*1 requires considera- further One issue
tiоn the District Court. There tending aft- evidence some show September er 11 a number COD general paid ac- claims were out bal- into account count which the COD we transferred. While ance been merits, intimate no view on the points required to Bank out that if it is turn over was in the the amount that it was
COD account the basis held in trust for a certain class of credi- tors, then it to consideration is entitled against
of a credit that amount to improp- extent that trust funds thus general erly ac- into the transferred subsequently count, ad- or other funds general ac- vanced count, the Bank pay were members of used See of beneficiaries the trust. class 96(a)(8), (c). also U.S.C. § proper Court forum District exploration problem. of this part and remanded Affirmed proceedings inconsistent further opinion. Costs are taxed with this against the Bank. BOREL, Plaintiff-Appellee,
Clarence FIBREBOARD PAPER PRODUCTS COR al., et PORATION Defendants- Appellants, Surety Corporation,
National Intervenor-Appellee. No. 72-1492. Appeals, United States Court of Fifth Circuit. Sept. 10, 1973. Rehearing Rehearing En Banc May
Denied *5 Beaumont, Tex.,
George Duncan, E. Page Pittsburg Corning Corp; W. for Tex., Keeton, Austin, of counsel. n Tex., Jr., Houston, Arnold, for N.W. Armstrong Corp. Carey Cork Philip Corp. Pate, Tucker, R. Gordon
John G. Beaumont, Tex., Manville for Johns Corp. Prod. Orange, Tex., Stephenson,
Ward Borel. Clarence George Murphy, Beaumont, Tex., E. Surety Corp.
for Nat’l Barnes, Tex., Beaumont, E. Robert Ruberoid Co. TUTTLE, Before WISDOM Judges.
SIMPSON, Circuit
WISDOM, Judge: Circuit ease involves the
This scope of asbestos manufacturer’s an duty industrial work- to warn insulation dangers the use of ers of associated with asbestos. Borel, an industrial insula-
Clarence worker, tion certain manufacturers sued containing materials asbes- insulation *6 damages injuries tos to recover for alleged by breach caused defendants’ failing duty in dan- of gers to warn of the handling Bor- involved in asbestos. alleged the dis- el that he had contracted and mesothelioma as of asbestosis eases exposure to defend- of his result thirty-three year ants’ beginning over a ending in 1969. in 1936 and in favor of returned verdict liability. Borel on the оf strict basis affirm. We I. working began Borel as an
Clarence in 1936. industrial During insulation worker employed career, at his he was places, usually Texas, until numerous by disabled the disease asbestosis necessarily employment 1969. Borel’s exposed heavy him to concentrations generated George Weller, Beaumont, Tex., insulation A. for asbestos dust Paper deposition,- Corp. pre-trial materials. In his Fibreboard Prod. day sir, Yes, Borel end of a testified that at the A. I didn’t but know what working with insulation material con- was. taining usual- asbestos his clothes were respira- asked When about the use of ly dusty barely pick “just so he could tors, replied they Borel that were not shaking up them them.” Borel without during early years. furnished his work just just “You them a lit- stated: move Although respirators were later made dust, going I tle and there is jobs, available on some insulation work- my blowed this dust out of nostrils usually required ers were not wear trying day, handfuls the end of the special request them to make a too, water I even Mentholatum use used they wanted one. Borel stated that my keep nostrils to some dust he and other insulation found workers going my throat, from impossible but it down respirators furnished them get rid all of it. Even uncomfortable, were could not be worn just stay dusty continually your clothes weather, “you in hot can’t breathe and— you
unless it off an air hose.” blow respirator.” with the Borel further not- during respirator Borel ed said that had known for he use his years inhaling prevent lifetime could asbestos dust “was inhalation precau- bad me” and that it was asbestos dust. an vexatious As alternative tion, therefore, but never bothersome, that he real- he would sometimes ized it wear a could cause wet handkerchief serious over his nos- emphasized apply mentholatum, terminal Borel trils illness. these unsatisfactory he and his fellow insulation workers methods were also thought it did the dust “dissolves as not exclude all the dust. your lungs”. hits He said: throughout early Borel stated that working Yes, A. I life and until knew dust was bad but the mid-1960’s he among good health, except pains we used talk [about] by lung congеstion insulators, was this caused that his how bad doc- [about] give you dust, TB, pleurisy. could it tor could it attributed to give this, everyone say- you doctor examined Borel connection ing no, you, policy that dust don’t hurt it with an insurance informed your lungs. x-rays lung cloudy., him that dissolves as it hits That of his were you question get was the all the time. doctor told Borel the cause occupation could as an be his insulation Q. you have this Where dis- worker and therefore advised him your cussion, in Union Hall ? possi- avoid asbestos dust much as he jobs, just among A. On the men. bly could. *7 Q. words, In other there some January 19, 1969, hospi- On Borel was question your in mind as to whether lung biopsy performed. talized and a dangerous this was and whether it diagnosed pul- Borel’s condition was as your was bad for health ? monary asbestosis. Since the disease always question, you A. There was irreversible, was considered Borel was just dangerous never know it how deposi- sent Borel home. testified really. was. I never did know If I tion that this time first he knew gotten I known out he had asbestosis. it. gradually Borel’s condition worsened Q. right, you All then did know it during the remainder of 1969. On Feb- degree you had some ruary 11, 1970, surgery Borel underwent didn’t know how it was? right lung. for the removal of his working A. I knew I was with insu- examining doctors determined that Borel lation. lung had a form of cancer known me- Q. you sothelioma, Did know contained which had been caused ? asbestos asbestosis. As a result of these dis- exposure ter, or ex- to determine which the district eases, later died before Borel dis- posures caused the to dust asbestos stage. trial reached case ease. testimony adduced medical inhaling asbestos trial indicates mesothelioma, disease, ais A second conditions, even with in industrial dust lung by exposure form cancer caused produce light exposure, can relatively pleural and to It affects asbestos. The disease disease of asbestosis.1 cavities, peritoneal there is simi- and early diagnose its is difficult long larly period initial contact between long pe- stages latent there is a because аpparent with asbesto- and effect. As appar- exposure and initial riod between sis, determine which ex- it is difficult to vary may period latent ent effect. This responsible posure dust is to asbestos idiosyncrasy, according du- to individual for the disease.2 intensity exposure, ration and cases, type In some asbestos used. At in this is the extent issue case may in less manifest itself the disease knowledge the dan- the defendants’ exposure. years initial after than ten gers associated with insulation however, manifest it does not general, In containing pause, there- asbestos. We twenty-five or more ten itself until fore, to summarize the relevant evidence years exposure. This latent initial after question. to this explained by as- period the fact recognized inhaled, Asbestosis has been as a fibers, remain once bestos years.3 fifty causing over lung, reac- disease for well place a tissue ap- reported first cases asbestosis were slowly progressive and tion among workers. no addi- asbestos textile Even if parently irreversible. England inhaled, Cooke discovered tissue are fibers tional asbestos person in a who had case of asbestosis changes undetected continue weaving spent twenty years di- asbestos By time the disease decades. decade, products.4 period In the next of time textile agnosable, a considerable inju- cases observed numerous similar were elapsed the date of since journals. Furthermore, in medical An effect discussed exposure. rious among investigation problem tex- of the since may be cumulative the disease factory undertaken result workers was dust can tile exposure asbestos each changes. In the Britain in 1928 and 1929.5 A work- Great tissue in additional biological States, United first official claim present condition er’s exposure compensation asbes- many years associated with product of mid-1930’s, By past recent tos was 1927.6 dust, with both pneumo- contributing ef- overall as a the hazard asbestosis exposures universally accepted.7 dust factors combine coniotic All of these fect. practical mat- workers impossible, Cases of asbestosis insulation as a make it As- ef- 1870. introduced about tos cement was asbestosis a discussion of For workers, has been commer- see Se- insulation material bestos insulation on industrial fect Hammond, cially produced Churg Bader, likoff, Bader, least 1874. since at Neoplasia, 42 Am.J.Med. Asbestosis Lungs Cooke, Due to Fibrosis *8 Hammond, Churg, Selikoff, (1967) ; and Dust, 2 Brit.Med.J. Inhalation of Asbestos Among Insulation of Asbestosis Occurrence Pulmonary Asbestosis, Cooke, (1924) ; 2 147 139 Workers, Acad.Sc. Ann. New York 132 (1927). Brit.Med.J. 1024 (1965). Price, Report Ef- on the and 5. Merewether Id. 2. Lungs and Dust on of Asbestos fects Industry Suppression an- in the Asbestos since Dust to man 3. been known Asbestos has term, applies (1930). generic a As cient times. fibrous, inorganic, min- silicate of a number Asbestosis, Lanza, 368 J.A.M.A. 106 6. erystaline possess structure. a erals (1936). separa- air and in is incombustible Asbestos Cong., 2d H.R.Rep.No.14816, Sess. 90th 7. insula- as an was used ble filaments. It into (1968). I. early Dr. J. Selikoff against 355 and asbes- as as heat tor 1084 country early pipe as that “if coverers had worked reported in as
