Opinion
Civ. Action No. 5-92-88
June 20, 2001
Stich, Angell, Kreidler, Brownson Ballou, P.A., by ROBERT D. BROWNSON, Minneapolis, Minnesota, and Piper Marbury Rudnick Wolfe, by MICHAEL R. GOLDMAN, Chicago, Illinois, on behalf of Plaintiff Conwed Corporation.
Foley Lardner, by TREVOR J. WILL and MICHAEL ROSENBERG, Milwaukee, Wisconsin, on behalf of Defendant and Third-Party Plaintiff Union Carbide Chemicals and Plastics Company, Inc.
ORDER
This matter comes before the Court on Defendant and Third-Party Plaintiff's, Union Carbide Chemicals and Plastics Company, Inc. (f/k/a Union Carbide Corporation) ("Union Carbide"), motion for partial summary judgment on the grounds that Plaintiff Conwed Corporation (f/k/a Wood Conversion Company) ("Conwed") was negligent per se. For the reasons explained below, the Court will deny Defendant's motion.
I. Background
The facts giving rise to this action involve workplace exposure to asbestos, occupational disease, and resulting workers' compensation liability of a scope unprecedented in Minnesota. Although the facts are more fully laid out in the Court's Certification Order of December 14, 2000, they are briefly recounted below.
Between 1959 and 1974, Conwed manufactured asbestos-containing ceiling tile in its ceiling tile and mineral board plant in Cloquet, Minnesota. From 1965 through July 1974, Conwed purchased Calidria asbestos fiber, a product mined, milled, processed, and sold by Union Carbide. Conwed used Calidria in the manufacture of ceiling tiles. Conwed employed several thousand workers at the Cloquet plant during that time.
In approximately 1986 Conwed, a qualified self-insured employer under the Minnesota Workers' Compensation Act, began receiving workers' compensation claims from its former Cloquet plant employees alleging that they had contracted asbestos-related diseases due to their exposure to asbestos. Asbestos-related diseases are latent and may be caused by inhalation of asbestos into the lungs. Individuals exposed to asbestos may not be diagnosed with asbestos-related diseases until many years after their exposure to the product.
Accordingly, Conwed seeks recovery under Minnesota's workers' compensation third party liability law, Minn. Stat. § 176.061, for amounts of workers' compensation benefits it has paid or will pay in the future to former employees of its Cloquet plant who suffer asbestos-related diseases from exposure to Union Carbide's asbestos product or who are expected to suffer such diseases in the future.
This action was filed in the United States District Court for the District of Minnesota under diversity jurisdiction on June 10, 1992. It was transferred to the Eastern District of Pennsylvania, MDL 875, for pretrial multidistrict handling of asbestos-related litigation on February 26, 1993, and remanded to this Court on June 16, 2000. The Court heard oral argument on this matter on November 21, 2000, and certified five questions to the Minnesota Supreme Court on December 14, 2000. Union Carbide's motion for partial summary judgment on the grounds that Conwed was negligent per se was not among the matters certified to the Minnesota Supreme Court and, thus, is decided in this Order.
II. DISCUSSION
A. STANDARD FOR SUMMARY JUDGMENT
Summary Judgment is only appropriate if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Disesa v. St. Louis Cmty. Coll., 79 F.3d 92, 94 (8th Cir. 1996). The Court views all admissible evidence, and draws all justifiable inferences, in favor of the nonmoving party. See Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 (8th Cir. 1997).
The test for whether there is a genuine issue of material fact is two-fold. First, the materiality of a fact is determined from the substantive law governing the claim. Only disputes over facts that might affect the outcome of the suit are relevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods, Inc., 824 F.2d 582, 585 (8th Cir. 1987). Second, any dispute of material fact must be "genuine." A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. It is the nonmoving party's burden to demonstrate there is evidence to support each essential element of the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). However, the nonmoving party need not prove each issue of material fact, but rather must set forth sufficient facts indicating a material fact dispute requiring resolution by a trier of fact. See Reich v. Conagra, Inc., 987 F.2d 1357, 1360 (8th Cir. 1993).
