Tolley v. Carboline Co.

• Decision Date: 14 July 2005
• Docket Number: No. 31751.,31751.
• Citation: 617 S.E.2d 508
• Court: West Virginia Supreme Court
• Parties: James Tolley and Nancy TOLLEY, his wife, Plaintiffs Below, Appellants, v. CARBOLINE COMPANY, a Delaware Corporation, E.I. Dupont De Nemours and Company, a Delaware corporation, and Fina Oil and Chemical Company, a Delaware Corporation, Defendants Below, Appellees.

Page 508

617 S.E.2d 508

James Tolley and Nancy TOLLEY, his wife, Plaintiffs Below, Appellants, v. CARBOLINE COMPANY, a Delaware Corporation, E.I. Dupont De Nemours and Company, a Delaware corporation, and Fina Oil and Chemical Company, a Delaware Corporation, Defendants Below, Appellees.

No. 31751.

Supreme Court of Appeals of West Virginia.

Submitted February 8, 2005.

Decided March 18, 2005.

Dissenting Opinion of Justice Starcher July 14, 2005.

COPYRIGHT MATERIAL OMITTED

Vincent Trivelli, Morgantown, Stuart Calwell, Charleston, West Viriginia, Attorneys for Appellants.

John R. McGhee, Jr., Kay Casto & Chaney, Charleston, West Virginia, Attorney for Appellee Carboline.

Paula L. Durst, James S. Crockett, Jr., Beth Ann Rauer, Spilman Thomas & Battle, Charleston, West Virginia, Attorneys for Appellee E.I. DuPont.

Rodney L. Baker II, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, West Virginia, Attorney for Appellee Fina Oil.

PER CURIAM:

James and Nancy Tolley, husband and wife, appellants/plaintiffs below (hereinafter referred to as "the Tolleys"), appeal an order of the Circuit Court of Kanawha County granting summary judgment in favor of Carboline Company, E.I. DuPont De Nemours and Company, and Fina Oil and Chemical Company, appellees/defendants below (hereinafter referred to as "the Appellees"). The Tolleys contend that genuine issues of material fact were in dispute, and, therefore, summary judgment was inappropriate. After thoroughly reviewing the record designated for appellate review and the pertinent authorities, we affirm the circuit court's decision to grant summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On March 17, 1997, the Tolleys filed this action against the Appellees as well as ACF Industries, Inc. (hereinafter referred to as "ACF"). The Tolleys assert that the Appellees and ACF were responsible for Mr. Tolley's breathing ailments, some of which included aggravation of preexisting asthma and hypersensitivity pneumonitis. The Tolleys contended that Mr. Tolley's breathing ailments were caused by his exposure to chemical substances known as isocyanates and phthalic anhydrides. The Tolleys further alleged that the chemicals isocyanates and phthalic anhydrides derived from paints used by ACF.¹ Those paints were manufactured by the Appellees.

The claim against ACF was filed as a deliberate intent cause of action pursuant to W. Va.Code § 23-4-2(c)(2)(ii) (1983). The claim filed against the Appellees was premised upon the theories of negligence, failure to warn, breach of warranty, and strict liability. After a period of discovery, both the Appellees and ACF moved for summary judgment. The Appellees contended that summary judgment was appropriate because the evidence proved only that Mr. Tolley had a mere possibility of exposure to the chemicals isocyanates and phthalic anhydrides. Similarly, ACF argued that summary judgment was appropriate as there was no actual evidence that Mr. Tolley was exposed to isocyanates and phthalic anhydrides. The circuit court granted ACF's motion for summary judgment. However, the circuit court denied the summary judgment motion filed by the Appellees.

The Tolleys appealed the dismissal of their cause of action against ACF. This Court heard the appeal and affirmed the summary judgment ruling in Tolley v. ACF Industries, Inc., 212 W.Va. 548, 575 S.E.2d 158 (2002) (per curiam) (hereinafter referred to as "Tolley I"). Subsequent to this Court's decision in Tolley I, the Appellees filed a renewed motion for summary judgment before the circuit court. The Tolleys responded to the renewed summary judgment motion by filing supplemental affidavits from experts. The trial court reconsidered the motion and concluded that rulings made in Tolley I were dispositive of the claims against the Appellees. The circuit court therefore granted the Appellees' renewed motion for summary judgment. From this second ruling, the Tolleys now appeal.²

