Betty Adams, Joseph Adams v. Union Carbide Corporation

prepared defendant KRUPANSKY, Before ENGEL and Cir- specifically addressing manual these condi- WEICK, cuit Judges, and Senior Circuit report tions for GMC. Attached to this Judge. eight related articles on TDI’s use in manufacturing prepared which KRUPANSKY, had been Judge. Circuit special various sources. Of relevance to Adams, Betty Plaintiff a former the case bar was an article entitled (GMC), ee of Corporation General Motors Safety “Chemical pre- Data Sheet SD-73” brought diversity against action Union pared by the Manufacturing Chemists As- Corporation in the States United sociation. The article the “proper- detailed District Court the Northern District of ties and essential for safe han- alleged Ohio. Plaintiff that Union Carbide dling use of TDI.” Included in this adequately failed to warn GMC publication “Employ- was a dangerous propensities chemi- section entitled diisocyanate (TDI), cal toluene Safety,” Union ee pertinent part: which read training probably September, and flue. Employee bronchitis 5.1.1. important safety measure a com- the care of a different most came under take____ An effective em- pany plain- can treating physician, who certified that should include the fol- ployee education permanently tiff was disabled from work lowing items: hypersensitivity due to TDI from work-re-

$ sf: ^{[*] [*] [*]} lated exposure. personal pro- (e) know when 20, He should complaint Plaintiff filed her on June used and equipment is to be tective 1980, alleging that neg- Union Carbide was effectively. use it how to failing ligent in to warn GMC and its em- supervi- responsibility of “harmful, 5.1.2. It is the of the toxic ployees and deleteri- worker, and, equally sion to train each TDI” ous effects to and that as a result of him an important, as to instill within negligence, defendant’s “she has ren- been supervisor The safety. attitude totally 11, May dered disabled.” On 1982 necessary safety procure defendant Union Carbide filed a for motion that it is main- equipment and be sure summary judgment supported which it at all times. working in order tained (1) warnings giv- with two claims: that the including Operating procedures, 5.1.3. plaintiff’s employer en Union Carbide rules, in safety posted be all should its GMC satisfied of reasonable care they may be read work areas where (2) plaintiff, to the and that the statute of employees. plaintiff’s limitations barred action. The granted officials from GMC and Union district court defendant’s motion In handling TDI summary judgment upon met to discuss for based its find- personnel exposure. Addition- to minimize ing presented that the case no unresolved furnished to GMC fol- guidelines al fact, material issue of and that as a matter lowing this conference. of Ohio defendant did not breach its plaintiff. The lower court did not in various de- Plaintiff worked address the statute of limitations issue. Elyria plant during partments employment, including De- course of her grant summary judg The or denial of seat partment No. where automobile ment must be made in accordance with from their molds cushions were removed pertinent which states in Fed.R.Civ.P. exposure possible. Plain- and part: medical records indicated that she had tiffs (c) Proceedings and There- Motions sought early medical attention as as 1969 on____ judgment sought shall be symptoms exposure related to to fumes dep- pleadings, rendered forthwith gaseous plaintiffs materials. ositions, interrogatories, answers to that Adams not be doctor advised GMC file, together the affi- admissions on assigned any area the air was where davits, genu- if any, show that there is no of her contaminated with fumes because ine as to material fact and that issue plant bronchopulmonary condition. GMC’s moving party judg- is entitled to a physician discussed this letter with ment as a matter of law. plaintiff suggested she continue work- applied in The standard to be deter ing Department No. 5 on a trial basis. summary judgment mining motions for later, February, plain- year One was enunciated this Circuit over 20 treating physician again wrote to tiffs years ago and is still accord with the GMC and recommended be reassigned Department overwhelming weight authority: from permanently No. 5 due to her chronic bronchitis. ruling summary judg- on a motion for ment, the court must construe evi- permanently restricted Plaintiff was light in dence in its most favorable favor Department 5 thereafter. Her No. party opposing the motion and employment records disclosed that she was Further, against papers the movant. placed temporary disability several supporting closely the movant scruti- treating physician her due to are times 1456

nized, opponent’s (b) whereas the are indul- has no reason to believe that those gently treated. for whose use the chattel will dangerous condition, realize its Corp. Bohn Aluminum & Brass v. Storm (c) fails to exercise reasonable care King Corp., (6th F.2d 303 427 Cir. inform them of dangerous 1962). Diebold, condition See also United States v. or of the facts which make 654, 655, likely 993, 994, be U.S. S.Ct. dangerous. (1962); L.Ed.2d 176 Sankovich v. In Life America, Company surance North n following Comment the restatement ad- (9th Cir.1981). F.2d 136 vises that the manufacturer’s recognizing After discharged by above criteria providing informa- summary judgment controlling, the trial dangerous propensities tion of the judge in the instant person (GMC case wrote: to a. third in the case) instant upon whom it can reasonably A thorough examination of all evidence rely to communicate the

