1 Steel Mill Safety & Health: A Lawyer s Perspective Joseph Lipari, Attorney/Partner The Sultzer Law Group, P.C. 77 Water Street, 8 th Floor New York, New York Keywords: Post-sale duty, assumption of duty, litigation, personal injury, legal, liability, old equipment, general duty clause INTRODUCTION Productivity, profitability, and worker safety are paramount objectives for every steel mill and every steel mill equipment manufacturer. Given the speed at which technology changes and the economically dynamic nature of the steel industry, some steel mills in the United States presently use legacy equipment (i.e. old equipment models and discontinued product lines) that may be considered obsolete in relation to functionally similar products obtainable in the marketplace. Some steel mills are operated by the subsidiaries of corporate parents. Further, some steel mills routinely rely upon and integrate safety professionals from parent companies, sister companies, and affiliates. Against this backdrop, this paper addresses the following critical steel mill safety and health issues, which frequently arise within the context of personal injury and wrongful death litigation: U.S and foreign product manufacturers are often named in product liability lawsuits when steel mill workplace injuries occur in connection with the manufacturer s legacy equipment. Oftentimes plaintiffs will argue that the manufacturer should have issued a product advisory, a product recall or a product retrofit as soon as technological advancements rendered the legacy equipment obsolete. (e.g. automatic argon gas coupling technology rendering manual argon gas coupling technology obsolete; spray cooled EAF walls rendering water cooled panels obsolete; a remote controlled ram for the EAF slag door rendering a man operated forklift obsolete ). While an injured steelworker s direct employer is generally immune from suit if the employer procures workers compensation insurance, the direct employer still faces the possibility of OSHA general duty clause citations for failing to procure and implement state-of-the-art technology. A steel mill s parent company and affiliate companies are sometimes named in negligence lawsuits in an effort to circumvent the workers compensation immunity. Commercial general liability insurance policies are oftentimes triggered by these types of lawsuits. But sometimes they are not. Furthermore, insurance policies may not cover punitive damages awards. Accordingly, steel mill equipment manufacturers should be cognizant of state-specific, post-sale duties. Mill operators and owners should be cognizant of the interplay between workers compensation immunity and the assumption of duty doctrine, as well as OSHA s use of the general duty clause when legacy equipment is involved in a workplace accident. And, manufacturers, operators, and owners should be cognizant of punitive damages insurability issues.
2 DISCUSSION Hypothetical steel mill accident The following hypothetical will be used throughout this paper to illustrate points about the above-referenced recurring, critical litigation issues: ABC Steel Mill is located in Colorado. The mill has an electric arc furnace and uses a ladle transfer car to move molten steel to the ladle metallurgical furnace. ABC Steel s workers manually couple argon gas hoses to the ladle. ABC Steel is a subsidiary of XYZ Steel. ABC Steel and XYZ Steel routinely share best practices and occasionally XYZ Steel s safety manager visits ABC Steel Mill and makes recommendations related to worker safety and productivity. Recently, John Worker was in the process of connecting the argon hose to the ladle. The ladle had limited freeboard and, for unknown reasons, molten steel erupted from the ladle and burned John Worker. The ladle and ladle transfer car were both manufactured and supplied 20 years before the accident by 123 Manufacturing Company. 123 Manufacturing Company added automatic gas coupling technology to its product portfolio about 4 years ago. After the accident, ABC Steel Mill conducted a thorough investigation. XYZ Steel personnel assisted with the investigation and issued recommendations. OSHA issued citations to ABC Steel Mill. OSHA cited Section 5 (a) (1) of the Occupational Safety and Health Act and indicated that a feasible and useful means of abatement includes installing automatic gas coupling technology. U.S. liability overview A. Negligence Within the context of personal injury suits, parties are generally held to a reasonableness standard. If an entity has a legal duty or has voluntarily assumed a legal duty to third parties, the entity will be found negligent if it is determined that it did not act reasonably. The employer of an injured employee is immune from suit if it procures workers compensation insurance. But, if a non-employer (including the employer s parent or affiliate company) has voluntarily undertaken a task that, for instance, impacts worker safety, then that entity may have assumed a duty to the steelworkers and, if so, must discharge that duty reasonably. A failure to do so will subject that entity to liability. In a 2007 Pennsylvania personal injury and wrongful death case entitled Solen v ArcelorMittal i, several steel workers were injured in connection with an electric arc furnace eruption. Plaintiffs sued their employer s parent company and their employer s sister companies on the grounds that they: a) negligently oversaw worker safety programs; and b) could not avail themselves of the workers compensation immunity. (The case resolved when the parties entered into a confidential settlement agreement). The following chart provides a state-by-state overview of the law pertaining to workers compensation and assumption of duty: Table I. Parent/Sister Company Liability Overview (in steel mill states): Mill Location Alabama Arkansas California Colorado Georgia Law Sister and parent corporations are