Edward Trent, Jr. v. Ppg Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-989
(Consolidated with 05-990, 05-991, 05-992, and 05-993)

EDWARD TRENT, JR., ET AL.

VERSUS

PPG INDUSTRIES, INC., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 1999-8503
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Glenn
B. Gremillion, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

Bradley Charles Myers
Charles S. McCowan, Jr.
Glenn Michael Farnet
Kean, Miller, Hawthorne, D’armond,
McCowan & Jarman, L.L.P.
Post Office Box 3513
Baton Rouge, LA 70821-3513
(225) 387-0999
COUNSEL FOR DEFENDANT/APPELLEE:
Lyondell Chemical Company

Terrence D. McCay
One Lakeshore Drive - Suite 1600
Lake Charles, LA 70629
(337) 430-0350
COUNSEL FOR DEFENDANT/APPELLEE:
Lyondell Chemical Company

Thomas M. Bergstedt
Felton Paul Leger
Brian W. Arabie
Bergstedt & Mount
1011 Lake Shore Drive - Suite 200
Lake Charles, LA 70601
(337) 433-3004
COUNSEL FOR DEFENDANT/APPELLEE:
Olin Corporation

Tina Louise Wilson
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Edward Trent, Jr., Individually and as
Administrator of the Estate

AMY, Judge.

In this consolidated personal injury dispute, the plaintiffs alleged that they were

exposed to, and injured by, toxic chemicals on the defendants’ properties. The

defendants filed motions for summary judgment, which the trial court granted. The

plaintiffs appeal, asserting two assignments of error. For the following reasons, we

affirm.

Factual and Procedural Background

The record indicates that Edward Trent, Angelo Honore, Shannon Reed, Elbert

Reed, and Darvin Ramirez (the plaintiffs) were employed by Ron Williams

Construction Company (Ron Williams). Ron Williams and PPG Industries entered

into a contract whereby Ron Williams would build a piperack to traverse the

properties of PPG Industries (PPG), Lyondell Chemical Company (Lyondell) and

Olin Corporation (Olin). The plaintiffs worked on the piperack project from

December 1998 to January 1999. Construction of the piperack included digging

holes in which to place the footings of the piperack.

The plaintiffs stated that while the holes were being dug, they noticed that the

sub-surface soils were discolored. According to the plaintiffs, strong, pungent odors

emanated from the holes. Although the plaintiffs could not pinpoint the smell, they

opined that it may have been ammonia. The plaintiffs’ job duties included digging

holes in which to lay the cement footers for the piperack, helping clean off the auger

used to drill holes as it came up out of the freshly dug soil, shoveling soil from around

the sides of the holes, shoveling cement into the holes, and cleaning the area of excess

soil.

The plaintiffs alleged that the odors made them ill. They experienced various

symptoms, which included skin rashes, sinus troubles, burning nasal passages, nose

bleeds, dizziness, and feeling sick to their stomachs. According to the plaintiffs, they

reported the odors and their symptoms to Ron Williams’ on-site supervisor, Lee

Douget. Jamie Venable, Ron Williams’ Safety Coordinator, was also informed of the

incident. The record reveals that Mr. Venable prepared memos, which documented

the plantiffs’ complaints and what further action was taken.

The plaintiffs subsequently filed this claim for negligence. Although several

defendants were named, only Lyondell and Olin remain as the other defendants have

been dismissed from the case. Lyondell filed a motion for summary judgment on the

issue of breach of duty of care, which the trial court denied. Olin filed a motion for

summary judgment arguing that it did not owe a duty to the plaintiffs; therefore, the

plaintiffs could not prove that “Olin’s actions constitute[d] a breach of the standard

of care.” The trial court denied this motion.

