Little v. Liquid Air Corp.

from 29 C.F.R. changed opinion be Court’s 553.233, § so 29 C.F.R. § 553.230 to as follows: will read

footnote hourly deputy’s determining each period, the district given work

wage monthly deputy’s multiply the

court should salary, get yearly salary by twelve paid vacation

including a two week The district deputy is entitled.

which each yearly salary then divide

court should year. periods in a of work

by the number the sum then divide

The court should may be regular hours which number of according period in that work

worked in a This will result § 553.233.

C.F.R. deputy’s appropriate of each

determination period in the work deter-

hourly wage court, by the district mined be reissued immediate- that the mandate amended.

ly as herein plain-

IT FURTHER ORDERED IS for assessment of to dismiss and

tiffs’ motion DENIED, and costs be

fees published. be

Order LITTLE, Plaintiff-Appellant,

Wilma

v. CORPORATION,

LIQUID Chevron AIR Company, Manu and Victor Chemical Defendants-Appel

facturing Company,

lees. CARTER, and Next Friend Mother

Linda Carter, Plaintiff-

of Anidra Catrone

Appellant,

LIQUID CORPORATION, Chevron AIR Company, Manu and Victor

Chemical Defendants-Appel

facturing Company,

lees.

No. 90-1807. Appeals, States Court

United

Fifth Circuit.

Oct. Lewis,

Michael T. Lewis, Pauline S. Lewis Lewis, Clarksdale, & MS, for Little and Car- ter. Low, IV,

John L. Eager, & Watkins Jack- son, MS, Air. Hunger,

Frank W. Alexander, Marian S. Lake, Tindall, Hunger Thackston, & Green- ville, MS, for Chevron. Yerger, W. Swan Berry, Gene D. Heidel- berg, Franks, Jackson, MS, Woodliff & Mfg. Victor POLITZ, Before Judge, KING, Chief JOHNSON, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, EMILIO M. Circuit reject thus support a verdict. We would Judges.* reasoning panel and affirm the PER CURIAM: district court. ease, we hold products In this fair appropriately and court the district I the defen summary judgment for

ly granted Little and July Joe Marvin of Marvin plaintiffs are the heirs The dants. employed by Main- Charles Carter were and Little Charles Carter. Little and Joe stream, cleaning they were Inc. where working in welders experienced were barge.2 Both Little and wingtanks of a Car- barge. point, At some of a wingtank who, according welders experienced ter were welding torch devel leading to their gas hose properly employer, been trained to their had manu welding torch was The oped a leak. proper propy- as to the use and instructed Manufacturing Victor defendant factured work, they using a gas. In their were lene by de gas was manufactured Company; cutting manufactured defendant torch Company and Chemical Chevron fendant hoses, attached to two Victor. The torch was Corporation. Liquid Air by defendant sold oxygen propylene gas, one for and one of nasal because' plaintiffs contend The to tanks on the both of which were connected not smell the Carter did Little and fatigue, gas barge. propylene main deck of the causing cigarette, alit gas, and that Carter Chevron, sup- which was manufactured in their deaths.1 explosion that resulted Air, provided Liquid which it plied it to Liquid Air assert that Chevron The heirs through a distributor. Prior Mainstream warning accompanying are liable Chevron, propylene gas distribution fatigue; and warn of nasal gas failed to ethyl mercaptan, with which was odorized torch because a defective is liable that Victor eggs. gives of rotten smell in a tear a “flashback” and caused propylene gas to had sold the Chevron leak, line, in the resulted which hose Air in truckloads Liquid bulk tank with the deaths. proximate was a cause which Liquid Air delivery, provided each with put the test allegations these When Safety Data Sheet Material Chevron’s however, summary judgment, (“MSDS”) following warn- included with evidence to come forward ing: is, recovery, that their supporting or if is Released actually Precautions Material suf that Little and Carter ignition Spilled: all sources Eliminate that nasal fatigue and fered nasal vapor. deaths; vicinity spill released Evac- their connection to a causal bore immediately and do not allow uate the area they likewise failed to establish so. anyone until it is safe do today, to return opinion against In our Victor. entering area to correct summary judgment should be Persons emphasize it is whether safe problem determine this court granted and will be affirmed must com- to resume for normal activities fails to meet its nonmoving party when the Special Protec- ply all instructions and law with facts to come forward burden tive Information.3 recovery that demonstrating a basis for * however, summary judg quiry, to the partici- is limited Judge and did not Duhé recused himself Benavides, plaintiffs may not advance pate Judges Stewart in this decision. ment record when of the court not appeal Parker were not members raise new theories or issues on new to the court en banc case was submitted this to obtain rever properly court before district participate decision. in this Topalian v. Ehr summary judgment. sal of the Cir.1992). man, plain- allegations 1132 n. 10 are the set forth 1.These complaint that was before amended tiffs’ After the motion court. district compartment watertight be- ais 2. The filed, was barge. deck of the low the complaint again to assert to amend moved though Even facts and new theories. different “product pres- warning also stated denied, plaintiffs continued motion hazard,” product fire ents an extreme set forth in their to assert theories “in well ventilated areas.” be should used complaint. Our in- proposed rejected amended Liquid propylene gas

