Humble Sand & Gravel, Inc. v. Gomez

GRAVEL, HUMBLE SAND &

INC., Petitioner,

v.

Raymond GOMEZ, al., Respondents. et

No. 01-0652.

Supreme Court of Texas.

Argued Oct. 2002. Sept.

Decided Lambe, Austin,

Dan for Amicus Curiae Texas Watch. Dodson,

Joe Michael Dodson Law Of- fice, P.C., Beaumont, P. Jung, Michael Price, L.L.P., Dallas, Strasburger & for petitioner. Monk,

Bob K. Bradley, Lance P. McPherson Hughes Bradley Monk Wim- Arthur, berley, Brown, Port Darren John Cowan, Greg Thompson, Andrew Provost Beaumont, White, Umphrey, & Robert E. White, Odessa, Bishop Childs & Stephen Susman, L.L.P., D. Godfrey, Susman Houston, respondent.

Justice HECHT opinion delivered the Court, OWEN, in which Justice Justice JEFFERSON, SMITH, Justice Justice WAINWRIGHT, and Justice BRISTER joined.

Generally, product supplier must warn expected users of foreseeable risks that product unreasonably make the danger- ous,1 supplier but a need not warn of risks that are common knowledge,2 and when supplied through an inter- mediary, a supplier may rely sometimes the intermediary to warn the actual prod- Faulk, Richard 0. Wynne, Gardere & uct users.3 apply We must these basic Houston, for Amicus Curiae American principles to the presented circumstances Chemistry Council. Specifically, this case. the issue is Birdwell, J. Wade supplier Wallach Andrews whether a of flint used for abra- Stouffer, P.C., Worth, Florsheim & Fort sive had a to warn its cus- for Amicus Curiae Texas Association of tomers’ that inhalation of silica Defense. can they dust be fatal and that should Labs., (Tex. 1995); Grinnell, Winthrop 1. See Crocker v. 514 S.W.2d 382 951 S.W.2d at 426- 429, (Tex.1974); Bristol-Myers 427; Fabrication, 433 Co. v. Boyd, Sauder Custom Inc. v. Gonzales, 801, (Tex.1978); 561 S.W.2d 804 349, (Tex.1998) (per 967 S.W.2d 349 curiam); Am., 588, Alm v. Aluminum Co. 717 S.W.2d 388 cmt. k (Second) §§ Restatement of Torts (Tex. 1986); Co., 591 American Tobacco Inc. v. (1965); & 402A cmt. (Third) j Restatement Grinnell, 420, (Tex. 1997); 951 S.W.2d (1998). Liability j § Torts: Products cmt. 388, 402A (Second) §§ Restatement of Torts (1965); f (Third) cmt. Restatement of Torts: Aim, 591; 3. See 717 S.W.2d Restatement (1998). Liability § Products cmt. i (1965); (Second) §§ of Torts Re- cmt. n Liability (Third) Sons, statement of Torts: Products Joseph Seagram 2. See E. & Inc. v. § 2 cmt. i McGuire, (Tex.1991); 814 S.W.2d Shears, Caterpillar, Inc. v. hoods, I air-supplied protective given wear knowledge of those dan- the customers’ silicosis Raymond contracted gers. working at and around abrasive while (often accurately called less had If the flint this case from sandblasting) years, for about 6½ similarly duty, because all such 1991-1994, at again duty, situated the same Odessa, he where was born plants this peculiar aspect not because of some raised, Christi, his Corpus and in where Therefore, one defendant’s situation. from. In Gomez filed suit wife was general legal determine whether a than County against more in Jefferson exists, beyond must particular look defendants, including twenty suppli- four injury com circumstances of the here the flint the in ers of used as abrasive of, just parties plained as the themselves work, blasting suppliers of blasting two done, to set have the broader industrial suppliers equipment, protective thirteen of injury in The ting which that occurred. workers, by jobsite and gear worn several the record before us establishes the with all of owners. Gomez settled 1980s, using the of flint in abra dangers Humble Sand & Gravel except defendants blasting had been known sive well one the flint for Company, suppliers, of throughout industry the blasting abrasive $389,200, following jury then total of and safety to profession as well as health and against judgment trial obtained a government regulators als and for most million. Much the evidence for about $2 century, the twentieth but to now us was relevant the issues before igno workers remained largely themselves trial, at con- undisputed but where it was of those dangers, employers rant and their we of recite that flicting, course which enforcing were careless in con workplace most favorable to Gomez. safety. ditions that would protect workers’ the regu grade The record also reflects federal left school after ninth have imposed employers pregnant lations been on his wife was with their because improve he working year, age conditions not on first child. at Within Coating flint Spincote manufacturers warn of started work for Plastic Odessa, in product. stayed involved of their in he months use While Co. where six parties longer moving Corpus here no to work dispute before Christi years. warning by Spincote’s plant such a the defendant at there three prevented injury, plaintiffs Spincote using would was in the business of abra- missing any record is and oilfield this evidence sive to clean condition that, tub- general, warnings by tubing. spraying flint This steel involved through flint effectively ing particles could reach their customers’ with shot air employees actually engaged compressed pres- in abrasive nozzle with under evidence, very are Flint hard blasting. p.s.i. Without such sures around 100 mostly crystalline composed to determine whether a stone unable (silica (Si02), called suppliers. commonly dioxide imposed warn should be flint natural, which in its undisturbed Consequently, judgment quartz), we reverse and, But dangerous. court of interest is not at all when appeals4 state against justice, particles the case the trial metal remand blasted high pressure, they for a new trial. scorn’ court 2001). (Tex.App.-Texarkana 4. 48 S.W.3d 487 surface,

abrade they shatter into an caused the habitual inhalation of irri- particles. airborne dust of smaller Some particles”5) tant ... common to stonema- of this dust is enough coarse to rebound Dr. Bingham sons. and another of Go- workers, against skin, injuring exposed witnesses, expert Rose, mez’s Dr. Vernon air, hang and to obscuring visibility. a certified industrial hygienist, testified particles But some of free silica are so that years for more than 300 silicosis has (or fíne—5 microns about 200 millionths of been occupational treated as an disease of inch) diameter, something like l/20th flint knappers chip flint into —workers the diameter of a human hair —as to be shapes, desired such gunflints.6 eye. invisible to the naked The visible chipping particles releases free silica into dust can clog the nose and mouth but is the air. Bingham Both Dr. and Dr. Rose too lungs coarse to be inhaled into the testified that the link between silicosis and is relatively harmless. microscop- But the blasting using silica flint was ic particles of respira- free silica are both firmly by physicians established public ble and toxic. Inhaled over months or health officials the United States and years, particles silicosis, free silica cause Europe early twentieth century. an incurable involving disease a fibrosis A tragedy in the 1930s forced atten- and scarring of the lungs compli- and other tion of this nation and others to the dan- cations that can eventually result in dis- gers of silicosis. constructing While ability and death. Silicosis is caused through Hawk’s Nest Tunnel a mountain by inhaling free silica. Inhalation of free Gauley near Bridge, Virginia, West work- particles cannot prevented by or- dug through three miles ers rock forma- dinary, loose-fitting, disposable paper tions rich in silica. Hundreds died from masks; particles People too small. nearby silicosis and were buried in un- working around silica dust must wear air- graves, Congressional marked hearings respirators fed hoods or covering their later, afterward years revealed.7 Several or protect heads faces to themselves. according Bingham, to Dr. England parties The agree, here and the record banned the use of silica in abrasive blast- establishes, that the health in- risks from ing, and over time European other coun- haling silica dust have been well known for events, tries followed suit. Since these Dr. very long expert time. One of Gomez’s affirmed, Bingham it has been “well known witnesses, Dr. Bingham, Eula former As- throughout the medical and industrial sistant Secretary charge of Labor in of the worlds that occupational is an [silicosis] Occupational Safety and Health Adminis- disease” blasting. associated with abrasive (OSHA) 1977-1981, tration from observed agreed Dr. indisputable Rose that “[t]his (460-377 B.C.) Hippocrates linked body knowledge has been out there for respiratory mining disease to and stone- all of industry employers and in the indus- masonry, and that systematic the first workplace trial long to know for a time”. disease, De Mor- treatise on occupational Artificum, bis written Bernardino Ra- Studies of the health hazards abrasive mazzini in identified silicosis as a blasting with flint also determined that (“a pneumoconiosis lungs disease such relatively safely work could be done CHERNIACK, 5. WEBSTER’S THIRD NEW INT'L DICTIO- 7. See MARTIN THE HAWK'S (1961). NARY 1746 NEST INCIDENT: AMERICA’S WORST IN- 76-79, 90-96, DUSTRIAL DISASTER English Dictionary 6. See 8 The Oxford (2d ed.1989). required equipment air was not often shared workers were use suitable tective respirators- ordinary that fit workers themselves their line over the —devices not translate into safe- supervisors and did supply face or head with clean air for ty undisputed It is workplace. Bingham workers to breathe. Dr. and Dr. us that the the record before Rose that the testified American National prac- unheeded in Institute, frequently silicosis went group Standards a consensus for tice. In the National Institute up industry made of various participants Occupational Safety sponsored and Health manufacturers, including suppliers, em- survey by Boeing Aerospace conducted unions, customers, ployers, first 400 businesses across the Co. some adopted safety calling standards for the respi- country degree “to determine respirators use of in abrasive ratory protection currently afforded work- regulations 1938. OSHA for abrasive employ ers in industries which blasting originally promulgated in the ear- survey The found blasting techniques”. ly require respira- 1970s also the use of respiratory equipment the condition of tors, hoods, or air-fed “constructed [to] “generally deplorable”. many In work- head, neck, cover the wearer’s and shoul- places, respirators ill-fitting, were him protect rebounding ders to abra- maintained, supplied cleaned or with regulations sive.” These require also air, regularly by employ- clean or not used employers to develop procedures written ees, management was often “unaware selecting respirators, to instruct em- inadequacy equipment.” of their ployees use, keep respirators their survey report The observed: well-maintained, clean and conduct man, average safety firm where one frequent random inspections to ensure em- usually exists—and this is ployee compliance.9 safety Given these “productive” addition to some normal regulations long- standards and and the prob- function —seems unaware of the held concerns that led to adoption, their respirable and lems dust noise. Dr. Rose testified expect that one “would professional average in ... The blaster seems unconcerned blasting abrasive by equipment deficiencies. His trade industry to know about the hazards always dusty noisy. has been and blasting” abrasive requirements and “the provide air-supplied respiratory equip- report The concluded that— ment to Bogran, the workers”. Frank persons responsible selecting by Gomez, witness called who run a had blasting respiratory protective abrasive major blasting abrasive business since blasting equipment [for workers] 1962, agreed “[b]y people 1975 the none too informed nor interested in the that were in that sandblasting industry, subject. Their concern is with abrasive they knew about the hazards” and “knew safety blasting per se and not with mea- about the need to proper wear air-fed A education in- sures. serious effort is equipment”. dicated. employees usually