presented information to the compels here the conclusion ultimate users of the or those no material issue of fact exists in who will exposed be to its this hazardous effects. parties dispute conflict. The neither The comment “[mjodern adds that GM, that defendant life warned Mrs. Adams’ would be intolerable unless employer, dangers per- one were related to TDI rely mitted to to a certain extent on but did not warn Mrs. Adams others’ directly, doing they normally do, what they dispute particularly nor do the notations in GM’s duty it is their to do so.” referring medical records to ailments by suffered Mrs. during Although negligence most actions are re employment. course of There remains solved jury, submission to a “it would application undisputed of these abe mistake to summary conclude judg appropriate facts to legal standards. appropriate ment is never negligence in a Croley action.” v. Matson proceeded Navigation lower court then apply Company, (5th Cir.1970). the facts 434 F.2d 73 as established to the “appropriate Cro legal standard”, ley and other provide ample decisions under Ohio au law is thority found in (Second) summary the Restatement the use of judgment of Torts § 388.1 in alleged Section 388 reads: cases where the negligence of a See, manufacturer is at issue. § e.g., Gra Dangerous 388. Chattel Known to be cyalny Westinghouse Corpora Electric for Intended Use tion, (7th 723 Cir.1983)(“a F.2d supplies One who directly grant of summary judgment may af be person a chattel for another to use any ground firmed on support that finds subject liability to those whom record”); Bryant v. Technical Re supplier expect should to use the chattel Company, (9th search 654 F.2d 1337 Cir. with the consent of the other or to be 1981); Electric, Aetna v. Loveland Gas & endangered by probable use, phys- (6th Cir.1966); F.2d 648 Millhouse v. ical harm caused the use of the chat- Rubber, General Tire and App.3rd 9 Ohio tel the manner for which and (1983). 459 N.E.2d 623 person for whose supplied, use it is if the The evidence which was before the court (a) knows or has reason to know that below demonstrated that TDI was deliv- the chattel likely is or is dangerous to be ered Union Carbide to GMC in bulk for the use for which supplied, liquid it is form. delivery, After the GMC had sitting diversity However, 1. A court apply is bound to sities. the lower court concluded that highest the law of the state’s court. Coleman v. Supreme spoken if the Ohio issue, Court had on the Co., (6th Western Electric 671 F.2d probably reasoning it would follow the Cir.1982). The district court determined that Englewood Ready-Mix Corp., Sams v. 22 Ohio Supreme the cally specifi- Ohio Court has not ruled App.2d (1969), 259 N.E.2d 507 which ac- danger- on the of a manufacturer of cepted § 388 of the restatement of torts. Nei- products parties, ous to warn third such as the party challenges ther this conclusion. action, dangerous propen- in this of its vicariously in this case over the chemical record cannot be exclusive control both imposed upon Union came into Carbide. employees who and the GMC contact with it. upon foregoing analy- factual Based “genuine there remained no sis § a manufactur 388 defines While issue as to material fact” which re- ultimately those who er’s consideration, quired jury and therefore the product, comment n to the exposed to its be grant summary judgment proper. duty can explains also that the restatement reasoning This court’s and ultimate conclu- discharged by manufacturer’s rea is reflected in sion Millhouse v. General party reliance on a third soanble —in Co., App.3rd Tire and Rubber 9 Ohio sup convey the information case GMC—to (1983), company 459 N.E.2d 623 wherein to the ultimate plied by the manufacturer called Mobile Wash had contracted to clean Betty such as this case user—in cars, defendant’s tank certain of which had up repeatedly that GMC Adams. The fact employee contained the chemical TDI. An TDI from Un dated its information about of Mobile Wash was overcome with fumes Carbide, coupled with the fact ion cleaning and died while a TDI tanker. The employees to to its GMC itself had Administratrix of the decedent’s estate work, place to provide them with a safe Tire, against commenced an action General that it inescapable conclusion supports the alia, alleging, negligent inter that it was rely for Union Carbide was reasonable failing Employees to warn Mobile Wash convey the information about upon GMCto dangerous propensities of the of TDI. The TDI to propensities of its the hazardous granted summary judgment trial court context, comment n employees the of within appellate the defendant and the state court of the restatement. affirmed. The court held that there were con- rejection The dissent’s of the above in no material of fact the case be- issues upon bootstrap-type anal- clusion is based cause uncontroverted evidence disclosed that ysis. First the dissent concludes GMC that defendant had notified Mobile Wash adequately employees its did warn the tank cars contained and had (Post dangerous propensities of TDI. supervisors Wash had Mobile been thereupon 1462). The dissent erroneous- inherent to TDI. warned hazards ly upon adequately relies GMC’s.failure predicat- While the Millhouse decision was employees pro- hazardous advise its duty employ- ed the defendant’s to warn on pensities proof of TDI as of Union Car- contractor, independent it’s reso- ees of an However, key negligence. situation, bide’s issue analogous directly lution is to a not, bar, in this as the dissent seems to case case at a manufactur- like the where hypothesize, sup- duty employees company information whether the er’s of a actually product uses its is at issue. plied by Union Carbide reached which Rather, employees. GMC’s the critical strikingly In a case similar to the case at question re- is whether Union Carbide’s bar, Corp., 202 Younger Corning v. Dow information upon relay liance GMC to (1969), Kan. 451 P.2d 177 the Kansas reasonable, employees to its when was grant Supreme upheld Court of summa- light safeguard in viewed of GMC’s ry in judgment favor of the defendant man- in consideration employees’ its health and adequate ufacturer on basis that warn- comprehensive of the fact that ings given had been to the immediate concerning conveyed by the use of was vendee, thereby satisfying the manufactur- express for the Union Carbide employees er’s to warn the vendee’s purpose of dissemination GMC’s dangers exposure related to to TDI. As ees. bar, in the case at the defendant had sold plaintiff’s employer and had TDI-to the effect, interpreting the dissent employer the chemical’s dan- warned the relay GMC’s failure to the information to gerous propensities. negligence its attributable to negligence Corp., The of GMC Similarly, Union Carbide. Reed v. Pennwalt 478, appeal P.2d dis- Wash.App. under the circumstances disclosed (1979), WEICK, 604 P.2d 614 Judge, missed 93 Wash.2d Senior Circuit dissent- jury upheld ing: defendant was verdict for appeal.2 supplied There the defendant I respectfully dissent. The district court processing plant with caustic soda. food granting summary erred in judgment shipped in This chemical was tank cars and defendant-appellee favor of Union Carbide holding unloaded into tanks owned the Corporation dismissing complaint processor. It was later diluted ac food plaintiff-appellant Betty Adams, thereby pro cording to a formula controlled depriving right her of her by jury to trial was no evidence that cessor. There justly which she was entitled. use defendant had control over the complaint, In her Mrs. Adams had al- plant. Washington the chemical in the leged that defendant Union Corpo- Appeals Court of determined that the sup negligent ration in failing neglect- had fulfilled plier’s duty to been warn ing harmful, to warn her of the toxic and warning to the immedi providing adequate deleterious effects exposure of her to the bar, ate vendee. As in the case at the Reed poisonous fumes of toluene diisocyanate court noted that since the also (TDI) which it manufactured original used a different form than its in. employer, to her General Corpora- Motors state, expect it was reasonable to that the (GMC), tion permeated and which had safety program designed vendee had a plant entire area of the where she was adequate communicate information about employed working. As a direct and employees. its substance to proximate thereof, result she contracted Service, again, And Jones Hittle TDI hypersensitivity asthma and became