When Air sold the back, noise. When he looked he saw the through Mainstream under its own name fan —which had top been attached distributor, accompanied by being blown the air and into then hatch — provided part: Air’s MSDS that being propelled saw Little wing- out of the Hughes tank. TO BE TAKEN IN ran for help STEPS CASE MA- and cut all the immediately TERIAL off. Little died IS RELEASED OR SPILLED: and Carter days personnel Evacuate all from affected died several later area. as a result of burns appropriate protective equipment. Use Do that he received in explosion. get liquid eyes, clothing. on skin or possible. if Shut off source of leak Protect II ignition. thoroughly. from Ventilate area A equipment, If leak is in user’s be certain to purge gas piping prior inert The families of Carter and Little initiated attempting repairs. If leak is in container for damages resulting actions explo- from the valve, or contact Liq- container the closest sion. and, The actions were consolidated Air uid location. Corporation after initial discovery, the complaints Although Little and Carter against Victor, Chevron, were never stated claims and specifically propylene gas advised that Liquid could Air. the complaint,4 amended the fatigue, every cause nasal Mainstream em- plaintiffs alleged that ployee who testified stated that knew he July On Marvin Little and Joe co- wingtank evacuate the if gas smelled or employee Charles working Carter were in had a leak. the barge doing repair work, hold including July cutting