Lyondell filed a new motion for summary judgment on the issue of causation,

specifically whether the plaintiffs’ alleged injuries were caused by an alleged

exposure and whether this exposure occurred on Lyondell property. In its motion,

Olin argued that the plaintiffs failed to prove that Olin breached a duty owed to them

and that they also failed to prove a causal relationship between any alleged exposure

and their injuries. The trial court granted Lyondell and Olin’s motions for summary

judgment. The plaintiffs appeal, designating the following as error:

1. The trial court erred in granting the defendants’ Motion for
Summary Judgment by finding that because the plaintiffs had not
been able to identify the chemical(s) to which they had been
exposed, a causal connection could not be made between the
exposure and plaintiffs’ injuries.

2. The trial court erred in failing to consider the applicability of the
doctrine of res ipsa loquitor in this case.

2

Discussion

Summary Judgment

The plaintiffs argue that Lyondell and Olin were negligent because they did not

“test the soil under and around the area in which the plaintiffs would be working to

assure that the area was clear of underground contaminants.” They claim that during

the construction of the piperack across Lyondell and Olin properties, they were

exposed to toxic chemicals, and they all suffered similar symptoms. The plaintiffs

contend that it would have been difficult, if not impossible, to determine the

chemicals to which they were exposed because the holes were filled with concrete

after they were dug. The plaintiffs, therefore, argue that the trial court erred in

granting the defendants’ motions for summary judgment “simply because the

plaintiffs could not pinpoint the exact chemical to which they had been exposed.”

They cite Housley v. Cerise, 579 So.2d 973 (La.1991) in support of their argument.

“An appellate court will apply the de novo standard of review when reviewing

a summary judgment and will use the same criteria that govern the trial court’s

consideration of whether summary judgment is appropriate.” Lamoco, Inc. v.

Hughes, 02-1498, p. 4 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, 70, writ denied, 03-

2603 (La. 12/12/03), 860 So.2d 1156. Summary judgment is appropriate when “the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to material fact, and

that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

A fact is material if it potentially insures or precludes recovery or determines the

outcome of a legal dispute. Istre v. Meche, 05-303 (La.App. 3 Cir. 11/2/05), 916

So.2d 307.

Louisiana Code of Civil Procedure Article 966(C) provides in pertinent part:

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(1) After adequate discovery or after a case is set for trial, a
motion which shows that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law shall be granted.

(2) The burden of proof remains with the movant. However, if
the movant will not bear the burden of proof at trial on the matter that
is before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

Louisiana Code of Civil Procedure Article 967(B) provides:

When a motion for summary judgment is made and supported as
provided above, an adverse party may not rest on the mere allegation or
denials of his pleadings, but his response, by affidavits or as otherwise
provided above, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary judgment,
if appropriate, shall be rendered against him.

The record indicates that a hearing on Lyondell and Olin’s motions for

summary judgment was held on January 6, 2005. During that hearing, Olin argued

that pursuant to their right-of-way agreement with PPG, PPG “assumed the duty to

protect and take care of worker safety.” Olin argued, in the alternative, that even if

it owed a duty to the plaintiffs, there was no breach of that duty. The trial court

denied the motion for summary judgment, stating:

I am going to deny the motion for summary judgment; but I am
putting you on notice, Ms. Wilson [plaintiffs’ counsel], that another one
is coming pretty soon where you are going to have to present some
expert to say that there is some connection, that there is something out
there. . . . And I am not going to let this case go to a jury or to anybody
on the supposition that because I complained of something -- it ain’t
going there.

Lyondell also argued that it did not owe a duty to the plaintiffs, and if the trial

court finds that there was a duty, Lyondell did not breach it. Although the trial court

4

denied this motion, it reiterated that the plaintiffs would need to “produce anybody

to document where the situation is[.]”

