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Click here for the full text of this decision FACTS:Raymond Gomez contracted silicosis while working in various abrasive blasting jobs in the 1980s and ’90s. In 1995, Gomez filed suit against more than 20 defendants, including four suppliers of flint used as the abrasive in the blasting work. He settled with all defendants except one of the flint suppliers, Humble Sand & Gravel Co. Humble’s products were used at one of Gomez’s job, this one at Spincote Plastic Coating in Odessa. At trial, the various experts from all sides agreed that the risks from inhaling microscopic silica dust have been well known for a very long time. And at least since the 20th Century, it has been known that the dust from abrasives used in abrasive blasting contains silica and can cause silicosis. Silicosis as been characterized as an occupational disease for a long time, as well. The Occupational Safety and Health Administration issued regulations as far back as 1938, then again in the 1970s, for the safe use of abrasives. The regulations suggest that workers wear air-fed hoods to cover the head, neck and shoulders, and that respirators be kept clean. It was agreed that by 1975, the people in the abrasive blasting industry would have known of the hazards, as well as the safety precautions to be taken, when using abrasives. According to the record, however, despite this knowledge by business owners and suppliers, workers tended not to know, or not to care, of the dangers. A survey showed that safety gear was frequently substandard and that many did not use the gear anyway. The survey suggested that serious education into the dangers of blasting should be undertaken. Humble opened for business in 1982. It sold crushed flint for blasting in 100-pound bags to industrial customers. Humble’s owners knew of the dangers of silica dust and so placed a label on its bags stating: “WARNING! MAY BE INJURIOUS TO HEALTH IF PROPER PROTECTIVE EQUIPMENT IS NOT USED.” Spanish and French versions of the warning were added later. Accordign to the court, though Humble’s owner was aware the warning was incomplete as early as 1982, he did not expand the warning until 1993, when he changed it to read, “WARNING BREATHING DUST OF THIS PRODUCT CAUSES SILICOSIS, A SERIOUSLY DISABLING AND FATAL LUNG DISEASE. AN APPROVED AND WELL-MAINTAINED AIR-SUPPLIED ABRASIVE BLASTING HOOD MUST BE WORN AT ALL TIMES WHILE HANDLING AND USING THIS PRODUCT. FOLLOW ALL APPLICABLE OSHA STANDARDS.” In addition to the warning on its bags, Humble gave its customers a Material Safety Data Sheet, as required by OSHA. The sheet gave information on the effect of overexposure to silica and on safety equipment. Humble also provided a “technical fact sheet” about the way its flint products were broken down. A worker at the Odessa Spincote plant testified that the other workers were given air fed hoods to wear and that they were reprimanded when they did not do so. Those who were not directly involved in blasting activities were still required to wear paper masks. He said employees were required to attend regular safety meetings, where they were warned of the dangers of silica and instructed to use safety equipment. He could not recall, however, whether workers were ever told that inhaling silica dust could be fatal. Gomez testified that he wore paper masks at first, but then wore the safety hoods, which he generally found to be in good condition. He also kept his hood clean, washing it each week. Nonetheless, when Gomez and his co-workers would stop for a break, they would take off their hoods, even though the air around was still dusty. In fact, Spincote was cited for having excessive free silica dust. Also, at the end of the day, Gomez would tote bags of flint to a processing area, though there was no evidence this activity produced silica dust. Gomez saw the warning on the flint bags and asked his foreman about it. Gomez said he though the phrase “injurious to health” referred to the dust particles rebounding off surfaces and bouncing back onto the skin; he also said he thought it was bad to breathe the dust. Though he saw a warning on another supplier’s bag that said silica dust could cause injury, he did not ask his foreman about this. He also didn’t know what the word “silicosis” meant. Though there was evidence that Spincote purchased flint from other suppliers, the jury was asked only about the respective responsibilities of Humble and Gomez. The jury found there was a marketing defect in the way Humble’s flint was packaged. The jury returned a $2 million verdict for Gomez and more than $54,000 to each of Gomez’s children. On appeal, Humble argued it did not have a duty to warn Gomez of the use of flint in abrasive blasting. Humble said it was entitled to rely on its industrial customers to pass that information on to its workers, like Gomez. Gomez countered that Humble had a duty to warn workers like him of two things: 1. that inhaling silica dust could lead to disability and death; and 2. that an air fed hood should be worn around silica dust at all times. The 6th Court of Appeals affirmed the trial court. Gomez died two months after this court granted Humble’s petition for review. HOLDING:Reversed and remanded for a new trial. The court lays out the two components of