- Personal Injury Archive
The plaintiff was diagnosed with silicosis in a recent case. He had been exposed to silica sand for about 11 years as a sandblaster. His lungs were so damaged he needed double lung transplant. He sued the companies that manufactured or supplied the safety equipment he had used while sandblasting. He alleged strict liability for defective design of the equipment and negligent failure to warn.
The trial court granted the defendants’ motions for summary judgment, concluding his claims against two of the companies failed because he failed to show that they proximately caused his injuries. The plaintiff had not shown how much exposure he experienced while using their equipment. The court also granted all of the defendants’ summary judgment on the failure to warn claim, finding there was no duty to warn the plaintiff of known risks while sandblasting.
The plaintiff appealed arguing that the trial court had erred on the issue of proximate cause by finding he needed to show the actual quantity of respirable silica he had been exposed to while wearing the safety gear. He also argued there was error in finding the defendants owed him no duty to warn of sandblasting dangers.
The appellate court reversed. It explained that the plaintiff had learned how to sandblast on the job and been given limited instruction about protective gear. His employer didn’t tell him it was necessary to sandblast in an air-supplied hood as the federal regulations required. Instead he sandblasted using a paper mask or air-supplied respirator under the hood. The plaintiff knew it was harmful to inhale the dust and wore respiratory equipment to protect against that. He didn’t know he had the wrong equipment and he didn’t see warning labels on the prolonged exposure to silica.
When he left the first employer and went to a second, he was against provided with respiratory protection. He used an air-supplied respirator but didn’t wear it because the air in his mask stung his eyes and it smelled bad. When confronted, the plaintiff explained why he didn’t wear a mas and his supervisor offered to buy a new respirator. He was also asked to sign a waiver of responsibility form stating he understood the risks, that the equipment provided would offer adequate protection and that he would hold the company harmless for his decision not to wear that equipment. He then selected a new respirator, which was later replaced with an air-supplied respirator.
The plaintiff started having breathing difficulty and chest pains. He was diagnosed with silicosis because of his work as a sandblaster. He later got a double lung transplant. He then filed his lawsuit and identified three experts. One of the experts, an industrial hygienist, testified that the non-air supplied hoods shouldn’t have been sold. Workers would think they were protected when they weren’t. He noted studies that found small employers did not fully understand the potential for developing silicosis due to sandblasting.
The appellate court explained that a plaintiff must prove the defendant’s product is a proximate (legal) cause of his injuries. This is usually a jury issue. If a toxic chemical is at issue, the plaintiff has to give proof that exposure to the substance is capable of causing a particular injury or disease. When testimony is submitted on this point, a reliable expert should show a probable cause, rather than a merely possible one.
In this case it was undisputed the plaintiff had silicosis. Silicosis only occurs when you have too much exposure to silica. Therefore, he didn’t have to show he was exposed to a particular threshold level of silica. The only acceptable respirator for him to use was an air-supplied hood.
In Georgia a manufacturer of a product who knows or has constructive knowledge that the product is dangerous to users has a duty to warn consumers of the danger. The same holds true for a distributor. They don’t have a duty to warn of a danger that is obvious or well known.
Although the plaintiff knew of specific risks of sandblasting, there was a factual question as to whether he knew the risks of using those products. His expert had testified small employers didn’t fully appreciate how dangerous sandblasting is and the plaintiff’s employers who trained him definitely didn’t know the risks. As a result, there were factual issues left for a jury. The appellate court reversed the summary judgment.
If you are hurt or a loved one is killed due to negligence, you may be able to recover compensation for your losses. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
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