Inc., 219 Kan. 549 P.2d 1393 totally and permanently disabled. (1976), Supreme upheld the Kansas Court my opinion, construing evidence defendant, summary judgment in favor of light most favorable in favor of Mrs. propane gas, upon manufacturer based Adams, to justly which she was entitled finding the lower court’s that the manufac- genuine under the there were issues turer fulfilled its to the ultimate con- properly disposed of material fact not byof sumers it when verified that the distributor summary judgment. judgment The to whom it sold the in bulk was district court should therefore be reversed. adequately trained and informed of the hazardous gas, characteristics of the I would convey knowledge to consum- The Facts ers. See also Marker v. Universal Oil Products, (10th Cir.1957)(de- 250 F.2d 603 The underlying uncontroverted facts veloper petroleum of a refining process had dispute repeating bear and clarification. right rely upon duty to employer of who Although Mrs. Adams was not certified as process used the protect its own permanently hyper disabled due to “TDI ees). sensitivity exposure asthma from at work” sum, 1, 1978, until findings lower court’s of fact October GMC was first ad application 1969, early May, by vised as as private law is well reasoned her and in respected line with precedent. experiencing The doctor that she signifi decision of hereby eye the district court is cant and throat irritation cough and a Af- “vapors because of at her work.”1 On firmed. Although jury plaintiff's employer potentially verdict on Reed distin- informed harmful, of all bar, guishes point it from the case at of law toxic and deleterious effects of TDI at regarding discharge which meeting Reed makes February of on or about 1969. Mrs. directly ap- began manufacturer’s to warn is employment Department her in plicable to the instant case. symptoms No. 5 in but the onset of her in May, "vapors” 1969 from “fumes" and is consist- delivery 1. An affidavit ent with the submitted Union Carbide indi- of TDI defendant after February meeting. cates relatively that before Union Carbide delivered short Body-Elyria plant, period elapsing TDI to fully GMC’sFisher of time before the onset her 10, 1971, Department Adams com- No. 5. Defendant Car- Mrs. Union November plant “that physician presented contrary no plained to GMC’s evidence. bide tank she was from a near where fumes ” throat,’ causing ‘burning working were II temporarily relieved from and she Principles Negligence Law General Twenty working Department in No. 5. the parties Since none of contest later, however, her noting that days after (Second) of applicability of Restatement cleared, physician re- had symptoms GMC’s § (1965) legal as standard 5. Torts Department No. quested her to return to physician defining plaintiff, defendant’s I February, Adams’ Mrs. prob- bronchopulmonary principles negligence her for to those law treated turn § lems, she should and advised GMCthat are embodied in 388 to determine the air was assigned to work whether, where as a matter of Union Car- irritating fumes. with these contaminated bide, the manufacturer of exercised recommendation, the Notwithstanding this employees care to inform the reasonable Mrs. Adams physician encouraged GMC GMC, including Adams, Mrs. of TDI’s dan- “trial” Department 5 on a No. remain gerous condition or the facts which later, February, year One basis. likely dangerous. make TDI to be Stated physician personal recommended her otherwise, in the context of this we Depart- from permanently she be removed must determine men whether reasonable bronchitis, 5 because of chronic ment No. as to could differ whether it was reason- concurred. plant physician and the GMC totally for defendant Union Carbide to able restric- Following, permanent Mrs. Adams’ rely the informa- on GMC communicate Department she was tion from No. tion TDI to the ultimate users of the about per- her temporary disability by placed on plaintiff, including who would be product, flue sev- physician sonal bronchitis product’s effects. exposed to hazardous being prior certified eral times § n to is concerned with Comment physician permanently different as given persons, warnings third such hypersensitivity due to “TDI asth- disabled pertinent part: It states GMC. ma.” person through Giving to plaintiff's to TDI exposure The extent chattel all whom the disputed. Although majority vapors necessary to its use is safe information not in exposure poténtial indicates “[t]he all cases to relieve the sufficient vapors had oc- to TDI merely liability. It is supplier re- when the seat curred cushions this information is to be means which molds,” open from their Mrs. Ad- moved conveyed to those are to use the who deposition in her that due to ams stated question whether chattel. The remains ventilation, exposed to inadequate she was gives method reasonable assur- this Department the fumes from No. even will reach ance that information depart- working when she in another safety depends upon their those whose Additionally, that on at ment. she stated may All having it. sorts of chattels be occasion, directly ex- least one she was others, through for the use of during spill, al- posed to TDI a chemical persons an all sorts of third and under though chemical’s she did not learn of the variety of This infinite circumstances. her union her it was TDI. identity until told true, impossible it is to being obviously Furthermore, Mrs. Adams testified in advance set of rules which state working her never told that she automatically in all cases will determine provided never her with written supplying for the one a chattel whether applicable in the event of safety procedures through person has of others a third spills, her use chemical and never screened duty to are to use background prior sending her into