But their not. did study, begun Another at Tulane Universi- The widespread knowledge ty’s Department early Medical in the 1970s, of silica produced blasting sandblasting dust abrasive in the showed necessity wearing proper and the on pro- shipyards Louisiana and offshore drill- (June 27, 1974) Fed.Reg. 8. 39 Id. (codified 1910.94). § as 29 C.F.R. See id. (codified 1910.134). § as 29 C.F.R. using following similar con- more extensive warn-

ing platforms occurred under bags: problems ing on its ditions. identified these studies, Rose, according “pret- to Dr. were WARNING typical” throughout industry ty “occurring and 1980s all 1970s and were THIS PROD- BREATHING DUST OF country”. over the SILICOSIS, A SERI- UCT CAUSES Humble, small, relatively family-owned AND FATAL DISABLING OUSLY employ- -operated eight and business with LUNG DISEASE. Picher, Oklahoma, began ees located AND AN APPROVED WELL-MAIN-

packaging selling flint for abrasive TAINED AIR-SUPPLIED ABRA- processed in 1982. BE BLASTING HOOD MUST SIVE (crushed rock) piles chat left over AT ALL WORN TIMES WHILE II zinc-mining operations. from World War AND HANDLING USING THIS Humble sold flint and in 100- both bulk PRODUCT. bags, only to industrial custom- pound Humble, From the Ron beginning, ers. FOLLOW ALL APPLICABLE father, ran the his who business with knew OSHA STANDARDS. breathing generated the silica dust had known Ron Humble testified that he silicosis could cause warning of the additional this all details that the disease could be fatal. He also but had included them earli- since 1982 put knew that he should some sort of Indepen- copied he had simply er because warning and after mak- bags,10 label warning. dent Gravel’s ing inquiries organi- of OSHA and a trade approved of Bingham Dr. and Dr. Rose yielded informa- zation him no useful criticized the earli- this latter tion, following he decided to label copy the respects. two following er one Gravel, by competitor, Independent used First, understated the the earlier he understood had been business by stating inhaling risk of silica dust fifty years: than for more injurious and not “may that it to health” disability and that it result in death. WARNING! Second, warning specify the earlier did only equip- “proper protective BE HEALTH IP MAY TO INJURIOUS hood, allowing ment” was air-fed EQUIPMENT PROPER PROTECTIVE equipment, mistaken notion that other like IS NOT USED. masks, as paper do well. disposable would Bogran Frank testified that his business bags, on its bags it In addition to the had used a similar sold omitting a Material deliberately provided to Humble its customers beginning (MSDS) required by as injury Safety referred Data Sheet state that health pre- regulations The Spanish regulations.11 death. added a OSHA could be Humble (at categories of information be request) in 1986 and scribed Spincote’s version customers) (for the informa- specify but did not a French version included Canadian itself, a copied form began again tion so Humble sometime later. In 1910.1200(a)(1) § (purpose), 29 CFR 1910.1200(g) § 10. See 29 C.F.R. (b)(1) (labels (f) (application), other forms (material warning), safety (g) data of sheets). left) Hum- by Independent supplied by form and information

used Gravel. The (on (on right): following subcategories included the ble Emergency personnel approved and First should use Aid Procedures Abrasive blast respirators Decomposition Hazardous Respiratory Products Silica Dust Approved Respirator Protection Eye Protection Yes—with air hood MSDS, Dr. according Bingham and testified that in when he took over Rose, Dr. suffered the inade- Spincote, inhaling same dual he did not know that quacies bag silicosis; as the label: it failed to em- silica dust could cause he knew phasize severity of the health hazard— only that silica dust was a nuisance and that it could specify be fatal —and failed to breathing healthy. it was not He had respirator just that the used himself, should not be said, through dusty he walked “approved” but air-fed. blasting building day as often as a twice wearing any respiratory without protection provided

Humble also its customers with at all. As for when it was that he learned it sales leaflet called a “technical fact regulations relating blasting to abrasive sheet”. among product’s Listed “im- inhaling and that silica dust could result in portant advantages” “Extremely was: low death, Gray expressed silicosis and consid- rate, allowing break-down material be uncertainty, indicating erable at various used over several Bingham times.” Dr. 1980s, points early and Dr. Rose encourage- criticized this mid-1980s, maybe as late Decem- ment of reuse because each time flint is Gray ber 1986. did not know for sure used, more particles are broken down to Spincote’s employees size, whether were ever respirable thereby posing greater inhaling told that silica dust could fatal. danger to workers. Workman, “Shorty” Eldon the Odessa Spincote Humble sold for abra- plant manager in also testified at sive Corpus its Odessa and by deposition. trial that he had He stated plants. Although Christi the record does worked the 1950s plant, reflect the size of either Dr. always and 1960s and that while he had Spincote Rose testified that he understood hood, worn an air-fed he had not become subsidiary ICO, Inc., company was a fully aware of the of silicosis until 1,400 employees Texas, with some Cali- fornia, after he had worked as blaster for sever- Wyoming, and Oklahoma. Ken years. By al the time Spin- he became Gray, general manager Spincote the of the plant manager cote’s he understood that subsidiary in by deposition testified silicosis, breathing silica dust could lead to acknowledged at trial. He that it was disease, death, lung an incurable and and Spincote’s obligation safety to be aware of responsibility provide that it his was requirements, provide working a safe employees with this information. He testi- including proper respiratory environment blasting employees that Spincote’s fied equipment, employees and to train its in hoods, required were to wear air-fed were safety procedures. He testified that he so, reprimanded they if failed to do and applicable regulations safety relied on Employ- three any supplier’s information and not on were fired after violations. Gray But also around the dust but were label MSDS. ees worked their actually operating blasting employees not nozzles had to remove hoods house, masks, though áir only required leave the blast even the paper were to wear dusty, the hoses why, supply- was still because hoods. not asked Workman was to the not reach ing past air hoods would fully dangers, if aware the he he was did also the immediate work area. Gomez tes- everyone around require working a hood tified that he did not wear when at dust to wear hoods all times. He stated house, cleaning up blast which involved employees required that were to attend blasting back machine’s shoveling into the regular safety they where meetings were pot had accumulated supply flint dust that of the of silica dust and warned waist-deep. activity knee- and This equip- in the use protective instructed dust, parti- including stirred the free silica Gray, however, ment. Like Workman cles, up Gray air. back into the acknowl- say definitely could not whether edged Spincote that had twice been cited that inhaling ever told silica dust were particles for excessive free silica could fatal. be environment, and Gomez was ex- work blasting Spincote’s plants Abrasive posed to them whenever he removed his in, building was done inside area mask, blasting hood and even had called the blast Gomez was hired house. stopped. grinder”, that job to work as an “end did shift, according At the end each performed not involve but was Gomez, haul bags the workers would dusty building. environment they flint from where stacked over to were given disposable paper Gomez was ,into empty the blast area them and against mask that was held his face with supply pot on the machine. There month, After rubber bands. his first Go- generated process is no evidence that this cutter”, job moved to that mez was “end particles requiring free silica workers to blasting. he point, did involve At that was protective gear. Although wear provided an air-fed in addition to hood bulk, sold flint to some customers paper mask and was shown how to use the Spincote always flint it sold 100- said, hood, The properly. slipped hood he bags. Spincote bought pound also turtleneck over his head fit like a suppliers, from other some which was supply neck. It an air around his had hose that the first time bags. Gomez testified plastic the top that attached to and clear bags, he saw Humble’s he noticed the through to see that could be front shields foreman warning label and asked his about they dirty. as became Gomez replaced long replied it. His foreman as he that the he wore were not testified hoods hood he would all wore his and mask inside, torn, did not allow and were dust phrase on the right. thought Gomez always good condition. Humble offered health”, label, “injurious to meant testimony from one of former co- Gomez’s rebounding surfaces could dust off blasted torn, Spincote’s were workers hoods and was hurt when struck the skin bad condition, dusty inside. But in bad hood, thought, he was for to breathe. any insisted that he never had flying dust protection problems his with hood. He stated he prevent paper mask was to inhalation. every disassembled and washed it week was, Still, ordinary thought, he the dust soap and water.. with dust, sweep out of his might like what he However, co- Gomez and his former He did know that dust garage. particles too agreed blasting stopped contained invisible free silica worker when shift, by mask. Go- during paper the end of a fine to be screened a for breaks at disability eight years cant and full following warning mez also saw the label within years. Dr. Fried- supplier’s bags: disability on another within fifteen person that a with silicosis is man testified WARNING: CONTAINS FREE SILICA. susceptible respiratory to other also more May

DO NOT BREATHE DUST. tuberculosis, autoim- including diseases (Silico- Delayed Lung Injury, Cause arthritis, including per- and mune diseases sis). Safety and Follow OSHA Dr. Friedman be- haps even cancer. Crystalline Health Standards Si- Gomez, 38, a life lieved that then had (Quartz). lica years. expectancy of But Gomez testified he did ask his The trial court admitted evidence foreman about this and did not flint Spincote purchased and Sivalls used know what silicosis was. He did not know Humble, suppliers besides it ex- that silicosis or inhalation of free admissions, cluded Gomez’s made re- particles disability could lead to and death. sponse discovery request, to a that other Gomez testified that had he known how equipment and manufactur- was, dangerous silica dust he never would ers and distributors he had sued were job kept working have taken or around responsible injury. jury for his The it. asked Humble’s and about Gomez’s Spincote’s After Gomez left Corpus responsibility. jury The found that Go- plant Christi he home to returned injury mez’s had been caused a market- Odessa and did not work as an abrasive flint, ing defect based on the follow- again blaster until when he went to ing definitions taken from the verbatim Sivalls, Inc., work for another Odessa busi- Jury Charges: Texas Pattern ness. he did there was done “marketing A defect” respect with to the objects, on larger outside but otherwise give means the failure to ade- There, the work was much the same. as quate warnings product’s Spincote, at always he testified he wore his application that were known or hood and mask when but not at reasonably developed human and skill other times when he was around dust. foresight should have known or been In sought November medi- give adequate failure to instructions to breath, cal treatment for shortness of dangers, avoid such which failure ren- days within a diagnosed few he was as product unreasonably danger- dered the having biopsy subacute silicosis. A of his ous as marketed. lung tissue confirmed that he had had a high exposure to silica dust. He left work “Adequate” warnings and instructions again employed Sivalls and was never warnings given mean and instructions blasting. action reasonably expect- When Gomez’s form that could against nearly Humble went to trial reasonably five ed to catch the attention of a years later in he had prudent person become licensed the circumstances of Friedman, use; Gary product’s as a barber. Dr. board and the content of the occupa- warnings certified in internal medicine and com- instructions must be medicine, prehensible average tional testified that while Gomez to the user and yet had symptoms convey suffered few and no must a fair indication of the na- impairment, progressive silicosis danger dis- ture and extent of the and how ease, given reasonably extent and duration of to avoid to the mind of exposure, his expect signifi- prudent person. Gomez could court’s the district “unreasonably dangerous” product

An ment affirmed judgment.13 dangerous an extent be- one that is contemplated that yond which would be for re- granted petition Humble’s We ordinary product of the with by user counsel Two later Gomez’s view.14 months to the ordinary knowledge common death, the date suggestion filed a of his community product’s as to charac- if as proceed and cause unstated.15 We teristics.12 appeal.16 remained a to the party Gomez injury jury also that The found Gomez’s II negli- unspecified caused Humble’s here, it in the argues Humble did did not that it was caused gence but find appeals, product court of that negligence. jury assessed by his own The employ- no to warn its customers’ has pain, following past physical damages: if using ees of the risks $300,000; $5,000; pain, future physical those already should know of customers anguish, $5,000; future mental past mental obliged by law to risks and are themselves $300,000; wages, anguish, past lost employees. their own Awareness $18,000; earning capacity, future lost risks, contends, must be deter- Humble $10,000; $500,000; disfigurement, future objectively mined in the context $500,000; past physical impairment, future an or- industry or business involved—what care, $17,000; and future medical medical situation should dinary person that care, $150,000. jury also assessed know, or another person not what one $50,000 damages of Gomez’s two for each that actually argues know. does Humble parental future consor- children’s loss of law to should matters of these issues all be judgment trial tium. The court rendered court, that be determined verdict, in- excluding credits and on the fact, are matters of then it was enti- they interest, $2,053,058.76for Go- cluding requested jury findings, which it tled $54,672.07 chil- for each of his mez and complains denied. Humble also and was dren. evidence that it was allowed to offer caused, Spincote intentionally trial challenge the appeal, On Humble did products and other liability including the inad- jury’s findings, caused, injury. Gomez’s dangers equacy of its Rather, blasting. using flint abrasive any- argues regardless Gomez no argued done, Humble it had thing Spincote should have they were warn of those because things: to warn him of two had a indus- disability known inhaling well silica dust could lead death, custom- try, Humble sold to industrial and that hood should an air-fed ers, rely on them to at all times. and was entitled around silica dust be worn Gomez, contends, Spincote, like like employees, Employers their own provide these necessary provide A divided not be relied on to all information. could with of evi- argu- warnings. Regarding the exclusion appeals rejected Humble’s court 30, 2002). (May Sup.Ct. J. JURY 14. 45 Tex. COMM. ON PATTERN 12. See CHARGES, TEX., TEXAS STATE BAR OF PATTERN JURY CHARGES—MALPRAC- 7.1(a)(1). P. TexR.App. 15. See TICE, PJC 71.5 & PREMISES PRODUCTS Id. 2001). (Tex.App.-Texarkana 13.