On use of a welding Little and and re- Carter torch by turned from approximately lunch at manufactured 12:30 Victor. Little was (Fuel Gas) using propylene and also wingtank climbed into the No. 9 to con- manufac- by wingtank their work. The tured Chevron tinue hatch was distributed and sold approximately by Liquid manhole 18 to 20 in Air. inches The hold was an enclosed diameter, part and a of that hatch area was occu- below decks of barge constructed pied with a Hughes, ventilation fan. purpose Earnest for the buoyancy. Except for a Carter, hatch, co-worker of single Little and walked to ingress there was no or the hatch wingtank of the No. 9 egress some few to this hold. Little and Carter returning minutes after from lunch was gas discovered leak and decided to re- get summoned Little to the torch and move the torch from repair the hold to wingtank hose out of the because the hose hose. A short time after the hose was leaking gas. time, was At removed, Carter was longer no smelling gas back wingtank into the Hughes so far that believing safe, the area to be Carter lit a could not see partway him and Little was cigarette. ignition This source of led to an down the leading ladder into the fourteen- explosion of propylene gaseous mixture foot deep wingtank. Little was into the which blasted body Little’s through the wingtank head beneath the hatch about hatchway hold, killing of the instantly. him —his a foot or two—when he Hughes told seriously was Carter explo- burned there was a gas hole the torch’s line. sion and died several days later. Hughes pulled gas the torch and lines respect Victor, out With to defendant the amend- and then laid them on alleged ed complaint gas that the leak was deck of barge. He noticed the hole in caused the “defective negligent de- gas Little, line. still on the sign torch”; ladder specifically, the torch hole, Hughes get then told a repair kit to defective in that it leaking O-ring had a and a fix Hughes the hose. get left repair valve, leaking check which defects caused a and, kit about half a later, minute heard a flashback lead to a leak hose. complaints 4. The essentially both actions are complaint.” as the "amended brevity, the same refer to them both Liquid alleged court first held that Chevron and Air complaint further amended seller/sophisticated to the bulk gas manufactured and distrib- were entitled propylene Liquid purchaser respect Air defec- to Chevron defense. With uted Chevron Air, unreasonably dangerous because the district court also held tive and present proof had failed to gas leads to nasal exposure to this inadequacy warnings of the and the reliably cannot that a worker to the extent warning between the causative nexus At time he lit smell. detect this injury finally The district court suffered. longer no smell cigarette, could plaintiffs had to offer held that fatigue. Both of nasal proof torch was the that the defective Victor Little were unaware Carter and proximate injury. cause gas product of Defendants’ propensity further un- and were cause panel7 first held that the district court exposure to this reduces aware that denying its discretion in did not abuse ability gas.5 to smell eliminates complaint.8 motion to amend their Next, discovery, observing that engaged in 952 F.2d at 845-47. parties had After summary judg- rarely appropriate in moved for the defendants cases, products liability panel held that responded, urging that the plaintiffs The ment.6 plaintiffs not shift to the to to amend their com- the burden did they should be allowed liability produce summary judgment proof because to assert different theories plaint discharge their that, proposed amend- the defendants did bur- without the and even plaintiffs evidence den to establish that the complaint, there was sufficient ed genuine question in of material fact. jury could reach a verdict raise from which conclusion, panel majority opinion, Bolstering this the In a well-reasoned the their favor. that, postulated according to and dis- a set of “facts”9 granted court the motions district panel, plaintiffs prevail allow to claims. The district the would the the missed smell, alleged ability complaint interfere with the to smok- further that tions 5. The amended smell, ability sensory strictly ing liable be- diminishes the to Air and Chevron were manufacturing they ability business of cause "are in the diminish the of one to de- distractions odors; distributing subject gas de- the which is dangerous tect certain environments and/or fective unreasonably dangerous smell; and, in that De- and individuals have ‘mask’ a propensity to warn of its to cause fendants failed sense of smell. little or no they neg- fatigue,” nasal and also liable "because complaint proposed further as- The amended subject gas ligently manufactured sold the imperfection and/or serted as a result of the reasonably warn foreseeable and failed to the nose, advised human the defendants should have unreasonably dan- user ... of the defective gas detectors confined the use of electronic propensities gas.” gerous of this depend allowing on users to areas instead district court denied their sense of smell. The discovery, after Chevron filed 6. After the close of plaintiffs’ motion for leave to amend. the and after the its motion trial, the moved to case had been set for reported panel’s opinion at 939 7. initial is The again. proposed complaint their amend (5th Cir.1991). opinion was That F.2d 1293 changed complaint significantly the amended opinion panel’s is re and the final withdrawn case, both as to the facts and the theories 1992). ported at 952 F.2d 841 Cir. proposed complaint amended did not law. The opinions are not between the two differences allegations and Carter ever include the that Little discussion here. material to our cigarette, the or that Carter lit a smelled Further, gas. previ- igniting while all of the plain- of the late date at which In the solely complaints had relied on ous complaint their tiffs moved to amend failure to warn thereof that nasal changes legal included in and factual extensive deaths, pro- and Carter’s had caused Little agree complaint, proposed amended posed complaint amended also asserted panel the district court’s decision and affirm was defective because the reasons motion to amend for denial of the (ethyl mercaptan) which Defendant odorant opinion. panel’s stated in the propylene oxi- Chevron added to the odorless time, ability of which diminishes the dizes over panel’s postulation because addition, question the 9. We to smell it. the human nose necessary no "facts” have safety some of these adequate an device human nose is not only speculation, not among and are ability in the record to smell varies indi- because the viduals; respiratory upper "facts" at all. infec- disease negligence immediately. on tank in strict The district court erred trial warning inadequate theory that the was question because there was evidence to concerning fatigue: Little Carter whether the failure of Little and Carter caused hose to be discovered the leak and or, immediately negligence evacuate was on wingtank; they then could removed from the hand, attempt the other to follow the longer assuming the no smell the warning. 952 F.2d at 852. odor,10 dissipated fan had remained Judge argued Garwood dissented. He wingtank temporarily rather than follow- ing leaky barge; discharge to the deck of the that hose their exploded they attempt- wingtank then coming burden of forward with sufficient evi- Recognizing that circumstantial ed to leave. permit dence to to find their favor Mississippi evidence is admissible estab- undisputed because it was that Carter liability, panel lish strict noted that evi- leak, Little knew of the it knew perhaps cigarette lit dence that Carter is present wingtank was and that circumstantial evidence he could no explosion very shortly occurred thereafter. longer gas;11 smell Little Therefore, according Judge Garwood, standing on the ladder to “purest speculation” assume Lit- that he circumstantial evidence and Carter suddenly tle and Carter were afflicted with attempting to leave.12 Further, fatigue. warning was not unsupported