were this steadily where [under Public Health Service conditions] 19348 The U.S. fully significant amount in air in of asbestos dust risk documented the consistently high, the in incidence asbes factories volved in textile asbestos among tosis these report by workers would al., et in 1938.9 Dreessen greater.” urged been precautionary considerable The authors measures authors suggestions stated “the relative to urged ex hazardous elimination of pro respiratory exhaust posures. ventilation in tection are main therefore value large-scale survey The first of asbes taining this low incidence tos insulation workers was undertaken asbestosis”.12 by in States Fleischer-Drink the United al., er et in 1945.10 The exam authors In American Conference of Navy ined insulation workers in eastern Hygienists, Governmental Industrial shipyards and found quasi-official body three cases of responsible for mak- They ing asbestosis. concerning concluded “asbes in- recommendations covering tos naval vessels is a rela hygiene, guidelines sug- dustrial issued tively operation.” Significantly, safe gesting expo- threshold limit values ninety-five percent of those examined sure to asbestos dust. In first re- at worked trade less than port, the ACGIH recommended that years. usually ten Since asbestosis is there should be no more mil- than five diagnosable twenty until ten parts per lion cubic foot It later of air. years exposure, after initial the authors’ determined in 1968 that the threshold conclusion has been criticized limit value should be reduced two misleading.11 Perhaps recognizing this million.13 possibility, the authors cautioned that Throughout 1960’s, the 1950’s and “give study composite pic did reports further studies medical ture of the asbestos dust that a worker period published. years”, breathe over a asbestosis were I. J. profession School of Environmental own medical Sciences Laborato- time —that ry, Medicine, City per- Mount Sinai School of the United States in the 1960’s 7 University York, among of New : cent of all stated deaths work- insulation years country complete- In ago, which is a over ers in this little are due to a ly preventable England cause, pulmonary Dr. Cooke in described asbesto- dying lung case of a woman sis. of severe scarring spent years who had a tex- Ellman, Pneumoconiosis, 8. 14 Brit.J.Radiol. factory, weaving asbestos, tile (1934). many next decade similar cases were re- al., Study 9. ported, A Dreessen et Asbestosis so that the mid-1930’s the haz- Industry, pneumoconiotic Asbestos Textile Health ard Public of asbestos as a dust (1938). pretty universally Bull. No. 241 accepted. country, Textile factories in this most of Fleischer, Viles, Drinker, 10. Gade and A part country, them in the southern our Operations Survey Pipe-Covering Health were also studied and our Public Health Constructing Vessels, Naval J.Indust. fully very signifi- Service documented the Hyg. 9-16. cant risks involved in textile fac- report al., tories and a 11. Neoplasia, classic Selikoff et Dreessen Asbestosis and colleagues published by and his which Am.J.Med. 487 Precautionаry GPO mea- Fleischer, supra note at 15. urged report sures were in this and elimi- exposures nation 13. See hazardous Documentation the Threshold Limit were strongly Air, Values for A. recommended. Substances Workroom (3 1971). now, unhappy say As I sit here I C.G.I.H. ed. am A.C.G.I.H. unfortunately implementation described the as “con- of these threshold limit values nearly haphazard recommendations ditions it is has been under which believed that *9 day inadequate exposed, may repeatedly all and be and dan- workers conditions gers recognized day, so after adverse The val- well and so well de- without effect. years average ago time-weighted ues scribed 40 us. It list refer con- are still with workday. unhappy gov- is an all of centrations for normal reflection on us— ernment, public authorities, my figures be ex- health amount these which
1085 Among colleagues half men examined. published a most Selikoff forty years experi- those more than study of As- with “The entitled Occurrence ence, in over Among found abnormalities were Insulation Workers bestosis 14 ninety percent. concluded ex- authors The authors the United States.” complications 1,522 and its “asbestosis of an insulation amined members significant among are hazards insulation York-New New union in the workers since of workers”.15 Other studies have Jersey metropolitan Evidence area. findings.16 these pulmonary al- confirmed found was asbestosis present, this, injury periods asbestosis when for short depends upon without ceeded generally of minimal factors extent. of a number health begun contaminant, exposure Of 346 had men whose nature fpr years examination, very high less than ten before even concentrations whether only per poisoning, periods produce radi- 36 10.4 -cent showed acute short ological abnormality. cumulative, In these fre- each of effects are whether cases, occur, high mini- quency the reticular infiltration was concentrations which with periods.” evi- mal in extent and in none there of such and the duration only pleural In dence of A.C.G. сalcification. Limit Values See Threshold pleural Of 379 (1961). four fibrosis seen. I.H. exposure begun men whose had from 10 to years examination, Hammond, 19 than Churg, more Selikoff, The Oc- before X-rays. Among ab- half still had normality In- normal Some Industrial currence Asbestosis X-ray Workers, in 167 of York was seen on 132 Ann. New sulation only as- these cases but in nine was the 139 Acad.Sc. greater bestosis than minimal. 35 pleural these men some fibrosis there was 15. The authors state: five, Among evidence of calcification. workers insulation the asbestos among hand, pulmonary 392 men by us, On the other as- evidence of examined years elapsed from on- present 20 more than half in almost bestosis was very large majority exposure, evaluation, set of radio- men logical In this examined. X-ray pulmonary asbesto- change sole evidence of as the used has been exposure began understand, Among 5) (See sis. the 77 whose We criteria. Table examination, prior years presence to 29 course, from 20 of the that evaluation Among only 194 films. showed abnormal limited and extent of asbestosis place whose examination from 30 to took X-ray findings in underes- tends to result years following exposure, al- onset asbestosis, but timation of the incidence while, films most of 10 showed abnormal disabling be will few disease instances years from of those with more than 40 Analysis data indi- of our so overlooked. exposure showed onset one pulmonary radiologically cates that evident abormality. Moreover, asbestosis directly dura- with the asbestosis varied considerably these cases tended to exposure. tion of Insulation workers with pleural cal- more extensive and severe relatively periods exposure commonly short and fibrosis were cification pulmonary significantly incidence of seen. lower gives grave occupational seq., Recognition Act 1590. The et Stat. authority Secretary problem posed by establish the- of Labor asbestos and other health permissible physically concentrаtions standards harmful substances toxic and passage Occupational asbestos fibers. Safe- airborne led ty § 29 U.S.C. and Health Act of *10 plaintiff using The introduced evidence worker when the defendants’ as- tending products; (2) to establish that the defendant bestos insulation failure were, manufacturers either or should to inform Borel as to what would be been, fully many wearing apparel arti- and aware of safe sufficient and proper protective equipment appli- cles and studies on asbestosis. The evi- and indicated, however, handling using dence ing dur- also ances or method of and working products; (3) no manufac- Borel’s career various failure to test products turer ever warned contractors or insula- order to ascer- including Borel, dangers use; tion workers, tain the involved in their dangers inhaling (4) products and associated with asbes- failure to remove the upon ascertaining from tos dust or them of the market informed products ex- limit ACGIH’s threshold values cause asbestosis. plaintiff alleged posure Furthermore, The also to asbestos dust. de- strictly should manufacturer ever the effect fendants liable war- tested ranty using plaintiff products and of their on tort. the workers The contended attempted them or that the defendants’ un- to discover whether were exposure reasonably of insulation workers to as- because of the suggested provide adequate warnings bestos failure to dust exceeded dangers threshold limits. foreseeable associated with them. 20, 1969, On Borel initiated October allegations The defendants denied the present diversity action in the Unit- plaintiff’s complaint and inter- ed States District for the Court Eastern posed contributory negli- the defenses of District of Texas. Borel named as de- gence assumption and of risk. fendants eleven manufacturers of asbes- The trial tos insulation during court materials used him submitted the case jury general working accompa- verdicts career. He settled special interrogatory nied four defendants before The as to trial. contributory negligence. trial Borel’s court instructed a verdict as to a As to negligence remaining count, fifth. The found defendants were: defendants, Paper except that all burgh Corporation, Fibreboard Products Pitts- Armstrong, negligent Corporation, Johns-Manville were Products Pittsburgh Corning Corporation, Philip that none of the defendants had Carey Armstrong grossly negligent. Corporation, been also, It found Cork however, Corporation, Corporation, that Borel and Ruberoid had been contributo- rily negligent. Corporation.17 a Division of GAF Borel died before trial and his widow was sub- count, As the strict plaintiff stituted as under the Texas jury found that all the defendants were wrongful death statutes. Vernon’s liable determined total Ann.Tex.Rev.Civ.Stat. arts. 5525. damages $79,436.24. were Since four sought originally plaintiff defendants named in the com- to hold the de- plaint gross previously settled, paying negligence, fendants had liable for negligence, warranty $20,902.20, gave total of the trial breach court liability. negligent paid strict full credit for the sums al- settle- acts leged remaining complaint (1) ment and held defend- were: failure six jointly precautions to take ants reasonable several or to liable for ex- $58,534.04. ercise balance of reasonable defendants care warn Borel of appealed. exposed to which he was as a original complaint 17. The settled before trial. The trial in- also named as de- court Owens-Corning Fiberglass Corpora- fendants structed Engineering, verdict in favor of Combustion tion, Inc., Manufacturing Standard because the Asbestos Insulating Company, Industries, Inc., Unarco failed to show that he had ever been ex- Eagle-Picher posed Industries, Inc., company. Combus- Engineering, tion Inc. The first four firms
1087
consumer or
to the ultimate
caused
II.
