Murphy v. Owens-Corning Fiberglas Corp.

• Decision Date: 06 December 1977
• Docket Number: No. KC-3599.,KC-3599.
• Citation: 447 F. Supp. 557
• Parties: James L. MURPHY, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant.
• Court: U.S. District Court — District of Kansas

447 F. Supp. 557

James L. MURPHY, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant.

No. KC-3599.

United States District Court, D. Kansas.

December 6, 1977.

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Lloyd Burke Bronston of Bronston & Smith, Overland Park, Kan., for plaintiff.

Ronald C. Newman and Charles O. Thomas of Weeks, Thomas, Lysaught, Bingham & Mustain, Kansas City, Kan., for defendant.

MEMORANDUM AND ORDER

O'CONNOR, District Judge.

This case is now before the court for determination of the defendant's motion for judgment notwithstanding the jury verdict or, in the alternative, for a new trial. The jury trial of this action commenced on March 21, 1977, and was premised upon the defendant's alleged negligence in failing to provide the plaintiff, its employee, a reasonably safe place in which to work. After four days of testimony, at the conclusion of the trial, the jury returned a verdict for the plaintiff in the amount of $275,000—the sum prayed for in the complaint. The defendant's motion is based upon the arguments that said verdict is wholly unsupported by substantial competent evidence and that the court erred in failing to properly instruct the jury as to the applicable law. The court has devoted much time and consideration to these arguments, and has scrutinized in great detail the transcript of the trial proceedings and the evidence found therein. This process of re-examination has led the court to conclude that the challenged verdict cannot stand and that the defendant's motion for judgment notwithstanding the verdict must, for the reasons set forth in more detail below, be sustained.

I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

The standard to be applied in evaluating a motion for judgment n. o. v. is essentially the same as that applied in evaluating a motion for a directed verdict. See Oldenburg v. Clark, 489 F.2d 839 (10th Cir. 1974); Taylor v. National Trailer Convoy, Inc., 433 F.2d 569 (10th Cir. 1970); Federal Rules of Civil Procedure, Rule 50(b). In considering a motion for judgment n. o. v., the trial court is bound to view the evidence in the light most favorable to the party against whom the motion is made. E. g., Weeks v. Latter-Day Saints Hospital, 418 F.2d 1035 (10th Cir. 1969); Gulf Insurance Company v. Kolob Corp., 404 F.2d 115 (10th Cir. 1968). The fact that the record so viewed contains a "scintilla" of evidence in support of the challenged verdict—or perhaps barely refutes a contention that there is "no" evidence supporting a party's case— presents no legal barrier to entry of a judgment n. o. v. E. g., Yazzie v. Sullivent, 561 F.2d 183 (10th Cir. 1977); Swearngin v. Sears Roebuck & Co., 376 F.2d 637 (10th Cir. 1967). The critical question is whether the record contains evidence "upon which the jury could probably find a verdict" for the party against whom the motion is made. Yazzie, supra. Thus, while judgment n. o. v. may not be granted "unless the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made," Symons v. Mueller Co., 493 F.2d 972 (10th Cir. 1974), a motion for judgment n. o. v. should be sustained where "the evidence and all the inferences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom." Taylor, 433 F.2d at 571-72. See also Stiner v. United States, 524 F.2d 640 (10th Cir. 1975); Bertot v. School District No. 1, Albany County, Wyo., 522 F.2d 1171 (10th Cir. 1975); Wright v. American Home Assurance Co., 488 F.2d 361 (10th Cir. 1973).

Application of these standards to the case now before us is appropriately prefaced with a brief summary of the basic facts introduced in support of the plaintiff's claim. The plaintiff James Murphy was employed in various capacities at the defendant's plant in Kansas City, Kansas, from 1959 to 1970, at which time he was disabled from further employment due to chronic obstructive lung disease or pulmonary fibrosis—conditions allegedly resulting from the defendant's negligent failure to provide a reasonably safe working environment. The plaintiff's theory at trial was that the airborne combination of "chemicals + dust + heat" in the Owens-Corning plant had proximately caused the disease and deterioration of his lungs. He asserted that his pulmonary disability resulted from negligence, in that the defendant had (1) failed to inspect the air in its plant and to determine the effects thereof upon its employees, including the plaintiff; (2) failed to warn or inform its employees, including the plaintiff, when it knew or should have known that the air was harmful to human beings; (3) failed to remove minute fibrous glass particles and dust from the general plant area; (4) failed to minimize harm to its employees, including the plaintiff; (5) failed to inform plaintiff of his deteriorating condition of health in August, 1970, upon having plaintiff examined by a physician; and (6) failed to provide plaintiff with a safe place to work.