Based on this strained and heeded when Carter lit a and also scenario, panel factual concluded that the delayed when Little and depar- by Liquid warnings provided Air and Chev- wingtank. ture from Accordingly, Judge law, inadequate ron were not as a matter of Garwood would have affirmed the district conclusively adequate but also so as to court. require summary judgment in their favor. banc, suggestion rehearing On en a summary, panel “jury held that a majority of should determine this court reflected the view whether the defendants’ propylene to warn that summary failure can cause judgment plainly was so fatigue duty breach of their appropriate, en banc consideration was nec- dangers warn of all of which had actual essary so that district courts will not be knowledge.” or constructive 952 F.2d at misdirected from the lesson of Celotex and its 850.13 progeny summary judgment is and integral part should be “an of the Federal Victor, respect panel With to defendant whole, designed Rules as a which are ‘to holding held that the district court erred just, speedy inexpensive secure the de- allegedly defective torch was not the ” every termination of Corp. action.’ Celotex proximate cause of the accident because of Catrett, 317, 327, 2548, intervening v. 477 conduct of the U.S. 106 S.Ct. (1986). failing warning 2555, to follow the to evacuate the 91 L.Ed.2d 265 Indeed, have, might undermining thus ladder below the hatch. There is no evidence plaintiffs' fatigue sole that nasal was the position pro- that he ever moved from that until reason the supports was not smelled. No evidence pelled barge by explosion. only onto the speculative theory. either position explo- evidence as to Carter's before the wingtank sion is that he was so far in the that he probative 11. There was no evidence that Carter could not be seen. light cigarette. pp. See at 1077-78. infra Nevertheless, lighting of a is an question 13.The whether Air Chev- and/or component plaintiffs' theory essential of the as knowledge ron had actual or constructive of the presented to the district court and as it comes to fatigue” phenomenon alleged by "nasal as it was appeal. us on (an denies) allegation each of them is irrelevant in the failure to supports finding 12. No evidence that Little or actually attempted demonstrate that Little and Carter wingtank. Carter ever suf- to leave the The record fered from nasal evidence shows from the time failure to show Hughes Little first directed to retrieve the causal connection between hose it, repair from the he stood on the the deaths of Little and Carter.

1075 Furthermore, party moving B “demonstrate the must other circuits many years, we and For fact,” of material genuine absence of a issue summary judgment as a “disfavored viewed negate the elements of but need shortcut,” a limited applicable to procedural Celotex, 323, at nonmovant’s case. 477 U.S. Dallas, Armstrong City v. of cases. class 2553; Lujan, at 497 U.S. at 106 S.Ct. see Cir.1993). (5th See Fontenot v. 997 F.2d 62 885-86, If the moving 110 S.Ct. at 3187. (5th 1190, Co., Cir. 1197 Upjohn burden, initial party fails to meet this 1986) (noting toward ambivalence denied, regardless motion must be judges use it as for fear that trial does, response. If the movant nonmovant’s unwary liti to take penny contrivance “catch burden, meet this the nonmovant deprive them of a toils gants into its go beyond pleadings designate must trial”). summary judg Beginning with its specific showing genuine that there is a Catrett, 477 Corp. v. “trilogy,” Celotex ment Celotex, 325, 477 at issue for trial. U.S. 106 2548, 317, 91 L.Ed.2d 106 S.Ct. U.S. Inc., at 2553-54. S.Ct. (1986); Liberty Lobby, Anderson v. L.Ed.2d 202 106 S.Ct. U.S.

(1986); Industrial Co. Matsushita Electric This is not satisfied with burden 574, 106 S.Ct. Corp., U.S. Radio metaphysical Zenith “some as to the material doubt (1986), Supreme facts,” Matsushita, 586, 106 L.Ed.2d 538 475 U.S. at S.Ct. Court, however, our it clear that has made 1356, by “conclusory allegations,” Lujan, at wrong-head to Rule 56 was approach earlier 871-73, at 497 U.S. S.Ct. simply inconsistent with it was ed because assertions,” Hopper v. “unsubstantiated language of the rule. plain Frank, Cir.1994), by only 16 F.3d 92 evidence, Davis v. “scintilla” Chevron us that Supreme Court has instructed (5th Cir.1994). U.S.A., Inc., 14 F.3d 1082 party purpose of Rule 56 is “enable factual favor of We resolve controversies dispute genuine believes there is no who nonmoving party, when there but to the other side’s specific fact essential to a is, controversy, an actual when both at least one sworn averment to demand case parties have submitted evidence contradic process of lengthy that fact before not, however, in the ab tory facts. We do Lujan v. National litigation continues.” any proof, assume that the nonmov 888, sence Federation, 871, 110 U.S. 497 of Wildlife (1990). ing party prove necessary could or would 3177, 3189, To 111 695 L.Ed.2d S.Ct. 888, 110 Lujan, at S.Ct. See 497 U.S. entry certain, Rule 56 “mandates be facts. disputes of (resolving actual material at 3188 adequate time for summary judgment, after nonmoving party “is a in favor of world motion, against party discovery upon ‘assuming’ general aver apart from showing sufficient to fails to make a who ‘specific facts’ needed to ments embrace the an element essen- the existence of establish complaint.... It will not do sustain the case, party’s and on which that to that tial without ‘presume’ missing facts because proof at trial.” party will bear the burden not establish the them the affidavits would Celotex, 322, 106 at 2552 477 U.S. at S.Ct. allege”). injury generally added). Plainly, 56 means (emphasis Rule ren- says: “judgment ... shall be what it Moreover, nonmoving party’s bur pleadings, depositions, if the

dered forthwith case; type of not affected admissions den is interrogatories, answers in affidavits, judgment appropriate any is file, any, if together with the on or is so weak “where critical evidence genuine issue as to ease that there is no show it could not fact that moving tenuous on an essential party is fact and material favor of the nonmov support judgment in of law.” a matter entitled to as 14 Dallas, 56(c) added). City Armstrong v. 997 ant.” (emphasis Fed.R.Civ.P. See, Niagara e.g., Lavespere ty negligence. or in dicta that Our cases have stated sometimes 167, Works, Inc., 178 appropriate Tool 910 F.2d summary judgment generally Machine & is 1990); Corp., cases, (5th Motor products v. Yamaha types liabili- Cir. Trevino in certain such 1076 Cir.1993). nonmoving Summary judgment requires If the trial of a case.