181 product; negli- on the complains, liability dence of which Humble ucts focuses any that argues error was harmless. gence supplier’s on the conduct.17 focuses any ramifica- need not consider here We jury un found Humble hable of between the two tions the differences separate legal products der two theories: argue not theories because Gomez does liability negligence. Although duty theory had a under one jury’s not finding specify did how Humble duty from the under the other different negligent, only had been evidence of Therefore, pres- assume for theory.18 we injury negligence caused Gomez’s obligations un- purposes ent that Humble’s adequately that Humble failed to warn of der both theories are co-extensive. dangers using of abrasive blast (There evidence, ing. example, is no for firmly It in Texas is established encouragement Humble’s of the reuse of a com that the existence elements product, though negligent, of its caused duty ordinarily issues legal mon law Thus, injury.) Gomez’s the factual basis decide, duty for the court to whether the liability for under both theories was the (for products liability) is not to distribute a same. legal impose, While both theories (for negligence) circumstances, product19 defective duty sup certain a on a ordinary long ago act care.20 plier to warn of with Not dangers product’s in its use, the theories are not explained: identical. Prod- Shears, 379, 353, (Tex.1993) ("The Caterpillar,

17. Inc. v. 911 S.W.2d S.W.2d 356 existence of (Tex.1995) (" sup duty dangers 384 'The care taken a to warn of or instruct on law.”); plier product preparation, proper question Joseph of a in its manufac use is a of E. sale, Sons, McGuire, Seagram ture or a consideration in strict & Inc. v. 814 S.W.2d is, however, 385, Texas, (Tex.1991) ("In liability; ques this the ultimate 387 the existence negligence liability duty dangers tion in a action. Strict of a to warn of the or instruct as product proper product question looks itself and determines if it of a is a use law.”). Negligence is defective. looks at the acts of the manufacturer and determines if it exer ordinary design produc cised care in Mgmt., Peavy, 20.Texas Home Inc. v. 89 ") (quoting Caterpillar tion.' v. 30, (Tex.2002) Trac ("Whether duty Gonzales S.W.3d 33 a Co., 867, (Tex. 1978)). tor S.W.2d 571 871 court.”); question exists is a of law for the Doe, Corp. SmithKline Beecham v. 903 S.W.2d Best, Inc., 347, (Tex.1995)("The legal Smith v. Walter C. 927 F.2d 351 existence of a Cf. 736, (3d Cir.1990) is, course, law.”); (stating duty Centeq question that in a Inc., 195, jurisdictions "sophisticated Realty, some Siegler, user de- S.W.2d 197 v. 899 is, (Tex.1995) ("The negli fense”—that the rule that a inquiry need a threshold sophisticated employ- a gence customer’s owes a case is whether defendant using product ees of the risks of a legal plaintiff.” avail- duty to the "The existence of —is negligence able actions and not in duty question of law the court to actions, liability concluding strict surrounding decide the facts the occur from apply W.C.W., Ohio courts would the same rule in question.”); rence in Bird v. 868 actions). 767, both kinds of (Tex.1994)(“Whether legal S.W.2d 769 duty question exists under a set of facts is a Grinnell, law.”); Transp. 19. American Tobacco Co. v. 951 Houston v. Phil Greater Co. 523, (Tex.1997) ("The (Tex.1990) ("The lips, S.W.2d 426 existence of 801 S.W.2d 525 dangers inquiry negligence case is to warn of or instruct as to the threshold "[T|he proper product question duty.” question use of a is a existence of is a law.”); Barajas, to decide the facts Firestone Steel Prods. Co. v. of law for the court Texas, (Tex.1996) (“In surrounding question.”); 927 613 S.W.2d occurrence Clark, Eng’g Corp. the existence of a to warn of the Otis v. Co., 1983) (Tex. alleged question (citing of an defective is a Abalos v. Oil Dev. Saenz, (Tex. 1976)). law.”); Corp. General Motors v. S.W.2d instance. Under only one such a com- identified impose whether to deciding In Act,23a Liability the duty, applied Employers’ this Court has monlaw the Federal v. identified familiar factors its duty protect railroad’s Graff (Tex.1993), 918, Beard, 920 858 S.W.2d by the foresee- injury is measured Transportation Co. v. Houston Greater harm, issue of and while the ability of (Tex.1990), 523, 525 Phillips, 801 S.W.2d exists, including the legal duty a “whether Clark, v. Engineering Corp. and Otis element, legal typically a foreseeability (Tex.1983). 307, 309 668 S.W.2d in Texas FELA actions question [in economic, social, considerations include ..., if facts about the essential courts24] applica- and their political questions rail- of the foreseeability as an element have to the facts at hand. We tion is a question the duty disputed, road’s are risk, foreseeability, and weighed the no jury.”25 have had fact issue for the We injury against the social likelihood of interplay to consider the opportunity other conduct, magni- utility of the actor’s in de- legal factual and determinations of guarding against of tude of the burden so, if duty a exists ciding whether plac- of injury, consequences and the are. parameters what Also ing the burden on defendant. to con we had occasion Nor have are whether among the considerations facts re proving how the burden sider superior have generally party one would duty of a should be the existence lated to right to con- knowledge of the risk or a in dispute. facts are when those assigned the harm.21 actor who caused trol the rule, must estab plaintiff general As a however, that in some recognized, haveWe duty;26 the burden the existence of lish turn on facts issues instances these it had to show that not on the defendant as a matter that cannot be determined rule, when duty. Consistent with no by the must instead be resolved law and foreseeability of harm is an element factfinder,22 actually although we Johnson, 391, relating to the recognized 'rules 397- court has 967 S.W.2d 21. Praesel v. form, jury omitted). necessity, issues are (Tex.1998) (citations and effect of 398 they do procedural than substantive rather provided right defense with a or not interfere County Drainage v. Dist. 22. Fort Bend right or by As no substantive 392, (Tex.1991) the F.E.L.A.' Sbrusch, S.W.2d 395 818 by this deter- statute is affected defense of the ("The duty question legal is a of a existence mination, this state to the law of we look to although in some instances the court law for omitted). issue.”) (citations this resolve disputed facts may require the resolution of le inappropriate for inferences which are R.R., (citation resolution.”) (citing Mitchell v. Missouri- S.W.3d at 166 gal 25. Pac. 85 Union 659, Co., omitted). 662 786 S.W.2d R.R. to Mitchell Kansas-Texas 896, denied, (Tex.), S.Ct. U.S. 111 cert. 498 247, (1990), overruled Grimes, L.Ed.2d 205 112 774 S.W.2d Cosgrove v. 26. v. Pac. R.R. Co. grounds, Union 1989) negli other Williams, (Tex. for (stating in an action (Tex.2002)). 85 S.W.3d prove that there is gence plaintiff must "[t]he defendant”); El by the duty to him owed Poole, §§ 732 S.W.2d Corp. 23. 45 U.S.C. v. Chico inquiry; a (Tex.1987) (“Duty threshhold is the and viola Mitchell, ("State prove existence plaintiff must at 661-662 786 S.W.2d the defendant owed to him tion of court or finder of whether the law dictates tort.”); Corp. Eng'g liability Otis establish and its factual fact should determine ("In (Tex.1983) Clark, v. governs the sub- federal law elements. While cases, liability, plaintiff must tort order to establish rights parties in FELA stantive aof and breach initially prove the existence governed by applica- procedural matters defendant."). duty owed to him the court. This tried in state ble state rules when to the com- ordinary knowledge in- common factually disputed, Thus, objective standard.”30 mentioned, munity’ is an just put we have stance Seagram E. & example, Joseph In this proof plaintiff.27 burden of on the McGuire, Sons, v. we concluded Inc. case, however, seen, must as will be times, alco- danger ancient “[f]rom carefully application more consider prolonged and excessive con- holism from general rule. beverages alcoholic has been sumption of argument compo- Humble’s has two thus widely recognized” known and and is one, duty nents: it had no to warn its knowledge among public”, “common working customers of the risks of around plaintiffs in that case as- though even silica dust those risks were com- because they personal- serted that were themselves knowledge mon in the abrasive in ly danger.31 of this But Amer- unaware 1984; two, industry long before and it had Grinnell, ican Tobacco v. we concluded duty no to warn its customers’ general health risks of that while the of those risks because its customers were knowledge, smoking were common position in a to warn their own better of addiction continued to be specific risk If employees. the risks of silica dust were industry and disputed by the tobacco itself then commonly industry, known said to be common thus could at duty Humble had least a to warn its knowledge among smokers.32 When customers, argues which Gomez product special users of a foreseeable did not do. Even if the com- risks were training, has no to warn of supplier known, monly question remains wheth- them, that should be obvious to even risks er Humble still had a to warn its training if such would not persons without employees. customers’ We consider each appreciate example, the risks. For component argument of Humble’s in turn. Fabrication, Boyd, Inc. v. Sander Custom scaffolding supplier held that a had no we Ill of the risk of duty to warn a boilermaker A no to has warn of ordinary person falling “[n]o because risks involved in a product’s use that are trained to do the work and his crew [he] users, commonly known foreseeable appreciate doing were could have failed even some users are not aware of them.28 appreci- level of the obvious risk”.33 What “Commonly” universally. does not mean knowledge common is to ation amounts to “ “Commonly ‘beyond known” means dis court as a matter of be determined said, pute’ inquiry ”.29 As we have “the factual issues that law unless there are recognition whether a of risk ‘is within the must be resolved.34 R.R., Grinnell, v. 951 27. Union Pac. 85 S.W.3d at 167. 29. American Tobacco Co. (Tex.1997) Seagram, (quoting S.W.2d 427 388). 814 S.W.2d Sons, Joseph Seagram 28. E. & v. Inc. McGuire, (Tex.1991); 388 Shears, S.W.2d Caterpillar, Inc. v. see (Third) Restatement Products Torts: (Tex. 1995). (1997) ("In j general, § 2 cmt. Liability product subject liability seller is not at 388. 31. 814 S.W.2d failing regarding or instruct risks and 427-428. 32. 951 S.W.2d at risk-avoidance measures that should be obvi- to, generally by, ous foreseeable known (Tex.1998) (per cu 33. 967 S.W.2d users.”). riam).