B. Negligence Per Se
Union Carbide asserts that partial summary judgment on the issue of Conwed's negligence per se should be granted. Because material facts are in dispute as to whether Conwed complied with the applicable statutes and regulations relating to industrial safety, the Court will deny Union Carbide's motion for partial summary judgment on this issue.
To succeed on a claim of negligence per se one must prove the following: (1) that a statute or regulation was breached; (2) that the injured persons are within the intended protection of the statute; and (3) that the harm suffered is the type of harm the legislation or regulation was intended to prevent. See Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 558 (Minn. 1977) (violation of statute); Alderman's Inc. v. Shanks, 536 N.W.2d 4, 7 (Minn. 1995) (violation of regulation); Femrite v. Abbott Northwestern Hosp., 568 N.W.2d 535, 539 (Minn.App. 1997) (violation of regulation), see also Brooks v. Howmedica, Inc., 236 F.3d 956, 966 (8th Cir. 2001). The statute or regulation imposes a fixed duty of care, thus "its breach constitutes conclusive evidence of negligence." Pac. Indem. Co., 260 N.W.2d at 559. Once a Court finds a party negligent per se, issues of causation remain for a jury to determine. See Alderman's Inc., 536 N.W.2d at 8 n. 6. "[N]egligence per se is not liability per se. There remain (the defenses of) assumption of risk, contributory negligence, and proximate cause. . . . [N]egligence per se is merely ordinary negligence, whose existence is established by proof of the violation, but which once proved does not differ in its legal consequences from negligence at common law." Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981) (internal quotations omitted).
The injured persons in this case, Conwed's employees, are indeed the very types of persons the regulations were intended to protect; the regulations were intended to force employers to improve the health conditions of work environments in order to protect employees from injury. The real issues at play in this case involve whether or not Union Carbide has proven that Conwed violated a regulation and whether or not the harm involved is encompassed by the regulation so as to support partial summary judgment.
Throughout the period of time during which Conwed used Union Carbide's asbestos products, Minnesota had regulations in place regarding what an employer had to do to protect employees from inhaling harmful dust in the workplace. See Industrial Commission of Minnesota, Safety Standards: Laws and Codes for the Prevention of Accidents and the Preservation of Health in All Places of Employment (1950) (hereinafter "Safety Standards"). The regulations required that "[w]orkers shall not be exposed to concentrations of atmospheric contaminants hazardous to health." Id. § 4 at 130. Generally, an employer was required to warn employees about the safe handling of dangerous products, see id. § 1 at 129, meet general ventilation and temperature requirements, see id. § 7 at 133-35, and maintain asbestos dust below an established maximum level, see id. § 4 at 132.
The Safety Standards were established pursuant to Minn. Stat. §§ 175.17 176.668 (1949). Over time, they were revised several times without material change to the provisions cited herein. See, e.g., Minnesota State Regulations, Rules and Regulations of the Department of Labor and Industry: Occupational Safety and Health Rules (1971).
The code further provided that in the event injury occurred despite compliance with the regulations, "the Industrial Commission may require additional control measures." Id. at 129-30. Thus, Conwed may be negligent per se for not taking precautions beyond those required by the regulations if the Industrial Commission had so ordered. However, there is no evidence that additional control measures were imposed upon Conwed, thus, for purposes of evaluating negligence per se, the Court will determine whether the evidence proves that Conwed failed to meet the "minimum requirements" prescribed under the regulations. See id. at 129. Union Carbide argues that to the extent Conwed's employees suffered health injuries due to inhalation of asbestos fibers Conwed violated the Minnesota regulations and is, thus, negligent per se because Conwed breached its statutorily prescribed duty to provide a safe work environment. Union Carbide's argument imposes a type of absolute liability on the safety regulations. An employer, however, is not liable for all unsafe conditions. Rather, an employer must, consistent with the applicable health and safety regulations, "take all feasible steps to abate, or prevent, a condition that employers in that industry would recognize as being hazardous." Banovetz v. King, 66 F. Supp.2d 1076 (D.Minn. 1999) (discussing § 654(a)(1) of Federal OSHA regulations).