Lyondell and Olin subsequently filed new motions for summary judgment, and

a hearing was held on April 19, 2005. Lyondell and Olin argued that the plaintiffs

could not prove a number of essential elements of their negligence claim.1 They

referenced the fact that the plaintiffs could not identify the chemicals to which they

were allegedly exposed. Furthermore, the plaintiffs did not present any direct

evidence that established a causal relationship between the plaintiffs’ alleged injuries

and the work performed on the piperack project. In an effort to prove that their

injuries were caused by a chemical exposure, the plaintiffs offered the opinion of their

treating physician, Dr. Thomas Callender, that they were “definitely exposed to

something during that time.” The record does not indicate that Dr. Callender gave a

deposition or submitted his opinion in affidavit form. We note, as the trial court did,

that the plaintiffs’ medical records were not certified.2

In granting Lyondell and Olin’s motion for summary judgment, the trial court

stated:

What I have tried to encourage you [plaintiffs’ counsel] to do is
to go get a soil testing company to dig a hole right next to a footing to
see if there is something in that dirt.

1
We note that in order to prevail on their negligence claim, the plaintiffs must prove all five
elements of the “duty-risk” analysis. In Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440, p.
7 (La. 3/23/01), 782 So.2d 606, 611 (citations omitted), the supreme court stated:

The determination of liability under the duty/risk analysis usually requires proof of
five separate elements: (1) proof that the defendant's substandard conduct was a
cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (2) proof that the
defendant’s conduct failed to conform to the appropriate standard (the breach
element); (3) proof that the defendant had a duty to conform his conduct to a specific
standard (the duty element); (4) proof that the defendant’s substandard conduct was
a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection
element); and (5) proof of actual damages (the damages element).
2
The plaintiffs’ medical records are not in the record but simply attached to their brief.

5

I think that you have that burden of proving that, that there is
something in that dirt, because that’s your allegations, as we are digging
up the hole, we get this stinky smell, the dirt is a different color.
Something is wrong with the dirt. Okay?

Your clients are not experts. They can’t tell me the difference
between sandy lommie [sic] soil, lommie [sic] soil and sandy soil -- or
clay or whatever it may be. Somebody has to tell me that they have
looked at that dirt and it’s dirty dirt.
....

I am satisfied that plenty of time has gone by for something like
that to happen, and I see nothing forthcoming. I think you have a
burden of proving the causal relationship between something there; and
you don’t have something there. So, for that basis, I am going to grant
motions for summary [judgment] by both defendants.

After reviewing the record, we note that Lyondell and Olin presented evidence

in support of their position that the area in which the plaintiffs were working was

safe. According to Lyondell, before any work commenced on the piperack project,

PPG contracted with Soil Testing Engineers, Inc. to conduct a geophysical analysis

of the soils within the right-of-way for the project route. “[F]our soil borings to a

depth of thirty feet were conducted on Olin and Lyondell property with no indication

in the report of offensive odors, unusual soil conditions, or the presence of any ‘toxic

or hazardous’ substances or materials.”

Lyondell also completed an excavation permit prior to construction of the

piperack. According to Morgan French, Lyondell’s South Region Health, Safety and

Environmental Manager, the purpose of the excavation permit is to “identify any

hazards that might be out there that someone would run into while they are doing

excavation.” In his deposition, Mr. French testified that this permit did not identify

any hazards; thus, the work could proceed safely. In addition, Lyondell and Olin

issued “safe work” permits each day. With regard to Lyondell’s safe work permits,

Mr. French stated that a Lyondell employee and a Ron Williams representative would

go out into the area where work was to be done that day and discuss “the potential

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hazards that they may encounter, what type of personal protective equipment may be

appropriate for the job[,]” etc. None of Lyondell’s safe work permits indicated the

presence of toxic chemicals or any other hazardous substances. Olin’s safe work

permits did not indicate that drilling could not be safely performed in the right-of-way

area or that there were toxic chemicals in the soil.3

Lyondell and Olin have pointed out that there is an absence of factual support

for one or more elements essential to the plaintiffs’ claim, i.e., the plaintiffs will not

be able to prove that Olin and Lyondell breached any duty that may have been owed

to them, what chemicals they were allegedly exposed to, or a causal link between the

injuries alleged and the work performed on the piperack project. Therefore, the

plaintiffs were required to “produce factual support sufficient to establish that he will

be able to satisfy his evidentiary burden of proof at trial.” La.Code Civ.P. art. 966.