his those who to satisfied health extremely dangerous product. highlights of Union Carbide's nature difficulties so, informing person being the third do subjected the chattel to take the risk of dangerous character of the chat- liability to if the information is not tel, precautions which must be brought or of the suppli- home to those whom the using it order to make its exercised expect er should to use the chattel. are, however, certain use safe. There many doing cases the burden of so is important in which are determin- factors slight, as when the chattel is to be used necessarily There is ing question. presence* vicinity in the or person given to some chance that information it, supplying so that he easily give could person will not be communicat- the third personal warning to those who are to by him those who are to use the ed to though the chattel. suppli- use Even chance varies with the cir- chattel. This practicable er has no opportunity give to existing at the time the chat- cumstances directly this information person and in to person, tel turned over to the third is those who are to use the chattel or share him oth- permission given to allow use, in its it is not unreasonable to re- in- These circumstances ers use it. quire him good any to make harm which character clude the known or knowable using is caused his so unreliable a may person of the third also include giving method of the information which giv- purpose for which chattel is obviously necessary to make the chat- en. Modern life be intolerable un- would tel safe for those who use it and those permitted rely one to a cer- less vicinity of its use. doing they tain extent on others’ what Here, every as in case which involves do, if normally .particularly it is their precautions determination of the duty to do so. the chattel is one If satisfy which be taken to the re- ignorantly which used contains no care, quirements of mag- reasonable great causing anything chance more nitude the risk involved must be harm, comparatively than some trivial compared with the burden which would permit it is reasonable to the one who imposed (see by requiring them supplies the chattel a third § 291), magnitude and the the risk is person rely upon fact determined not by the chance that person ordinary is an normal may some harm result but also the man to whose discredit serious or trivial character the harm nothing, knows as a assur- sufficient § (see 293). likely which is to result ance that given to him care Since the which must be taken al- passed will be on to those who are to ways involved, danger increases with the use the chattel. require be reasonable to those If, however, person the third is known supply through who others chattels to be careless or inconsiderate or if the ignorantly which if grave used involve purpose for chattel is to be risk of serious harm to those who use used is to advantage knowledge his them vicinity and those in the of their of the true character of the chattel is use, precautions bring to take the in- likely prevent being used and so to formation home to the users of such deprive him advantage of this when —as chattels which it would be unreasonable goods so defective as to be unsalable are to demand were the of a chattels less sold a wholesaler to a retailer —the dangerous character. supplier of the chattel has reason to ex- Thus, may proper permit while it be to pect, or at suspect, least that the infor- supplier a to assume that one mation will fail to reach those who are to supplies whom he only a chattel which is use the chattel safety depends and whose slightly dangerous will communicate the upon knowledge their of its true charac- given information him ter. In such to those who are supplier may the well to use it unless he required go be to further than knows that the other to tell careless, person dangerous such a third of the may improper per- it be to article, or, character of if the he fails to conveyance mit him to trust the the the the product, intensity the and form of the actual necessary information given, article and highly dangerous warnings the form in which the character of he person whose character third is used. See Hooker product Dougherty to a It that he nothing: may well be (3d Corp., knows Cir. F.2d Chemical the risk that this information take should 1976). communicated, ex- unless he may not be majority opinion The holds: the to ascertain reasonable care ercises repeatedly updated The fact that GMC or unless person, the third character of about TDI from Union or experience him with previous Carbide, coupled with the fact that GMC the reputation excellence of his from the duty employees provide to its to had positive to believe has reason supplier work, place supports a safe them with to this, to careful. In addition that he is inescapable the conclusion that it was use ignorant involved in the danger rely for Union to reasonable very great, it chattel is particular aof convey the GMCto information about not exer- supplier does may be that propensities hazardous of TDI to its em- entrusting the care in reasonable cise ployees within the of comment n context necessary communication of infor- restatement. person he has to a whom even mation Supra at 1457. Not only to believe to be do I disagree reason good careful. carry to the.inescapability articles can be made Many such both with of such conclu- understanding message to the their own I underlying premises, and with its sion but them likely are to use those who conclude, contrary, to the there is no that out, by they put are form which support to evidence the reasonableness they supplied, are the container therefore, actions, Carbide’s Union device, indicating by a label or other genuine there are of material that issues sufficiency their dan- substantial with a appropriate sum- fact