White v. WGM Safety Corp.

• Decision Date: 25 October 1988
• Docket Number: 488-037.,Civ. A. No. 488-038
• Citation: 707 F. Supp. 544
• Parties: Ted WHITE and Esther White, Plaintiffs, v. W.G.M. SAFETY CORP., E.D. Bullard Company and Clemco Industries, Inc., Defendants and Third-Party Plaintiffs, v. MONTGOMERY SAND COMPANY, Coastal Abrasive Company, Miller Sand Company, Florida Silica Sand Company, Dawes Manufacturing Company, Empire Abrasive Equipment Corporation, and Pulmosan Safety Equipment Corporation, Third-Party Defendants.
• Court: U.S. District Court — Southern District of Georgia

707 F. Supp. 544

Ted WHITE and Esther White, Plaintiffs, v. W.G.M. SAFETY CORP., E.D. Bullard Company and Clemco Industries, Inc., Defendants and Third-Party Plaintiffs, v. MONTGOMERY SAND COMPANY, Coastal Abrasive Company, Miller Sand Company, Florida Silica Sand Company, Dawes Manufacturing Company, Empire Abrasive Equipment Corporation, and Pulmosan Safety Equipment Corporation, Third-Party Defendants.

Civ. A. Nos. 488-038, 488-037.

United States District Court, S.D. Georgia, Savannah Division.

October 25, 1988.

Eugene Brooks, Savannah, Ga., for plaintiffs.

Jordon D. Morrow, R. Clay Ratterree, Arnold C. Young, F. Saunders Aldridge, Savannah, Ga., Steve A. Bryant, Bryant, Renneker & McLean, Houston, Tex., for defendants and third-party plaintiffs.

ORDER

EDENFIELD, District Judge.

Before the Court are the motions of defendants W.G.M. Safety Corp., E.D. Bullard Company, and Clemco Industries, Inc., for summary judgment. For reasons set forth below, these motions are DENIED.

I. BACKGROUND

Plaintiff Ted White worked as a sandblaster and painter from about 1966 until 1987. In April of 1987 he became permanently disabled with silicosis, which he claims was caused by exposure to silica dust while sandblasting. He has brought a products liability suit alleging negligence and strict liability against three manufacturers and sellers of sandblasting protective equipment: defendants W.G.M. Safety Corp. ("W.G.M."), E.D. Bullard Company ("Bullard"), and Clemco Industries, Inc. ("Clemco").¹ His wife Esther White seeks damages for loss of consortium.²

Plaintiffs claim that W.G.M. sold half-mask dust respirators, used by plaintiff, which did not provide adequate protection from silica dust during sandblasting. Plaintiffs contend that W.G.M. did not warn or instruct that its respirators should not be used in sandblasting and that its dust filters and cotton faceletes increased exposure to silica dust. Plaintiffs allege that Bullard and Clemco sold air-fed hoods for use by sandblasters, and that Clemco sold a non-air-fed canvas hood marketed specifically for sandblasting but designed so that no approved or adequate sandblasting respirators could be used with it. Plaintiffs claim that none of these defendants tested these hoods under sandblasting conditions or warned prospective users of the dangers of silica dust exposure.

Defendants deny that plaintiff Ted White is suffering from silicosis or any silica related disease. Defendants also deny breaching any duty to plaintiffs and deny that their respective products were negligently designed or defective. They claim that guidelines of the American National Standards Institute and regulations of the Occupational Safety and Health Administration placed upon Ted White's employers the responsibility for monitoring the workplace, training and educating each employee involved in abrasive blasting in the proper use and maintenance of respirator protection and further obligated his employers to continue to monitor the adequacy of respiratory protective equipment. Defendants contend further that plaintiff was negligent, assumed the risk of injury, and made improper, inappropriate, and unforeseeable use of their products.³

In their separate motions, defendants have moved for summary judgment on various grounds which will be discussed in turn.

II. LAW AND ANALYSIS

A. Summary Judgment

The Court recognizes that because summary judgment is a "lethal weapon, depriving a litigant of a trial on the issue, caution must be used to ensure only those cases devoid of any need for factual determinations are disposed of by summary judgment." Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986). As the parties seeking summary judgment, defendants bear "the exacting burden of demonstrating that there is no dispute as to any material fact in the case." Warrior Tombigbee Transp. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). All reasonable doubts about the facts are to be resolved in favor of the non-movant, although "the non-moving party ... bears the burden of coming forward with sufficient evidence of every element that he or she must prove." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir.1987); Livernois v. Medical Disposables, Inc., 837 F.2d 1018, 1022 (11th Cir.1988). Moreover, if the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. Clemons v. Dougherty County, 684 F.2d 1365, 1369 (11th Cir.1982).