F.2d 62 burden, If, adequate motion party fails to meet no more. after time for discov- summary judgment granted. ery, party produce proof must be cannot that it has case, facts to its then the case should today application Our of Rule 56 —mandat point, at that be resolved and this is true Supreme support in ed Court —finds irrespective type of case. judicial economy, principles of fairness mind, backlogs in particularly principles the With these we turn to high litigation. cost of examine this case. district courts and the required plaintiff A should not be to wait

indefinitely for a trial when the defendant C that can be resolved has a meritless defense claims, both before summary judgment. on motion for Nor court, the district court and before this are required a defendant be to bear the should allegations framed and theories re delay unnecessary and trial to de costs complaint pro flected the amended —the against that has no fend a claim merit. Nei pylene gas manufactured Chevron and party required ther should be to bear the by Liquid distributed Air was defective in trying costs of all of issues in a case when respect: one failure to warn some can and should be resolved on sum fatigue.15 In order to recover under this mary judgment. require Nor is it fair to theory, obviously there must be a causal languish other cases to on the district courts’ injury. connection between the defect and the present trial dockets because of cases that no Laboratories, Wyeth Fortenberry, Inc. v. genuine questions Judge of material fact. As (Miss.1988) (plaintiff So.2d must Fontenot, Rubin stated this court adequate warning show that would have al F.2d “[TJrial would be a bootless conduct); tered Thomas v. Hoffman-La exercise, fated for an result but at inevitable Roche, Inc., (5th Cir.1992) 949 F.2d 806 expense parties, pre continued for the (same); Fairley v. American Hoist & Derrick emption might of a trial date that have been ., (5th Cir.1981) Co waiting litigants impatiently used for other (showing enough defect if it did not judicial queue, and a on burden the court injury). cause contribute to cause of See taxpayers.” International, Inc., also Willett v. Baxter (5th Cir.1991) (defective Notwithstanding long history of sum- F.2d as mary judgment procedure, parties pect product will injury must cause in failure ease). always complain that un- plaintiffs’ argument warn fails fairly deprives party right to have because no supports that Little or one, case heard the trier of fact. No Carter suffered nasal conse question should be quently, heard there is no evidence that nasal fa requiring party tigue fairness of to basic proximate meet was the cause of their evidentiary procedural burdens in the deaths.16 (5th Cir.1989); (Miss.1974) (negligence). 882 F.2d 184-86 Miller- Because our anal- Gastech, Inc., ysis Schmidt v. F.2d focuses on the absence of facts on this com- (5th Cir.1989). element, essentially empty together. That dicta is mon we consider both claims chatter, however, Laboratories, Inc., Swayze we inasmuch as have never See v. McNeil (5th Cir.1987). entry summary judg- reversed district court's of 467 & n. 3 solely particular ment because it involved a class event, allegations. any reject any sug- of summary judgment, Liq- 16. In their motions for gestion appropriateness that uid Air and Chevron asserted this absence of can be determined such case classi- supporting facts the elements of the fication. theory recovery. moving parties Because the proof do not bear the burden of on these issues at trial, plaintiffs’ allegations negligence they required negate