not resolution in- danger character. Where gerous mary judgment. ignorant their true in the use of volved There is no evidence that “GMC re- means of disclo- quality great such TDI updated its information about peatedly unduly bur- practicable are and' not sure an exten- from Union Carbide.” Based on densome, well be that the review of the entire record before the sive (Em- required adopt them. should be Court,, best, GMC, it is that District clear added). phasis dangers TDI defend- discussed.the n quote majority’s from Comment only prior twice—once in 1969 to deliv- ant life “[mjodern be intolerable would defendant, again TDI ery of permitted rely to a were unless one years six and one-half after GMC some they doing extent on others’ what certain majority began use. first What do, duty their normally particularly if it is really “repeatedly” characterized as has so,” 1456, barely supra at scratches do communications constitutes isolated surface of considerations which Union Carbide. between determining weighed and balanced in case, the plaintiff’s communications discharged its Union Carbide whether enough for sub- infrequent her to become Mrs. to inform exercise reasonable care stantially through repeated expo- disabled TDI. dangerous nature of extremely poisonous sure to a rely on the it is reasonable to Whether TDI. dangerous as inform ultimate user party to could The assertion Unión Carbide properties product’s hazardous about itself had a rely on GMC because “GMC balancing as the of such factors requires a them with provide to its dangerous product, nature of the bur- Ac- place questionable. work” is safe by requiring warnings to the imposed dens exists, I fact that cepting the such users, par- that the ultimate likelihood not an iota of in the record- find evidence warning adequately commu- ticular will district that foreseeably use court or this Court to those who before nicated will passed discharge will be on to those who are to use relied on GMC’s Union added). (Emphasis failing for to the chattel. duty as the reason of this ultimate and the other notify Mrs. Adams dispute There is no that TDI is an ex- dangers of TDI. Further users about tremely dangerous, poisonous product. rely, did so there is more, if defendant even Defendant Union Carbide admitted that its by Union any actions taken no evidence of respiratory officials were aware of hazards February after the before or Carbide either exposure vapors associated to TDI as with meeting determine how success to early magnitude as 1964. The of substan- duty pro discharging its to fully GMCwas resulting improper tial harm use of that Union place, such vide a safe work by is further evidenced Mrs. to disseminate on GMC Carbide’s reliance deposition Adams’ statement in her be termed “rea warnings TDI could about Elyria plant] employees “38 have [at support record does sonable.” What 138). damaged by (Appendix been TDI.” never communicated findings that GMC are Perhaps widespread injury was the Adams, Mrs. never dangers of TDI to reason GMC saw fit in 1975 to recontact emergency procedures in her of informed express purpose Union Carbide with the spill, and never screened of a TDI the event discussing safeguards employees its sensitivity she was em while her for working with TDI. 5,No. even after her ployed Department The risk to Mrs. Adams and other users poisonous exposure to illnesses due to of TDI could never be considered “some light department. “fumes” in that Thus, comparatively trivial harm.” it is facts, that defendant’s these a conclusion error this Court to conclude under Com- a mat on' was reasonable as reliance GMC rely, ment n that defendant could as a insupportable.2 ter of law is matter of on GMC’s to its em- majority’s n im- Comment addresses ployees provide place to them a safe plicit assumption that will behave as GMC work, particularly to since defendant could discharge in the ordinary “an normal man” easily gave have ascertained that no employees provide to of its its warnings employees, kind to its place follows: safe work Adams, including provide Mrs. and did not ignorantly If the is one chattel which if work, place them with a safe and addi- great used contains no chance caus- tionally poisonous per- fumes were ing anything compar- than more some meating through the entire work area and harm, atively it is reasonable to trivial employees including a number of its Mrs. permit supplies the one the chattel who being Adams were affected. rely upon person a third ordinary person fact that the third is an Ill sup- normal man to discredit the whose Controlling Law Case plier nothing, knows as a sufficient as- given him surance that information The district court noted: Similarly, opinion meetings court's stated: the occurrence of between its ex- district perts and GM medical and industrial staff No that defendant inference can be drawn added). hygenists (Emphasis relying breached GM to inform [sic]. warnings purposes summary judgment, its own safety programs. of these under its For GMC’sfail- fact, there evidence against ure to warn be construed defend- should given continuing sought that GM and was moving party, ant as the at least to the extent regard employee safety negative speaks such inference to the unreason- which would foster reasonable reliance ableness of defendant's total reliance on GMC. added), (Emphasis defendant. Furthermore, the district court's conclusions re- garding quality of GMC’s efforts to seek suggesting There is no did evidence that GM "continuing implement information” and to safety program not have a to inform "safety program" directly are refuted warnings upon ees of its which defendant record, and should be found this Court to be reasonably rely. contrary, could To the clearly erroneous. by defendant substantiate affidavits submitted

