United States Court of Appeals, Eleventh Circuit
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Prod.Liab.Rep.(CCH)P 12,308
James SOWELL, Plaintiff-Appellant, Cross-Appellee,
v.
AMERICAN CYANAMID COMPANY, a Maine corporation,
Robert A.
Deschambault, an individual, K. Chavis General
Contractors, Inc., J.B. Converse
Company, Inc., Engineers,
Defendants-Appellees,
Sidney Jay Harrison, Defendant-Appellee, Cross-Appellant.
No. 88-3044.
United States Court of Appeals,
Eleventh Circuit.
Nov. 20, 1989.
Rehearing and Rehearing In Banc Denied Dec. 29, 1989.
George W. Estess, Pensacola, Fla., Joel S. Perwin, Miami, Fla., for
plaintiff-appellant, cross-appellee.
Donald H. Partington, Pensacola, Fla., for American Cyanamid Co.
Edmund D. Quintana, Panama City, Fla., for J.D. Converse Co., Inc.
S. William Fuller, Jr., Tallahassee, Fla., William H. Clark, Pensacola, Fla.,
for K. Chavis General Contractors, Inc.
Sidney Jay Harrison, Cantonment, Fla., pro se.
Richard A. Olderman, Dept. of Justice, Civ. Div., Appellate Staff,
Washington, D.C., for intervenor.
Appeal from the United States District Court for the Northern District of
Florida.
Before FAY, Circuit Judge, RONEY* , Senior Circuit Judge, and
ALLEN**, Senior District Judge.
ALLEN, Senior District Judge.
In this product liability and negligence suit, plaintiff Sowell is appealing
the judgment notwithstanding the verdict entered by the trial court for
American Cyanamid Company and J.B. Converse Company, Inc., which
set aside a jury verdict of $1,200,000.00 for the plaintiff.
Plaintiff was an employee of the Public Works Department at the Naval
Air Station in Pensacola, who was assigned the task of welding a tank at
the Naval Air Base. The tank was designed by Converse and contained
sulfuric acid supplied by American Cyanamid. The tank exploded while
plaintiff was performing his welding job, causing him serious and
permanent injuries.
The tank exploded as a result of the tendency of sulfuric acid, when
combined with hydrogen, to cause an explosion. No warning signs were
placed on the tank; but in order for plaintiff to begin his welding job, he
had to secure what is known as a burn permit from the Navy. An
individual defendant, Sidney J. Harrison, had given permission to plaintiff
to commence the welding. The jury returned a verdict against Harrison
upon a theory of negligence, which the trial court upheld. Harrison has
cross-appealed.
In the trial court's opinion, it stated that plaintiff was not a user of the
product and that the intervening negligence of the Navy defeated
plaintiff's right to recover. The trial court's holding that plaintiff was not a
user was clearly in contravention of Florida law, which has adopted the
Restatement (Second) of Torts Sec. 402(a). Section 402(a) protects not
only purchasers of dangerous products, but also bystanders and ultimate
users. Here, plaintiff was the ultimate user and was entitled to the
protection afforded by Sec. 402(a). See Tampa Drug Company v. Wait,
103 So.2d 603 (Fla.1958).
As to the question of intervening negligence, the Court is of the opinion
that a jury question was presented with respect to the corporate defendants'
exercise of reasonable care under the Restatement (Second) of Torts Sec.
388. Section 388 provides that liability arises when the seller, having
reason to know that its product is likely to be dangerous for its intended
use, and having no reason to believe that the intended user will realize its
dangerous condition, nevertheless fails to exercise reasonable care to
inform the user of the dangerous condition.
Comment n to Sec. 388 states, in part, as follows:
[W]hile it may be proper to permit a supplier to assume that one through
whom he supplies a chattel which is only slightly dangerous will
communicate the information given him to those who are to use it unless
he knows that the other is careless, it may be improper to permit him to
trust the conveyance of the necessary information of the actual character
of a highly dangerous article to a third person of whose character he
knows nothing. It may well be that he should take the risk that this
information may not be communicated.... [I]f the danger involved in the
ignorant use of a particular chattel is very great, it may be that the supplier
does not exercise reasonable care in entrusting the communication of the
necessary information even to a person whom he has good reason to
believe to be careful. Many such articles can be made to carry their own
message to the understanding of those who are likely to use them by the
form in which they are put out, by the container in which they are
supplied, or by a label or other device, indicating with a substantial
sufficiency their dangerous character. Where the danger involved in the
ignorant use of their true quality is great and such means of disclosure are
practicable and not unduly burdensome, it may well be that the supplier
should be required to adopt them.
Florida also has adopted Sec. 388. Tampa Drug Co. v. Wait, 103 So.2d
603 (Fla.1958). Here, the basic issue is whether the corporate defendants
discharged their duty to warn the plaintiff. Even though Converse supplied
a manual to the Navy regarding the dangers posed by the use of the
product, "[t]he determination of whether [that] method ... [of warning
was] sufficient [depends] upon a balancing of considerations, [including],
among other factors, the dangerous nature of the product, the form in
which it is used, the intensity and form of the warnings given, the burdens
to be imposed by requiring warnings, and the likelihood that the particular
warning will be adequately communicated to those who will foreseeably
use the product." Dougherty v. Hooker Chemical Corp., 540 F.2d 174, 179
(3d Cir.1976), citing, among other cases, Tampa Drug Company, supra.
As Dougherty holds, "the determination as to whether [these duties have]
been reasonably discharged comes within the function of the trier of fact."