34.Caterpillar, S.W.2d at 383. Tu- mind, Boeing and blasting. sive The 1974 principles With these operators were lane studies showed fifty years present turn to the case. Over unaware, dangers of not of the serious ob ago, Supreme the United States Court “ or the need for working around silica dust of common knowl served: ‘It is a matter proper protective equipment, but injurious lungs edge that it is workplace— equipment use of dust, to health to work silica dangerous regularly assuring tightly, that it fit was railroad, defendant [a a fact which maintained, supplied with was cleaned injured was bound to employer] worker’s ”35 air, by em- routinely worn clean years ago ten this Court know.’ Over not contend that ployees. Gomez does “Inhaling dust cause res noted: could have in- should or disease, has been rec a risk that piratory prop- or workers operators structed century”.36 than a Con ognized for more The two equipment. protective er use of observations, general with these sistent contend Humble warnings Gomez does estab the record before us this case dangers were of well given should have lishes, disagree, not parties and the do unheeded, known, though largely fact, objective that as a matter of industry. blasting abrasive dust, in dangers inhaling silica general death, and of not cluding disability and time, equally it is well At the same protect against to wearing air-fed hoods dangers record that the established on this inhalation, knowledge have been common to generally known dust were silica and among suppliers flint abrasive in abrasive employed like Gomez workers certainly Workman, and were operators for decades Spincote’s blasting operations. to for in 1984 when Gomez went work foreman, so had as a that he worked testified admittedly knew Spincote.37 learning of the years blaster for before began it sell dangers these 1982 when that testified danger of silicosis. Gomez flint, Spin- word, is evidence that ing and there he did not that when he first saw foreman, Workman, plant thought cote’s Odessa silica what it meant. Gomez know well, for having as worked swept knew of them out of his like the dust he dust was blasting indus many years in the abrasive experiences garage. His and Workman’s try. industry of the workforce. typical were operators Spin- that like flint

The evidence we conclude From this record conducting cote often careless to warn were had no suppliers like Humble Sivalls, insufficiently moti- abrasive Spincote customers like its inhaling their safety for the provide blasting operators, vated to and fatal and disabling not ascribe their indifference workers does silica dust can be hoods, suppliers. air-fed be- warnings by to that workers must wear inadequate com- long had been oper- evidence is that that information contrary, cause On industry. throughout monly knowl- known safety despite their neglected ators disregard of risks Blasting operators’ of silicosis and edge of the seriousness dust inhaling standards, to their legal, for abra- industrial 163, 180, Corp., Badger Mining 676 Gray v. Thompson, U.S. 35. Urie v. 37.Cf. (conclud- (1949) 268, (Minn.2004) (quoting S.Ct. 93 L.Ed. 1282 N.W.2d Co., Long suppli- R.R. 292 N.Y. Sadowski v. Island. a flint ing evidence that that there was (1944)). 55 N.E.2d dust knowledge of silica er’s blasting operator’s). superior Lee, Indus., Inc. v. 36. Dresser (Tex. 1993). prescribe drug— physicians was not for of additional information who want furnished, that flint should have been ade “learned intermediaries” —have turn, then, situations, of care. we want We In both quately warned.41 question said, whether Humble had a suppli for the it would be reasonable employees, to warn its customers’ intermediary on the to warn rely er to generally were not aware of the risks. cautioned ultimate consumer. But we that—

IV intermediary presence the mere A the manufacturer from does excuse reason- warning those whom should In Alm v. Aluminum Co. of ably expect endangered by to be the use America, recognized that “a manufac every case is product. of its The issue situations, supplier may, turer or certain has a original whether the manufacturer intermediary on an depend communi reasonable assurance cate a to the ultimate user of a the use endangered by will reach those Aim product.”38 claimed that an alumi product.42 of its cap popped num had off a soda bottle and him in eye. struck Alcoa manufac Alcoa had no We concluded while cap tured the machine that fastened the duty to directly, Aim it did have a top, the bottle and Aim claimed Alcoa bottler and had failed to do so warn the him should have warned of the risk that a adequately. cap pop could off. But Alcoa the machine just failed argues that as Alcoa by manufactured was owned and operated bottler, adequately to warn the the inter- independent bottler. Alcoa did not con ultimate mediary between Alcoa and the bottling process trol the or sell the bottled consumers, adequately failed to Humble practical way soft drink and had no of intermediaries employer/operator warn reaching any In warning. consumers with situation, said, blasting it and abrasive workers. between “Alcoa should be jury Gomez notes that the found Humble’s satisfy duty to its to able warn consumers just to warning inadequate, period, not proving intermediary that its bott [the warned, any adequately Gomez. But deficit Humble’s warn- ler] trained and propensities ings Spincote familiar with the of to and Sivalls is inconse- prod uct, capable passing quential, on a warn since we have concluded ing.” duty to them at all analogized position We Alcoa’s to Humble had no warn a flint that Gomez supplier using that of bulk of material that is because the risks of repackaged and sold and thus has no contends should have been warned about industry. providing knowledge means of the ultimate consumer were common them Aim, argument a In a In was no that the with about risks of use.40 there vein, caps misapplied by harm from different we noted that other courts risks of knowledge machine were common pharmaceutical had held that manufac Alcoa’s required patients bottling industry. turer to in the Alcoa had a warn prescription drug long of a to warn bottlers of the risks of use its (Tex.1986). (Third) 38. 717 S.W.2d 41. See Restatement Products of Torts: Liability § 6 cmt. b 39. Id. at 592. Aim, 717 S.W.2d 42. 591. Id. reason to be- industry, and at least some it had no to though machine even communicate its oppo- Spincote would consumers. Humble is lieve warn Gomez, required duty to warn abra- since was position: knowledge site it had no so, of harm sive-blasting operators though many of the risks such by law to do even employees. involved abrasive did not warn their operators employees, to warn their had had fairly said that Humble It cannot be product. of its end users reason to believe that no dangers of silica would be told the workers Aim cited but did not discuss section argue amici curiae44 Humble and dust. Torts, (Second) of the Restatement analysis. the end of our that this should be to the one sets out a rule similar which in Aim: applied is much too argument think the We directly through supplies One who legal obligation warn Spincote’s broad. for another to use person third chattel contends, Gomez, partly derived subject liability to those whom the duty to common law employer’s from an expect to use the chattel supplier should hazards of their employees of the supplier ... if the this common law employment.45 Were (a) reason to know that knows or has enough to duty, employers, all shared likely dangerous the chattel is or is be Spincote to justify Humble’s reliance on supplied, it is for the use for which ever no would employees, warn its (b) has no reason to believe those employ- to warn its customers’ required will supplied use the chattel is for whose its customers risks which ees condition, dangerous its realize Warning an em- been aware. should have (c) reasonable care fails to exercise good intermediary always be ployer would dangerous condition inform them of appro- and our discussion enough, likely make it to be or of the facts which á in Aim would of such priateness dangerous.43 have been unnecessary. We have been ex- for a blanket authority cited no such under product supplier’s responsibility A duty to warn emption general from the only to its custom- may section 388 extend dangers ultimate users of ers, employ- customers’ may or it reach its use, aware of and we are involved its governed present ees. If section 388 in addition argues that none. Humble applied literally, Humble case and were Spincote responsibility, its common law clearly duty have had no to warn would toward obligations specific legal more disproves the had the record Gomez because by detailed (b): imposed employees element, every Humble had second —those on all abrasive regulations Spincote knew of OSHA reason to believe regulations were these operators. But blasting, dangers using flint rig- nor so customarily followed knowledge in the neither so they since were common nondelegable employer certain § that an has 43. Restatement (Second) of Torts employees. duties to his and continuous duty Among to warn these are the support posi- curiae in of Humble's 44. Amici employment and to their as to the hazards of Corp., Chemis- the American tion are Unimin activities, duty to furnish a supervise their Council, Council, try Chemical the Texas to labor and reasonably place in which safe Defense Counsel. the Texas Association of reasonably safe instrumen- to furnish work.”). employees are to with which talities Co., Farley v. M M Cattle 45. See ("It (Tex.1975) established is well true, being obviously impossible it is idly enforced that could any set of rules which state advance reasonably to be thereby expect workers in all cases automatically determine will dust. In- mindful of the of silica for the supplying one a chattel whether deed, the opposite on the record before us a third has through person use of others Accordingly, persuad- we are not is true. are to his to those who satisfied using case can be decided ed that this the third by informing use the chattel language literal of section 388. dangerous character person rule of 388 seri- The black-letter section chattel, which precautions or of the ously subtlety the mat- understates the using it order must be exercised ter, provision, comment n to the which are, however, its use safe. There make length, quote elaborates: important are certain factors which use supplied Chattels are often for the question. There is determining this others, or the although the chattels informa- necessarily some chance permission given to use them are not to the third will not be given person tion directly they are to those whose use him are communicated to those who supplied, as when a wholesale dealer chattel. This chance varies to use the goods sells to a retailer which are obvi- at the existing the circumstances with ously persons purchas- to be used to the the chattel is turned over time him, ing or a contractor them when permission given or person, third scaffoldings appli- furnishes the or other cir- him to allow others to use it. These ances which his subcontractor and the include the known or know- cumstances use, latter’s servants when person character of the third able automobile is lent for the borrower to for which may purpose also include family conveyance use for the of his life given. the chattel is Modern would In question friends. all such cases the permit- unless one were be intolerable person sup- arise as to whether on others’ rely ted to to certain extent plying exercising the chattel is that rea- do, doing they normally particular- what care, sonable which he owes to those to do so. If the ly if is their it, by informing are to use the third ignorantly used chattel is one which person through sup- whom the chattel any- great causing contains no chance of plied of its actual character. comparatively than thing more some