1463 holding is incorrect in oth- Id. This Court has not ruled on highest court When law, negligence. the federal court on the issue of area of erwise an all available state law from ascertain the however, finding to Hargis, According appellate state court When a sources. dispositive plaintiff’s of negligence is not of principle, a relies on a and announces appropriate right damages. The recover re- recognize that court should federal by the Ohio Court standard of law defined it state law unless indicative of liance as Appeals is set out in Headnote 2: of highest court would that the is convinced particular product is not inher- Where v. American differently. West decide suppli- ently dangerous, and where the Co., U.S. 311 Telephone Telegraph & employee, to an some er has no access 85 L.Ed. 139 Ct. 61 St. [sic] relationship the failure to causal between (1940); Casu- Ruth v. Bitumerous [sic] injuries must be shown warn and the Cir.1970). (6th 427 F.2d 290 alty Corp., for directed order to overcome a motion majority’s con- agree with the I cannot added). (Emphasis verdict. hold, matter as a Ohio would clusion that holding, N.E.2d 1008. In so Id. at exer- law, Union Carbide that defendant of Appeals spoken also the Ohio Court of has discharged and was care cised reasonable by stating that Adams’ action provided thereby, because liability dangers [although the of cer- GMC, inherent particularly when warnings to types products, poisons, of such as adequately communicat- tain warnings were not like, drugs, users. explosives, to the ultimate and the re- ed personal to the user with- quire notice clearest statement my opinion, In any intervening out found in applicable to this case is reference Ohio law source, [involving in other situations Doe, App.3d 3 Ohio Hargis v. unreasonably dangerous not products (1981). plain- Hargis, In N.E.2d uses], requirement their foreseeable clothing caught injured when his tiff was adequate warning extends of an becoming dampened with a de- after fire has rea- the defendant. those to whom the distributor greasing solvent accident, Hargis added). (Emphasis At the time sonable access. cleaning intended using the solvent for its Thus, 38, 443 N.E.2d 1008. under Id. at faulty welds but instead to detect purpose, Carbide, pro- defendant Union Hargis, immer- torque converters in automatic concededly ex- supplier of a ducer sion in a vat of the solvent. dangerous poisonous product, tremely Appeals Hargis, In the Ohio Court of TDI’s plaintiff a to warn owed liability subject to supplier held that a warnings sup- regardless dangers, by any damages proximately caused GMC, plaintiff may even be plied to any pur- product for reasonable use of the a matter of Ohio judgment, entitled to as reasonable pose, “if he fails to exercise damages as a result for her suffered give the user information care person- notify failure to her of defendant’s supplier] supplier] has and which [the [the dangerous prod- of its ally properties necessary to make realize should would uct. See Restatement product use of the safe. Millhouse, su- majority’s reliance on 2d, App.3d 388.” 3 Ohio of Torts Section pra at misplaced. all, First of fact, the court 443 N.E.2d 1008. on the law decision was based Millhouse supplier that the specifically held Hargis liability. The agency, products and not user, Hargis, did have a product, but was not a user of deceased nature of of the flammable independent employee of an instead- Be- around fire. Id. proscribe its use General Tire hired defendant contractor recognizes the existence of this cause Ohio con- tank cars to clean one of defendant’s warn, supplier to the failure of the duty to Ohio, is a rule of taining TDI. there to overcome the user is sufficient warn indepen- an general acceptance that where a matter for defendant verdict dan- potentially negligence. dent contractor undertakes specific of law on the issue user, gerous notify for another and one of the the ultimate work which employees is in- independent incorrectly contractor’s this Court has found not to ex ordinarily liability attaches to the jured, case, no contrary ist in this to Hargis.4 engaged independent con- party who Additionally, majority disregard has 204, Millhouse, App.3d 9 Ohio at tractor. respected precedent ed of the highest contrast, By Hargis, 459 N.E.2d 623. su- Arizona, courts of North Dakota and both clear pra, makes it that there is no analo- adopted of which have a much expan more gous products liability rule for cases involv- sive view of Comment n than the courts of § ing 388. Washington. Kansas and See Seibel v. distinguishable is also on its Millhouse 50, (N.D. Symons Corp., 221 N.W.2d 57 case that facts: was uncontested 1974); Gutierrez, Shell Oil Co. v. 119 Ariz. employer safety proce had established 426, 271, (1978). 581 P.2d 278-79 The deci TDI, working and that dures around Appeals sion of the Ohio in Hargis Court of plaintiff the deceased in fact had been cases, is consistent with these and we have properties TDI. Fur warned of the Id. Supreme no reason to believe the Ohio thermore, the tank car the deceased which Court would hold otherwise. Has See also cleaning “TDI” was had the letters sten ten, Comparative Liability Principles: on, poison placard ciled and had a on each They Should Now Apply Strict Prod 203, side and end. at 459 N.E.2d 623. Id. Ohio, Liability ucts Actions in 14 U.Tol.L. None of these or similar facts have been 1151, (1983). Thus, Rev. 1181 n. 88 we are in Mrs. established Adams’ case.3 apply present bound to that law to the suit The decisions of the courts of Kansas upon diversity. founded Erie R.R. Co. v. Washington distinguishable. are also 64, Tompkins, 304 U.S. 58 S.Ct. 82 Supreme Younger, Kansas Court (1938). L.Ed. 1188 specifically noted that the case did not highly dangerous explosive involve a or IV poisonous product. 