Brown v. Olin Chemical Corp.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30512

(Summary Calendar)

RICKY BROWN; ET AL,

Plaintiffs

versus

OLIN CHEMICAL CORP, also known as Olin Chemical Co; ET AL,

Defendants

HORSESHOE ENTERTAINMENT,

Intervenor Plaintiff-Appellant

versus

OLIN CORP,

Defendant-Intervenor Defendant-Appellee

___________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

___________________________________________________

November 6, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

In this Louisiana tort case, in federal court on the basis of

diversity of citizenship, Intervenor Plaintiff-Appellant Horseshoe

Entertainment (“Horseshoe”) appeals the district court’s grant of

Defendant-Appellee Olin Corp’s (“Olin”) motion for summary

judgment. Horseshoe alleges that completion of the construction of

its new riverboat casino vessel was delayed when dangerous

chemicals were emitted from Olin’s nearby plant, drifting onto the

still-unfinished boat and causing many of the workers to fall ill.

Horseshoe argues that summary judgment should not have been granted

because Olin was responsible for the emissions and thus should be

liable for the damages incurred by Horseshoe because of the

construction delay.

I.

Facts and Proceedings

Horseshoe operates a gaming business in Bossier City,

Louisiana, which involves the use of a riverboat casino. To

further those activities, it procured an unfinished vessel, THE

KING OF THE RED (“the riverboat”), which was scheduled to replace

Horseshoe’s old casino after the new vessel was properly fitted and

furnished. As a location for performing the work required for the

final fitting and furnishing of the riverboat, Horseshoe subleased

property fronting the Red River and moved the boat to that site.

A number of contractors and subcontractors were hired to perform

the necessary work.

In the summer of 1997, during the course of the finishing work

on the riverboat, quite a few of the construction workers fell ill.

This forced Horseshoe to shut down the finishing project until the

workers could recover and monitoring and safety systems could be

put in place. The workers’ illnesses were apparently caused by

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exposure to chemicals, alleged by Horseshoe and the workers to be

sulphur dioxide and sulfuric acid. Their exposures to chemicals

purportedly occurred on several occasions in 1997. Workers’

affidavits filed by Horseshoe aver that the chemical exposure on

these instances initially led to their gagging and falling to their

knees.

Olin’s plant is located roughly 500 yards from the site of the

finishing work on the riverboat. This site is also near and

occasionally downwind from other industrial sites, including the

Red River Terminal plant. Olin has a permit to manufacture

commercial grade sulfuric acid at the subject plant and to emit

sulfur dioxide and other chemicals in the course of that process.

Olin admits that it has done so but only within the regulatory

limits set by the Louisiana Department of Environmental Quality

(“LDEQ”). None dispute that Olin, at all times, “complied with all

of its air quality regulatory limits.”

Horseshoe and the other plaintiffs allege that emissions from

Olin’s plant were the cause of their chemical exposure.

Specifically, they offer a number of affidavits asserting that

yellow clouds were seen coming toward the riverboat from Olin’s

nearby chemical plant, soon after which they noticed a strong

sulfur odor, and a number of workers fell ill.

From time to time, chemical plants such as Olin’s experience

events called “upsets,” typically caused by interruptions in the

plant’s power supply, which cause clouds of chemicals to be

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released into the air but not in quantities that exceed regulated

limits. Olin contends that no “upset” occurred during the period

in question, specifically not on August 18, 1997, as Horseshoe

alleges.

After Plaintiff Ricky Brown and other workers filed suit in

state court against Olin, seeking damages for alleged exposure to

chemicals released by its plant, Olin removed the case to federal

court. Similar suits were filed by other workers, and their cases

were consolidated with those of Brown and others in federal court.

Horseshoe moved to intervene in the proceedings as a plaintiff, and

the district court granted that motion. Horseshoe seeks

compensatory damages for (1) the increase in the cost of the

construction of the riverboat caused by the delays that resulted

from the chemical exposure and (2) lost profits for the time that

placing the riverboat into service as a casino was delayed. Prior

to trial, Olin filed a motion for summary judgement which the

district court granted. Horseshoe filed a motion for new trial

which the district court denied. Horseshoe then appealed the grant

of summary judgment.

II.

Analysis

A. Standard of Review

“We review a district court's grant of summary judgment de

novo. In doing so, we employ the same criteria as the district

court, and construe all facts and inferences in the light most

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favorable to the non-moving party.”1

B. Alleged Liability of Olin

1. Tort Liability Standard

Olin concedes that its plant emits sulfur dioxide and sulfuric

acid but insists that it does so only within accepted regulatory

limits. The evidence does not show that Olin exceeded acceptable

emissions limits at any of the times at issue, nor was any evidence

adduced showing that Olin exercised anything less than reasonable

care in the operation of its plant. Horseshoe argues, however,

that such proof is not necessary, contending that the applicable

standard is strict liability pursuant to article 669 of the

Louisiana Civil Code.2

Horseshoe asserts that its claim under Article 669 does not

require a showing of negligence, insisting that this article

provides for liability without fault. We disagree. In 1996, the

Louisiana Legislature amended Article 667 to require a showing of

negligence in any claim for damages other than those caused by

“pile driving” or “blasting with explosives.”3 Prior to this

amendment, strict liability applied to all ultra-hazardous

activities, which specifically included such endeavors as “pile

driving, storage of toxic gas, blasting with explosives, and crop

1

Doddy v. Oxy U.S.A., Inc., 101 F.3d 448, 460 (1996) (citing

New York Life Ins. Co. v. The Travelers Ins. Co., 92 F.3d 336, 338

(5th Cir.1996)).