Giving person through harm, to the to permit third it is reasonable trivial in- supplied supplies whom the chattel is all the chattel the one who necessary rely upon is to the through person formation to its safe use a third ordinary person the third is an not all cases sufficient to reheve fact the sup- the liability. merely It a normal man to whose discredit supplier from is as- nothing, as a sufficient plier be knows by means which this information to him given information to surance conveyed to those who are to use the are to passed will be on to those who question chattel. The remains whether the chattel. use gives a assur- this method reasonable If, however, ance that the information will reach is known person the third safety upon their or if the depends those whose to careless or inconsiderate be having may it. All sorts of chattels be the chattel is to be purpose for which others, knowledge through advantage for the use of used is to his supplied chattel is of the true character of the persons all sorts of third and under and so to likely being to its used variety prevent of circumstances. This infinite deprive advantage ignorantly him of when which if used involve this tels —as are goods so defective as to be unsalable grave risk of serious harm to those who by sold a to a wholesaler retailer —the vicinity use them and those in the to supplier of the chattel has reason use, bring to take to precautions their expect, or at that the in- suspect, least information the users of the home to formation will fail reach those who to chattels unrea- such which it would be safety are to use the and whose chattel a sonable to demand the chattels of were depends upon knowledge of its their dangerous less character. case, sup- true character. In the such Thus, may proper per- while it to be plier may well further required go be to one supplier mit a to assume that than person to tell such a third of the a chattel through supplies whom he article, or, dangerous the character of only slightly dangerous which is will so, being he fails to do risk of to take the him given communicate the information subjected liability to if the information is it unless he to those who to use brought home to those whom careless, may knows that the it other is should chattel. supplier expect to use the permit to him to trust the improper be many In doing cases the burden of so is conveyance necessary information slight, as when the chattel is to be used highly actual dan- of the character of presence vicinity person or of the article to a gerous person third whose it, supplying easily give so that could he may he It nothing. character knows personal are to warning to those who well be that he should take the risk chattel. though sup- use the Even this information not be communi- plier practicable opportunity has no to cated, he unless exercises reasonable give directly per- this information care to ascertain the character to those who chattel son are to use the person, previous or third unless use, or share it is not unreasonable experience with him from the excel- him require good any to harm make reputation of his has lence using which is caused his so unrelia- care- positive reason believe that he is a method of giving ble the information this, if danger ful. In addition to to make obviously necessary which ignorant particu- of a involved use chattel it safe for those who use very great, may lar chattel is be in the vicinity those of its use. supplier does reason- not exercise Here, in every case which involves communica- entrusting able care precautions the determination of the necessary tion of the information even satisfy which must be taken to the re- good reason to person whom he has care, mag- quirements of reasonable Many arti- to be careful. such believe nitude of the risk involved must be com- carry can made their own cles pared with the would be burden which of those message understanding to the them, imposed by requiring and the likely the form who are use them magnitude risk is determined out, con- they by in which are the put by may the harm chance that some supplied, by or they tainer which are also or trivial result but the serious device, a indicating or other with a label likely character of the harm which is to dangerous sufficiency their result. Since care which must be substantial the danger involved always danger taken with the character. Where the increases involved, quality true may require ignorant it to use of their be reasonable others chat- and such of disclosure supply through great those who means in- inadequate of unduly is defective because and not burden- practicable are when the foresee- warnings or structions some, supplier that the well be product the posed harm risks of able required adopt to them.46 should be or avoided have been reduced could to note that while com- important It is instructions of reasonable provision n in terms of a ment is written other dis- by the seller or warnings or rarely through person, a third supplying tributor, in the com- predecessor or a product of a involve but does distribution distribution, and the chain of mercial commonly, many More participants. two warnings of the instructions omission many per- third suppliers supply through reasonably not product renders Certainly sup- of flint sons. is true safe.47 industry. abrasive-blasting to the plied 2(c) literally apply to section Were we multiple suppliers there are When should be argues section 388 as Humble intermediaries, all in im- multiple typical certainly be Humble would applied, then n cannot portant respects, comment be he would have to Gomez because liable analysis legal duty to an of prescribe read had foreseeable risk of silicosis avoided the supplier by supplier or in- individualized inhaling silica dust Humble warned termediary by intermediary, with the re- testimony, could result death. Gomez’s suppliers obliged that some to sult obviously did jury could and which others, while warn some end users but believe, that he would have establishes provide warning other need no just warning, a as he saw seen such Here, example, all. whether Humble print bags, Humble did on its can- duty had a to warn abrasive blasters it, and would never would have understood respective not turn on whether their em- working as a blaster. But have continued ployers especially were careful or reckless. those to to section like the comments To each other flint require Humble and that the stated rule can- section show investigate every supplier to customer’s mechanically applied. so Comment be of appreciation own of abra- i explains: if not impractical sive would be general rule as to whether There is no entirely impossible. imposes n Comment supplying product one for the use Rather, duty investigate. no such to intermediary has a through others industry, such an the issue be deter- user duty to warn the ultimate light mined in of the considerations set out may rely intermediary on the directly or in comment n is not Humble had whether relay warnings. The standard is one Gomez, but whether circumstances. of reasonableness suppliers had to warn abrasive considered are Among the factors generally, given blasters the nature of posed by the risks gravity industry. important point This is an the likelihood that the interme- product, which we return below. diary convey the information to will user, feasibility and comment n describe a Section 388 ultimate and the ordinary giving warning care that mirrored in direct- effectiveness 2(c) Thus, purchas- products liability ly law. Section to the user. when (Third) of a work- machinery is the owner Restatement Torts: Products er machinery to provides the product— place that a Liability states (Third) (Second) Lia- § of Torts: Products cmt. 47. Restatement 46. Restatement of Torts 2(c) bility omitted). (1965) (citations § n 190 use, that neither comment

employees point for their and there is We should out n, i, employer any apply- reason to doubt that the will comment nor of the cases pass warnings employees, suggests scope on to the sell- of a ing them required er is to reach the ultimate supplier’s duty to warn the users directly necessary simply by with instructions product of its can be determined reasonably warnings doing so is feasi- counting up against the factors for and ble.48 an allowing warning given to be inter- Rather, the various con- mediary instead. i much than Although comment is shorter weighed against siderations must be each n, reporters’ comment indicate

191 cited, word, we think that the provisions of that we have practical, physical sense patient supplier, that it is better for the for the a an inter- relationship between warning physi- to come from his or her but one mediary, the ultimate user is and in Aim suggested, cian.52 We have never deciding scope of factor to consider elsewhere, that the sole factor deter- supplier’s duty to warn. duty to mining product supplier’s a warn derived To the considerations The Restatement

feasibility. provisions from the Restatement provisions we add certainly quoted we have do not do so. any have inform deci those which we said product supplier’s duty Even if a recognize to a common law sion whether to warn the ultimate users does not de whether to duty, inasmuch as the decision so, pend solely feasibility doing on the to users require a ultimate Gomez insists that it is never reasonable to addition to a to intermediaries employer em depend on to warn its legal duty. explained for us one of As we An ployees. employee rely cannot on an above, determining the considerations employer, argues, way patient “social, economic, political duty include physician. But relies on the differences risk, foreseeability, and questions”, “the relationships in the two do not themselves injury”, utility of likelihood of “the social dictate whether it is ever reasonable for a conduct, magnitude the actor’s of the rely employer on an to warn its injury,” guarding against burden of A employees product. the use of a placing “the the burden consequences number of courts have found such reliance defendant”, party on the and “whether one appropriate in various circumstances.53 Based on these cases and the Restatement would generally superior knowledge have using employee 52. See Restatement of the user's (Third) Products Torts: Inc., ("The § support- Mfg., 6 cmt. b product); rationale Cookv. Branick 736 F.2d Liability 1442, Cir.1984) (11th ing intermediary’ (holding this Teamed rale is that under 1446 professionals posi- health-care ain Alabama law that tire rim manufacturer was significance required employees tion to understand the of the to warn customer’s safety pin); Ferguson risks involved and to assess the ad- relative use Marshall v. H.K. Co., 882, Cir.1980) (4th vantages disadvantages given of a form of 623 F.2d 886-887 defendant, prescription-based therapy. duty (stating designed then that the provider supply brewery, devolves on the health-care constructed had no patient employees operator to the such information as is deemed of the owner and re appropriate brewery); garding operation under the circumstances so that Mar Inc., 457, patient can make an as informed choice v. Dixie Carriers 529 F.2d 466 tinez (5th Cir.1976); therapy.”). v. Colorado Fuel & Jacobson 1263, (9th Corp., F.2d 1272-1273 Iron 409 Wellman, Inc., Cir.1969); See, Byrd 753 v. Brush e.g., Duane v. & Oklahoma Gas Elec. 1403, 1405, (E.D.Tenn.1990); Co., 284, F.Supp. (Okla.1992); 1413 City 833 P.2d 287 Co., 217, Ball, 1267, Singleton F.Supp. (Miss. v. Manitowoc 727 Jackson v. 562 So.2d 1270 (D.Md.1989); Higgins 1990); 225-226 v. E.I. DuPont Washington Dep’t of Transp., v. 8 F.3d Nemours, 1055, Inc., F.Supp. 296, (5th Cir.1993) de 671 1058- (holding 300-301 under (D.Md.1987); Morsberger Uniking v. 1059 law that the of an Louisiana manufacturer 1297, Conveyor Corp., F.Supp. 647 1299 shop industrial vacuum had no to warn Bros., (W.D.Va.1986); Goodbar v. Whitehead danger its customers of us (W.D.Va.1984), F.Supp. ing equipment electrical around acetone va aff'd Inc., Indus., Hardy, Beale v. 769 F.2d sub nom. pors); Davis v. Avondale (4th Cir.1985); (5th Cir.1992) Slawotsky, The see also Joel (holding F.2d Intermediary Employer Doctrine: The jury law that Learned under Louisiana should Intermediary, & welding 30 Tort Ins. L.J. been instructed that rod manufac sophisticated turer had no to warn a 192 duty no have held that there is to control the actor courts right

