Lawing v. Univar, USA, Inc.

Decision Date02 December 2015
Docket NumberAppellate Case No. 2013–002464.,No. 27594.,27594.
Citation415 S.C. 209,781 S.E.2d 548
Parties Scott F. LAWING and Tammy R. Lawing, Petitioners/Respondents, v. UNIVAR, USA, INC., Trinity Manufacturing, Inc., and Matrix Outsourcing, LLC, Defendants, of Whom Trinity Manufacturing, Inc. and Matrix Outsourcing, LLC, are Respondents/Petitioners.
CourtSouth Carolina Supreme Court

John S. Nichols, of Bluestein, Nichols, Thompson & Delgado, of Columbia, Robert P. Foster, of Foster & Foster LLP, of Greenville, William P. Walker, Jr., and S. Kirkpatrick Morgan, Jr., both of Walker and Morgan, LLC, of Lexington, and Larry C. Brandt, of Larry C. Brandt, PA, of Walhalla, all for petitioners/respondents.

Christian Stegmaier and Amy L. Neuschafer, both of Collins and Lacy, PC, of Columbia, for respondents/ petitioners.

Chief Justice TOAL :

In this products liability action, Trinity Manufacturing, Inc. (Trinity), and Matrix Outsourcing, LLC (Matrix), argue that the court of appeals erred in reversing the trial court's decision to grant summary judgment to them on a strict liability cause of action. See Lawing v. Trinity Mfg., Inc., 406 S.C. 13, 749 S.E.2d 126 (2013). In their cross-appeal, Scott and Tammy Lawing ask this Court to reverse the court of appeals' decision affirming the trial court's decision to charge the jury on the sophisticated user defense. We affirm in part and reverse in part the decision of the court of appeals.

FACTS/PROCEDURAL BACKGROUND

This case revolves around the packaging and labeling of sodium bromate, a chemical which contributed to a fire that occurred in a plant owned by Engelhard Corporation (Engelhard) in Seneca, South Carolina, in June 2004. At the time of the fire, Scott Lawing worked at Engelhard's Seneca plant as a maintenance mechanic.1 Engelhard produced a precious metal catalyst used in the automobile industry, and refined metals from recycled materials.

To complete its refining process, Engelhard used approximately 120 metric tons per annum of sodium bromate, which is classified as an oxidizer. An oxidizer is a chemical that initiates or promotes combustion in other materials, thereby causing fire either by itself or through the release of oxygen or other gases. In other words, when an oxidizer such as sodium bromate is heated to a certain temperature, it releases oxygen and contributes to the combustion of other materials.

Engelhard purchased the sodium bromate from Univar USA, Inc. (Univar). Univar sourced the sodium bromate through Trinity, who in turn, utilized its subsidiary, Matrix, to obtain the sodium bromate from a Chinese manufacturer. The Chinese manufacturer shipped the sodium bromate to the Port of Charleston, and from there, a common freight carrier delivered the sodium bromate directly to Engelhard. Therefore, neither Univar, Trinity, nor Matrix ever inspected or handled the sodium bromate.

The shipment of sodium bromate involved in the fire was delivered to Engelhard on February 16, 2004, whereupon Engelhard inspected and accepted the shipment. The sodium bromate arrived packaged in woven plastic bags, each weighing twenty-five kilograms.2 A warning label on one side of each bag displayed the universally recognized yellow oxidizer symbol.3 The reverse side of each bag contained black text, including the words "sodium bromate," and other information regarding the material safety data sheet (MSDS)4 for sodium bromate.

The bags of sodium bromate arrived at Engelhard stacked upon each other on wooden pallets, with thirty-six bags per pallet. The pallets were stacked two pallets high. Each of the pallets was "shrink-wrapped" so that the bags would remain on the pallet.

Paul Bailey, an Engelhard employee who was responsible for receiving shipments when the fire occurred, testified that none of the pallets in the February 2004 shipment contained warnings identifying the contents of the pallets as an oxidizer, and there were no warnings on the sides of the bags themselves that could be seen through the shrink-wrap. Within each shrink-wrapped pallet, some bags of the sodium bromate were stacked so that the black text on the bags appeared face- up, while other bags were positioned such that the yellow oxidizer symbol appeared face-up.

