Scott v. Dyno Nobel, Inc.

• Decision Date: 24 July 2020
• Docket Number: No. 18-2897,18-2897
• Citation: 967 F.3d 741
• Parties: Teddy SCOTT ; Melanie Scott, Plaintiffs - Appellants v. DYNO NOBEL, INC., Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

967 F.3d 741

Teddy SCOTT ; Melanie Scott, Plaintiffs - Appellants

v.DYNO NOBEL, INC., Defendant - Appellee

No. 18-2897

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2019

Filed: July 24, 2020

Rehearing and Rehearing En Banc Denied August 28, 2020

Counsel who presented argument on behalf of the appellant and appeared on the brief was Robert W. Schmieder, II, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee was David M. Bennion, of Salt Lake City, UT. The following attorneys also appeared on the appellee brief; Brandon Mark, I, of Salt Lake City, UT., Alan S. Mouritsen, of Salt Lake City, UT.

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.

PER CURIAM.

Teddy and Melanie Scott commenced this diversity action alleging that a nitric acid manufacturing plant operated by Dyno Nobel, Inc. ("Dyno"), negligently emitted a cloud of nitric oxides that engulfed Teddy Scott and several others working at the Calumet Plant ("Calumet"), a neighboring facility in Louisiana, Missouri, causing Scott severe respiratory injuries. After substantial discovery, the district court, applying Missouri law, granted Dyno summary judgment, concluding Dyno did not owe Scott a legal duty of care because his injury was not foreseeable. The Scotts appeal and Dyno cross appeals, raising various issues. We conclude the summary judgment record establishes that the question of foreseeability, as incorporated into the analysis of the legal duty of care under Missouri law, was not appropriate for summary judgment. Accordingly, we reverse and remand for further proceedings, declining to resolve other issues at this interlocutory stage.

I.

Dyno's nitric acid plant converts ammonia into nitrogen oxide and nitrogen dioxide (collectively "NOx"). Water combines with NOx under high pressure in an "absorber" to create nitric acid. In conformity with its air permit, Dyno discharges unconverted NOx gas into the atmosphere through a 108-foot exhaust stack. Periodically, Dyno shuts down the nitric acid plant to perform maintenance. During "startup" to resume nitric acid production, the plant emits more NOx gas than normal as the absorber is gradually ramped up to peak efficiency. At higher concentrations, NOx gas is dark yellow, red, or brown and is denser than air.

NOx is toxic, particularly nitrogen dioxide. When inhaled, NOx can cause numerous respiratory problems. Nitrogen oxide and nitrogen dioxide are listed as "Section 302 Extremely Hazardous Substances" in quantities above their "Threshold Planning Quantity" in the U.S. Environmental Protection Agency's Consolidated List of Chemicals subject to various federal environmental statutes. See 40 C.F.R. Pt. 355, Apps. A, B (2008). During discovery, a Dyno employee testified that documents kept in Dyno's control room included chemical safety cards for nitrogen oxide and nitrogen dioxide. The summary judgment record includes a chemical safety card for nitrogen dioxide published by the National Institute for Occupational Safety and Health showing the skull and crossbones symbol for "acute toxicity," listing adverse health conditions that occur if the gas is inhaled, and warning that, if not contained, "a harmful concentration of this gas in the air will be reached very quickly."

As one would expect, Dyno takes numerous precautions to prevent its emissions of NOx gas from coming in contact with persons on or near its plant facility. First and foremost is the 108-foot exhaust stack. As Dyno explained in its Response Brief, the "emissions stack is 108 feet high so that ... stack emissions do not endanger those working on the ground, either near the stack or at a neighboring property like Calumet." Only the plant's 200-foot "prill tower" is taller than the exhaust stack, and during post-maintenance startups, Dyno does not allow people in the prill tower because startup emissions pose risks to persons located above the exhaust stack. Dyno also conducts startups in the early morning hours when persons are unlikely to be visiting or working at neighboring facilities, monitors the wind direction during startup in the event evacuation is necessary, and avoids starting up if the wind is blowing towards Calumet. Dyno's "Emergency Control and Crisis Communication Plan" includes emergency procedures and first-aid responses in the event of a NOx release. Dyno has a presentation titled "NOx Awareness," explaining what to do in the event of NOx exposure and referring Dyno employees to its "Information for Treating Doctor" document.