2

La. Civ. Code Ann. art. 669 (West 2000).

3

See La. Civ. Code Ann. art. 667 (West 2000).

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dusting with airplanes.”4 We are convinced that the 1996 amendment

to Article 667 applies to Articles 668 and 669 as well, so that

stating a claim under one or more of these articles now requires a

showing of negligence. The Louisiana Supreme Court has

consistently treated these three code articles (which together

govern Louisiana’s nuisance law) as a cohesive unit, uniformly

interpreting them in pari materia.5 As such, the 1996 amendment

engrafted a standard of negligence on all three code articles and

thus on nuisance law in Louisiana, leaving exceptions only for

“pile driving” and “blasting with explosives” (neither of which

were being undertaken by Olin’s plant at the relevant times).6

2. Res Ipsa Loquitur

Assuming arguendo that negligence is the proper standard of

liability, Horseshoe argues in the alternative that the doctrine of

res ipsa loquitur (“res ipsa”) applies here, relieving Horseshoe of

the need to prove Olin’s negligence. Again, we disagree. “The

4

Bartlett v. Browning-Ferris Industries, Chemical Services,

Inc., 683 So.2d 1319, 1321 (La. App. 3 Cir. 1996).

5

See O’Neal v. Southern Carbon Co., 43 So.2d 230 (La. 1949)

(treating Articles 667-669 as a unit in deciding a case involving

emissions from a manufacturing facility); Dean v. Hercules, Inc.,

328 So.2d 69 (La. 1976); McCastle v. Rollins Environmental Services

of Louisiana, Inc., 456 So.2d 612 (La. 1984); Rodrigue v. Copeland,

475 So.2d 1071 (La. 1985); Inabnet v. Exxon Corporation, 642 So.2d

1243 (La. 1994); Ford v. Murphy Oil U.S.A., Inc., 703 So.2d 542

(La. 1997) (declining to certify a class action against several

petrochemical facilities and oil refineries for alleged emissions

of airborne chemicals and assuming that the nuisance action arose

under Articles 667-669 as a unit).

6

See La. Civ. Code Ann. art. 667 (West 2000).

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principle of res ipsa loquitur is a rule of circumstantial evidence

that infers negligence on the part of defendants because the facts

of the case indicate that the negligence of the defendant is the

probable cause of the accident, in the absence of other equally

probable explanations offered by credible witnesses.”7 The

defendant’s negligence under res ipsa

may be proved by circumstantial evidence alone when that

evidence establishes, more probably than not, that the

injury was of a kind which ordinarily does not occur in

the absence of negligence, that the conduct of the

plaintiff or of a third person was sufficiently

eliminated by the evidence as a more probable cause of

the injury, and that the indicated negligence was within

the scope of the defendant’s duty to the plaintiff.8

Of these three requirements, Horseshoe has failed to establish the

first two. It has demonstrated only that Olin had a duty to show

it had used reasonable care in operating its plant sufficient to

keep from harming its neighbors.

Horseshoe has not shown that the damage caused here is of “the

type which does not ordinarily occur in the absence of

negligence.”9 Res ipsa is employed (typically in the medical

malpractice context) when the cause of the harm is obvious, such as

“fracturing a leg during an examination; amputating the wrong arm;

carelessly dropping a knife, scalpel, or acid on a patient; or

7

Cangelosi v. Our Lady of the Lake Regional Medical Center,

564 So.2d 654, 660 (La. 1990).

8

Id. at 665.

9

Id. at 666.

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leaving a sponge in a patient’s body.”10 The instant facts,

specifically Horseshoe’s workers’ falling ill on the job apparently

because of exposure to airborne chemicals, clearly do not fit this

category. Horseshoe has not shown that the workers fell ill as a

result of chemical exposure or that they could not have fallen ill

from chemical exposure when the nearby chemical plants (including

Olin’s) are being operated with the exercise of reasonable care.

Although these may be reasonable assumptions, we cannot make them

in the absence of corroborating scientific evidence. When, as

here, the source of the harm is not apparent on the face of the

facts alleged, the plaintiff must put forth expert testimony to

show that the harm could only have been caused by the negligence of

the defendant.11 Horseshoe has offered no such evidence.

Horseshoe has also failed to negate the possibility that the

chemical exposure to workers on the riverboat’s construction site

could have been caused by another source.12 There are several other

chemical plants in the vicinity of that site, and, even assuming

that the illnesses of the workers were caused by chemical exposure,

any one of these plants could conceivably have been the source of

their exposure. For instance, the LDEQ found that the nearby Red

10

Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 719

(La. 1986) (citations omitted).

11

See White v. McCool, 395 So.2d 774, 777 (La. 1981); see also

Reliance Insurance Co. v. Louisiana Land and Exploration Co., 110

F.3d 253, 258 (5th Cir. 1997).

12

See Cangelosi, 564 So.2d at 666.

8

River Terminal emitted hydrogen sulfide, in violation of its LDEQ

permit, between June 6, 1997 and August 18, 1997 —— the approximate

period during which Horseshoe’s workers fell ill. Horseshoe has

thus failed to show that its workers’ maladies resulted from the

failure of Olin to operate its plant with reasonable care.

III.

Conclusion

Horseshoe has failed to submit summary judgment evidence

sufficient to show that Olin is responsible for the illnesses to

its workers or for the resulting construction delays to its

riverboat. The proper standard of liability is negligence and

Horseshoe is unable to meet the elements of that standard, either

through direct offerings of proof or by circumstantial evidence

under the doctrine of res ipsa loquitur. We thus affirm the

district court’s grant of summary judgment.

AFFIRMED

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