The plaintiffs’ deposition excerpts indicate that they smelled strong, pungent

odors emanating from the holes that had been dug. They testified that the fumes were

ammonia-like in nature. We note that Darren Swisher, Lyondell’s Safety Manager,

drove along a roadway near the piperack project and smelled what “appeared to be

ammonia.” He approached the plaintiffs, and they commented on the smell. Mr.

Swisher proceeded as follows:

I then went and obtained ammonia tubes and ‘sniffed’ in the holes as
well as about 1' [foot] above the holes. I was picking up high readings
inside the hole, but when I sniffed 1' away from the hole I was not
picking up any hazardous levels (well below the OSHA PEL).

Although the plaintiffs may have been exposed to ammonia, they have not

presented any evidence indicating that the extent of any such exposure was a breach

3
We note that on Olin’s safe work permits, one of the items listed is “Excavation Permit
Required” and there is a block to check for “Yes” or “No.” On several of these permits, the box next
to this designation is checked “Yes”. When asked what this meant, James Brown, Olin’s Director
of Environmental Mediation, explained: “It could mean one of two things. I’m not sure if the Lake
Charles plant procedure called for a separate excavation permit or whether this Contractor Safe Work
Permit served as the excavation permit.”

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of either defendants’ duty owed to them or that it was of such a level so as to cause

the injuries they complained of. As previously mentioned, Lyondell and Olin’s safe

work permits did not indicate the presence of any hazardous substances. The

plaintiffs further failed to produce any soil samples which prove that the soils in

which they were digging were contaminated by toxic chemicals. Neither have the

plaintiffs presented any certified reports from physicians confirming that their injuries

resulted from exposure to toxic substances. Furthermore, the plaintiffs lack

documentation that their injuries were caused by chemical exposure specifically

located on the property of either defendant. The plaintiffs simply allege that they

were exposed to chemicals along the piperack route. Even if we were to assume that

the plaintiffs were exposed to chemicals on the property of both defendants, perhaps

the exposure on only one was sufficient so as to cause the complained of injury.

We conclude that the plaintiffs have not met their burden with regard to breach

or causation. Therefore, we affirm the trial court’s granting of the motion for

summary judgment in favor of Lyondell and Olin.

Res ipsa loquitur

The plaintiffs argue that the trial court erred in failing to consider the

applicability of the doctrine of res ipsa loquitur in this case. They contend that

“enough circumstantial evidence exists to create a genuine issue of material fact as

to the cause of the plaintiffs’ injuries that would preclude the granting of summary

judgment on this issue.”

“[R]es ipsa loquitor permits a factfinder to examine the circumstances

surrounding an incident and infer negligence on the defendant’s part.” Perkins v.

Wurster Oil Corp., 04-692, pp. 4-5 (La.App. 3 Cir. 11/10/04), 886 So.2d 1229, 1233,

writ denied, 04-3011 (La. 2/18/05), 896 So.2d 35. “The doctrine merely assists the

8

plaintiff in presenting a prima facie case of negligence when direct evidence is not

available.” Cangelosi v. Our Lady of the Lake Reg. Med. Ctr., 564 So.2d 654, 665

(La.1989). “[R]es ipsa loquitur is applied after all of the evidence has been

presented.” Id. at 666.

We find that the doctrine of res ipsa loquitor is inapplicable here. While

ultimately no direct evidence may be available in this case, the plaintiffs have failed

to prove that it does not exist or that it has been destroyed. Rather, they appear

simply to have not found any direct evidence. In response to the trial court’s question

as to whether an expert tested the soil on Olin and/or Lyondell property, plaintiffs’

counsel stated:

That wasn’t done at the time. We were told by Ron Williams that the
footings we [sic] filled with concrete so we couldn’t get in there. I
understand that we could have gotten to them; and, unfortunately, that
wasn’t done at the time the claim was made. And it hasn’t been done.