15. The sound in were not the exis- facts, liability, require proof and strict they both of which tence of satisfied their burden Fontenot, prod a causal connection between the defective under Celotex. See 780 F.2d at 1195. plaintiffs’ injuries. uct panel apparently applied See Daniels v. mistaken GNB,Inc., (Miss. 1993) (strict 629 So.2d an incorrect standard when it held to the con- Matthews, Celotex, liability); trary. Ford Motor Co. v. So.2d 952 F.2d at 847. Under the bur- smelled; testimony they eould not be there was that offered no concede plaintiffs ventilating may fan have speculating Little and Carter ever direct evidence They tank; fatigue. from nasal out the odor from the and there actually suffered drawn however, that Carter testimony speculating that we can infer that the odorant argue, fatigue Furthermore, from the suffered nasal may altogether. and Little failed it have they not evacuate and did easy speculate that Little and equally is Any inference drawn cigarette. lit a Carter gas may have smelled the but re- Carter facts, assuming that even from these temporarily rather than mained the tank record, in the underlying supported facts are they anticipate climbing because did not out only that the cause of their proves at best igniting an source.19 gas, not injuries failure to smell the was the Moreover, placed when the context of their failure to smell that the cause of ease, testimony plaintiffs’ ex- of the Thus, fatigue. evidence estab- gas was nasal Colver, Phillip pert fatigue, Charles on nasal al- between the lishing a causal connection as a does not injury warning and the leged defect explaining why Little and Carter remained lacking. is suffered that whether He testified wingtank.20 any fail to reveal The facts of this ease may depends occur and when nasal of Little and for the conduct explanation exposure length of time of on the Indeed, cause of the accident. or the Carter odorant, partic- strength as well as the degree any does not reveal the evidence exposed to the odorant. ular individual who is certainty and Little did or whether Carter Yet, concerning record is silent how respect, the In this not smell the gas.17 apply in this case. The of these factors they only point: one were is clear on record concerning no facts time of record contains they had dis- gas because aware of the leak leaked, the volume exposure,21 Beyond gas hose. the hole in the covered fan temperature, the effect of the ventilation that, only to lead the facts the record strength odo- consequently, the why and Carter did speculation as to Little exposure. Nor do we rant at the time wingtank when immediately evacuate the extent Little’s and Carter’s know what fatigue is leak. Nasal knew olfactory susceptible individual senses nor theory, neither more speculative one fatigue. phenomenon to the of nasal any of in this record than supportable less speculative the other theories.18 Finally, infer that Carter and we cannot alleged fact from the was, testimony spec- Little smelled example, There no evi- sufficiently that lit a gas may have ulating that the district court dence was adduced before dissipated that it was on the floor so oxygen actually using torch to come manded for shifted to the den therefore workplace, em- uphold conduct that the blow-clean his with evidence that can forward Therefore, dangerous. plaintiffs, clearly ployer as characterized verdict. The that, long-time, experienced possible weld- meet this burden. accident, constantly exposed, to the without ers dangers note, however, rejected in their 17. We areas, and Car- in confined Little complaint, have with- amended safety pre- indifferent to routine ter had become allegation that Carter and Little drawn the their lives. that would have saved cautions gas, be fatal an omission that would smelled fatigue theory. the nasal to fatigue hap- opined merely that nasal 20. Colver always happens," pened "it in this case because plaintiffs' argument, the coun- 18. At en banc oral degree to which it although know the he did not that, assuming agreed that Little and Carter sel occurred. gas, could have to smell the that failure sys- fatigue, by the ventilation caused nasal been undisputed testimony that the lunch is 21. The tem, of the odorant or other reasons. a failure explosion the oc- at 12:30 and that hour ended 12:45, although approximately the negligent concerning grossly curred at Speculation such 19. argu- acknowledged plaintiffs' at oral by testimony counsel three could be fueled conduct accident, guestimates.” "best repri- that these times were ment the Little had been weeks before light that cigarette.22 best, Carter did a At and no evidence that opened, pack an new of the smoker, record shows Carter was a cigarettes missing with one was found in the that he had smoked earlier in day, the that wingtank or on Carter. bought pack cigarettes he a and perhaps a sum, if it even is lighter at assumed that lunch there were smoked Carter and Little did not cigarette smell the gas, there butts on the floor of is no evidence that explosion.23 facts, after fact would These jury’s are not conclusion that fatigue evidence sufficient from nasal which a was the could reason. simply conclude that the The record ignition supplies source of the no an attempt any was light whatsoever, Carter’s to swers of cigarette kind and does not wingtank. begin example, suggest For there is no evi- which of speculative dence that there cigarette, theories for remaining unsmoked their in the tank is parts cigarette, plausible. an unsmoked most on the In the absence of evidence wingtank;24 floor of the no evidence that on the points various above, we have noted explosion flash destroyed would have cig- fatigue nasal only many remains spec one of arette that allegedly Carter light; tried no ulative why reasons Carter and Little re regarding evidence whether a cigarette light- mained in wingtank, knowing that there er or matches were found in wingtank;25 had been a leak.26 Consequently, 22. The absence of supporting brief, reply in their supplemen- none cigarette that Carter lit a is underscored sure, tal en they banc brief. To be do not even plaintiffs' last-minute efforts to amend their com- ruling address the district dismissing court's plaint allegation. and withdraw this These ef- liability strict grounds claim on assumption suggest forts that the either must have risk; any challenge to the district ruling court's they prove assumed that could not that Carter lit point on that is therefore deemed waived. Unit- cigarette lighting or that the cigarette Valdiosera-Godinez, ed States v. supplied the possible defendants with defenses to (5th Cir.1991). Although argu- at en banc plaintiffs' claims. ment the disavowed to com- intent pletely Victor, against abandon their claims 23. The record also light- shows Carter had a they spent note that addressing time no those er wingtank, for his torch in lighter but that Indeed, claims. in an effort to bolster their pocket still his explo- trousers after the argument itself was defective be- sion. It is inconceivable that he would have fade, they cause of odorant seemed to embrace put igniter been able to pocket back in his opinion expert of Victor’s that the tear in the explosion. after the line was caused an external heat source at morning time earlier in the and was not plaintiffs' 24. expert testified caused a defective torch. cigarettes that no individual were found in the Assumption of the risk is a valid defense under wingtank, although the source of his information Rose, Mississippi law. See v. Saxton 201 Miss. is unclear. (1947). 29 So.2d 646 Notwithstanding the musings sometime Mississippi 25. The Supreme expert also testi- concerning fied Court vitality that “there continued was found matches that he ob- during hour," defense contributory tained although negligence lunch he does Also, Mississippi’s adoption fault, state where comparative were found. he testi- Co., fied purchased see cigarette Supply that Carter Braswell v. lighter Economy at 281 So.2d lunch, (Miss.1973), but there was no further doctrine has evidence con- been reaffirm cerning lighter. terms, ed in unequivocal Nichols v. WesternAuto Co., Supply (Miss. 1985), 477 So.2d 261 and actu plaintiffs, noted, as we have ally also asserted apply products extended to liability cases. against claims liability negli- Victor strict Id. pronouncements, In its most recent the Mis gence. granted The district court Victor's Court, mo- sissippi Supreme banc, sitting en reaffirm tion grounds on the doctrine, Ritter, ed the McDaniel 556 So.2d (1) respect claim, negligence with to the (Miss.1989), justice with one dissenting. and Little's failure light- to evacuate and Carter’s (Sullivan, L, So.2d dissenting). ing superseding causes that re- To the contributory extent that negligence and and, (2) lieved liability Victor of respect assumption of distinguished the risk are de- claim, the strict Carter and Little as- gree, contributory negligence pale crosses the failing sumed risk wing- evacuate the assumption into plaintiff's of risk when the con- tank. duct merely negligent grossly even —or appeal, On plaintiffs the hardly instead, any negligent devote plaintiff's the conduct is a —but space or wilful, time to against their claims Victor— challenge venturous fully-appreciated to a two-plus pages brief, opening in their danger none to his safety. own self-interest and This ignore Little Carter to ex- determining what caused and was correct court district safety precautions warnings and to plicit satisfy burden of their failed to plaintiffs the they wingtank when discovered sup- evacuate the that would coming forth with evidence leak. jury verdict. port a majority attempted

