lowered into the tank; after the MEKP was poured into a measuring bottle over the galvanized bucket, it was mixed with the resin. The fiberglass mat was applied to the floor of the tank by laborers inside and saturated with the resin, which was applied with paint rollers. No fire extinguishers were in the tanks.

Following this procedure, Terry Chandler and Dewey Ensley descended into one of the tanks on July 6, 1980. A co-worker remained on top of the tank to signal a crane operator to pull up the bosun's chair in case of an accident. During the repair process, MEKP spilled into the bucket, reacted with its galvanized zinc coating and the heat in the tank, decomposed, and "blazed up." As the tank filled with flames and smoke, both men attempted to get to the tank's top on the bosun's chair, but only Ensley was brought out. Chandler was found dead on the floor of the tank, and Ensley died 18 days later with second and third degree burns covering 65% of his body and with chemical damage to his lungs.

In sum, Lynn Chandler and Peggy Ensley claimed that Industrial Chemical failed to warn of the reaction of MEKP with the zinc lining of the bucket and to warn that spillage of MEKP should be wiped up immediately. At the close of the plaintiffs' evidence and again at the close of the defendant's evidence, the trial court denied Industrial Chemical's motion for directed verdict. After the jury's verdict, Industrial Chemical's motion for judgment notwithstanding the verdict, or, in the alternative, for new trial, was also denied. The issues on appeal are whether the punitive damages award against Industrial Chemical violates its rights under the Eighth Amendment to the United States Constitution; whether Lynn Chandler and Peggy Ann Ensley lacked capacity to assert claims for Industrial Chemical's breach of implied warranty; whether the trial court erred in denying Industrial Chemical's motion for JNOV on the claims for Industrial Chemical's breach of implied warranty; and whether the trial court erred in failing to state in the record its reasons for refusing to interfere with the jury verdict on grounds of excessiveness of the damages.

I

Industrial Chemical argues that the trial court's judgment on Chandler and Ensley's wrongful death claims should be reversed because the punitive damages award violates its rights under the Eighth Amendment to the United States Constitution, and in support of its argument offers a two-step analysis: First, Industrial Chemical submits that the Eighth Amendment prohibitions against excessive bail, excessive fines, and the infliction of cruel and unusual punishment are applicable to civil, as well as criminal, proceedings. Second, Industrial Chemical suggests that application of the Eighth Amendment to a punitive damages award requires proportionality between the "penalty" and the "circumstances" of the case, and Industrial Chemical argues that, in arriving at the correct proportion, one must consider the culpability of the defendant, the desirability of preventing future similar wrongs, and the impact on the defendant as the guiding criteria.

We begin our analysis with Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). The Ingraham petitioners, students in a Florida junior high school, filed suit for damages and injunctive and declaratory relief against school officials, alleging that they had been subjected to disciplinary corporal punishment in violation of their Eighth Amendment constitutional rights. Limiting itself to the issue of whether the paddling of students as a means of maintaining school discipline constituted cruel and unusual punishment, the Court established the constitutional boundaries of the Eighth Amendment:

"Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations in the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools.

"A

"The history of the Eighth Amendment is well known. The text was taken, almost verbatim, from a provision of the Virginia Declaration of Rights of 1776, which in turn derived from the English Bill of Rights of 1689. The English version, adopted after the accession of William and Mary, was intended to curb the excesses of English judges under the reign of James II. Historians have viewed the English provision as a reaction either to the 'Bloody Assize,' the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion of the Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year. In either case, the exclusive concern of the English version was the conduct of judges in enforcing the criminal law. The original draft introduced in the House of Commons provided:

" 'The requiring of excessive bail of persons committed in criminal cases and imposing excessive fines, and illegal punishments, to be prevented.'

Although the reference to 'criminal cases' was eliminated from the final draft, the preservation of a similar reference in the preamble indicates that the deletion was without substantive significance. Thus, Blackstone treated each of the provision's three prohibitions as bearing only on criminal proceedings and judgments.

"The Americans who adopted the language of this part of the English Bill of Rights in framing their own State and Federal Constitutions 100 years later feared the imposition of torture and other cruel punishments not only by judges acting beyond their lawful authority, but also by legislatures engaged in making the laws by which judicial authority would be measured. [Citation omitted.] Indeed, the principal concern of the American Framers appears to have been with the legislative definition of crimes and punishments. [Citations omitted.] But if the American provision was intended to restrain government more broadly that its English model, the subject to which it was intended to apply--the criminal process--was the same.

"At the time of its ratification, the original Constitution was criticized in the Massachusetts and Virginia Conventions for its failure to provide any protection for persons convicted of crimes. This criticism provided the impetus for inclusion of the Eighth Amendment in the Bill of Rights....

"B

"In light of this history, it is not suprising to find that every decision of this Court considering whether a punishment is 'cruel and unusual' within the meaning of the Eighth and Fourteenth Amendments ...