We note that as of April 19, 2005, the date of the hearing on the summary

judgment motions, the plaintiffs had approximately six years in which to test the soil

in the areas where the work was performed. Although the holes were subsequently

filled with concrete, the record does not contain any testimony indicating that it

would be fruitless to perform testing due to circumstances surrounding the site/sites

or due to lapse of time. Accordingly, we find that the plaintiffs’ failure to obtain

direct evidence does not warrant application of the res ipsa loquitur doctrine.

This assignment has no merit.

DECREE

For the foregoing reasons, the judgment of trial court granting Lyondell and

Olin’s motions for summary judgment is hereby affirmed. All costs of these

proceedings are assessed equally against the plaintiffs, Edward Trent, Angelo

Honore, Shannon Reed, Elbert Reed, and Darvin Ramirez.

AFFIRMED.

9

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-989

(Consolidated with Nos. 05-990, 05-991, 05-992, & 05-993)

EDWARD TRENT, JR., ET AL.

VERSUS

PPG INDUSTRIES, INC., ET AL.

THIBODEAUX, Chief Judge, dissenting.

The doctrine of res ipsa loquitur is, in my opinion, applicable. The Trent

Plaintiffs all allege that strong, pungent odors emanated from the holes where the

footings of the piperacks were placed. Some of the men described it as an ammonia-

type smell. All of the Trent Plaintiffs were required, as part of their job duties, to

assist in the digging of the holes and filling them up with cement. Specifically, they

were required to dig holes in which to lay the cement footers for the piperack, help

clean off the augur used to drill holes as it came up out of the freshly dug soil, shovel

soil from around the sides of the holes, shovel cement into the holes, and then clean

the area of excess soil. While there were up to two dozen other men working on the

piperack construction project, only the five Trent Plaintiffs were required to come in

such close contact with these holes and the soil pulled out of them.

All five men claim that whatever they were smelling made them sick.

Reported symptoms included: skin rashes, sinus troubles, burning nasal passages,

nose bleeds, dizziness, and feeling sick to their stomachs. One of the Trent Plaintiffs

described the smell as unbearable. All five of the Trent Plaintiffs claim that they

complained about, and reported, the odors and their symptoms to Ron Williams’s on-

site supervisor, Lee Douget. There are also memos in the record from Ron Williams’s

Safety Coordinator, Jamie Venable, which document the men’s complaints.

At some point during the drilling of the holes for the piperack’s cement

footings, Lyondell’s Safety Manager, Darren Swisher, drove past the construction

project in a golf cart. He recalled the event in an e-mail that is attached to the

deposition of Lyondell’s South Region Health, Safety, and Environmental Manager,

Morgan French.

Mr. Swisher remembers driving along a roadway near the piperack

project, and smelling what seemed like ammonia. He went up to the Ron Williams’s

crew, and they made comments to him about the smell as well. He then took air

samples inside the already dug holes. The air samples were taken at different depths,

starting inside the holes and working up to one foot above the holes. He states that

he was picking up high readings of ammonia inside the holes, and lower readings

above the holes. He states that the levels of ammonia at a height of one foot above

the holes did not meet or exceed the Occupational Safety and Health Administration’s

exposure limits, but he did recommend to Lee Douget that he supply the workers with

respirators. Jamie Venable verifies that this event took place in one of the memos in

the files of Ron Williams Construction.