At trial, Dr. Jerry Purswell, who testified as an expert in the field of Occupational Health and Safety Administration (OSHA) regulations, opined that the labeling on the bags of sodium bromate did not satisfy the OSHA HazCom requirements5 for an appropriate warning label because the oxidizer symbol was not prominently displayed on the bags. Dr. Purswell testified that in his opinion, the written material on the bags did, however, satisfy the relevant Department of Transportation (DOT) requirements.6

Upon receipt of a shipment of sodium bromate, Engelhard employees typically moved the double-stacked pallets of sodium bromate—still shrink-wrapped—directly to the warehouse for storage, where Engelhard stored the chemical until it was needed for production.

On May 20, 2004—the week before Engelhard's annual "shutdown week"—Engelhard employees moved four pallets of sodium bromate from the warehouse to the refinery hallway to be used in production. During the shutdown week, Engelhard stopped regular production in order to perform routine maintenance. However, Engelhard policies provided that production materials were not to be left in the refinery during shutdown week.

On June 1, 2004, Lawing, along with Keith Black and Curtis Martin, were assigned to work under Steve Knox during the shutdown week as part of a maintenance crew tasked with using an oxyacetylene cutting torch to cut out and replace condensate pipe in the refinery hall—not far from where the four pallets of sodium bromate had recently been moved.

Pursuant to Engelhard's policies, use of the oxyacetylene torch required the issuance of a hazardous work permit prior to the commencement of the project. Engelhard policies provided that before the permit could be issued, "a thorough inspection of the immediate work area and all areas adjacent for the presence of combustible and/or flammable materials" must take place and that "[a]ll such materials will be removed to a safe location for the duration of the Hotwork [sic]." Therefore, to obtain a hazardous work permit for the project, Knox toured the work area prior to the start of the maintenance work. Knox testified that he noticed the pallets of sodium bromate within the work area, and walked close enough to the pallets to ensure that there was no oxidizer symbol on them. Although Knox did not see the oxidizer symbol, he noticed black text on the sides of the bags. Knox did not know what sodium bromate was, but admitted that if he had seen an oxidizer symbol on the pallets, he would have ensured that employees moved the pallets from the work area before the maintenance began.7

Martin and Lawing each testified that they noticed the bags of sodium bromate in the work area on the day of the fire, but saw no label indicating that they should move the bags. Lawing testified that when he saw the bags, he looked for a "label or something that told me I needed to move it" and when he did not see one, he "thought they were fine." Lawing stated that if he had seen an oxidizer symbol, he would have moved the pallets. Lawing testified that at the time, he thought the bags contained baking soda.

The maintenance crew used the oxyacetylene torch to cut the pipe, which was suspended approximately fifteen to twenty feet above the floor. After about two hours of work, a piece of hot slag fell and landed on or near one of the pallets of sodium bromate. There was a "flash" on the pallet, which erupted into a ball of fire that engulfed Lawing, Martin, and Black. According to Knox, the eruption of fire "sounded like a jet taking off."

Each of the men suffered severe burns and serious injuries which totally disabled them and rendered them in need of substantial medical care for the rest of their lives. Lawing testified that he suffered second and third degree burns

on forty-two percent of his body, and that his lungs and eyes were also burned.

The Lawings—as well as Black and Martin (collectively, the plaintiffs)8 commenced lawsuits against Univar, Trinity, and Matrix (collectively, the defendants), each alleging causes of action for strict liability, negligence, and breach of the implied warranty of merchantability.9 The Lawings also asserted a breach of express warranty cause of action against Univar. Further, Tammy Lawing contended that she suffered loss of consortium as a result of her husband's injuries.

Prior to trial, the defendants made a number of dispositive motions, including motions for summary judgment on the Lawings' claims. In particular, the defendants filed a joint motion for summary judgment on the Lawings' strict liability cause of action. The trial court addressed these motions and other matters during a two-day pre-trial hearing. The trial court granted the defendants' motion for summary judgment on the strict liability claim, ruling that Lawing was not a "user" of sodium bromate as required by section 15–73–10 of the South Carolina Code. S.C.Code Ann. § 15–73–10 (2005) (requiring a plaintiff to be a "user" or "consumer" of a product to recover under a strict liability theory).

The trial court consolidated the plaintiffs' cases and bifurcated the trial into a liability phase and a damages phase. Five causes of action were submitted to the jury. Three were against all of the defendants: negligence as to packaging, negligence as to warning labels,10 and breach of the implied warranty of merchantability. Two causes of action were against Univar only: breach of express warranty as to packaging and breach of express warranty as to warning labels.

Although the trial court had denied the defendants' motion for a directed verdict as to the sophisticated user defense at the conclusion of all of the evidence, the court charged the...

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