II. STANDARD OF REVIEW

"A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). The decisions of this Court have held that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). Further, "[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

III. DISCUSSION

As previously indicated, subsequent to our decision in Tolley I, Appellees filed a renewed motion for summary judgment.³ The trial court found that its rulings on proximate cause against ACF, which were affirmed by this Court in Tolley I, were controlling. The circuit court therefore granted the Appellees' renewed motion for summary judgment. Here, the Tolleys contend that the decision in Tolley I was not dispositive of the action against the Appellees because Tolley I involved a statutory deliberate intent cause of action against an employer. Further, the Tolleys contend that Tolley I is not dispositive because they produced additional evidence not considered in Tolley I. We address both issues separately.

A. The Issue of Proximate Cause in Tolley I

The Tolleys assert that because their action against the Appellees was premised upon theories of negligence, failure to warn, breach of warranty, and strict liability, the decision in Tolley I has no application. They contend that Tolley I dealt only with a deliberate intent cause of action, which is distinguishable from the instant causes of action.

The Tolleys are correct in asserting that a deliberate intent cause of action requires proof of elements which are unnecessary to establish a claim for negligence, failure to warn, breach of warranty, or strict liability.⁴ However, there is one requirement that exists in a deliberate intent cause of action that also exists in the claims asserted against the Appellees. That requirement is proximate cause. See Aikens v. Debow, 208 W.Va. 486, 491, 541 S.E.2d 576, 581 (2000) (discussing requirement of proximate cause in negligence cause of action); City Nat'l. Bank of Charleston v. Wells, 181 W.Va. 763, 771, 384 S.E.2d 374, 382 (1989) (discussing requirement of proximate cause in breach of warranty cause of action); Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 443, 307 S.E.2d 603, 611 (1983) (discussing requirement of proximate cause in failure to warn cause of action); Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 883, 253 S.E.2d 666, 680 (1979) (discussing requirement of proximate cause in strict liability cause of action).

Although the issue of proximate cause in a deliberate intent cause of action is statutory, the definition of proximate cause set out in the statute is the common law definition adopted by this Court.⁵ We have held that "`the proximate cause of an event is that cause which in actual sequence, unbroken by any independent cause, produces the event and without which the event would not have occurred.'" Johnson v. Mays, 191 W.Va. 628, 633, 447 S.E.2d 563, 568 (1994) (quoting Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 654-55, 77 S.E.2d 180, 189 (1953)). The burden of establishing proximate cause is always on the plaintiff. See Syl. pt. 2, Walton v. Given, 158 W.Va. 897, 215 S.E.2d 647 (1975) ("The burden is on the plaintiff to prove by a preponderance of the evidence that the defendant was negligent and that such negligence was the proximate cause of the injury."); Whetstine v. Gates Rubber Co., 895 F.2d 388, 393 (7th Cir.1990) ("A plaintiff who fails to establish the element of proximate cause ... has not sustained his burden of making a prima facie case[.]"). Further, "[s]ummary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial." Grandbois & Grandbois, Inc. v. City of Watford City, 685 N.W.2d 129, 135 (N.D.2004).

In Tolley I we clearly found that the Tolleys failed to establish proximate cause. In fact, we held that the Tolleys failed to present any evidence to show that, while Mr. Tolley was working for AFC, he was exposed to any of the chemicals that allegedly caused or exacerbated his breathing problems. The opinion addressed the proximate cause issue as follows:

The lower court found that [the Tolleys] failed to prove the fifth prong of the "deliberate intention" standard based on the fact that their medical experts were unable to identify with the necessary specificity the cause of Mr. Tolley's medical condition[:]

Plaintiffs have failed to establish proximate cause because plaintiffs' medical causation expert cannot identify the actual cause of the plaintiff's respiratory condition. Plaintiffs' medical expert simply opined that `there were three potential causes' for the plaintiff's alleged aggravation of his preexisting asthma: exposure to phthalic anhydrides or isocyanates or chronic exposure to unidentified non-specific irritants.

In response to this finding, [the Tolleys] contend that by identifying exposure "to at least three different products that can cause his condition," they met the proximate causation requirement.

As the circuit court correctly ruled, "the law is clear that a mere possibility of causation is not sufficient to allow a reasonable juror to find causation." Just as [the Tolleys] relied solely on the "opportunity" for exposure in arguing that they demonstrated an unsafe working condition, t...