Of course, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). At the summary judgment stage, the Court's function is not "to weigh the evidence and determine the truth of the matter but to determine whether there is genuine issue for trial." Id. at 249, 106 S.Ct. at 2511. See also McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930 (11th Cir.1987).

B. Plaintiff Ted White's Injuries

Defendants deny that Ted White is suffering from silicosis. Plaintiffs have met their burden in demonstrating that as to plaintiff Ted White's injuries there is an issue for trial.

C. Duty to Warn

Defendants assert that, as a matter of law, they were not negligent for allegedly failing to instruct or warn plaintiff adequately of dangers arising from the use of their respiratory equipment or for failing to label this equipment. Defendants argue that Ted White's employer was required to have knowledge of protective equipment for sandblasting, that Ted White was aware of the dangers of sandblasting, and that, therefore, defendants cannot be held liable for Ted White's alleged injuries.

1. The Employer's Knowledge and Duty

Defendants contend that there is no duty to test a product or to warn against risks associated with it where a product is sold to those charged by law with the knowledge of the dangers involved. Under Georgia law a manufacturer may be liable under both negligence and strict liability. Rhodes v. Interstate Battery System of Am., 722 F.2d 1517, 1518-19 (11th Cir.1984) (construing Georgia products liability law). However, such a defense would go toward liability based on negligence; it would not apply to any action in strict liability.

Although the precise question sub judice has not been addressed in Georgia, it is the prevailing view in other jurisdictions that under a strict liability theory where both a product manufacturer and a third party owe independent duties to warn users regarding a product defect or danger, the third party's failure to warn is not a defense to the manufacturer's failure to warn. The manufacturer cannot delegate to such a third party the duty to warn of a defect or danger. See Reese v. Mercury Marine Division of Brunswick Corp., 793 F.2d 1416, 1420 (5th Cir.1986) (Texas); Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky.1984); Hoffman v. E.W. Bliss Co., 448 N.E.2d 277 (Ind.1983); Jackson v. Coast Paint and Lacquer Co., 499 F.2d 809 (9th Cir.1974) (Montana). Similarly, where a manufacturer attempts to fulfill its duty to warn through a third party intermediary, that third party's negligence does not break the causal connection between a breach of the manufacturer's duty and the ultimate user's injury in a strict liability action. See Reese v. Mercury Marine Division of Brunswick Corp., 793 F.2d at 1420. Under a strict liability theory, the question remains whether defendants' products were defective and whether the warning was adequate. Such an issue is for the jury to determine.

Plaintiffs' negligence theory in this case is predicated in part on the principle that a manufacturer is under a duty to inform potential users of the product of any facts making it dangerous. Rhodes v. Interstate Battery System of America, 722 F.2d at 1518-19. See also Reddick v. White Consolidated Industries, Inc., 295 F.Supp. 243, 245 (S.D.Ga.1969). The manufacturer's duty to warn is not merely a duty owed to the purchaser but a duty to warn the end user. Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975).

Defendants argue that industry standards and federal regulations as evidenced in safety standards set forth pursuant to the Occupational Health and Safety Act ("OSHA") specifically required that Ted White's employers have knowledge of the problems involved in sandblasting, provide proper protective equipment for sandblasting, and instruct their employees in the proper use of this equipment and the dangers involved with its use.⁴ They argue that under the Code of Federal Regulations, employers were required to ensure: (1) that an employee's exposure to silica and silicates not exceed set levels, 29 C.F. R. § 1910.94(a)(2)(ii) and .1000; (2) that dust filters not be used for continuous protection where silica sand is used as the blasting abrasive, 29 C.F.R. § 1910.94(a)(5)(iii)(a) and (b); and (3) that a respiratory program be set up including the provision of proper respiratory equipment, surveillance of employees and their degree of exposure to silica, and training sessions including test fittings of equipment and trial runs using equipment, 29 C.F.R. § 1910.94(a)(5)(iv) and .134(a)(2), (b), (e)(1), 2 and 5), (f)(1 and 2).

Defendants argue that the OSHA regulations charging employers with fulfilling certain safety-related duties specifically relieved defendants of their duty to warn Ted White of the dangers posed by use of their products. Plaintiffs argue that Georgia law does not absolve defendants on the basis of these regulations, because defendants' duties are nondelegable.⁵

Defendants rely largely upon Stiltjes v. Ridco Exterminating Co., 178 Ga.App. 438, 343 S.E.2d 715 (1986). In that case plaintiff's landlord entered into a pest control agreement with defendant Ridco for the...