user”.
ques
outset,
meet the
we
At the
properly in
the trial court
whether
tion
Restatement,
liability
Under the
liability.
on strict
structed
merely
imposed
may
a
not
because
be
on di
jurisdiction is based
federal
Since
product
of harm or is
involves some risk
citizenshiр,
versity
the substantive
of
entirely
not
for all uses. Products
safe
Texas,
state,
controls.
the forum
law of
liability
not mean that a
is an
does
seller
1938,
Tompkins,
304
R. Co.
Erie R.
resulting from the
insurer
for all harm
817,
64,
82
1188.
L.Ed.
58 S.Ct.
U.S.
Rather,
product
product.
a
of
is
use
his
law,
“defective” under
Restatement
a manufac
Texas
Under
dangerous”
“unreasonably
to the
lia
if
is
product
be
it
a defective
turer of
The re
ultimate user or consumer.20
in either war
or consumer
to
user
ble
quirement
respect
person
defect
render
to
ranty
With
or tort.18
dangerous”
“unreasonably
product
prod
re
injuries
a defective
caused
al
many products
adopt
a realization that
Supreme
flects
uct,
Court
the Texas
danger.
utility
liability
de
-and
The
in tort as
have both
theory of strict
ed the
product
termination that a
is unreasona
the Re
of
expressed in
402A
section
19
reasonably safe,
(1964)
bly dangerous,
(Second)
or
Torts
of
statement
utility
Inc., 1967,
that,
balance,
Affiliates,
of
means
v. Sales
McKisson
magni
outweigh
product does not
787;
Fuel & Oil
Shamrock
416 S.W.2d
danger.
1967,
See
Tunks,
tude of the
Helene Curtis
416 S.W.2d
Sales Co. v.
1967,
Industries,
Pruitt,
Yards,
Inc. v.
5 Cir.
v. Ralston
Inc.
Texsun Feed
841; James,
1971,
F.2d
Liabili
Co.,
F.2d 660.
385
Products
447
5 Cir.
Purina
ty,
Wade,
(1955);
part:
114
in relevant
33 Tex.L.Rev.
provides,
402A
Section
Liability
Manufacturers,
any
Tort
product
in a defec
Strict
“One
sells
who
Keeton,
dangerous
(1965);
unreasonably
19
to
15
Prod
S.W.L.J.
tive condition
Liability-Inadequacy
is
ucts
Informa
sub
...
the user or consumer
tion,
(1970).
liability
physical
there-
ject
harm
Tex.L.Rev.
for
to
property
subject
(Second)
or
his
Torts and
consumer or to
is
to
Restatement
liability
physical
thereby
402A was
harm
caused to
Reporter
the time Section
writings,
consumer,
Prosser,
the ultimate
user or
his
or
drafted,
in his
Professor
property,
warranty
implied
breach
treated
warranty
(a)
engaged
language
the seller is
the business
of contractual
selling
product,
See
liability
language
in tort.
of strict
expected
(b)
Upon
is
Citadel
to and does reach the
Prosser,
Assault
Consumer),
Yale
(Strict Liability
user
consumer without
substantial
change
Prosser,
(1960) ;
in the condition
which it is sold.
1126-1127
L.J.
(2)
(1) ap-
Liability
(Strict
The rule stated in Subseсtion
Fall
the Citadel
plies although
Consumer),
804-05
Minn.L.Rev.
possible
(a)
Typically,
Clark
has exercised all
the'seller
(1966).
in Greeno
F.Supp.
preparation
N.D.Ind.1965,
and sale of
Co.,
care
Equipment
liability
product, and
427, 429,
strict
noted that
court
the-
bought
(b)
imposed by
of Re
user or consumer has not
402A
section
as
in tort
product
any
(1965)
from or entered into
con-
(Second)
Torts
statement
im-
“hardly
under
tractual
relation with the seller.
exists
what
than
more
stripped
con-
warranty
plied
when
Restatement,
20. As used in the
“defective”
disclaimer,
re-
privity,
doctrines
tract
“unreasonably
dangerous”;
it has no
means
defect,
limita-
quirements
of notice
Wade,
independent
significance.
See
Strict
express
through
inconsistencies
tion
Manufacturers,
Liability
19 S.W.L.J.
Tort
warranties.”
14-15
Special
of Seller
402A.
Ҥ
Physical
User
Harm to
Product
Consumer.
product
(1)
a defective
who sells
One
dangerous
unreasonably
user
condition
balancing process
402A,
for this
uct”. Section
The fulcrum
Comment a. This
man
consumer or as
is not the
reasonable
case where
al
unreasonably
leged
Thus,
unreasonably
seller.
be
“dangerous
dangerous only
give
when
adequate
it is
cause of
failure
*12
beyond
contemplated by warnings. Rather,
an extent
that
a seller is under a
purchases
duty
ordinary
dangers
the
consumer who
to warn of
those
Torts,
(Second)
reasonably
of
are
it”. Restatement
402A,
§
foreseeable.
re
quirement
words,
a
foreseeability
comment i.
In other
for
of
coincides
product
unreasonably dangerous,
negli
with
to be
the
of
standard
due
in
care
gence
dangerous
“it
so
that a rea
must be
in
cases
that a seller must exercise
prod
foresight
the
sonable man would not sell
reasonable
and
care
to discover
danger
product
a
uct
if
involved”.21
in
he knew
risk
and to warn
the
Industries,
danger.
v. users and
Helene
Inc.
consumers
Curtis
Pruitt,
Wyeth
Wade,
Laboratories, Inc.,
Davis v.
F.2d
su
9
385
at 850.
Cir.
See
pra
1968,
Liability—
Keeton,
III.
First,
approach
A.
question
we
question
danger
whether
now turn to the
to Borel
We
and other
denying
whether
trial
insulation
court erred
workers was foresеeable at
products causing
the time
jury
a directed
Borel’s in-
the defendants’ motions for
judgment
posi-
verdict and
were
notwithstand
sold. The defendants’
ing
diversity cases,
they
tion
duty
the verdict.
In
is that
did not breach their
ap
than
to warn
federal rather
test is
because the
from
state
inhaling
plied to
whether there was
asbestos was
determine
not foreseeable
jury ques
until
that,
sufficient evidence to
about 1968 and
create
view the
Manufacturing
long
period
disease,
latent
Planters
Co.