On March 20, 2015, Dyno began a startup at 3:30 a.m. following completion of routine maintenance. At approximately 5:30 a.m., an equipment failure shut the plant down again. After repairs, Dyno reinitiated the startup process sometime after 8:00 a.m., during working hours at Calumet. The Scotts allege that the weather was cloudy and hazy with low, swirling winds. At approximately 8:13 a.m., Scott and his co-workers observed a dark cloud emerge from Dyno's exhaust stack and settle on top of trees to the east of Calumet rather than rising into the atmosphere. A sudden gust of wind swept the cloud into Calumet, enveloping workers that included Teddy Scott. There are many disputed facts regarding this incident, but Dyno does not dispute for purposes of this appeal that its startup emissions traveled from the exhaust stack to Calumet and hit Scott and his co-workers.

After substantial discovery, Dyno moved for summary judgment on multiple grounds. On the question of legal duty we consider on appeal, Dyno argued:

although Mr. Scott may be able to argue that it was possible that someone would be injured the way in which he claims he was injured, he cannot successfully establish that such an injury was probable . The Louisiana plant has operated since the 1950's. ... In all of those years, no one has ever been injured by, or claimed to have had any health issues arising out of, emissions from a startup until this case. Certainly, no one has ever seen or heard allegations of a plume behaving in the manner described in this case. Thus, there is simply no evidence from which a jury might conclude that Dyno could have reasonably foreseen or anticipated the likelihood of an injury of the type claimed by Mr. Scott, and Mr. Scott's negligence claim should therefore be dismissed.

Though this argument was framed in terms of what a reasonable jury might find, the district court accepted the argument as establishing that Dyno owed Teddy Scott no duty of care, a question of law:

[Dyno] did not owe a duty to [Scott]. In many years of operations, [Dyno] never received reports of an undispersed, ground level cloud of smokestack emissions, or of injuries from smokestack emissions. Even if it was perhaps always a possibility that emissions could behave atypically and injure someone on the ground, nothing shows that the probability of that risk would have risen to a foreseeable level.

In reviewing the grant of summary judgment, we of course view the facts in the light most favorable to the Scotts, the non-moving parties. Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1110 (8th Cir. 2005).

II.

To succeed on a claim of negligence under Missouri law, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the defendant's breach proximately caused the plaintiff's injury. Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 848 (Mo. 2018). Whether a duty of care exists is a question of law; whether a defendant owed a duty to a particular plaintiff depends in part on whether the risk in question was foreseeable.

Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 156 (Mo. 2000). "Foreseeability for purposes of establishing whether a defendant's conduct created a duty to a plaintiff depends on whether the defendant should have foreseen a risk in a given set of circumstances." Id. "In determining foreseeability for the purpose of defining duty, it is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable." Pierce v. Platte-Clay Elec. Coop. Inc., 769 S.W.2d 769, 776 (Mo. 1989)

The summary judgment record contains overwhelming evidence that Dyno had actual knowledge "that there is some probability of injury sufficiently serious that an ordinary person would take precautions to avoid" discharging unconverted NOx gas where persons would inhale it. Id. But a risk is not foreseeable if it is outside "the orbit of the danger as disclosed to the eye of reasonable vigilance." Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. 1990) (quotation omitted). Thus, in this case, foreseeability turns on Dyno's conduct in emitting NOx gas from a 108-foot smokestack above the Calumet worksite on the day in question.

The district court concluded that Scott's injury was not foreseeable because "no injuries related to smokestack emissions were reported in decades of operations at Dyno," and there was "no indication that Defendants believed that there was any meaningful probability that smokestack emissions would travel undispersed at ground level." In reviewing this conclusion, there is an important threshold question: Who decides whether a risk of injury was foreseeable in a negligence action, the judge or a jury? The district court treated foreseeability as a question of law and decided the issue on summary judgment. As others have noted, however, that approach places a court "in the peculiar position ... of deciding questions, as a matter of law, that are uniquely rooted in the facts and circumstances of a particular case and in the reasonability of the defendant's response to those facts and circumstances." A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907, 914 (2010).

One response to this "peculiarity" has been to remove the issue of foreseeability from the analysis of duty and to consider it instead under the rubric of breach. The Restatement (Third) of Torts...