Reaves v. Armstrong World Industries, Inc., 89-2289

• Decision Date: 31 October 1990
• Docket Number: No. 89-2289,89-2289
• Citation: 569 So.2d 1307
• Parties: 15 Fla. L. Weekly D2683, Prod.Liab.Rep. (CCH) P 12,685 Daniel W. REAVES, Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1307

569 So.2d 1307

15 Fla. L. Weekly D2683, Prod.Liab.Rep. (CCH) P 12,685

Daniel W. REAVES, Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Appellees.

No. 89-2289.

District Court of Appeal of Florida Fourth District.

Oct. 31, 1990.

Rehearing and Certification Denied Dec. 10, 1990.

Brent M. Rosenthal of Baron & Budd, P.C., Dallas, Tex. and Louis S. Robles, Miami, for appellant.

Louise H. McMurray, Miami and Blaire & Cole, P.A., Coral Gables, for appellee Eagle-Picher Industries, Inc.

James E. Tribble and Kathleen M. Salyer of Blackwell & Walker, P.A., Miami, for appellee Owens-Corning Fiberglas, Inc.

Steven R. Berger of Wolpe, Leibowitz, Berger & Brotman, Miami, for appellee Colotex Corp.

PER CURIAM.

This is an appeal from an order of final judgment setting aside a jury verdict for the plaintiff, directing a verdict and judgment in favor of the defendants, and alternatively granting a new trial in a personal injury action for damages arising out of alleged occupational exposure to asbestos products. Because there is no evidence in the record upon which the jury could properly rely in finding a verdict for the plaintiff, Collins v. School Board of Broward County, 471 So.2d 560, 563 (Fla. 4th DCA 1985), we affirm the final judgment on directed verdict, and as a basis therefor we adopt and approve the trial court's reasoning as follows:

"Daniel Reaves, the plaintiff in this cause, is a 73 year old black male with very little education, unable to read and write, who had performed laboring work all his adult life. He retired voluntarily at age 62 in 1979. He filed suit against eighteen defendant companies who had manufactured, distributed or sold asbestos containing insulation products in the past. Only three of these companies remained as defendants at the time of trial, against whom a verdict was rendered. The verdict was $325,000.00, with a finding of 15% liability against Eagle-Picher Industries, Inc., 35% against Owens-Corning Fiberglas, Inc. and 50% against The Celotex Corporation.

"Pertinent work history were the years 1954-1961 when Reaves worked as a laborer clean up man doing janitorial type duties in the Monsanto plant near Pensacola, Florida. He was one of about 150-200 men sweeping and cleaning up the plant, including debris left by insulators tearing out old asbestos and installing new asbestos-containing insulation. More than 150 men were engaged on the maintenance crew performing this maintenance work. Plaintiff claims to have been exposed to asbestos while engaged in this clean up work.

"This plant was enormous. A fellow worker of plaintiff called it a '40 acre size building'. Several thousand people were employed in the manufacture of nylon and chemicals.

"Plaintiff was unable to identify the brand name or manufacturer of any of the asbestos products he claimed he was exposed to while working in the Monsanto plant. He left Monsanto in early 1961 to go to work at the Armstrong plant, where he continued to work for 18 years doing essentially the same type of clean up work for asbestos insulators.

"Henry Hudson, a fellow worker who worked in the maintenance section of Monsanto, testified he recognized plaintiff and "saw him on occasion" doing clean up work of asbestos litter left by maintenance crews doing overhaul work on machinery, but he did not indicate plaintiff ever worked with his clean up crew, nor did he testify that Reaves regularly cleaned up after Hudson or his maintenance group. Paul Garrison was an employee of an outside subcontractor who performed some insulation work at Monsanto. There was no evidence that Garrison knew or recognized the plaintiff. Garrison testified that the Monsanto laborers did not clean up debris for him or his coworkers.

"At trial, there were several asbestos-containing products identified. 1) Kaylo, manufactured by Owens-Corning, used by Hudson 1958--February 1961, used by Garrison August 1960--February 1961; 2) Careytemp, manufactured by Celotex' predecessor, Phillip Carey, used by Hudson and Garrison during the same time period; and 3) Hylo, sold by Eagle-Picher and used by Garrison August 1960--February 1961.

"This is not a suit against the asbestos industry at large. In short, if the plaintiff is to recover, he must establish by the greater weight of the evidence that his asbestos injuries were due to the negligence of those defendants. But before the negligence question can be reached, the plaintiff is required to show sufficient exposure to asbestos products sold or manufactured by the three named defendants.

"Hudson was one of 200 men engaged in the maintenance work of tearing out old insulation and installing new insulation in the '40 acre plant'. He worked with Kaylo pipe covering, Kaylo block, AA cloth, several asbestos-containing Johns-Manville cements and Careytemp. He also testified that there was used in the plant asbestos rope and fibrous adhesives manufactured by Raybestos, asbestos cloth and asbestos rope manufactured by H.K. Porter Co., Unibestos manufactured by Pittsburgh Corning, Aircell manufactured by Keene Corporation and Calcilite PC manufactured by GAF Corp. Garrison worked with Thermobestos, Careytemp, Johns-Manville pipecovering and cements, Kaylo and Hylo among others. The evidence was clear that asbestos products manufactured by the three remaining defendants were not the only asbestos products in this large plant. With 200 maintenance workers tearing out old insulation (where there was no testimony determining who was the manufacturer) and installing new...