Wilbert Bates, Et Ux. v. E. D. Bullard Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-187

WILBERT BATES, ET UX.

VERSUS

E. D. BULLARD COMPANY, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-131-09
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Lawrence J. Centola, III
Martzell & Bickford
338 Lafayette St.
New Orleans, LA 70130
(504) 581-9065
Counsel for Plaintiffs/Appellants:
Wilbert and Edna Bates

Katherine Marie Loos
Attorney at Law
P. O. Drawer 51345
Lafayette, LA 70505-1345
(337) 534-4770
Counsel for Defendant/Appellee:
Southern Silica of Louisiana, Inc.

Scott W. Browne
Coffey & Browne, L.L.P.
2390 Eastex Freeway, Ste 100
Beaumont, TX 77703
(409) 898-5800
Counsel for Defendant/Appellee:
Specialty Sand Company

PICKETT, Judge.

The plaintiff, who contracted silicosis as a result of his exposure to silica

dust in his employment as a sandblaster, and his wife appeal the trial court’s grant

of summary judgment dismissing their claims against the defendants that supplied

sand to his employer for sandblasting. For the following reasons, we affirm.

FACTS

Wilbert Bates was employed by SBA Shipyards for the period 1980-1989.

During that time, Mr. Bates’ work duties included cleaning and/or sandblasting,

both of which exposed him to silica dust. In June 2009, Mr. Bates was diagnosed

with silicosis, a lung disease caused by the inhalation of small pieces of sand

known as respirable silica which are a result of sandblasting. Mr. Bates and his

wife filed suit against numerous defendants, asserting strict liability, negligence,

and products liability claims against them.

In their suit, the Bates alleged that the sand “manufactured and/or sold” to

his employer by two defendants, hereinafter referred to as the sand defendants, was

unreasonably dangerous or defective because the sand defendants failed to warn

and instruct him and SBA of the hazards of the sand and failed “to properly design

products in that products were defective for failure to instruct and warn.” The sand

defendants, Specialty Sand Company and Southern Silica of Louisiana, Inc., filed

motions for summary judgment, asserting they had no duty to warn Mr. Bates or

SBA of the dangers of sand they sold to SBA for sandblasting.

After a hearing, the trial court granted summary judgment in favor of the

sand defendants. The Bates appealed, assigning four errors with the trial court’s

judgment.

ASSIGNMENTS OF ERROR

The Bates assign these issues for our consideration:

1. Prior to the passage and effective date of the Louisiana Products
Liability Act, did a manufacturer or supplier have a duty to warn
the “end user” of their product of a danger associated with its
product?

2. Are there issues of fact regarding Mr. Bates’s knowledge of the
danger of contracting silicosis from sandblasting with silica sand?

3. Are there issues of fact regarding whether SBA was a
“sophisticated user” of the defendants’ sand?

4. Did the Hazardous Communication Standard in 1983 establish a
tort duty for the sand defendants to warn end users, such as
Mr. Bates, of the dangers sand presents when used for
sandblasting?

SUMMARY JUDGMENT
Motions for summary judgments are subject to de novo review on

appeal. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773. The

appellate court asks the same questions the trial court asks to determine

whether summary judgment is appropriate, which is does any genuine issue

of material fact exist and is the mover 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,

affects a litigant’s ultimate success, or determines the outcome of the legal

dispute.” Ardoin v. Cleco Power, L.L.C., 10-815, p. 3 (La. 7/2/10), 38 So.3d

264, 266. A genuine issue of fact is “one as to which reasonable persons

could disagree; if reasonable persons could reach only one conclusion, there

is no need for trial on that issue and summary judgment is appropriate.”

King v. Ill. Nat’l Ins. Co., 08-1491, p. 6 (La. 4/3/09), 9 So.3d 780,784.

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DISCUSSION

The basis of the sand defendants’ motions for summary judgment is the

fourth circuit’s opinion in Damond v. Avondale Industries, Inc., 98-1275 (La.App.