Borel
tion.
Co.,
must have
Protection Mut.
contracted
Ins.
5 Cir.
asbestosis well be-
Industries,
fore that date.
380 F.2d
Helene Curtis
Pruitt,
Inc. v.
F.2d 841.
Cir.
begin,
To
we note that the disease of
Boeing
Shipman,
Co. v.
5 Cir.
Thus,
asbestosis is
both
cumulative.
whether finding separate jury’s ent dust ex- workers or to asbestos others negli general they verdict that were recommended A. I. ceeded the C. G. H.’s *17 gent. discussed, previously when As values, indeed, threshold limit or wheth- warning give adequate al failure to is or reli- er those were accurate standards leged to unreasona have made a able. bly dangerous, for the standard strict mentioned, liability to previously essentially similar the the is As establishing negligence: foreseeability danger for of the must standard duty light to the or manufacturer has of the manufacturer’s seller measured in dangers. In expert manufactur warn of foreseeable status as an and the sought plaintiff present case, re duty product. to these test In er’s to negligence jury both circumstances, en cover on the basis of we think warranty and tort. in Borel strict titled to find that to the case to inhal- trial court submitted from and other workers insulation jury general ever, in of two verdicts that Borel the form contracted asbestosis inhaling special interrogatory accompanied by a from asbestos dust and he that neg- negligence. exposed products contributory on ligence On the of all the many count, jury Pitts- found that defendants on occasions. It was Armstrong negli- burgh expo- not were also established that effect gent failing cumulative, in warn to foreseeable sure to is asbestos dust that liability count, exposure danger, is, and on the strict each result an addi- products unreasonably separate think, that their injury. were tional and We strong warn therefore, because failure to that on the basis danger. the same circumstantial could evidence the find that each defendant was the cause inconsistency jury’s This injury in fact of some Borel. although verdicts, puzzling, de need not Relying testimony expert on that long tain It us. been the rule usually asbestosis does not it- manifest consistency general verdicts not re is fifteen, twenty, self until or even twen- quired. States, 1932, Dunn v. United ty-five years exposure, after initial 284 U.S. 52 S.Ct. L.Ed. Pittsburgh Corning Company and Arm- jury’s “Whether the the re verdict was strong Company they Cork contend that compromise sult of or a carelessness cannot be liable because Borel responsible belief individual exposed to their until after penalty suffer ... should respectively. 1962 and 1966 Juries, As have we may indulge pre immaterial. pointed length out, however, cisely this vagaries.” such motives or Unit according period latent varies to individ- ed Dotterweich, States v. 320 U.S. idiosyncracy, intensity ual duration 277, 279, L.Ed. S.Ct. exposure, type and the Thus, general if even verdicts used; in some ex- eases effect of internally inconsistent, are such is posure may jury’s manifest prerogative itself than if, found, less we years. Thus, five or ten most even finding support there is evidence to exposures recent could jury. have added reached accelerated Borel’s overall condition. C. next We consider whether sup there was substantial evidence IV. port jury’s finding that each defend Having concluded de that^each injury ant was the cause in fact fendant was the cause fact of some Borel. The traditional rule is a de injury Borel, we now come to the fendant’s conduct the cause of question apportionment damages. event it awas substantial factor general, In a defendant is liable bringing Prosser, it about. Law pоrtion of the harm he which in fact (3ed. 1971); Torts 41 at 240 § Second problem arises, caused. A however, Torts, 431, 433, Restatement of Ma §§ where, as here, several causes combine lone, Ruminations Cause-in-Fact 9 produce injury an reasona (1956); Green, Stan.L.Rev. 60 bly being capable of In in divided. Causal Issue, Relation 60 Mich.L.Rev. case, stant the trial court resolved Whether the defendant’s by holding jointly issue the defendants conduct was a substantial factor severally liable entire harm. question jury, for the court unless the Asserting argue error, the defendants determines reasonable men could injury reasonably if the cannot be not differ. apportioned, must bear the entire loss can unless be shown that impos case, the instant it is *18 the tortfeasors acted in concert or with practical sible, matter, aas to determine unity design. certainty particular with absolute which exposure to asbestos dust resulted in argument The defendants’ il- is best jury to It undisputed, by Borel. how- Robicheaux, lustrated Sun Oil v.
1095 plaintiff’s land Tex.Civ.App.1930, a case and salt onto the 23 S.W.2d water sought plaintiff defendants, acting into inde his lake. The several which bayou polluting to hold the defendants liable for en- from pendently, were joinder upholding taking In plaintiff for tire water harm. was which that irrigation. the two the court noted defendants, held that an ac court The prior damages cases “seem to have embraced could be for tion at law against philosophy jointly . . . it is better the defend maintained only injured party all of lose his liable ants and that each was damages any injury part than that of the several he of the which caused. wrongdoers damages pay of the more court stated: The individually separately than he each tort- Under such circumstances law, If than caused. such been part for the feasor is liable standpoint justice from the it should damages by injury caused been; now, if it it will not person wrong; is, own where at be The hereafter”. S.W.2d along injury with to an contributes court announced the new rule: then damages, others, respond in must he and not independently, he acts tortious acts two or Where the per- other in concert of action with wrongdoers join produce more to an causing injury, is lia- he sons in is, injury injury, an indivisible damages only for which direct- ble ly ap- which from its nature cannot be proximately from his result portioned certainty with reasonable to may act, it be and the fact that own wrongdoers, the individual wrongdoers all of the damages to define the caused difficult jointly will held be person wrongful by of each act severally damages for the entire liable independently to the who contributed injured may proceed party and the to rule. final result does not affect against judgment separately any one against all in one Id- suit. 23 S.W.2d The effect of Landers case rule was of the Bobicheaux effect stated as follows: de- Where several join impossible several to make it wrongdoers to fendants are to shown have each caused independent acts whose proof (or harm, the some burden bur- although injury which, theo- caused an retically going forward) den each de- shifts to divisible, aas indivisible portion fendant show what practical burden was matter. If harm he the defendants are caused. prove placed on the unable show basis reasonable certainty portion of the what reasonable they jointly severally division, are damage to each attributable total damages.31 liable for the total recovery Failing that, defendant. undisputed though it was be denied even distinguish attempt defendants harm. defendant caused some that each asserting applies only Landers to situations acts tortious oc- case was ex- the Bobicheaux In ^where Supreme simultaneously. cur the court noted pressly Texas As overruled Landers, however, there was alle- v. East Texas in Landers Salt Court gation plaintiff’s complaint Disposal Co., Tex. Water case, the defendants oil com- tortious acts occurred at an S.W.2d 731.30 specifically disposal cоmpany the same court time. The pany and a salt water holding running near the refused limit its pipe cases lines each owned negligence wrongdoers which “the the same plaintiff’s land. At about contributing injury operating pouring pipe broke, oil time, line each Prosser, Torts, (1953) ; Note, 31. See Law of 52 at § 319- 30. See 31 N.C.L.Rev. (4 1971). Wigmore sug (1953). 320 gested ed. Professor Texas L.Rev. 226 long ago. Wig See a similar rule more, 17 Ill.L.Rev. *19 1096 simultaneously”. 371 held at 735. S.W.2d 368. Texas courts have 248 S.W.2d applied subjective volenti is a also standard: Later Texas eases understand, plaintiff know, tortiousthe must and rule to non-simultaneous
Landers
Mfg.
appreciate
Elec.
consent to
danger,
act
See Continental
s.32
expose
Corp.
Freight Lines, Inc.,
Navajo
5 Cir.
himself to
&
Inc.
it. J. W.
Co. v.
Ball,
414
Tex.Sup.Ct.1967,
v.
S.W.2d 143.