The Trent Plaintiffs have filed a negligence claim against Lyondell and

Olin. Under Louisiana law, in order for the plaintiffs to prevail on a negligence claim

they must prove all five elements of the “duty-risk” analysis. Long v. State ex rel

Dep’t of Transp. and Dev., 04-485, p. 21 (La. 6/29/05), 916 So.2d 87, 101 (citation

omitted). The five elements of the duty-risk analysis are:

(1) proof that the defendant had a duty to conform
his conduct to a specific standard (the duty element); (2)

2

proof that the defendant’s conduct failed to conform to the
appropriate standard (the breach element); (3) proof that
the defendant’s substandard conduct was a cause-in-fact of
the plaintiff’s injuries (the cause-in-fact element); (4) proof
that the defendant’s substandard conduct was a legal cause
of the plaintiff’s injuries (the scope of liability or scope of
protection element); and (5) proof of actual damages (the
damages element).

Id. (citations omitted).

Lyondell and Olin submitted the motion for summary judgment arguing

that the Trent Plaintiffs could not prove a number of essential elements of their

negligence claim. They argue that the Trent Plaintiffs have presented no direct

evidence to show a causal link between the injuries alleged and the work performed

on the piperack project. There is no direct evidence in the record of soil samples

confirming toxic contamination of the soils the men were digging in; there are no

certified reports from physicians confirming that the injuries suffered are due to

exposure to toxic substance; and, there is no direct evidence to show that the injuries

occurred on the days the men were digging at the site of the digging.

The legal doctrine of res ipsa loquitur allows “an inference of negligence

to arise from the common experience of the factfinder that such accidents normally

do not occur in the absence of negligence.” Cangelosi v. Our Lady of the Lake Reg’l

Med. Ctr., 564 So.2d 654, 660 (La.1989) (citation omitted). Our law permits a court

to apply this doctrine in negligence cases, when appropriate. La.Civ.Code art.

2371.1. “The doctrine applies only when the facts of the controversy ‘suggest

negligence of the defendant, rather than some other factor, as the most plausible

explanation of the accident.’” Id., quoting Montgomery v. Opelousas Gen. Hosp.,

540 So.2d 312 (La.1989).

Under res ipsa loquitur, a plaintiff can make a prima facie case of

negligence against the defendant using circumstantial evidence if it shows that the

3

type of injury sustained would not have occurred in the absence of negligence.

Cangelosi, 564 So.2d at 665. Circumstantial evidence is defined as, “‘evidence of

one fact, or of a set of facts, from which the existence of the fact to be determined

may reasonably be inferred.’ W. PAGE KEETON, ET AL., PROSSER & KEETON

ON THE LAW OF TORTS § 39, at 242 (5th ed.1984).” Lawson v. Mitsubishi Motor

Sales of America, Inc., 04-839, p. 4 (La.App. 3 Cir. 12/29/04), 896 So.2d 149, 154,

writ granted, 05-257 (La. 4/29/05), 901 So.2d 1044. Res ipsa loquitur allows the

plaintiff to use only circumstantial evidence to prove negligence on the part of the

defendant by a preponderance of the evidence, which is the burden of proof required

to prove negligence. Cangelosi, 564 So.2d at 665. The trier of fact determines the

applicability of the doctrine by applying the facts and circumstantial evidence to the

three-part res ispa loquitur analysis.

For res ipsa loquitur to apply, “the injury must be of the
type which does not ordinarily occur in the absence of
negligence”. . . . In addition to establishing that the injury
suffered does not normally occur in the absence of
negligence, a plaintiff must show that the negligence of
someone other than the defendant is not a more probable
cause of the injury and that the negligence was within
defendant’s duty to the plaintiff. A showing that the injury
causing instrumentality was under the defendant’s control
is generally sufficient to demonstrate that the defendant’s
negligence was within the scope of his duty to the plaintiff.

Perkins v. Wurster Oil Corp., 04-692, p. 5 (La.App. 3 Cir. 11/10/04), 886 So.2d 1229,

1233, writ denied, 04-3011 (La. 2/18/05), 896 So.2d 35. (Citations omitted).

Without hard data to prove the existence of chemicals in the soils in

which they were digging, the Trent Plaintiffs urge us to apply the circumstantial

evidence in the record to the three-part res ipsa loquitur analysis.