of the risk or a contrary. If take all of has held to the caused the harm.”54 We do so.55 None bulk, determining in in mostly factors into account supplied these in fact flint was duty to warn. scope of Humble’s the likelihood warnings, without then warnings bags, on injury inadequate due B warnings at all on bulk opposed to no that Based on all of the considerations deliveries, Further- may have small. been out, supplier flint have been set whether a more, any no evidence that abra- there is blasting oper- to warn abrasive had other than Gomez blasting sive worker the time frame employees during ators’ flint. warning bag on a ever saw a label inhaling employed that Gomez was testify employee fellow did Gomez’s disability in dust could result such labels. whether he had ever seen that an air-fed hood should death and on whether completely record is silent at all times de- worn around silica dust blasting industry for was common think, factors. following on the pends, we Thus, it is unclear bags. workers to handle said, factors already have these As we could warnings printed bags on whether must be to the abrasive applied to reach expected been ordinarily have whole, merely to Hum- industry as a workers blasting workers. Even ble, individually. Spincote, and Gomez labels, is some ordinarily bag there saw injury serious 1. The likelihood warnings suggestion at least supplier’s to warn. ineffectual, they would have been failure jobs in out their would have continued Silicosis, unquestionably a serious necessity. Although Texas of economic working injury, likely to result from is adequate that an presumes law using properly silica dust without around followed, is presumption rebut- will be inju such protective equipment. Whether course, question, There is no table.56 suppli from a likely to result ry was also injury had escaped would have that Gomez warn workers of the serious er’s failure to adequate an bags Humble’s borne importance and the ness of silicosis label; testified, jury believed so and the he far from clear wearing an air-fed hood is already explained, him. But as we thing, For us. one on the record before determining inquiry purposes flint does not reflect whether the record a view objective one with duty must be bulk, in mostly bags or supplied was A industry as a whole. operators purchased some whether for each is liable with a to warn both bags (Spincote purchased so. failure to do injury by its bulk). caused is no evidence bags and There however, exists, de- Whether such to warn that it was feasible for bulk sellers general injury on whether pends part employees, and several their customers’ Co., 167, 391, Johnson, Pa.Super. 397-398 Green 967 S.W.2d 54. Praesel v. Refractories (T 998). 874, (1993), on other 882-883 A.2d ex.1 aff'd (1995); 124, grounds, 665 A.2d 1167 542 Pa. 350, Corp., 319 F.3d Bergfeld v. Unimin Badger Mining Corp., 266 Wis.2d v. Haase law); Cir.2003) (8th (applying Iowa 737, (2003); 743-745 Good 669 N.W.2d Best, Inc., 927 F.2d v. Walter C. Smith bar, F.Supp. at 561. Cir.1990) law); (3d (applying Ohio 740-742 Inc., Indus., 718 So.2d v. Avondale Damond Saenz, Corp. Motors v. 56. General denied, (La.Ct.App.1998), writ 552-553 (Tex. 1993). (La. 1999); Phillips v. A.P. 735 So.2d 637 him, exposure to warn fied for from the absence of likely to result deadly and that an air- can be silica dust warning. It always be worn. should fed hood us, nothing more On the record before of the two to note that neither important failure supplier’s can be said than that one condi- by to show 1974studies cited Gomez the likeli- to warn one worker increased industry sug- blasting tions in the abrasive injury. duty resulting A legal hood of his due to free silica was exposure that gested on liability imposed in enormous cannot be warnings by inadequacy of to the lack or a fluke. industry an entire on the basis of warnings supplier or that better suppliers, that, general, supplier’s a It be Both problem. have alleviated would warnings on print specific failure to more working condi- concluded that safe studies bags significantly of flint increased employers. A up to tions were injury, there is likelihood of serious but safety infor- useful provide that could not or nothing support in the record either to utility. mation was of limited proposition. that contradict to warn reliability operators A of supplier giving a 2. The burden on of employees. their own warning. a operators blasting Although that the burden The record establishes working around silica of knew supplier bags on a of flint is either dust, position than were in a far better inconsequential or nonexistent. employ- flint to warn their own suppliers a feasibility 3. The of effectiveness and could have re- dangers, of those ees supplier’s warning. the risk of altogether duced or eliminated obviously suppliers It for feasible following regulations, federal silicosis bags, on it is not print warning labels but routinely they that the record establishes whether clear from the record before us not safety and did neglected measures such labels would have reached There is no indication employees. workers or would have reduced the risk of oper- on of such measures that the burden feasibility they silicosis if had. The of great. But while the evidence ators was any printing bag words on a is not could not be operators that often shows doubt, me- feasibility using but the that conditions upon to enforce safe relied any meaningful to communicate dium there is no evidence place, the work effectively is. testified Gomez safe- agency or industrial any government have worked as a he would never safety could considered that ty group ever had he known the seriousness of blaster warnings. by suppliers’ improved risks, expert testified that it is his efficacy other The existence and by proper avoid those risks use possible to protections. equipment. Gomez does protective regu- comprehensive The existence of pro- flint could have suppliers contend that against harm latory protect regarding the scheme adequate vided information a common law weighs against imposing safety equipment. The most proper use if the result done, accomplish the same according to should have protections.57 significant affords who testi- scheme expert and the witnesses Carriers, imposed employers should not be Inc. v. Solo- tests 57. Mission Petroleum (Tex.2003) mon, statutory "comprehensive there is a when (holding law to use ordi- already place common that "af- regulatory scheme” drug nary taking specimens care in urine require regulations prescribed blasting operators persistently standards OSHA to work in unsafe condi- legally for abrasive that were en- their that, tions, against purposes it is not clear that the operators forceable followed, encouraging provided imposing would have safe work- warn — ad- ing protecting conditions. But the evidence is over- care and users —can be to warn whelming regulations widely requiring that the were vanced matter, unsafe. disregarded practical and as a af- those conditions are indeed say remain protection. forded workers little “if’ because these matters We on the evidence before us. doubt based utility requiring, 6. The social token, say By warn. the same we cannot requiring, suppliers to duty not the record that a to warn should Requiring suppliers to warn would avoid suppliers. on flint must imposed be We Gomez’s, injuries, including some but shift- is in appropriate determine what result ing responsibility away operators such a case. might lessen even further their incentives environment, provide working a safe C injuries ultimately resulting more variously referred to the Courts have warnings given. than if workers were argument product supplier that a should balance: On knowledgeable required not be to warn We cannot determine from this employees their of risks of customers or duty imposed that a on record should be sophisticated user “doctrine” or use as the suppliers provide flint like Humble to their in- “doctrine” does not “defense”.59 While employees warnings customers’ the limited is one of dicate whether the issue argues given. Gomez should have been avoidance, implies the latter “defense” “An system impose ideal tort should re proof supplier. on the with burden sponsibility parties according on the case, think analyzed this As we have If prevent their abilities to the harm.”58 duty. one of question presented is blasting most the harm to abrasive ap- Other courts have taken same of flint sup workers was due the use above, the burden of proach.60 As noted bulk, plied perverse it would result be scope of a showing the existence and responsibility injury solely if the for fell on ordinarily plaintiff.61 is on the doing suppliers those who least harm — bottom, At our concern bags. principal sold flint If abrasive labels, duty on Humble and other ordinarily bag imposing do not see it with workers that the warn require suppliers bags of flint is good would do little giv- have been ing contends should specific. be more And abrasive Gomez labels 167, Co., Pa.Super. 428 630 significant protection to Green fords Refractories tests.”). 874, (1993), subject drug other are the of random on A.2d 882-883 aff’d 124, (1995); grounds, A.2d 1167 542 Pa. Co., 58. Duncan v. 665 S.W.2d Cessna Aircraft Mining Corp., Badger 266 Wis.2d Haase v. 414, (Tex. 1984). 970, (2003); 737, Good 669 N.W.2d 743-745 bar, F.Supp. at 561. Bergfeld Corp., E.g., 59. v. Unimin 319 F.3d (8th Cir.2003); v. Walter 353-354 Smith Id. Best, Inc., (3d Cir.1990); C. 927 F.2d Indus., Inc., 718 So.2d Damond v. Avondale Williams, denied, Pac. R.R. Co. v. 61. Union (La.Ct.App.1998), 552-553 writ (Tex.2002). (La. 1999); Phillips v. A.P. 735 So.2d 637-638 how for the about their have been inefficacious information en would “The one cus- explained. among reasons we their customers than several have used said, issue,” Aim, Third, said “is whether the have employee. as we as we tomer’s intermediary manufacturer as- original has a reasonable tend to treat the other cases those defensive, that its will reach surance and while generally issue endangered by product.”62 use of its why be the analyze that should they do this that cannot precisely It is issue uni- case, it is have a we think better to case. We resolved on record this Thus, the issue. we conclude form rule on been on think the burden should have on to demon- was Humble that the burden to show that the that, on the factors we strate based given contends flint should have out, legal duty that a set have been This is would not effectual. ordinarily prod- to warn has end users even appropriate, though proof imposed uct should not be usually plaintiffs responsibility, in bags suppliers of to warn First, reasons. in most circum- several specific that air- dangers: blasters of two supplier’s duty simply to warn is stances respirators used hoods or should be fed assumed; warning to availability times, around areas at all not question. end users is in Circum- to do so can in a disease the failure result in not assumption stances which that is of is fatal. As with all determinations that warranted, when or sales are bulk Texas, the duty in the is one for legal issue intermediary there is an have who should disput- the relevant court unless facts warn, duty exception to seem more the ed. Indeed, than the rule. in this case it is not a Humble warning by The fact that apparent that a supplier’s warning would not, by have reached does would Gomez users; just end appar- not reach it is not itself, industry in- in the context of the Second, it ent that would. the record here, an that all support volved inference is sufficiently descriptive this case legal duty should a to suppliers flint have injury nature of the for By all the same warn abrasive blasters. to conclude that regarding us evidence token, concerning the silence the record inefficacy efficacy supplier’s of a warn- efficacy general warnings does such ing workplace, general, in the is support imposition not inference that likely readily to be more available to a justified. duty par- a is not Because the course, supplier than a worker. Of think have not focused on the issue we ties first-hand, worker would know and there- crucial, is we conclude that the interests supplier, fore better than flint the condi- trial. justice would be best served a new him- tions environment which he explained, if the evidence rele- As we worked, expected but he self could be the trial undisputed, vant to this issue to have access to information about other duty determine as a matter of court should supplier A workplaces. would have easier conflict, law, if the evidence that but to information from his customers access first resolved conflict should stated, do stranger. already than a As duty of fact and issue finder then duty to suggest any that a has determined. investigate operations his customers’ conclusion, liability. The come to this we need Having avoid issue here is argument Humble’s that the tri- suppliers have access not reach whether better Am., (Tex.1986). v. Aluminum 62. Alm Co. of in excluding supplier’s warning by every al court erred evidence that flint be “read injured Spincote intentionally Gomez or possible person using product”.66 But that responsible other were prerequisite imposing injury. Gomez’s inju- significant is a likelihood serious

ry says be avoided. The dissent might argue be able to “[w]hile V under different circumstances response We add a few words in to the users, likely would not reach most dissent. any the facts here belie such concern.” To contrary, the facts here establish that argues The dissent that we have concern. premise” violated the “fundamental of Aim that “a product manufacturer has a suggests The dissent that Humble potential inform users of hazards associat Spincote specifi- should have warned more product”.63 applied by ed with the “As cally dangers using abra- today,” Court inveighs, the dissent “the blasting, Spincote sive knew as much sophisticated-user exception swallows the as, like, industry. and acted the rest of the rule, absolving manufacturers of the The dissent asks: “how can it be conclu- to warn even when the is admit sively presumed ‘industry’ that the knew” tedly dangerous and the manufacturer blasting.67 of abrasive easily provide could an effective warn himself, proved answer is ing.” simply key This is not true. The jury obliged by that we are verdict to word is cannot “effective”: we tell evidence, credit and that Humble did his suppli the record before us whether a flint event, any what dispute Spin- it. In supplied er could ever have an effective knew, it cote and whether could de- warning anyone to other than Gomez. pended upon employees, to its have warn certainly

While do not demean the nothing Humble and to do with whether him, importance warning of that to effectively other flint could analysis long we have used to determine employees. those same The dissent com- legal duty requires whether a a exists con plains steps that “Humble took no to de- sideration of the entire context and not Spincote’s knowledge termine level of con- merely one individual situation. As the cerning dangers.”68 silica’s The idea that reiterates, dissent we said Aim that investigate every product suppliers must every issue in case is whether the “[t]he dangers customer’s and tailor awareness original manufacturer has a reasonable as certainly a is im- warning to fit each one warning surance will reach those radical practical, explained, as we have endangered by product.”65 the use of its at least in sense that the dissent offers impossible say It to from this record authority general duty a support no any any whether ever had investigate to customers. That Humble’s reasonable assurance that a on a Spincote statements to in its MSDS and bag would reach abrasive blasters. doWe accuses, been require, as the dissent that a “technical fact sheet” not have 63. at 66. at Post 198. Post 201.