F.2d
447
1174.
principles
Applying
these
form,
In its most traditional
case,
present
de
we conclude
contributory negligence
of the
consists
jointly
held
and sever
fendants
be
plaintiff’s
failure
exercise the care of
damages.
ally
total
liable
person
protec
for his own
reasonable
may overlap
tion.
volenti in sit
It
V.
plaintiff
has been
uations where
We now turn to consideration of
proceeding
contributorily negligent in
defensive
in the trial
issues raised
an
This
encounter
unreasonable risk.
charge.
principal
court’s
appeal
issue on
contributory negligence
form of
differs
proper-
whether
court
is
the trial
First,
respects.
con
from volenti
two
ly
instructed
to which forms
negligence
tributory
objective
an
negligence
assump-
contributory
of
subjective
rather than a
standard. The
lia-,
tion of
to a
risk are defenses
strict
plaintiff
required
to have the knowl
bility action. The defendants contend edge,
judgment
understanding,
of
plaintiff’s recovery
that the
should have
ordinary
an
man and must
reasonable
been barred
vo-
both the doctrine of
due
and under
exercise
care
discover
injuria
contributory
lenti non
negligence.
danger. Second, jus
fit
stand
defect
argued
brief,
it
tification, in terms of
reasonableness
Borel assumed
risk
he contin-
when
conduct,
impor
plaintiff’s
of the
is an
employment
ued
his
as an insulator
plaintiff
con
tant
element. The
appreciated
after he
dan-
knew
tributorily negligent
conduct
unless
ger
product.33
from the defendants’
encountering
was unrea
volenti,
Thus,
the con
unlike
sonable.
injuria
Volenti
an an
non fit
negligence
requires
tributory
balancing
doctrine
meaning
wrong
cient maximum
that no
plaintiff’s
utility
of
of the
consents,
is done to one who
is essential
magnitude
against
conduct
ly
assumption
a form of
of risk. Under
danger.
(Second)
generally,
Re
See
law,
Texas
the volenti
four
doctrine has
Torts,
(1964);
of
466
statement
§§
(1)
elements:
knows
Torts,
(Second)
Restatement
§§
constituting
facts
condi
(Tent.
9,1963).
Draft No.
496A-G
tion;
(2) he
knows
condition or ac
negli-
tivity
contributory
dangerous;
(3)
appre
Another form
he
voluntary
gence
and unrea-
ciates
consists of
the nature
dan
or extent
encountering
ger;
(4)
a known
voluntarily exposes
sonable conduct
he
danger.
n
comment
to section
Halepeska
himself to the
risk. As found
v.
Restatement,34 represents
Interests,
Tex.Sup.1963,
Callihan
402A of
Inc.,
Assumption
; Keeton,
See,
g.,
(1964)
Riley
e.
Rev. 111
Industrial
Finance
Landowner,
Service, 1957,
652; Kirby
22
Risk
La.L.Rev.
108
and the
302
Lum-
S.W.2d
(1961) ;
Assumption
Corp.
Tex.Civ.App.1955,
Keeton,
Walters,
Risk
ber
277
Liability Cases, 22
122
Products
La.L.Rev.
S.W.2d 796.
topic,
Noel,
33. For a
discussion
see
Use, Contributory Negligence,
402A of the
Restatement
Abnormal
Section
Second
part:
Assumption
states,
Risk,
Torts
Vand.L.Rev.
(1972)
Contributory
negligence.
; Epstein,
Liability:
n.
Since
Products
De
liability
Conduct,
deals is
fenses
with which- this Section
Based on Plaintiff’s
seller,
upon negligence
Keeton, Assumption
Utah
not based
L.Rev.
applied
liability,
Risk,
(1965) ;
rule
Product
is strict
S.W.L.J.
524) applies.
(see
Greenhill, Assumption
Baylor
Risk,
§
cases
strict
L.
*20
Later
decisions have
hybridization
and traditional
of volenti
a
.Texas
holding in
negligence. Applying
re-affirmed the
Shamrock
a
but
contributory
jury
left
find
have
unanswered what other forms
subjective
must
standard, the
assumption
contributory negligence,
the
of volenti:
three elements
the first
risk,
a
or volenti are
defense to
knowl-
a
plaintiff
actual
must have
liability
understanding,
аppreciation of
v.
edge,
strict
See McKisson
action.
and
Affiliates,
danger.
respect
Sales
Our
rumina
voluntari-
Inc.
Erie
With
the
ness,
jury
tions in
Motors
find that
Messick
General
however,
must
the
voluntary
Corp.,
plaintiff’s
5 Cir.
how
both
F.2d
the
action was
predict
ever,
standpoint
led us to
that Texas
subjective
unrea-
have
a
and
from
adopt
position
objective standpoint.
will
the
taken
comment
from an
sonable
n to section 402A of
Restatement
applicability
The
volenti or con-
of a
contributory negligence
assump
that
or
negligence
tributory
strict
to a
defense
a
lia
tion
is a defense to
strict
risk
liability action is unclear under Texas
bility
only
a
action
it
when
consists of
leading
con-
Texas decision
law.
cerning
voluntary
and
conduct
unreasonable
liability
action is
strict
Messick,
a known
In
encounter
risk.
Tunks,
Shamrock Fuel & Oil
Sales
plaintiff
car
continued to drive his new
Tex.Sup.Ct.1967,
In
779.
S.W.2d
private
even
a
told him
after
mechanic
sought damages
plaintiff
case,
steering
suspen
its defective
and
using
injuries
adul-
sustained while
systems
his death.
sion
would cause
as-
terated kerosene. The defendants
road,
When the car later ran off the
recovery
denied be-
serted that
should
plaintiff
to re
sued the manufacturer
neg-
contributory
plaintiff’s
cause of
damages
injuries
personal
cover
sus
failing
danger-
ligence in
to discover the
plaintiff
tained in
al
the accident. The
ous nature of the adulterated kerosene
leged
strictly
that the defendant
lia
guard against
possibility
or to
of its
ble because the
rendered it
car’s defects
Following
part
posi-
existence.
unreasonably dangerous.
After the
tion taken in
n to section
comment
402A
plaintiff’s
returned
verdict
a
fa
Restatement,35
Supreme
of the
the Texas
arguing
vor,
appealed,
defendant
negligence
Court held that such
that volenti was established as a matter
liability
a
to a strict
action.
defense
is, however,
apparent
Contributory
negligence
plaintiff
conflict
than
more
of the
is
examined,
readily
negligenсe
real.
If the
it
cases are
not a defense when such
con-
appears
merely
those which refuse to allow
sists
in a
to discover
failure
product,
guard against
the defense have
cases in
been
which
defect
or to
plaintiff negligently
possibility
to discover
failed
On the
its existence.
guard against
product,
contributory
negli-
defect
or
other hand the form of
They
possibility
gence
voluntarily
existence.
are
and
which consists
general
entirely
unreasonably
rule
proceeding
consistent with
encounter
negligence
danger,
commonly passes
an
is
defense
under
known
and
upon
liability.
risk,
assumption
Those
action
strict
de-
founded
name of
permitted
all have
have
the defense
which
fense under
this
as in other cases
Section
liability.
has dis-
been cases
which
of strict
If the user
consumer
danger,
covered the defect
discovers
the defect and
aware
proceeded
danger,
proceeds
to make use of the
nevertheless
unrea-
and nevertheless
represent
product. They
sonably
of con-
the form
to make use of the
injured
recovery.
tributory
negligence
it,
consists
de-
which
he is barred from
proceeding
unreasonably
liberately
overlaps
danger,
quoted
a known
also
Dean Prosser
encounter
Court
quite
They
assumption
approval:
con-
are
risk.
general
ostensible,
quite
is a
rule that
su-
sistent with the
“There has been
liability.
perficial,
disagreement
There are
to strict
whether
con-
defense
over
recognized
tributory
negligence
dis-
have
as
is available
a de-
few cases which
quite
;
it
clear
it seems
for breach
tinction
fense where the action is one
(Prosser
Torts
warranty.
Law of
A
have said
is made
fact.”
few decisions
greater
656).
flatly
number
it
is not. The
[3 ed.]
quite
flatly
said
is.