First, are these the kinds of injuries that would not occur in the absence

of negligence? Noxious fumes do not usually emanate from the ground in the

4

absence of negligence on the part of someone. People are not usually injured from

fumes coming up out of the ground they just dug unless someone has been negligent.

Common sense tells us that soil does not normally smell of ammonia, let alone a smell

strong enough to make people sick and lure the safety supervisor over to explore the

source of the odor in the absence of negligence.

Common sense also informs the conclusion that ammonia is an irritant

when inhaled, or when it comes in contact with the skin—anyone cleaning up after

a hurricane can attest to that fact. The Material Safety Data Sheet (MSDS) for

ammonia lists some of the potential health effects that can be experienced when it is

inhaled: burning sensation, coughing, wheezing, shortness of breath, headache,

nausea, and vomiting. Contact with the skin can cause pain, skin redness, and

irritation. These are some of the same symptoms reported by the Trent Plaintiffs after

noticing the smell of ammonia coming from the holes they were digging on the

Lyondell and Olin property.

Therefore, I conclude, as we did in Perkins where a man spontaneously

burst into flames while putting gasoline in his car, that performing a mundane task

such as digging in soil should not ordinarily cause respiratory injuries due to the

inhalation of fumes and odors emanating from that soil without someone being

negligent.

That brings me to the second step in the res ipsa loquitur analysis, i.e.,

did the Trent Plaintiffs sufficiently exclude their own, or any other third parties’

responsibility for the accident? The third circuit summarized the Louisiana Supreme

Court’s guidance on this issue in our decision in Perkins, that “unless the ‘facts and

inferences point so strongly and overwhelmingly’ in Defendants’ favor, the finder of

5

fact should determine whether or not the res ipsa inference is proper.” Perkins, 886

So.2d at 1234, citing Cangelosi, 564 So.2d at 666-67.

Lyondell’s Morgan French stated in his deposition that Lyondell did

indeed use ammonia as part of their industrial processes. A reasonable person could

presume that ammonia might be present on Lyondell’s premises. There are three

waste-dump landfills surrounding the area in which the Trent Plaintiffs were digging.

One of the landfills was only 50-100 feet away from the piperack project. There was

a report of contaminated soil leaking from this landfill about ten years prior (1988)

to the start of the piperack project. There was also a report of contaminated

groundwater detected down-gradient from this same landfill in 1992. There is no

testimony or evidence in the record to indicate that the Trent Plaintiffs nor any other

third party put ammonia in the soils, or that they injured themselves. Therefore, the

facts and circumstantial evidence in this matter do not overwhelmingly favor

Lyondell and Olin.

Lastly, is the negligence of Lyondell and Olin within the scope of their

duty to the Trent Plaintiffs? The land on which these injuries allegedly occurred was

within the exclusive control of Lyondell and Olin. Following our reasoning in

Perkins, the fact that the instrumentality which caused the alleged injury was in the

exclusive control of Lyondell and Olin indicates that their purported negligence was

within the scope of their duty to the Trent Plaintiffs.

Without having to make any credibility determinations, evaluating

testimony, or weighing evidence, based on the facts and the circumstantial evidence

in the record I conclude that the three elements of a res ipsa loquitur analysis are

present in this case. Therefore, under these specific facts and circumstances, based

6

on all of the evidence found in the record and not solely on the allegations of the

Trent Plaintiffs, the doctrine of res ipsa loquitur applies to this case.

Since res ipsa loquitur applies to the facts of this case, there is now a

presumption that Lyondell and Olin were negligent. Based on that presumption, the

burden of production shifts back to Lyondell and Olin to produce evidence from

which a reasonable trier of fact could conclude that they were not negligent. Perkins,

886 So.2d 1229. Summary judgment would not be appropriate in this case since the

application of res ipsa loquitur supplies genuine issues of material fact: the

presumption of negligence on the part of these two defendants.

For the foregoing reasons, I dissent.

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