540 F.2d at 179.
Plaintiff presented to the jury an expert who testified that in light of the
potential danger posed by the presence of sulfuric acid in the tank, a
visual and dramatic warning should have been afforded by the corporate
defendants. He also was of the opinion that although Converse had
supplied a manual to the Navy, this did not meet Converse's duty to
adequately warn ultimate users. The expert also testified that American
Cyanamid could have required its drivers to deliver to the manager of the
Navy plant information which they were required by the Department of
Transportation to carry on route as to the hazards presented by the sulfuric
acid.
The testimony of the expert presented an issue of fact as to whether the
corporate defendants had complied with their duties under Sec. 338.
Therefore, the trial court erred in entering a judgment notwithstanding the
verdict for the corporate defendants, and we reverse and direct the trial
court to reinstate the jury verdict in the amount of $1,200,000.
With respect to the cross appeal by individual defendant Harrison, the
record reflects that having been sued in his individual capacity, along with
Robert Deschambault, a federal co-employee, after removing the case
from state court to U.S. District Court, they moved to dismiss, or in the
alternative, for summary judgment on the grounds that they were
absolutely immune under the doctrine of official immunity announced in
Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). The
district court denied defendants' motion, holding that while acting within
the scope of their employment, they had not shown that they exercised a
degree of discretion sufficient to entitle them to immunity. An
interlocutory appeal was taken to this Court, which affirmed without
opinion. Sowell v. American Cyanamid Company, 791 F.2d 170 (11th
Cir.1986), cert. denied, 484 U.S. 1025, 108 S.Ct. 747, 98 L.Ed.2d 760
(1988).
A petition for a writ of certiorari was filed by the Solicitor General of the
United States on behalf of both Harrison and Deschambault. The petition
was denied as was a motion for a stay of all trial proceedings pending a
decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d
619 (1988).
Although Harrison has been represented on this appeal by private counsel,
the United States has moved to be substituted for him because of the
passage of the Federal Employees Liability Reform and Tort
Compensation Act of 1988, Pub.L. No. 100-694 (1988 Act). The United
States also has moved to dismiss for lack of subject matter jurisdiction.
President Reagan signed the 1988 Act on November 18, 1988, on which
date it became effective. The law provides for the substitution of the
United States as a defendant in any action where one of its employees is
sued for damages as a result of an alleged common law tort having been
committed by the federal employee. The new law also provides the
exclusive remedy for injuries to persons or property arising from the
tortious acts of federal employees acting within the scope of their
employment. Sec. 5 of the 1988 Act. Here, the Department of Justice has
determined that Harrison was acting within the scope of his employment,
a determination which is obviously correct in light of the testimony at
trial.
Therefore, it follows that the United States should be substituted for the federal
employee pursuant to the 1988 Act unless the Act is unconstitutional in its
application to this particular case. The great weight of authority upholds the
constitutionality of this statute. Several statutes have been passed in recent
years substituting the United States as a defendant for its employees or
contractors and denying the right of recovery against the individual defendants,
placing the responsibility for their actions upon their employer, the government.
See, e.g., In re Consol. United States Atmospheric Testing Litigation, 820 F.2d
982 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1076, 99 L.Ed.2d 235
(1988) (Nuclear Energy Authorization Act of 1985); Ducharme v. MerrillNational Laboratories, 574 F.2d 1307 (5th Cir.), cert. denied, 439 U.S. 1002, 99
S.Ct. 612, 58 L.Ed.2d 677 (1978) (Swine Flu Act); Carr v. United States, 422
F.2d 1007 (4th Cir.1970) (Federal Drivers Act).
The fact that the statute is retroactive does not make it unconstitutional as a
legal claim affords no definite or enforcible property right until reduced to final
judgment. Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir.1987), cert.
denied, 485 U.S. 905, 108 S.Ct. 1076, 99 L.Ed.2d 235 (1988); Hammond v.
United States, 786 F.2d 8 (1st Cir.1986).
In enacting the 1988 Act, Congress found that the Supreme Court's decision in
Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988),
seriously erodes the common law tort immunity previously available to federal
employees and creates an immediate crisis involving the prospect of personal
liability, and that the threat of protracted personal tort litigation would seriously
undermine the morale and well-being of federal employees, impede the ability
of agencies to carry out their missions, and diminish the vitality of the Federal
Tort Claims Act as the proper remedy for federal employee torts. Congress also
recognized that plaintiffs could also benefit from the new legislation in that
they would have an administrative claim against the government which could
be resolved without costly litigation; and perhaps most importantly, the
government would be able to pay any judgment whereas an individual federal
employee might be judgment proof.
The judgment which plaintiff received against Harrison as a result of the jury
verdict and its upholding by the trial court must be set aside. The record reflects
that Sowell was a government employee who received benefits under the
Federal Employees' Compensation Act, 5 U.S.C. Sec. 8101 et seq. The Act
authorizes no fault compensation when a federal employee incurs an injury on
the job. The statute also precludes an employee who receives benefits under the
statute from asserting any other claims against the United States. Lockheed
Aircraft Corp. v. United States, 460 U.S. 190, 193-194, 103 S.Ct. 1033, 10361037, 74 L.Ed.2d 911 (1983); Avasthi v. United States, 608 F.2d 1059, 1060
(5th Cir.1979); see also, 5 U.S.C. Sec. 8116 (liability of the United States for
the injury or death of an employee is exclusive).
In light of the undisputed facts concerning Harrison's employment by the
government and receipt of benefits, the motions of the United States for
substitution and for dismissal must be granted. Therefore, the district court will
enter judgment for the substituted defendant and set aside its judgment against
Harrison.
REVERSED and REMANDED.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
**
Honorable Charles M. Allen, U.S. District Judge for the Western District of
Kentucky, sitting by designation