S.W.2d
voluntary
plaintiff’s
deci-
fense to
This
a strict
action.
of law
since,
using
held,
af-
error
as we have
contrib-
to continue
car.
sion
firming,
utory negligence
assumption
held that continued
of risk
this Court
*21
only
product
liability
a defense
a strict
of a
known
be defective
action
use
plaintiff’s
liability
if
action
the
is a defense to a strict
conduct is both volun-
tary
unrea-
and
when the continued use is
unreasonable. Messick v. Gen-
Corp., supra;
eral
“The
Motors
sonable. The court stated:
limits
Restatement
Torts,
(Second)
402A,
(n);
for releas-
a manufacturer’s
comment
§
ing
unreasonably danger- Prosser,
Torts,
a
and
Law of
defective
102. The trial
§
charge
product
overly
that
court’s
ous
in the volenti area are
was
favorable
plaintiff's
Despite
error,
consent to incur the risk
defendants.
this
given
objec-
voluntarily
jury
been
and
still
has
tively
found that Borel had not as-
plaintiff
sumed the risk
unreasonable.
even under the
vo-
harsh
go
jury
jury’s
with
lenti
bar
entitled
doctrine.
was
Reversal of the
question
verdict, therefore,
his
of whether
was
required.
consent
voluntary
product
or was
of duress
contend, however,
defendants
that
of circumstances and unreasonable.”
they
judgment
are entitled to
as a mat-
The
also
jury
that Borel filed
claim
under the Texas
trial court’s instructions
ambiguous
Compensation
confusing
Act,37
in some
Tex.Civ.
Workmen’s
were
parts.
January
charge
seq.,
be Stat. art.
et
on
court’s
must
trial
each sen
and not
After
Industrial Accident
as whole
read
solitary
phenomenon
approved
Board
a settlement award
tence were a
verbal
July 31,
empty
present
existing
vacuum.
Borel filed the
in an otherwise
charge
damage
action on
1969. Un-
is not whether the
October
test
law,
every
personal in-
particular
der Texas
but whether
an action for
faultless
juries
any way
prosecut-
jury
must
commenced
was misled
understanding
years
is
ed
within two
of ac-
it had
after
cause
whether
duty
tion
those is
accrued.
art. 5526.
sues and its
to determine
Tex.Civ.Stat.
Inc.,
WSAZ,
position
E.
defendant’s
is that
cause
sues. Gearhart v.
D.Ky.,
F.Supp. 98,
in-
aff’d 254 F.2d
action accrues at the
time
filing
Mut. Life Ins.
and that
Miller
Pacific
effect of
Co.,
D.C.Mich.1955,
Compensa-
17 F.R.D.
aff’d
claim
under Workmen’s
reading
tion Act
to toll
HOI
(writ
n.r.e.);
by
year
limita-
ref’d
S.W.2d 273
two
statute
barred
Employers’
injuries
&
in 1964 Texas
Ins. Ass’n v. Texas
occurred
tions
since
Ry. Co., Tex.Civ.App.1939,
P.
his claim
129 S.
Campbell
filed
had not
(writ
jdgmt. cor.); Fi
un-
dism’d
Board
W.2d
Accident
Industrial
with the
answer,
delity
Casualty
Union
September
In his
Co. v. Texas
&
P.
til
Co., Tex.Civ.App.1931,
L.
Campbell
the action'
S.W.2d
asserted
(writ
ref’d).
filed about
timely
it was
because
on
final order
Board’s
after
week
bar,
In the case
Board
granted
May 7,
court
The trial
judgment approving
issued its final
action.
dismiss the
motion to
Sonford’s
July 31, 1969,
settlement
award on
damage
action a
filed his
decision,
reversing
trial court’s
later,
few
months
October 20. Under
Supreme
held that
Court
Texas
Campbell case,
therefore,
action
against
“runs
of limitations
statute
limita
barred
the statute of
third-party
employee in
carrier
tions.
6a
[of
section
authorized
actions
Even if it
Compensation
from the
is assumed that
Act]
Workmen’s
contending
are correct
defendants
payment
award
date
entry
Compensation
Act
or the
the Workmen’s
Board
Accident
Industrial
merely
limitations,
tolls the statute of
against
judgment
the carrier”.38
of final
present
action is still not
rule
fol-
barred.
Texas
The Court stated
defendants
cause of
assert
lows:
injury
action accrues at
time
proceed un-
a claimant elects
When
having
Borel,
exposed
and that
been
compensation statutes
der workmen’s
asbestos dust since
have con
must
qualifies
award thereun-
for an
*24
long
1969,
tracted
before
the
asbestosis
not ac-
action does
the cause of
der,
date this action was filed. Alternative
against
party
the
until
a third
crue
argued
expo
ly,
injurious
it is
each
by
In-
the
made
of the award
amount
resulting
separate
tort,
a
sure was
by
paid
the
Board
Accident
dustrial
action,
the accrual
a
of
new cause of
a
obtains
claimant
or until
the
carrier
expo
any
that Borel cannot recover
compe-
judgment
in a court of
final
occurring
sure
asbestos dust
before
against
carrier.
jurisdiction
the
tent
1967.
ocсur, the
of
events
either
these
When
against
Thompson, 1949,
In
the
Urie v.
337 U.S.
of
matures
cause
action
by
163,
1018,
1282,
69 S.Ct.
the Su-
93
party
authorized
and the suit
L.Ed.
third
preme
ques-
cause
Court considered a similar
on such
filed
6a must be
section
by
involving
tion
by
who
the carrier
locomotive fireman
of action either
years
had contracted
The defendant
two
from
silicosis.
within
the insured
urged
by
the action was barred
the
date.
year
imposed
three
statute of limitations
interpre
support
this
Other
eases
Texas
Employers’ Liability
the Federal
Act.
Mourning
Steve
Crown
tation.
See
v.
Rejecting
interpretation,
this
the Court
doring Co., Tex.Civ.App.1967, 417 S.W.
held that
did
cause of action
not ac-
n.r.e.);
v.
(writ
Judice
2d
ref’d
plaintiff
crue until
either knew or
Texas, Tex.Civ.
Sollitt
of
Sumner
Co.
to know of
reason
disease.
(writ
App.1961,
ref’d
346 S.W.2d
Court stated:
Thompson
Graham,
n.r.e.);
Tex.Civ.
v.
(writ
[Any other
App.1958,
ref’d
would mean that
at
rule]
318 S.W.2d
past
Tex.Civ.App.
time,
n.r.e.);
some
moment
Lucky,
unknown
Brooks v.
subject
employee
Board excused the
com-
good
the re
from strict
38. An
is still
pliance
quirement
with
six
rule
month
after
filed with
claims be
delay.
cause
In
was shown
after
occur
six months
Board within
present case,
injury
manifesta
record does not
indicate
or the first
rence of
occupational
whether
issue
Civ.
raised before
Texas
was
tion
an
disease.
Campbell,
Board.
4a.
In
art.
Stat.
sec.
inherently
even
unknowable
VII.
plaintiff]
retrospect,
Urie
[the
The trial
determined that
court
charged
knowledge of
slow
with
damages
the total amount of
lungs;
disintegration
tragic
of his
$79,436.24.
four of
ten de
Since
diag-
view Urie’s failure
under this
original
fendants named in the
plaint
com
applicable
statute
nose within
paying
trial,
had settled before
symptoms
whose
limitations
disease
$20,902.20,
total of
trial court ren
yet
his conscious-
had not
obtruded
judgment
jointly
severally
dered
against
ness would constitute waiver
remaining
six defendants
right
compensation
ultimate
at the
$58,534.04.
for the balance of
de
disability.
discovery
day
argue
now
that the trial court
fendants
at
92 L.Ed.
S.Ct.
given
should have
each defendant named
original cоmplaint prorata
cred
involving
injuries re-
In cases
similar
it of
four-tenths
the total amount of
sulting
exposures
from
to deleterious
damages, leaving
$46,669.98
a balance of
period
time,
over a
courts
substances
against
remaining
to be rendered
six
consistently held
have
cause
defendants.
full credit method used
action does not accrue until the effects
court, however,
the trial
one
exposures
of such
manifest
themselves.
damages
computing
the methods
ini
Indemnity Corp.
Associated
v. Industrial
tially suggested by the defendants.
Commission,
Cal.App.
Accident
378,
Furthermore,
the defendants have failed
12 P.2d
United
States
full
show how the
credit method re
Reid,
5 Cir.
251 F.2d
This
sults in
unfairness to them.
principle
analogous
“discovery
circumstances,
these
we conclude that
applied
malpractice
rule”
in medical
cas-
properly
the trial court
determined the
provides
es, which
ac-
cause
damages.
amount
injury
tion
does
accrue until the
discovered or in the exercise of reason-
VIII.
diligence
able
been discov-
should have
It
is also contended
trial
Smith,
ered. See Gaddis v.