451 P.2d at 184. In Improperly The District Court Granted Jones, unknown, the ultimate users were Summary Judgment adequate express there was no means to Determining supplier’s whether the users, warnings to the and the reasonably discharged has been under Sec- had party capa- verified that the third tion 388 comes within the function of the conveying necessary ble of trier of fact. Dougherty, supra, See 540 to the consumers. 549 P.2d at Thus, F.2d at 179. the issue in this case decision Reed was on the based proper was not by summary resolution doctrine of intervening negligence of the judgment. Bryant Accord v. party employer Technical superceding as the Co., (9th Research 654 F.2d damage, 481-82; cause of the 591 P.2d at 1345-46 Cir.1981); Hopkins Chip-In-Saw, Inc., this doctrine v. was limited in the case of extremely dangerous products (8th Cir.1980); 630 F.2d by Hargis, 620 n. 5 supra, requires finding and furthermore a Michigan Weekes v. Chrome & Chemical 3. If all, TDI, regarding provide Millhouse be relied on at it is for and even failed to ade- proposition extremely dangerous quate that TDI workplace. Perhaps ventilation in the proper and even fatal if not used under condi- and other GMC had been procedures by use, tions. The established Mill- they informed of the TDI could have en- employer required employee house’s to wear adoption proper procedures by sured the suit, including jacket, pants, a full wet a rubber GMC. boots, mask, gloves breathing a motor 4. Marker v. Universal Oil Products is also distin- hose, supplies air wristlets safety App.3d line. Ohio guishable 9 459 N.E.2d since it involved the 623. Millhouse’s failure to wear a mask and gross when there was a misuse of the independent breathing source resulted in his party. to the third F.2d at 606-07. unfortunate demise. case, contrast, In this the TDI used GMC, noted, envisioned defendant and so that un- already In this as was Mrs. Ad- anticipated danger. misuse did create safety procedures ams stated that GMC had no Cir.1965) my on review of (6th (suppli- apparent, based Co., 352 F.2d record, reasonably find jury that third could that: reasonably assure itself er information to ulti- likely to transmit party (1) warnings communicated no (existence users); supra, Hargis, mate GMC to GMC’s Union Carbide prevent directed verdict duty sufficient plaintiff; employees, including alone); negligence Sams issue of (2) extremely danger- because of the Corp., Ohio Ready-Mix Englewood propensities of ous Union Carbide (1969) 168, (liability 259 N.E.2d 507 App.2d obliged steps to take be- was reasonable be submitted under 388 should Section in yond appears the record to warn what fact). also Gordon v. of See the trier § (see 388, employees GMC’s Comment Works, 574 F.2d Tool Niagara Machine & n, supra), including: Cir.1978) (supplier (5th 1189 (a) up following on its initial discus- believing for basis have reasonable February, in sions with GMC to communicate expected party could be (b) verifying imple- that GMC was users) (subsequent information warnings to menting safety program TDI use negli- party not relevant to gained by third by employees, sale).. original of supplier at time gence of (c) in inspecting the conditions GMC’s summary judgment, motion for In its plant, it submitted that Union Carbide defendant (d) implementa- overseeing the actual a matter of judgment as entitled to GMC, safety by program tion of the relevant, following un- upon the law based (e) actually undertaking by the record: disputed facts established employees directly; and GMC’s on or (1) fully warned GM Carbide (3) there no reasonable basis for concerning the February about rely to commu- Union Carbide GMC harmful, deleterious effects of toxic and necessary employ- information to nicate asthma; TDI, including risk of TDI including plaintiff. ees (2) provided the above warn- supplied Fisher ings 1321-22; to GM before F.2d at Gracyalny, 723 See production quantities of Body-Elyria with F.2d at 181-82.5 Dougherty, 540 TDI; majority has cited evidence that TDI (3) exposed to TDI Betty Adams was in by Carbide to GMC was delivered Union Body- Department at Fisher vapor in' form, delivery, that after bulk Elyria; the chemi- had exclusive control over both (4) exposure, Betty As a of said result employees who came into cal and the GMC reac- developed hypersensitivity n it, 1457. Comment supra contact with TDI TDI known as tion to and a disease product in is notes that the form which asthma. considered in deter- used is one factor mining exercised rea- whether defendant argues that it Although Union Carbide case, Although GMC’s exclusive it is sonable care. exercised care reasonable defendant, although majority opinions by directed verdict for the cited 5. None of the summary proximate may require grant provide adequate authority of sum- issue of cause for the judgment particular Croley, Bryant, when the mary judgment in this case. inherently dangerous does not Gracyalny, supra, Courts re- the Circuit user. summary judgment reasonable access to the ultimate grant for rea- have versed the of Millhouse, Appeals suggested Finally, Ohio of very here. Court those I have sons similar to Insurance, grant summary judgment be- F.2d at it is stated affirmed In Aetna by defendants es- it is not cause the evidence adduced clearly court for a unanimous necessary negligence the facts to find for defend- preferable dispose cases tablished unless, example, because defendants’ summary judgment the tri- ants as a matter of required was uncontested and uncontradicted to direct a evidence have been al court would gone plaintiff. has In this Mrs. Adams the case had for the defendant verdict way depo- jury. Hargis, supra, submitted substantial evidence the Ohio Court trial Union Car- sition and otherwise to contradict Appeals the issue of the made it clear that reasonably. prevent that it behaved supplier’s negligence bide’s assertion is sufficient the TDI and its over both control CHICAGO, municipal corpo- would speak to the burdens that may

