Lawing v. Trinity Mfg., Inc.
| Decision Date | 21 August 2013 |
| Court | South Carolina Court of Appeals |
| Parties | Scott F. Lawing and Tammy R. Lawing, Appellants, v. Trinity Manufacturing, Inc., Matrix Outsourcing, LLC, and Univar, USA, Inc., Defendants, Of whom Trinity Manufacturing, Inc. and Matrix Outsourcing, LLC are Respondents. |
Appeal From Oconee County
J.C. Nicholson, Jr., Circuit Court Judge
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
John S. Nichols, Bluestein, Nichols, Thompson, & Delgado, LLC, of Columbia; Robert C. Foster, Foster & Foster, LLP, of Greenville; William P. Walker, Jr. and S. Kirkpatrick Morgan, Jr., Walker & Morgan, LLC, of Lexington; and Larry C. Brandt, of Walhalla, for Appellants.
Christian Stegmaier, Collins & Lacy, PC, of Columbia; Amy Lynn Neuschafer, Collins & Lacy, PC, of Murrells Inlet; Ellis M. Johnston, II and Joshua L. Howard, both of Haynsworth Sinkler Boyd, PA, of Greenville; and
Gray Thomas Culbreath, Gallivan, White & Boyd, PA, of Columbia, for Respondents.
Scott Lawing suffered severe burns over almost half his body when a large amount of a highly-flammable chemical caught fire at his jobsite. He brought a products liability lawsuit against several entities in the supply chain for the chemical. After a six-week jury trial, the trial court awarded substantial damages to Lawing and two of his co-workers. Lawing nevertheless appeals, arguing the trial court made two erroneous rulings. First, Lawing contends the court erred in finding he was not a "user" of the chemical and granting summary judgment against him on his strict liability claim. Second, he contends the court should not have charged the jury on the sophisticated user doctrine. We affirm the trial court's decision to charge the sophisticated user doctrine, but reverse the decision to grant summary judgment because we find the trial court employed too restrictive a definition of the term "user." We remand for a new trial on Lawing's strict liability claim.
Engelhard Corporation was a world leader in refining precious metals. Before Engelhard was purchased in 2006, Engelhard operated a 400,000 square-foot facility in Seneca, where it produced a precious metal catalyst for use in the automobile industry and reclaimed precious metals from recycled materials.1 Engelhard's refining processes involved the use of sodium bromate, which is an oxidizer. When heated to 700 degrees Fahrenheit, sodium bromate releases oxygen, which increases combustion in an existing fire. Engelhard was using approximately 132 tons of sodium bromate per year in its refining operations at the time of this accident.
Beginning in 2002, Engelhard bought sodium bromate from Univar, USA, a chemical distribution company. In December 2003, Engelhard submitted a purchase order to Univar for 170 tons of sodium bromate to cover Engelhard's anticipated needs for 2004.
Univar ordered the sodium bromate from Trinity Manufacturing, a chemical manufacturer. Trinity did not make sodium bromate, so it contracted with its subsidiary, Matrix Outsourcing, to obtain the product. Matrix ordered the sodiumbromate from a Chinese exporting company, which, in turn, bought the chemical from a manufacturer in that country.
The manufacturer packaged the sodium bromate in white plastic bags that held twenty-five kilograms each. The bags had printing on both sides. On one side, "PRODUCT: SODIUM BROMATE 99.7% MEN." appeared in black ink near the top. Other information appeared below that, including the product code; the gross weight, tare weight, and net weight; and "MADE IN CHINA." On the other side of the bags, the manufacturer printed the standard symbol for an oxidizing agent. The symbol is a yellow diamond with black outlines. Inside the diamond is a drawing of a flame on top of a line, followed by "OXIDIZING AGENT" and "5.1" in black ink. The United States Department of Transportation requires this symbol to be used in labeling oxidizers such as sodium bromate. See 49 C.F.R. § 172.426 (2003) ().
Someone in the Chinese portion of the supply chain stacked the bags onto wooden pallets and shrink-wrapped the bags onto the pallets. Each pallet contained thirty-six bags. The shipment involved in the accident consisted of twenty pallets.