Tex.S.Ct.
ruling
court
erred
on certain eviden-
(citing
H03
by
error,
any,
prejudicial
example,
or that
mitted,
offered
when
jury on its
party
defendants.
opposing
or when
own
termines that
and
posing
treated as
also be admitted
thumb ....
cy. They are
ployed
products. This situation was
cretion
ity
was available. The defendants
tifiably
tions
manufacture wide
no error.
trial court’s
containing
under
circumstances,
fore trial and
ly
ed
dence,
shown that
Borel
an industrial
be confused as
by
jury in
of such
motion
and used
764§
different
party.40
should
believe
During
varying periods many
used each of the defendants’
fact that
dogmas
asbestos.
they
understanding the evidence
requests
(3
ruling.
a
several
control”.
ed.).
be
that the
writing
insulator,
brand-names.
when
merely
were
inspection would assist
prejudicial
trial court could
his earlier
of inherent
The trial court’s
rules
variety
Borel
The six defendants
to see
We therefore
thirty-three
different
prejudiced
when and
“should
crude
Wigmore, Evi-
trial court
Borel was
on admissibil-
had died be
it.
might
deposition
aggravat
have not
products
rules-of-
efficien-
It
where
years
these
loca
easi
find
jus
em
dis-
op-
de-
worker
Where
has
tion of the
case at
harm caused
cient.
impression. But
ture
remained
“occupational
force the
courts stand
This
This
judgment
dangers
ery
implies
fendants
quences
For the reasons
novel, the
long
other area of human
consumers,
duty
principle applies to the manufac
duty
Under
products
bar,
Restatement
of their own
In
associated
liable for
been liable
rights
does no more
silent. The
duty
to warn extends
applicability
reaching
we
law
ready
underlying principle
the law of
diseases”
speak,
by his own
recognize
to warn
so
shop
as it does
including
though
stated, the
IX.
the foreseeable
created.
with those
inaction.
for the foreseeable
our decision
proper
#
imposed a
than hold
of Section 402A
cases
district
torts,
the defendants
that the
endeavor.
one
the common
to all users
%
cases
Here,
foreseeable
negligence.
application
decision
almost
involving
products.
the de
person
court’s
conse
is an
[*]
there
ques
field.
duty,
first
en
ev
It
court is
the district
The defendants contend that
Affirmed.
refusing to
the trial court erred in
ad
mit a
made
Borel on
statement
June
FOR REHEARING
ON PETITION
application
part
in an
filed as
REHEAR-
AND PETITION FOR
compensation
his workmen’s
claim.
EN BANC
ING
“Although
ill
statement
I became
read:
*26
defendants-appellants
All
of the
job worked,
on the last
I
the fact is that
rehearing
moved
en
banc.
I have worked as an insulator for 33
years, subject
job
to the hazards of the
I.
say
truthfully
and I
I
cannot
when con
movants,
tracted asbestosis.” The trial court
Three of the
Johns-Manville
Corporation,
Corporation,
ruled that it
not
an admission
Fibreboard
hearsay
Company
opin
contend that the
therefore inadmissible
and Ruberoid
examining
basing
carefully
opinion
on “the
ion.
its
After
Court erred
alleged
overriding
record,
say
failure
the trial
of “the
we cannot
that
factor”
ruling
any
warn
court abused
discretion in so
of the
to at
time
defendants
Equipment
See,
g., McCarthy
Braden Winch Co. v.
e.
Boston
M. R.
Surface
&
149,
R.,
Co.,
97;
92
A.2d
P.2d 640.
N.H.
Watkins
Okl.
H05 users; ers, (3) final all admit contained it that you know Q. Did they any never conducted tests to that ? asbestos danger. determine of the the extent what know Yes, sir, I didn’t but A. original briefs, their on issue lia- of was.” asbestos rely bility they primarily seem to on the that established The evidence independent “cautions” to the contrac- each products of exposed to the was Borel tors, potential if their purchasers, as periods extended appellants for of these to ceased their exist before warnings alleged occurring before reached the ultimate users. of as disease given. Since were agree is not the That law. We with ex cumulative, earlier these bestosis Restatement: a seller liable to appellants’ from dust posures asbestos to user, the ultimate consumer or for failure substan contributed have products could give warnings. adequate to seller’s The Borel condition. overall tially Borel’s to warning reasonably must be calculated Three years. for 33 insulator an persons, presence to reach such and the warnings. gave no defendants six party of an will it- intermediate packages used labels three The other duty. self relieve seller of this Ster- opin in this noted products, as their ling Drug Cornish, Inc. v. 8 Cir. years began a few practice ; but ion 82; Stеrling Drug, F.2d Yarrow v. By in 1969. illness terminal his before Noel, 978; 8 Cir. 408 F.2d Prod- irreversible. 1964-66, illness Inadequate ucts Defective Because they warnings when Thus, no were there Warnings, Directions or 23 S.W.L.J. 256 to effectively Borel allowed could encountering or the choice make And, in encountering risk. a known Taking original opinion our to significant evidence event, there was whole, should be clear that our refer as to question for create a ences failure to warn refer to failure as warn to serve adequacy the labels gravity danger, warn of the of the say resolution ings. We cannot is, exposure asbestosis, mesothelio matter as a incorrect issue of this ma and other cancers. The first sentence Manufacturing Pro Co. v. Planters law. opinion of the in states the case F. Mut., Co., Cir. Inc. tection scope “the volves of an asbestos manu Industries, Inc. 869; Helene Curtis 2d duty facturer’s At warn”. a number Boeing Pruitt, F.2d Cir. points emphasize plain we 1969, 411 F.2d Shipman, Cir. Co. v. tiff’s contentions focused on the “ade quacy” of the reasonableness war s.2 ning utility prod an insulation anomalous appellants are containing may outweigh uct arguing (1) the position known or risk to foreseeable the insula obvious; (2) yét three issued justify tion posted workers and thus its market warning and three of a semblance ing. product might could be unrea still alert which “cautions” diluted sonably dangerous, however, if unaccom work- not the contractor-purchasers, sponsibility to inform the user or consumer of plaintiff defendants’ that the contended 2. “The give adequate dangerous harm. The failure to unreasonably risk of because products were warnings warnings adequate in these circumstances renders provide of the failure unreasonably dangerous.” (493 product F.2d. dangers them.” associated the foreseeable p. 1089). 1086). p. (493 F.2d warnings give adequate alleged “The failure to “Here, the defend- unreasonably can render such circumstances be- product was ants’ dangerous.” (493 p. unreasonably warnings F.2d adequate give failure cause 1091). dangers involved.” knowable the known discussed, previously a failure to “As when 1088). p. (493 F.2d adequate warning alleged give to have made clear, when “But, even makes k as comment ” unreasonably dangerous, . . . balancing conclusion leads (493 p. 1093). F.2d a re- justified, marketing seller still *28 warnings. by adequate in panied inadequate An were Borel to communicate to worker, any knowledge than other he no less of the hazards to which sulation right exposed. user, to decide product has a wheth was expose the risk. himself to er to II. correctly charged court The district argue The the decision movants jury: should Borel knew of be reversed because negli- know, you acts of one of “As jury danger, and the found. so plaintiff by the gence contended plaintiff’s cause of action based is negli- principal of act perhaps the liability. negligence on both and strict should gence manufacturer is that the distinguished correctly The district court warning proper given or a have warning jury one from understood the other. The product. úse its as distinction, for it that Borel found you that a would instruct The Court negligence guilty contributory was goods duty to manufacturer it returned in a verdict favor warning give as to the dan- reasonable liability. theory Borel on the of strict reasonably gers foresee- inherent or 402A, n, Section the Re- comment using product. The defend- his in able Torts, statement of the Law of with deals duty obligation and under an are ants contributory negligence form of and that warning give as reasonable to danger negligence “commonly passes which un- products, if the even of their assumption risk”; der the name of being used product or overlap two in actions based on strict lia- long manner, specific so as in a bility: put was to which the use Contributory negligence. “n. Since could rea- manufacturer a use liability section with which this sonably foresee.” upon negligence deals not based unpalatable are that facts seller, liability, but is strict the rule thirties hazards in the twenties applied to strict cases [see recog working with asbestos were of nized; negli- Contributory applies. § 524] the United States Public gence defense not a signifi documented Health Service negligence merely when such consists in in textile factories cant risk in a failure to discover the defect 1938; report that the Fleischer-Drinker product, guard against or to published Dr. possibility of On the its existence. colleagues Irving and his con Silikoff contributory other form hand the relationship deadly firmed between negligence which consists voluntari- work insulation and asbestosis. Janu ly unreasonably proceeding to en- diagnosed ary 1969 Borel’s illness was counter a known and common- danger, pulmonary irreversible Dur asbestosis. ly passes assump- under the name of ing working years, no he received risk, tion is a under defense warnings any from three of the kind lia- Section as other of strict cases six defendants. other three defend bility. If the user dis- or consumer warnings 1964-66, issued no until ants by covers danger, defect and aware warnings adequate time which proceeds un- nevertheless have come too Borel. late for Clarence reasonably to make use of the it, jury On the evidence before could it, injured by and is from he is barred properly have Borel decided that received recovery.” warnings from all defendant jury Here
at a time when the defendants un acted within were duty proper effect, finding, Or, respect der a to warn him.. functions “voluntarily to the three did not un who issued Borel defendants reasonably” proceed “cautions”, watered down could “to encounter danger”. properly warnings known have held these Nor the evidence so
H07 judgment compelling fair- Erie not a de- that volenti is reasonable products liability persons fense action would have to conclude minded the defect and Texas. [was] Borel “diseover[ed] danger, nevertheless aware of origi- holding, in We made no such our unreasonably
proceed to make use of [ed] opinion. nal product”. of Law 2 Restatement realized, said, ap We as we that “The (2d 1965) Boe- Torts ing ed. 402A at § neg contributory plicability of volenti or Shipman, Company 5 Cir. ligence liability defense in a action strict F.2d noted, is unclear under Texas law”. We however, Supreme Court Texas
III.