ees CITY OF ration, Department and Police by requiring actual imposed have been Petitioners, City Chicago, warnings Adams from Union Car- to Mrs. bide, there is no substantive evidence magnitude of regarding the actual record UNITED STATES DEPARTMENT OF appeal, Union Carbide that burden. On LABOR, Respondent. in which argues that the bulk form No. 83-1421. virtually precludes a supplied to GMC Appeals, United States Court warning by Union Carbide Seventh Circuit. subsequently come contact who the record demonstrates and that Argued Jan. 1984. no effective means of com- defendant had Decided June warning except municating a argues that the burden of Plaintiff GMC. onerous, and is not could even

notification accomplished by providing medi-

have been on TDI to Mrs.

cal information Adams’ I right, find no

union. Whomever support argu- record to

evidence party, inescapably I am led

ments of either that the issue of burden

to the conclusion genuine

on defendant is one more issue properly fact not resolved on sum-

material is, additionally, the im-

mary judgment, as

pact of that burden on Union Carbide’s

right reasonably rely on GMC.

Finally, argues Mrs. Adams

warnings given by defendant GMC

informationally inadequate sufficiently dangers

apprise GMC of the allegation supported

that this GMC’s

subsequent communication with Union Car- on the

bide 1975 for further discussions

safeguards required usage. I intensity of the reiterate that form and Pell, Judge, part, Circuit concurred warnings given factor is another part, opinion. dissented in and filed argued in determin- balanced ing whether defendant exercised reason-

able care under the circumstances in this Dougherty, supra.

case. important involving inter-

This is an case commerce, among

state and a conflict by this deci-

circuits is occasioned Court’s

sion. I would reverse the district court’s

grant summary judgment and remand including proceedings,

the case for further questions of fact to the submission

jury.

Case Details

Case Name: Betty Adams, Joseph Adams v. Union Carbide Corporation

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 2, 1984

Citation: 737 F.2d 1453

Docket Number: 83-3239

Court Abbreviation: 6th Cir.