Although panel to Ill theory upon present and assume facts recovered, plaintiffs might have it which the conclusion, as the we reiterate In plead- plaintiffs’ was not free amend the district presented to pled and case proved might facts that be ings or to assume theory of court, their sole based by the record. The but are not established and that Little Car- recovery premise on the plaintiffs’ of evidence to absence their fatigue and that from nasal suffered ter clearly recovery this case of made theories Air and Chev- resulted from deaths summary appropriate judg- plainly and phenome- of this to warn them ron’s failure fairly and The district court thor- ment. summary response to motions non. plaintiffs’ claims and oughly considered the upon incumbent judgment, it was therefore complaint should be determined that the dis- conjec- just present evidence—not them court was correct and missed. The district fatigue did speculation and ture —that therefore connection it causal and that bore some occur AFFIRMED. of Little and Carter. with the deaths discovery and ex- completion After the of JOHNSON, Judge, with whom Circuit court, district briefing here and tensive POLITZ, Judge, joins, dissenting: Chief (1) emerge: salient these (2) majority opinion herein does con- wingtank; gas leak in the was a there (8) leak; majority’s principal panel conclusion. test the and Little knew of the (4) genuine was that there was a if That conclusion explosion; and Carter and anwas there of fact as to whether the warn- issue material employer’s instruc- had followed their Little inadequate ings product on this by the defen- tions, warning provided and the leak, danger that they they did not warn of the “nasal dants, of a in the event to evacuate ability facts, fatigue” degrade could an individual’s Beyond these not have died. would gas. presence the odorized of how it to detect why happened, it and happened, what Cir.1992). (5th Instead, 841, 850 952 F.2d only speculation. The happened is majority that the evidence that to adduce concludes simply not meet their burden the decedents were affected upon juror could determine which Co., (Miss. 366 So.2d 661 by Mississippi’s v. Praschak Machine definition is reflected distinction 1979). “(1) Finally, undisputed facts show con assumption of risk: elements of of Knowledge Carter, accepting clusively party that Little injured of a and part on the of (2) danger, to evacuate but instead safety; appre chose not known with his inconsistent condition knowledge wingtank. Their danger remained in the injured party of the of ciation condition; they taught only evacuate (3) experience should voluntary a deliberate leak; they learning immediately upon expose of injured party part on the choice danger stayed danger chose risk person a manner as to nonetheless to that in such his register knowledge had full danger after on the assent continuance Co., the torch's Alley Machine malfunction. v. Praschak condition.” ous facts, given 1979). undisputed (Miss. Given these So.2d effectively case, plaintiffs have waived the argued by plain fact that the pled In this as. assumption tiffs, application of the court’s undisputed knew district that Little and Carter it is facts, is clear that this to these malfunctioning risk doctrine torch had caused Victor’s recovery legal principle dangerous bars imminently gas leak that created an leak, Although respects. against dis- Victor in all knowledge al Their situation. negligence Victor, claim on court dismissed trict leged to have been caused appropriate for us to ground, it is affirm directly given another specific them instructions supported immediately court on basis under the district employer to evacuate their Army, circumstances, experi Department record. Morales v. with combined these Cir.1991). welders, thus affirm district possession We put "in them ence in favor entry legally [they] court’s would be from which fact[s] Alley danger.” Victor. charged appreciation 1080 fatigue and that nasal a bore causal relation Even if incorrect, this conclusion is though,