The Safety Standards contain a table of Gases and Vapors establishing maximum concentrations of asbestos fibers in the air, which was to be used as a "guide in appraising health hazards and in evaluating control of atmospheric contaminants." Safety Standards, § 4 at 131. The maximum concentration of asbestos was set at five million particles per cubic foot of air, standard light field count ("M.P.P.C.F."). See id. § 4 at 132. This table was included in the regulations in order to provide employers with guidance regarding what constituted concentrations that were "hazardous to health" in violation of the regulations. Providing a table of allowable concentrations of certain dangerous elements in the atmosphere indicates that the regulations were intended to prevent harm to employees that may occur if an employer's work atmosphere exceeded the allowable concentrations. Thus, maintaining levels acceptable under the regulations does not violate the provision of the regulations governing acceptable maximum levels and injuries resulting from exposure to levels below the maximum allowable are not the types of injuries the regulations were intended to prevent. Viewing the evidence in the light most favorable to the nonmoving party, the Court finds that there are material facts in dispute regarding whether Conwed violated the Safety Standards by allowing concentrations of asbestos above the maximum allowable level of five M.P.P.C.F.
Union Carbide also argues that Conwed violated the regulations and is, thus, negligent per se because Conwed failed to test air quality until 1972 — approximately thirteen years after it started using asbestos in the Cloquet plant. Although failure to monitor air quality may be indicative of Conwed's negligence, the Court will not grant partial summary judgment finding Conwed negligent per se because the statute does not mandate air quality testing. Moreover, the evidence regarding air quality before the Court indicates that when testing was conducted in 1972, Conwed's plant was "substantially under" the five M.P.P.C.F. proposed by the regulations. See Minnesota State Regulations, Rules and Regulations of the Department of Labor and Industry: Occupational Safety and Health Rules, Chap. 2 LIsc 23(7)(c) at 29 (1971). For an entity to be negligent per se, there must be proof that it violated a statute or regulation. Viewing the evidence in the light most favorable to the nonmoving party, Union Carbide has not provided the Court with sufficient proof that Conwed was negligent per se.
Conwed admits flaws in the testing, which was conducted by Union Carbide at Conwed's request.
Material facts also abound regarding the quality of Conwed's ventilation systems, dust control measures, and efforts to warn employees of potential health hazards associated with asbestos. For example, Union Carbide provides the Court with an excerpt of testimony of a former employee who when asked if Conwed placed warning signs in the plant or discussed asbestos in safety meetings answered that he did not recall. Union Carbide presents evidence that Conwed had dust control systems, albeit potentially weak ones. Union Carbide reports that there was "very little dust control equipment, if any" and that the systems "did not work very well." Conwed, on the other hand, maintains that its dust control measures were "extensive," "regularly upgraded," and "worked quite well."
The Court does not pass on the strength of Conwed's claims, however, the Court concludes that genuine issues of material fact preclude summary judgment on the issue of whether Conwed was negligent per se. The testimony presented by Union Carbide is equivocal and when considered along with the evidence presented by Conwed establishes that there are genuine fact issues for trial with regard to whether Conwed provided warnings to its employees, maintained functional dust control systems, or was otherwise derelict in its it duties under the regulations. Viewing all the evidence in the light most favorable to the nonmoving party, it is possible that the employee whose testimony Union Carbide provided has forgotten warnings which may have been provided and that there were working dust collection systems in place at Conwed's plant. In order to establish negligence per se, the moving party must prove a violation of the regulations. See Seim, 306 N.W.2d at 810. The court finds that Union Carbide has not met its burden of proof at this stage in the proceedings.
There are numerous material facts in dispute. Thus, Union Carbide's motion will be denied. See generally Bigos v. Kleunder, 611 N.W.2d 816, 820 (Minn.App. 2000) (holding that genuine issues of material fact preclude summary judgment on the issue of whether defendants were negligent per se).
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Accordingly, upon its review of the files, motions, and proceedings herein, it is hereby ORDERED that:
1. Union Carbide's motion for partial summary judgment that Conwed was negligent per se is DENIED.