4 Cir. 8/19/98), 718 So.2d 551, writ denied, 98-2854 (La. 1/8/99), 735 So.2d 637.

Damond held that Pearl Specialty Sands, Inc., a supplier of sand, such as the sand

defendants, had no duty as a matter of law to provide the plaintiff sandblaster with

a warning of the dangers presented by sand when it is used for sandblasting. That

conclusion was based on a number of factors, including: 1) the defendant sold the

plaintiff’s employer ordinary sand which it had collected, dried, and separated

according to size; 2) sand is not unreasonably dangerous per se because it is a

natural substance used in its natural state as a playground on the beach, for filling

gardens, lawns, and children’s sandboxes and for mixing with concrete; and 3) the

danger presented by sand when used for sandblasting results from the manner in

which it is used, not the condition of the sand itself.

The fourth circuit further determined the supplier did not have a duty to

warn the purchaser/employer’s employee’s because the purchaser/employer was

subject to and presumed to know the Occupation and Safety Health Act (OSHA)

29 C.F.R. § 1910.1-1450, which are detailed regulations that require employers

engaged in various industries, including shipyards, provide respiratory protection

for their employees. The court concluded the purchaser/employer was a

“sophisticated user” to whom no duty to warn was owed. More importantly, the

court determined that the supplier did not have a duty to warn the

purchaser/employer’s employees because, although the supplier may have known

the sand it sold to the employer would be used for sandblasting, “it had no control

over how [the employer] would conduct its operations” and because there was no

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practical means by which the supplier could provide such warning to the

purchaser/employer’s employees. Id. at 553.

Damond relied in part on its earlier decision in Longo v. E.I. DuPont De

Nemours & Co., 93-756 (La.App. 4 Cir. 1/18/94), 632 So.2d 1193, writ denied, 94-

673 (La. 4/29/94), 637 So.2d 464, where the court had reached the same result with

regard to DuPont whose product, Teflon, had been incorporated in the plaintiff’s

oral implant that had been used to replace her right temporomandibular joint. The

implant failed and had to be replaced with one of plaintiff’s ribs. The plaintiff

sued DuPont, alleging it was liable to her under the theory of strict liability. The

court determined DuPont had no duty to warn the plaintiff of potential dangers

Teflon presented because, although DuPont may have known the implant

manufacturer would incorporate Teflon in a product it manufactured, it had “no

control over the design, composition, testing or manufacture” of the product. Id. at

1197.

The fourth circuit reached the same result in Cowart v. Avondale Industries,

Inc., 01-894 (La.App. 4 Cir. 7/3/01), 792 So.2d 73, writ denied, 01-2719 (La.

1/4/01), 805 So.2d 211, where the plaintiff sued a supplier of sand used for making

molds at a foundry. The foundry was held to be a sophisticated user because

foundries are also subject to the above-cited OSHA regulations; therefore, the

supplier had no duty to warn the employer or its employees of the dangers

presented by sand when used for sandblasting.

The sand defendants attached to their motions affidavits which show that the

factors present in Damond are present here. The sand defendants’ affidavits show:

1) they obtain ordinary sand by dredging water bottoms; 2) after dredging, the sand

is separated from the gravel then separated into various sizes of sand; 3) the sand is

dried and screened, after which it is sold and delivered to purchasers. The sand is
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utilized for different purposes and in different manners depending on the

purchaser, e.g., foundry sand, masonry sand, blasting sand, and fill sand.

Mr. Bates testified that the sand was delivered by eighteen wheelers which

deposited the sand into a large tank. In turn, the sand would be hauled by a smaller

truck to where it was needed for sandblasting.

The Bates argue the sand defendants have not established they are entitled to

summary judgment because they have not shown that SBA is a “sophisticated

user.” They contend Damond is not applicable. A sophisticated user is defined as

one who is “familiar with the product,” Hines v. Remington Arms Co., Inc., 94-

455, p. 10 (La. 12/8/94), 648 So.2d 331, 337, or as one who “possesses more than a

general knowledge of the product and how it is used.” Asbestos v. Bordelon, Inc.,

96-525, p. 44 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 955. As a result of their

familiarity with a product, sophisticated users are presumed to know the dangers

presented by the product; hence, there is no duty to warn them. Hines, 648 So.2d

331.

The Bates further argue there is a genuine issue of material fact as to whether

SBA knew the dangers of sand used for sandblasting. Counsel for the sand

defendants point out that as early as 1944 the dangers posed to those who work in

silica dust were considered by the United States Supreme Court to be “a matter of

common knowledge” that the defendant employer “was bound to know.” Urie v.

Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1029 (1949) (quoting Sadowski v.

Long Island R. Co., 292 N.Y. 448, 456-457, 55 N.E.2d 497 (1944)). Additionally,

OSHA regulations applicable to shipyards for sand/silica have been in place since

1971. 29 C.F.R. § 1915.3-4. Being a shipyard, SBA is required to comply with

applicable OSHA regulations and presumed to know the regulations. Damond,

718 So.2d 551. As a result, SBA knew or should have known the danger sand
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presents when used for sandblasting. Ducote v. Liberty Mut. Ins. Co., 451 So.2d

1211 (La.App. 4 Cir.), writ denied, 457 So.2d 15 (La.1984). For these reasons,

there is no genuine issue of material fact that SBA is a “sophisticated user” of sand

to whom no duty to warn was owed by the sand defendants.

We further find, as the fourth circuit did in Damond, that SBA is legally

obligated to comply with safety regulations to protect its employees from the

dangers presented by sandblasting. See La.R.S. 23:131. Likewise, we cannot say it

would be practical for the sand defendants to warn SBA’s employees of the

dangers sand presents when used for sand blasting. Accordingly, we agree with

the fourth circuit’s conclusion that the sand defendants did not have a duty to warn

SBA or Mr. Bates of the danger sand presents when used for sandblasting.

The Bates also urge that Damond is not applicable to all of their claims

because it applies only to cases that occurred after the effective date of the

Louisiana Products Liability Act (LPLA), September 1, 1988. They assert instead

that Mr. Bates’ employment with SBA began in 1980 and that their claims include

pre-LPLA claims and LPLA claims. To the contrary, Damond was decided solely

on pre-LPLA product liability law outlined by the supreme court in Halphen v.

Johns-Manville Sales Corp., 484 So.2d 110 (1986).

Next, the Bates claim that the Hazard Communication Standard, 29 C.F.R. §

1910.1200 disseminated by the Occupational Safety and Health Administration in

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La.R.S. 23:13 provides:

Every employer shall furnish employment which shall be reasonably safe
for the employees therein. They shall furnish and use safety devices and
safeguards, shall adopt and use methods and processes reasonably adequate to
render such employment and the place of employment safe in accordance with the
accepted and approved practice in such or similar industry or places of
employment considering the normal hazard of such employment, and shall do
every other thing reasonably necessary to protect the life, health, safety and
welfare of such employees.

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November 1983 resulted in a duty being imposed on the sand defendants to notify

Mr. Bates and other like employees of SBA of the danger sand presents when it is

used for sandblasting. This assertion has no merit. Courts have determined that

OSHA is a regulatory provision enforced by fines or criminal prosecutions. It does

not create a private right of action. Fullen v. Philips Elec. N.A. Corp., 266

F.Supp.2d 471 (N.D. W.V. 2002); Wickham v. Am. Tokyo Kasei, Inc., 927 F.Supp.

293 (N.D. Ill. 1996); Dukes v. Sirius Const., Inc., 73 P.3d 781 (Mont. 2003).

Lastly, the Bates claim summary judgment was improvidently granted

because discovery was incomplete. The record shows otherwise, however. Suit

was filed February 2009, and Mr. Bates was deposed in May 2009. The sand

defendants did not file their motion for summary judgment until December 2010.

In their memorandum opposing the motion for summary, the Bates stated the

deposition of Specialty Sand Company was being scheduled for January 2011, but

the corporate deposition of Southern Silica of Louisiana, Inc. was the subject of a

motion to compel. No motion to compel discovery is in the record, and there was

no mention of a request for a continuance during the hearing on the motions for

summary judgment. For these reasons, we find the Bates have not shown summary

judgment was improvidently granted on this basis. See LeCroy v. Byrd Reg’l

Hosp., 10-904 (La.App. 3 Cir. 2/2/11), 56 So.3d 1167.

DISPOSITION

The judgment granting summary judgment in favor of Specialty Sand

Company and Southern Silica of Louisiana, Inc. dismissing Wilbert and Edna

Bates’s claims against them is affirmed. All costs are assessed to Wilbert and

Edna Bates.

AFFIRMED.

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