64. at Post 199. 67. Post at 201. Aim, (quoting

65. at 717 S.W.2d at Post 591). 68.Post 202. an ade- they injury bags of no had Humble’s borne as have been is as clear should Despite warning label.” Id. at quate consequence. Gomez not even contend does facts, the compelling undisputed these injured if he would not have been law, that, a matter concludes Court given Spincote infor- had better Humble duty potential no had to warn mation. if it can product’s of its users dissent Finally, says: (1) that, industry-wide, demonstrate some/ de- Breathtaking the Court’s scope, (it’s opin- unclear the Court’s most/all court has today cision ventures where no ion) rather bulk-supplied used operators before, and le- adopting confusing gone (2) flint, warning given bagged any than re- gally evidentiary proof immaterial (it’s not have reached would some/most/all a to whether quirements re-examine (3) unclear) workers, some/ and/or long recognized that we have exists (it’s unclear) blasting workers most/all in the first instance.69 disregarded warning. have would legal a requirements imposing causation, duty and and com- Conflating immaterial; hardly they pre- duty are excep- bining select elements of different duty in cisely imposing the same as for general a product supplier’s tions to any other context. “no court has Where warn, this case the Court concludes that sup- would a flint gone before” be to hold prove retried allow Humble should be plier give liable for failing Ray- no like owed workers warnings workers the their own Humble, If I I would mond were Gomez. employers given should them. I surely appreciate the second chance—but to do. See wouldn’t have clue what Jackson, Eagle Archery, Inc. v. Golden reasons, appeals’ For these the court (Tex.2003)(O’Neill, J., 757, 776 is re- judgment is reversed and the case concurring). proof For example, to the trial trial. manded court for new employees working around out of four two adequate flint would disregard dissent, Justice O’NEILL filed negate general sufficient to joined. which Justice SCHNEIDER inquiry duty to warn?Does the relevant O’NEILL, joined by Justice Justice blasters, only abrasive or all em- concern SCHNEIDER, dissenting. in and blasting who work facilities ployees (1) acknowledges The Court that only thirty- If to silica exposed are dust? flint, as a is a blasting agent, when used provide percent five of businesses substance, dangerous potentially and fatal conditions, duty the to working safe (2) industry in the did twenty percent If discharged? about health caused not know hazards industry flint the silica used in the of protect and the need properly its use re- bags, bag-suppliers in supplied (3) them, industry employers did against duty to the “indus- of a warn? Is lieved national, “neglected despite their safety know but the try” to which Court refers (4) knowledge,” regional? S.W.3d at to mention state or Not adequate difficulty pre- of and provide obtaining on Humble burden inherent type proof of warning 100-pound bags senting of silica fact-intensive nonexistent,” describes, anal- id. the Court’s “inconsequential or that the Court was (5) myriad ques- and other escaped ysis “Gomez raises these at would 204. 69. Post at likely

tions that will in prove proble- warning pos- to be ent ultimate consumers of matic, best, if sup- at not unanswerable. sible when a manufacturer plies product package in bulk with no of professes support Court to find place warnings. its own on which to Id. at (Second) in approach its the Restatement that, in recognized 592. We some circum- Torts, of the Restatement factors stances, supplier depend could on an clearly compel opposite result. The intermediary warning to communicate a improper application sophis- Court’s the ultimate user. Id. at 591. We analo- ticated-user doctrine this case estab- Alcoa, gized designer and manufactur- dangerous lishes a precedent severely system er a capping of for soft-drink bot- I safety. agree undermines worker While tles, to a bulk because it no “ha[d] sophisticated-user doctrine has package place own on which to its merit apply appropriate and should cir- control, warning except by and no contrac- cumstances, this is not one of them. Ac- tual requirements, package over the final cordingly, I dissent. labeling which reaches Id. at consumers.” Thus, it 592. was difficult for Alcoa to I directly warn consumers of the hazard of America, In Alm v. Aluminum Co. of cap bottle blow off. Id. We stated that we princi discussed several fundamental satisfy duty Alcoa “should be able to its ples guide analysis our cases involv by proving warn consumers inter- its ing a manufacturer’s to warn users of mediary adequately was trained (Tex. product dangers. 717 S.W.2d 588 warned, propensities familiar with the 1986). analysis The Court subverts that product, capable passing on a by ignoring premise: its fundamental warning.” Id. But we also warned that if manufacturer has a to inform adequately Alcoa failed to warn and train potential users of hazards associated with purchaser product, of its product. Exceptions Id. purchaser incapable passing on the general this recognized rule do exist. We warning, received “Alcoa would not have may depend Aim that a manufacturer discharged its to the ultimate con- on an intermediary to communicate a sumer.” adequacy Id. The of Alcoa’s warning to the ultimate user certain stated, intermediary, to its presence situations. Id. But the mere question jury. was a fact for the Id. an intermediary does not excuse the manu facturer those whom it recognized ap We also cases that had reasonably expect endangered should to be plied learned-intermediary doctrine. product’s use. Id. “The issue Bowser, Cooper Id. at 591 v. (citing every original case is whether the manu (Tex.Civ.App.-Tyler S.W.2d facturer has a assurance that reasonable 1980, writ), no and Gravis v. Parke-Davis warning endangered by its will reach those (Tex.Civ. Co., 863, and 502 870 S.W.2d (citations product.” the use of its Id. omit 1973, App.-Corpus Christi writ ref'd ted). n.r.e.)).Under doctrine, drug “when a Aim, In principles helped these frame properly prescrib manufacturer warns specific exceptions our discussion of two to ing physician dangerous propensi of the the general product, rule that a manufac- ties of its the manufacturer is a duty warning patient turer has to warn users. Id. at excused from each One, However, 591-92. “bulk-supplier” drug.” the so-called receives the Id. we circumstances, exception, recognizes the difficulties inher- warned that “even in these

199 II intermediary to is when the the misleading, the manufactur inadequate way to excuse goes out of its The Court injuries er liable sustained remains advise adequately po- failure to Humble’s (citing Id. Bris the ultimate user.” at 592 dangers, product’s of its de- tential users Gonzales, v. 801 tol-Myers Co. 561 S.W.2d no difficul- fact that Humble had spite the Labs., (Tex.1978), Winthrop and Crocker v. bags, provided its ty on placing Inc., 429 Sterling Drug, Div. information in its Techni- Spincote bad (Tex.1974)). Sheet, purchaser to a Fact and sold cal then, not fully has demonstrates did past, In the when the Court that the record recognize gen- dangers seen to the the involved exceptions appreciate fit to reasoning directly eral have a use. This product’s rule manufacturers recognized in potential contrary principles to warn users of involved to the use, exceptions have and the factors described section product’s those Aim Restatement, the narrowly been tailored where of the which Court to situations 388 (1) difficulty Correctly applying our purports the manufacturer would have to follow. (2) itself, providing warning and “its Restatement fac- precedent and the own intermediary adequately presented trained and to the circumstances this tors warned, inescapable familiar with one conclu- propensities the case leads capable the and on a not entitled to the product, passing sion—that Humble is protections. warning.” sophisticated-user Id. doctrine’s (Second) § of Torts 388 See Restatement sophisticated-user exception has (1965). cmt. n recognized been in nature being similar bulk-supplier learned-in- both and several The Restatement articulates fac- termediary exceptions, with all three doc- weighed deciding whether a tors to be finding support in the Restatement trines sophisticat- manufacturer invoke the (Second) of Torts. See Gel In re Silicone factors are doctrine. Those de- ed-user Litig., Prods. Implants Breast Liab. to strike careful balance between signed (N.D.Ala.1995); 1463, F.Supp. 1466-67 safety protecting worker promoting Co., Dycho v. The Whitehead S.W.2d They manufacturers. include: responsible (Tenn.1989); Ausness, Learned (1) prod- dangerous condition and Sophisticated Intermediaries Users: (2) uct; prod- purpose for which Encouraging the Use Intermediaries (3) used; any warn- the form of uct Safety Information, Transmit Product (4) reliability of the given; third ings Syracuse 1216-17 L.Rev. necessary a conduit of informa- party as applying sophisticated-user In (5) product; magni- tion about time, for the first would ex- doctrine one (6) involved; risk tude of the pect recognize excep- that the the Court imposed [supplier] by burdens scope, tion like the bulk- is limited much directly warn all requiring [it] learned-intermediary doc- users. today, applied As the Court trines. Indus., Inc., See, however, exception e.g., Raymark v. sophisticated-user Willis (4th Cir.1990); rule, Smith manufacturers F.2d absolving swallows the 736, Best, Inc., 927 F.2d 739- product of to warn even when the v. Walter C. the (3d Indus., Cir.1990); dangerous Eagle-Picher manufac- admittedly and the Balbos, 604 A.2d easily provide an effective Inc. v. Md. turer could weighs Each of these factors warning. powerfully against inhaled, applying sophisti- the air. Once the dust cannot be re- cated-user doctrine this case. moved. Individuals with silicosis face not only occupational prospects, limited but A. dangerous The condition the of significantly also a span. shortened life product/the purpose product which the grave posed by The health risks silica dust is used weigh against relieving Humble of the Although dangerous silica flint is not likely to warn dangers users the bags, when delivered in purpose the inherent in use. silica’s for which sandblasting— the flint is used— imposed D.The burdens on suppli- highly renders it dangerous. spe- Without by requiring er that all directly users be controls, safety cific inhaling the risk of warned extremely silica dust is high. Consistent Requiring place adequate Humble to an exposure likely to silica dust will lead to warning on 100-pound bags its of silica silicosis, potentially fatal disease. These burdensome; indeed, flint would not be weigh against factors applying sophis- already Humble was placing warning ticated-user doctrine this case. bags in 1983 and has continued to do so. B. any warnings given The form of necessary That more information was found, jury The and Humble does not make the warning adequate does not make contest, that warning placed Humble it burdensome. The much thorough more on its bags during most of Gomez’s sand- warning placed that Humble later on its blasting career was inadequate. Begin- bags slightly longer than original ning before stopped Gomez work- warning considerably more informa- ing as a sandblaster tive, requiring nothing produce more to placed bags on its a much warning clearer than additional ink. highlighted dangers inhaling The acknowledges Court that the bur- dust. The information the newer bagged den on a flint to warn warning was before available Gomez ever nonexistent,” inconsequential “is either Spincote. worked at The form of the later expresses concern that no was different than the earlier might actually reach workers one; only its substance differed. This fac- might be ineffectual it did. 146 weighs against tor application the so- S.W.3d at 193. But application of this phisticated-user doctrine. factor does not turn on the burden a man- magnitude C. The the risk involved ufacturer face if it were required would poses every silica dust to workers possible party affected Raymond like cannot product. be over- Comment 1 to section 388 (Second) stated. The silica that Humble was sold Restatement of Torts makes intended for sandblasting. supplier’s duty Silica is ex- clear that “[t]he is to exer- tremely dangerous sandblasting as a cise reasonable care to inform those for agent; the dust becomes so fíne that it whose use the article is supplied of dan- cannot If eye. gers peculiarly be seen with the naked which are within his knowl- reused, recommended, (Second) edge.” as Humble Restatement of Torts (1965) added). § breaks down further and becomes 388 cmt. 1 If (emphasis dangerous. even more Inhalation of this this factor contemplates burden silicosis, fíne dust can lead to warnings incurable ensure that read would be permanently lungs every disease that scars the possible person using product, body’s ability posits, suppliers routinely and reduces the to take in the Court would appreciation for a lack of place warnings the 1970s due to any relieved of be might dangers posed. silica Studies packaged goods. on While Humble the by the sandblasting industry under circum- commissioned argue be able different National, likely Occupational Safety that would not for stances its Institute users, any early facts reach most the here belie the 1970s showed during and Health case, rou- concern. In this es- “very knowledge, such Gomez little that there was bags actually tinely Humble’s handled com- in the to smaller size pecially medium inadequate warning. And read Humble’s respiratory equip- of on what kind panies exactly type the of worker be be and how it should ment should used expected be to handle Humble’s would “that the study Another indicated used.” its warning. Spincote and see responsible selecting abrasive persons include a requested even ... blasting respiratory equipment the Spanish warning placed version of the nor none too informed interested Spincote bags, indicating believed subject. Their concern with the reach its would safety not with mea- blasting per se and they Clearly, heed it. this would predate studies Go- sures.” While these weighs sophis- against applying factor the Spincote, they tenure at demon- mez’s ticated-user this doctrine case. dangers the of though that even strate forty had been some silica documented E. Reliability party the third as of earlier, industry years sandblasting the necessary conduit of information fully appreciate dangers still did proceeds premise The Court from the average If dust created. “[t]he that silica sandblasting industry that the has known safety firm man ... seems unaware of dangers involved silica’s use since dust,” respirable of problems early gener- While this 1930s. recites, it be as the how can at Court true, ally regarding much of the evidence “industry” conclusively presumed that the industry ex- knowledge indicates that the knew? danger widely appreci- tent of the was not Gray, president ated. Ken vice and head in- cases The Court’s citation other safety at Spincote, regularly walked flint is volving sophisticated users silica through the house respirato- blast without cases bulk unpersuasive. Those involved ry protection, exposing fine sili- himself to foundry shipments facilities. Gray initially ca dust. testified that he Corp., Bergfeld v. Unimin 319 F.3d believed that silica was “nuisance dust” (8th Cir.2003); Smith, 738; at 927 F.2d continually and was about learning Bros., F.Supp. v. Goodbar Whitehead dangers He had not even heard silica. (W.D.Va.1984). Goodbar, court In the term “silicosis” until a for- when intermediary foundry pos- that the found employee mer contracted disease. dangers knowledge extensive sessed ar- Gray acknowledged also he when Goodbar, at 562. F.Supp. of silica. Spincote danger rived at foundry’s president The vice had been fully silica was not understood. Foundrymen’s American member testimony significant Society, problems which had discussed Other revealed foundry setting in the safety problems prior to with dust collection decade information passed along The about employment Spincote. Gomez’s Id. of silica to other members. president former of a different sandblast- that, early as the court ing company overexposure testified that noted 1930s, many had silicosis “absolutely during begun foundries widespread” sand was control programs, which included lungs. Finally, medical of workers’ the Fact Sheet reviews, distribution, information x-rays of reusing recommended flint without high-risk employees, monitoring of si- noting that reuse made the more lica dust concentrations. Finally, Id. the dangerous by creating par- finer silica dust court cited a health study done at the ticles. foundry that “full compre- demonstrated a The Court brushes aside concerns about