Under Kansas law, there is no question but that an employer has a duty not to expose his employees to perils and dangers against which the employer may guard by the exercise of reasonable care, and that a part of this duty is to furnish a reasonably safe place in which to work. E. g., Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042 (1960); Fishburn v. International Harvester Co., 157 Kan. 43, 138 P.2d 471 (1943). It is equally clear, however, that a master is not an insurer against all injuries which his servants may suffer in the discharge of their duties. E. g., Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321 (1964); Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765 (1960). The Kansas Supreme Court has reiterated time and time again the legal axiom that an employer's duty to furnish safe working conditions is not absolute and that an employee's recovery for breach thereof is dependent upon proof of negligence. In Allen v. Shell Petroleum Corp., 146 Kan. 67, 68 P.2d 651 (1937), the Kansas Supreme Court formulated the test of employer negligence as follows:

"The master is not required to furnish the best, the safest, or the newest appliances or methods of operation, nor to adopt extraordinary or unusual safeguards against risks and dangers. The limit of his duty here is to exercise ordinary care to supply reasonably safe places, appliances, and methods. The test of his discharge of this duty is the exercise of ordinary care to supply such places, appliances, and methods as persons of ordinary intelligence and prudence commonly furnish in like circumstances."

Further, because under fundamental principles of tort law the risk of injury defines the duty to be obeyed, Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928), the Kansas Supreme Court has held that "`the master is not compelled to foresee and guard against an accident which reasonable and prudent men would not expect to happen, and where an injury to a servant could not reasonably have been anticipated, a failure to take precautionary measures is not negligence on the part of the master for which he is liable to the servant.'" Dodd v. Wilson & Co., Inc., 149 Kan. 605, 88 P.2d 1116 (1939). An employer is therefore not liable for failing to anticipate idiosyncratic injury to a particular employee, arising from the employee's peculiar physical condition of which the employer had and could have no notice. Allen, supra. An employer's duty does not extend to the prevention of or warning against remote, improbable, and exceptional occurrences; it is limited to such perils as reasonably are to be anticipated.

Finally, in determining the issue of employer negligence, proof of customary practices in the relevant industry is both relevant and highly probative. Because the duty of care owed by the employer is that which is exercised by the average prudent individual in similar circumstances, and because "what men ordinarily do is ordinarily prudent and careful," Blackmore v. Auer, 187 Kan. at 442, 357 P.2d at 772, an employer will generally not be held liable if he conducts his business in a manner conforming with the usage of others engaged in the same business under similar circumstances. Uhlrig v. Shortt, supra. Evidence of customary usage in a particular business or industry is clearly not conclusive of the question of reasonable care in a given circumstance, Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P.2d 157 (1943), for the existence of negligence in each case must depend upon the particular circumstances surrounding the parties at the time and place of the occurrences on which the controversy is based. An employee is therefore not required to prove, as a necessary element of his case, that his employer either adhered to an unreasonable or imprudent industrywide practice or imprudently deviated from commonly acceptable customary practices. As a practical matter, however, evidence of customary practices within an industry may be among the most relevant and probative evidence available, and its absence in a case such as the one now before the court may severely impair the employee's ability to satisfy the relevant burden of proof. That burden of proof, summarized by the Kansas Supreme Court, is as follows:

"Negligence is never presumed. It must be established by proof, but it may be shown by circumstantial evidence where the circumstances are proved and their relation to each other is such that intelligent, fair-minded triers of fact may with reason find that the negligence with which the defendants are charged has been established. To meet the burden of proof on the issue of negligence the evidence must be substantial and satisfy the obligation imposed upon a plaintiff in a civil action to prove such negligence by a preponderance of the evidence." Blackmore v. Auer, 187 Kan. at 440, 357 P.2d at 770.

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