quoted
followed,
part,
has
position
n
taken in comment
to Section
this case
The trial court submitted
Restatement, quoted
402A of the
earlier
spe-
general
jury
instructions and
on
quot
opinion,
in this
and that the Court
general
interrogatories,
“on
ver-
cial
approval Prosser,
of Torts
ed with
Law
interroga-
by special
accompanied
dicts
(3d ed.) 656.
Fuel & Oil
Shamrock
negli-
contributory
tory as to Borel’s
Tunks,
(Tex.
Sales v.
Sup.Ct.1967).
S.W.2d
original
gence,”
opinion
in the
as stated
too, on
relied,
Mes
We
by
counsel
and as stated
defendants’
Corp.,
sick
Motors
v. General
5 Cir.
jury
objecting
portions
of the
certain
485, in
460 F.2d
which this
con
Court
charge.
probably
cluded that
courts would
Texas
objected
for the defendants
Counsel
follow comment n to Section 402A. We
submitting to the
to the trial court’s not
jury
original
therefore,
opinion,
in our
stated
special interrogatory
on
based
that continued use of a
known to
assumption
fit
of risk or
non
volenti
be defective
be a
to a
would
defense
injuria.
alluded, however,
Counsel
liability
strict
action
when the con
having
Court’s
“covered it to some extent
“voluntary”
tinued
and “unrea
use was
general charge”.
the motion
On
Compare
sonable”.
Dean Keaton’s ob
rehearing
for a
the movants contend
“First, assumption
servation:
of risk
holding, contrary
this Court erred in
requires
a deliberate encounter with
law, that
Texas
under
doctrine
negligence
failing
known
risk. Mere
injuria,
volenti non
a matter
fit
as
under
to discover a risk
no defense
law,
continuing
expose
Borel’s
himself
person
this doctrine. A
does not delib
to asbestos dust was “unreasonable”.
erately encounter a risk if he does not
They assert, however,
effect, the
that “in
Moreover,
exists.
the encounter
know it
jury
acting
found that Borel was not
Therefore,
voluntary.
the de
must be
say
they
Moreоver,
reasonable man”.
inapplicable
injured
fense
when the
concluding
the Court erred
party had a rational
to tak
alternative
jury
found that Borel had not assum-
ing
Liability
Keaton,
Strict
risk”.
risk;
finding
ed the
“no such
Design,
Product
52 Tex.L.Rev.
jury
ever made
as the matter was
(1973).
posi
Dean
takes the same
Wade
except
not submitted to it
in the con-
Wade,
Liability,
Tort
19 S.
tion.
Strict
negligence
tributory
de-
issue”. The
W.L.J.
timely requested
fendants
trial court
special interrogatories
to submit
on vol-
rejection
Notwithstanding
untary assumption of risk or volenti.
instructions,
proffered
defendants’
refused,
When these were
the defend-
judge
the trial
in this case did
fact
objected
ants
to the court’s instructions
assumption inform the
risk
assumption
that neither
of risk nor con-
defense
a strict
action.
was a
tributory negligence a defense
He stated:
theory
to an action on the
of breach
warranty. They
argument
renew their
the de
contend that
defendants
[ T ] he
rehearing
danger
ceased,
motion
their
for a
and con-
Borel,
Mr.
knew
making
tend
that the
án
Court erred in
man
ous
of the asbestos
nature
say
conduct to encounter
“not
rational”]
defendants
in connec
ufactured
1097).
(493
p.
appre
risk”.
F.2d
a known
work and
his insulation
tion with
*30
danger
knowl
and with such
the
ciated
holding in Ford
actual
was
voluntarily
con
edge
the risk
assumed
entitled
the manufacturer was
that
Further,
tinuing
employment.
that
his
jury
special
the
submit
to the
as a
issue
danger
in
knowledge
the
this
contributory negligence
defense of
or vol-
con
to Mr. Borel’s
known
sulation
assumption
untary
defend-
risk. The
Therefore,
employer.
or
tractor
jury
contended
could
ant had
that “the
you
you
if
that
would instruct
Court
that
under
the evidence
have concluded
preponderance
the evi
from
find
injured party] dis-
Henderson [the
Mrs.
dan
that
deceased knew
dence
defect”;
“un-
that
she
covered
then
products
gerous
of the asbestos
nature
reasonably proceed
encounter
[ed]
working
appre
and
which he
with
danger”.
There
known
There opinion pend- hold the issuance of this Supreme ing decision of the Texas in Ford Co. v. Henderson. Court Motor
IV. correctly decided that The trial court an in the case. limitations issue opinion in our to Gaddis The reference (Tex.S.Ct. Smith, *31 v. 417 S.W.2d 1967) pertinent discussion and the decision, unnecessary to our are Gaddis Campbell squarely which we rest Co., 486 Chemical S.W.2d Sonford (Tex.S.Ct.1972). Rehearing The Petition for denied Judge panel nor and no member of regular Court active service on the having poll- requested that the Court be (Rule rehearing banc, Fed-
ed on en Procedure; Appellate Local Rules of eral 12) for Petition Fifth Circuit Rule Rehearing En Banc denied. Gertler, Bradley, New David
Owen J. Orleans, La., plaintiff-appellant. for Winston, Sims, John J. Barbee W. Orleans, La., for American New S/S Owners. La., Orleans, Jones,
Ward New R. Co. Columbia S/S Wright, Lozes, F. E. Charles William Plaintiff-Appellant, Stephen SACHER, La., Orleans, interested New other parties. COMPA COLUMBIA STEAMSHIP Defendants, al., NY et COLEMAN, and RO- DYER Before Judges. NEY, Circuit Steamship American Owners Mutual Pro Indemnity Society tection and In New PER CURIAM: York, Defendant-Appellee. No. 74-1222 injured plaintiff-appellant Summary Calendar.* BANKER, aboard the COLUMBIA S.S. Vessel was Pacific Ocean. The Appeals, United States Court Steamship Com- owned the Columbia Fifth Circuit. which, turn, pany, insured May 8, 1974. Steamship Mutual American Owner’s Indemnity Association,
Protection and policy of both Inc. The insurance was written and delivered in the State plaintiff attempted New York. The bring against employer, the both his suit through and, steamship company, al., Casualty Company Enterprises Cir.; * Rule Isbell Citizens New York et see Inc. v. Cir., 1970, Part I. F.2d