hension” of dangers of silica dust. Id. misinformation, Humble’s concluding that at Bergfeld and Smith involved simi- objective industry-wide knowledge of sili- lar Bergfeld, facts. 319 F.3d at 354 ca’s inadequacies renders the (“Bergfeld possessed concedes that Deere Humble’s immaterial. But under of generalized industry kind knowl- Restatement, pro- Humble’s failure to edge Smith.”)-, described in Goodbar and Spincote vide accurate information to Smith, (“Goodbar 927 F.2d at 740 n. 3 weighs against a determination that Hum- virtually involved facts identical to those relying Spincote ble was reasonable in on alleged here.”).Nothing sug- the record knowledgeable as a user of silica flint. See gests Spincote’s knowledge, or the Balbos, (“Under A.2d the Re- knowledge of sandblasting industry statement view a court focuses the con- generally, remotely was even like the supplier duct of the of the dangerous knowledge that intermediary foundries product, not on the conduct of the interme- possessed. the cited cases To the con- diary.”). gives The Court suppliers the trary, suggests the record this case doubt, benefit of the though even the Re- the industry as a whole has been more statement imposes higher degree of re- concerned with product utility than worker sponsibility: safety. Even Humble’s counsel acknowl- may improper [I]t be to ... trust edged during argument oral that the in- conveyance necessary information dustry powerful had a disincentive to ade- highly of the actual of a character dan- quately warn proper warning because a gerous person article to a third of whose might lead “all workers character supplier] nothing. [the knows quit jobs.” their It may well be that supplier] [the should addition, In a central focus of the sophis- may take the risk that this information ticated-user doctrine is the reasonableness communicated, not be unless he exercis- supplier’s reliance on its intermedi- es reasonable care to ascertain the char- ary’s knowledge. steps Humble took no person, acter of the third or unless from determine Spincote’s knowledge level of previous experience him with or from Instead, concerning dangers. silica’s reputation sup- excellence of his Spincote Humble sent a Technical Fact plier positive has reason to believe that Safety Sheet and Material Data Sheet this, In he is careful. addition to if the that contained inaccurate misleading danger ignorant involved in the use of information about silica flint and the dan- particular very great, chattel is gers associated with its use. The Data be does not exercise that respiratory Sheet stated disease could in entrusting reasonable care the com- silica, years exposure result from necessary munication of the information begin when in fact silicosis can after a few person even to a good whom he has exposure. months of Data Sheet also reason to believe to careful. recommended using air-fed hoods as a (Second) eye protection, though § means of even Restatement Torts necessary hoods are keep silica dust out cmt.n recites, employers Spineote like then escapes supplier’s me how reliance

It likely truly They will intermediary can be reasonable should alarmed. on be states, when, as “the to liability failing the Court record gross-negligence face routinely [operators] ne- establishes that lose adequately protect their workers and glected safety measures and did damages from protection punitive the employees.” 146 at 193. The S.W.3d Act Compensation affords. Workers reasoning goes 408.001(b). contorted some- Court’s I § do See Tex. Lab.Code protect thing this:employers like should risk magnitude believe that “ (but don’t), clearly their OSHA patently is ‘so obvious poses silica dust (though require them to regulations community gen and known to the so well ignored), regulations pervasively are question no or erally, that there can be ” (but able to therefore should be existence.’ dispute concerning [its] can’t) rely on actually employers ade- Grinnell, at 427 (quoting 951 S.W.2d dangers inherent in the quately warn 758 Corp., Brune v. Brown Forman I conclude product’s simply use. cannot 827, (Tex.App.-Corpus S.W.2d on reasonably Spin- that Humble relied denied)). 1988,writ Christi knowledge, industry’s cote’s My is that sense the Court’s abandon- knowledge general, to warn those en- products-liability ment of fundamental dangered by product, particularly when judicially cabin attempt is an principles provided the information that Humble was and oft-abused mass-tort widespread inaccurate. from claims that arisen latent work- opinion troubling The also Court’s is like place injuries caused substances respects. For example, other Court’s systemic impact silica asbestos. The and emphasis on the of a likelihood asbestos, for involving exposure cases reaching imports end users causation into example, has created what has been role, duty analysis. any, And what asbestos-litigation crisis”: termed “an common-knowledge plays doctrine danger a tale of known in the [This] analysis proposed confusing. 1930s, inflicted upon millions exposure employers’ general knowledge Court likens 1950s, inju- in the 1940s and Americans to the knowledge of silica’s risks common their began ries that to take toll alcohol drinking can lead intoxi 1960s, beginning and a flood of lawsuits cation, Sons, Seagram E. v. Joseph & Inc. past On the basis of and the 1970s. McGuire, (Tex.1991), 814 S.W.2d 388 data, filing and because of current cancer, smoking lung can cigarettes cause may long last as latency period that as Grinnell, Am. v. Tobacco Co. dis- years 40 for some asbestos related (Tex.1997), standing on an eases, can continuing stream claims fall, open scaffolding can in a result Sau be The final toll asbestos expected. Fabrication, Boyd, der Custom Inc. v. injuries is related unknown. Predictions (Tex.1998), widely each S.W.2d 200,000 dis- made of asbestos have been dangers known or obvious that have ex year and as ease deaths before the product suppliers cused 265,000 by year many as But other contexts. the record demon objectionable aspects of asbes- The most knowledge po strates that common briefly can summarized: litigation tos tentially breathing fatal effects of and state courts dockets both federal industry’s dust is far different. If the grow; long delays are rou- knowledge actually continue of silica’s tine; long; are the same issues specific well-developed as Court trials too over; litigated over and transaction CHARLES, Appellant, costs Maurice Jabarr recovery by exceed the victims’ one; nearly two to exhaustion of assets v. threatens and process; distorts the future claimants lose altogether. The STATE of Texas. Prods., Windsor, Amchem Inc. v. 521 U.S. 1729-03, 1730-03, Nos. 1731-03. 591, 598, 117 S.Ct. 138 L.Ed.2d 689 (1997) (alteration in original) (quoting Re- Appeals Court of Criminal of Texas. port of The Judicial Conference Ad Hoc Oct.

Committee on Litigation Asbestos (Mar.1991)); Fibreboard, see also v. Ortiz 815, 822,

527 U.S. S.Ct. (1999);

L.Ed.2d 715 Org., House Research Litigation:

Asbestos An Inactive Docket 2, 2004),

Proposal (Apr. available at

http://www.capitol.state.tx.us/hrofr/fo- (accessed

cus/asbestos78-16.pdf on Sept. 2004). But as the United States Su-

preme Court has recognized, the solution

to these problems legislative, judi- Amchem,

cial. See 521 U.S. at

S.Ct. 2231. If the Court were to confine role,

itself to its proper it would avoid the jurisprudence

distortion of that will flow today’s decision.

Ill

Breathtaking scope, the Court’s deci- today

sion ventures where no court has before,

gone adopting confusing legal-

ly evidentiary proof immaterial require-

ments to re-examine whether a long recognized

we have exists the first

instance. Because the Court has misinter-

preted misapplied sophisticated- case,

user I doctrine this respectfully

dissent. notes other, being the measure reasonableness that no substantive difference was intend- circumstances, as both comments ed: in Aim. state and as we said Restatement, Second, of Torts n, 388, § utilizes the same Comment contends that it is never Gomez factors set forth in Comment i decid- supplier reasonable to excuse warn ing warning given whether a should be ing directly ultimate users about directly to third It has been persons. warning whenever a is feasible. relied on numerous courts.49 Aim, The determinative factor Gomez i down to three non- Comment distills utterly argues, impossible was that it was exclusive factors the considerations set out machine manufacturer capping for a bottle determining n length at comment soft drink consumers with whom intermediary when a is suf no means of direct contact of the had courts, beginning A ficient. number of That, caps. danger exploding bottle with the federal district court Goodbar continues, analogized why Aim 1984,50 v. Whitehead Bros. case involv supplier, to a bulk position Alcoa’s ing products, have identified six non packaging has no or other medi likewise n: exclusive factors comment um on that will place which (1) product. reach the ultimate users of the dangerous prod- condition (2) uct; fairly strictly. But Aim cannot read so purpose for which the (3) used; to that any compared position the form of Aim also Alcoa’s product is (4) manufacturers, reliability pharmaceutical of of who are warnings given; regarding required patients as a conduit of neces- not to warn party the third long usage prescription drugs as sary product; information about the (5) physicians duly in- have been warned. The magnitude of the risk (6) volved; intermediary” imposed rationale for this “learned the burdens warning from by requiring that he rule is not that a direct on the infeasible, in directly patients warn all users.51 manufacturers dus., Inc., 793, (4th Cir.1990); 905 F.2d 796 48. Id. cmt. i. Co., 1143, F.Supp. Baker v. Monsanto 962 Note, 96) (cita- (Reporters’ 49. Id. cmt. i.5 at (S.D.Ind.1997); Implants In re TMJ 1151 omitted). tions 1019, Litig., F.Supp. 1020 Prods. Liab. 872 (D.Minn.1995); Corp. Lee v. Homasote Sara (W.D.Va.1984), F.Supp. 50. 591 552 sub aff'd Co., 417, (D.Md.1989); F.Supp. 421 Ea 719 (4th Hardy, v. 769 F.2d 213 Cir. nom. Beale Indus., Balbos, 179, gle-Picher Inc. v. 326 Md. 1985). (1992); Hough A.2d v. Hoffman 557; see, Goodbar, F.Supp. e.g., Corp., 751 N.E.2d ton Chem. 434 Mass. Best, Inc., F.2d Smith v. Walter C. (3d Cir.1990); Raymark v. In Willis

Case Details

Case Name: Humble Sand & Gravel, Inc. v. Gomez

Court Name: Texas Supreme Court

Date Published: Sep 17, 2004

Citation: 146 S.W.3d 170

Docket Number: 01-0652

Court Abbreviation: Tex.