The shipment traveled from China to the port in Charleston. From there, a trucking company delivered the shipment directly to Engelhard in February 2004. Upon the shipment's arrival at the facility, Engelhard inspected it. One of the Engelhard employees who unloaded the shipment testified that when he looked at the pallets, some had bags with black writing on them and others had bags with the oxidizer symbol. However, he testified, "we were able to determine the difference and notice that they were the same thing because they do say 'sodium bromate' on them." After inspection, Engelhard accepted the shipment, and its employees moved it to a storage area.
Matrix provided Engelhard a material safety data sheet (MSDS) for the sodium bromate. Among other things, the MSDS said, and sodium bromate The MSDS also instructed users not to store sodium bromate next to combustible materials and to keep it from contacting organic matter.
Engelhard was already aware of the dangers described in the MSDS. Engelhard employed between fifteen and twenty chemical engineers in its laboratory at thefacility in Seneca. One engineer testified he knew that sodium bromate, as an oxidizer, "was always dangerous." Another testified the engineers "knew [sodium bromate] would support combustion and was an oxidizer." In addition, Frank Lamson-Scribner, the facility's operations and production manager, was asked at trial whether anyone working in the facility realized there was a risk that the sodium bromate could cause a fire like the one that occurred. He testified, "I think there are people in the plant that knew what the sodium bromate did."
Engelhard used roughly 500 chemicals in its operations at the Seneca facility, including between five and ten different oxidizers. Lamson-Scribner testified that between fifty and seventy-five of those 500 chemicals were hazardous. To protect employees, Engelhard provided safety training on hazardous materials and hazard communications. It taught employees that an MSDS contains information about a chemical and instructed them to look up the MSDS if they had a safety concern. Employees could access copies of MSDSs using computers located in several areas of the facility. Engelhard also trained employees to recognize and understand labels and symbols on chemical containers. One of the labels covered in that training was the oxidizer symbol. Finally, Engelhard taught employees that oxidizers can be hazardous if exposed to combustion.
In May 2004, Engelhard moved several pallets of the sodium bromate out of storage to a staging area in a hallway near some of the refining machinery.
The following month, Engelhard shut down the facility to perform maintenance. Lawing, a maintenance worker, was part of a team assigned to replace a metal pipe suspended from the facility's ceiling in a pipe rack. To remove the old pipe, the team would have to cut it into pieces using a blowtorch. This would cause hot molten bits of metal to fall from the pipe as it was being cut. The pipe rack passed directly over the staging area where Engelhard had chosen to store the pallets.
At the time of the accident, Engelhard had adopted a written procedure requiring that before employees could do any maintenance work that could create an ignition source for combustible or flammable materials, an Engelhard permit supervisor had to issue an internal "hot work" permit. One of the requirements for obtaining the permit was that immediately before the work was to begin, the supervisor of the work had to inspect the work area for the presence of any combustible materials. The procedure further required that "[a]ll such materials . . . be removed to a safe location for the duration" of the project.
On the morning of June 1, 2004, Steve Knox, the leader of the pipe removal team, inspected the work area with Tim Wald, the permit supervisor. Knox noticed the pallets but did not know what was in the bags. Engelhard policy required that when an employee encountered a substance and did not know what it was, the employee was to contact a supervisor. Knox did not contact his supervisor about the bags. He saw black writing on the bags, but he did not look closely enough to read it. Knox knew what the oxidizer symbol meant. He did not see such a symbol on the bags, but he did not attempt to turn any of the bags over. No one removed the pallets from the work area, and Wald issued the hot work permit.
After Wald issued the permit, but before the team began working, Lawing looked at the pallets to see if there was "[a] label or something that told [him he] needed to move" them. He saw nothing on the bags indicating he should not work near them. Seeing nothing to cause concern and knowing Wald had already issued the permit, he thought the pallets "were fine." Lawing testified he knew what the oxidizer symbol meant and would have moved the bags out of the work area if had he seen the symbol.
The team began removing the pipe later that day. Lawing's job was to stand in the pipe rack and lower cut sections of the pipe down from the rack to another man in a lift. At one point, while the men were working near the pallets, Knox saw a "flash" on one of the pallets. Within two or three seconds, an "inferno" "erupted" from the pallets and shot up into the pipe rack. Lawing jumped from the rack to the lift but could...
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