to the was too speculative accident to survive it is difficult why to see this case merited en Maj. judgment. op. at 1071. bane review. case This very announces little Instead, new However, law. it simply there was circumstantial evi- reiterates familiar dence to both of these flowing conclusions.1 standard Supreme That from evidence showed that Court’s trilogy decedents of sum initially smelled the mary in that they discover- applies cases and then that ed the leak. There was testimony also that standard the facts of case. this Celotex phenomenon nasal is a always Corp. Catrett, v. 317, 477 U.S. 2548, 106 S.Ct. occurs, extent, least and that it 91 (1986); L.Ed.2d 265 v. Liberty Anderson your works to ability diminish to detect an Inc., Lobby, 242, 2505, U.S. S.Ct. Additionally, odor. there was evidence that (1986); L.Ed.2d 202 Matsushita Electric In cigarette lit a some time after the dustrial Co. v. Zenith Radio Corp., 475 U.S. leak was suggests discovered which 574, 1348, 106 S.Ct. (1986). 89 L.Ed.2d 538 decedents longer could no gas.2 smell the real difference majori between the evidence, From this circumstantial jury a ty and the dissent application herein is the readily could infer that the decedents’ inabili- particular this ease to that famil ty to smell gas, obviously which was iar standard. hardly This worthy seems present quantities sufficient to cause the en bane consideration. explosion, caused, in part, at least For this well, additional reason as this fatigue. writer dissents. Viewed in light a most favorable to the plaintiffs, this writer concludes that this view reasonable, the evidence was merely

speculative, and for a jury accept reject.

See Rouge Baton Bldg. & Constr. Trades Constructors, Council v. Inc., Jacobs UNITED America, STATES of (5th Cir.1986) curiam) (in F.2d (per Plaintiff-Appellee, reviewing a summary judgment, we must review evidence and inferences to be drawn Will PALMER, in a Arthur therefrom most favorable to Defendant- the non-moving party). Appellant. If this view of the evidence is accepted, then it would be suffi- No. 93-8775. genuine cient to raise issue material fact United States Court Appeals, as to did, whether the fact, decedents Fifth Circuit. experience and whether this bore a causal relation to the accident. Fed. Oct. 1994. 56(c). R.Civ.P. For reasons, these and for Rehearing Denied Dec. 1994. the reasons stated the panel majority opin- ion, this writer adheres to the view that

summary judgment in this case was inappro-

priate. 1. Because direct evidence facts that under- explosion. Moreover, after the as the lie a liability strict available, claim is seldom problem with the welder had caused a break in Mississippi law has determined that circumstan- work, it is unlikely that Carter take would tial evidence allegations in a strict advantage of stoppage that work smoke competent BFGoodrich, case proof. Inc. v. cigarette. Finally, testimony there Taylor, (Miss.1987). 509 So.2d there ignition was no other source in the tank which could have explosion set off the majority which led strength attacks the evi- witnesses to supporting dence conclude that Carter must ciga- view that have lit Carter lit a cigarette. rette in Surely, ignited tank and that gas. from this circumstantial evi- shows, however, dence, The evidence conclude, Carter was a reasonably could and not smoker, purchased cigarettes had he just speculate, did, fact, that Carter light a perhaps lighter day earlier that and that there cigarette. were smoked butts on the floor of the

Case Details

Case Name: Little v. Liquid Air Corp.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 26, 1994

Citation: 37 F.3d 1069

Docket Number: 90-01807

Court Abbreviation: 5th Cir.