Humble’s argument: 1. it had no duty to warn its customers of the risks of working around silica dust because those risks were common knowledge in the abrasive blasting industry long before 1984; and 2. it had no duty to warn its customers’ employees of those risks because its customers were in a better position to warn their own employees. “If the risks of silica dust were not commonly known in the industry, then Humble had at least a duty to warn its customers, which Gomez argues Humble did not do. Even if the risks were commonly known, the question remains whether Humble still had a duty to warn its customers’ employees,” the court states. The court confirms that the dangers of silica dust have been well known for a long time. The court also confirms that operators like Spincote have been careless in the past about providing proper safety equipment. However, the court finds no similar indifference that can be ascribed to flint suppliers. Nor is there evidence that workers like Gomez were well apprised of the risks. From this record, the court concludes that flint suppliers like Humble had not duty to warn its customers like Spincote � abrasive blasting operators � that inhaling silica dust can be disabling and fatal, and that workers should wear air fed hoods at all time. The information has long been commonly known throughout the industry and the operators should have acted accordingly. Turning, then, to whether Humble had a duty to warn its customers’ employees, who were not generally aware of the risks, the court first confirms that it is possible for such a duty to exist, even where a duty to warn the customers themselves does not. Referring to Restatement (Second) of Torts 388, if another party � such as the operators � are known to be careless and inconsiderate, the supplier has reason to think that its warnings will not get through to the workers. It is a matter of comparing the magnitude of the risk against the burden imposed. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user. Also to be included in the considerations are the social, economic, and political questions; the risk, foreseeability, and likelihood of injury; the social utility of the actor’s conduct; the magnitude of the burden of guarding against the injury; the consequences of placing the burden on the defendant; and whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm. The court says that these factors should be applied to the abrasive blasting industry as a whole, not merely to Humble, Spincote and Gomez, individually. The court finds that “on balance,” it cannot determine from this record that a duty should be imposed on flint suppliers like Humble to provide their customers’ employees the limited warnings Gomez argues he should have been given. “If most of the harm to abrasive blasting workers was due to the use of flint supplied in bulk, it would be a perverse result if the responsibility for injury fell solely on those doing the least harm � suppliers who sold flint in bags. If abrasive blasting workers do not ordinarily see bag labels, it would do little good to require that the labels be more specific. And if abrasive blasting operators persistently require their employees to work in unsafe conditions, it is not clear that the purposes of imposing a duty to warn � encouraging care and protecting users � can be advanced by requiring flint suppliers to warn that those conditions are indeed unsafe. We say”if’ because these matters remain in doubt based on the evidence before us.” Nor can the court conclude that a duty to warn should not be imposed. The fact that a warning by Humble would have reached Gomez does not, by itself, in the context of the industry involved here, support an inference that all flint suppliers should have a legal duty to warn all abrasive blasters. By the same token, the silence of the record concerning the general efficacy of such warnings does not support an inference that imposition of a duty is not justified. “Because the parties have not focused on the issue we think is crucial, we conclude that the interests of justice would be best served by a new trial.” OPINION:Hecht, J. DISSENT:O’Neill, J.; joined by Schneider, J. “The Court acknowledges that (1) silica flint, when used as a blasting agent, is a dangerous and potentially fatal substance, (2) employees in the blasting industry did not know about health hazards caused by its use and the need to properly protect against them, (3) industry employers did know but ‘neglected safety despite their knowledge,’. . . (4) the burden on Humble to provide an adequate warning on 100-pound bags of silica flint was ‘inconsequential or nonexistent,’ and (5) ‘Gomez would have escaped injury had Humble’s bags borne an adequate warning label.’ . . . Despite these compelling and undisputed facts, the Court concludes that, as a matter of law, Humble had no duty to warn potential users of its product’s dangers if it can demonstrate that, industry-wide, (1) some/most/all (it’s unclear from the Court’s opinion) operators used bulk-supplied rather than bagged flint, (2) any warning given would not have reached some/most/all (it’s unclear) blasting workers, and/or (3) some/most/all (it’s unclear) blasting workers would have disregarded the warning.”

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