not necessarily immune from work-related claims of injured employees of the direct employer, even where there is a contractual provision purporting to label those sister and parent corporations as statutory employers of that employee. ii A parent company can be held liable for the workplace injuries of an employee of its subsidiary where the parent affirmatively assumes control of certain duties with respect to workplace safety. iii An employee of a wholly owned subsidiary who has obtained workers compensation benefits from the subsidiary may maintain an action in tort against the parent corporation, even where the parent and subsidiary are covered by the same workmen s compensation policy. iv Employer immunity from tort liability under Colorado Workmen s Compensation Act does not extend to a parent corporation sued by an employee of its whollyowned subsidiary. v An employee of a wholly owned subsidiary corporation is not barred by Georgia s
3 Illinois Indiana Iowa Kentucky Louisiana Michigan Minnesota Mississippi Nebraska New Jersey New York North Carolina Ohio Oklahoma Oregon Pennsylvania workers compensation statute from suing subsidiary s parent or sibling corporation. vi Courts do not pierce corporate veils in order to find that a parent company and a subsidiary are both plaintiffs' employer. The general rule is that parent companies and subsidiaries are separate legal entities. Under the Illinois Workmen s Compensation Act, an employer is not precluded from suing a parent company. vii The exclusivity provision of Indiana s Worker s Compensation Act does not prevent employees from suing parent corporations for injuries sustained during the course of employment. viii Where the relationship among affiliated corporations is the result of conscious compartmentalization of the responsibilities of each for purposes of gaining corresponding advantages, the fact that affiliated corporations are engaged in a joint venture does not make them all employers of the employees of one of the corporations involved in the joint venture, and suits against those affiliated corporations are not barred by the exclusive remedy provision of Iowa s Workers Compensation Act. ix Under Kentucky s Workmen s Compensation Act, a parent corporation is not immune from tort liability to its subsidiary s employees for its own, independent acts of negligence. x A parent company can be held liable for its own direct acts of negligence, as well as in instances where it voluntarily assumes certain duties regarding workplace safety when those duties are not performed in a reasonable and prudent manner. xi Actions against parent corporations are not barred by Michigan Worker s Disability Compensation Act, unless there is evidence that the parent acted as a statutory employer by exercising control over the employee s duties, paying the employee s wages, or disciplining the employee. xii Minnesota law is not settled as to whether a parent company of a wholly owned subsidiary should be considered an employer for workers -compensation purposes, but Minnesota courts appear amenable to the idea should a proper case arise. xiii Immunity from tort liability under Mississippi s Workmen s Compensation Act is limited to the employer and the insurer. xiv Tort liability remains as to any other party. xv Where an employee of a subsidiary is injured while working on property owned by the parent corporation and receives workers compensation benefits from the subsidiary, the employee may maintain an action in tort against the parent corporation, even where the parent and subsidiary are covered by the same workers compensation insurance policy. xvi The employee of a subsidiary is not barred from maintaining a tort action against the parent, notwithstanding that both subsidiaries as well as the parent are covered by the same workmen s compensation policy. xvii Personal injury products liability suits against the parent corporation of plaintiff s employer are not barred by New York s Worker s Compensation Law where the parent corporation was separate and independent from employer. xviii Immunity from suit under North Carolina s Workmen s Compensation Act does not necessarily extend to an employer s parent corporation. xix The Act s exclusivity provisions do not preclude the assertion of negligence claims for wrongful death of an employee against the employer s parent companies. xx A parent corporation can only be considered an employer of the employees of a subsidiary corporation when that parent has control or custody of the employment, place of employment, or the employee. xxi A parent company can be liable for the injury of the employee of its subsidiary where the employee has an independent cause of action for negligence against the parent corporation. xxii Under Oregon law, once a defendant voluntarily undertakes to perform a duty, that defendant has a duty to do so with due care. xxiii Oregon courts have not held that a parent company - sued by a subsidiary s employee - is immune from tort liability. A parent company of a wholly-owned subsidiary can be held liable in tort by injured employees of the subsidiary, unless the parent exercises control over the
4 South Carolina Tennessee Texas Utah Virginia Washington Wisconsin subsidiary s operations to the extent that it takes on the role of employer. xxiv A parent corporation is generally not immune from an action in tort by an injured employee of its subsidiary by virtue of the employee s entitlement to workers compensation. xxv Parent corporation can be sued for its own independent acts of negligence and is not immune from tort liability for workmen s compensation purposes. xxvi An injured employee of a subsidiary corporation who is estopped under an exclusive remedy provision from suing his employer may nonetheless bring a third-party claim against the subsidiary s parent or sibling corporation. xxvii A parent company can be held liable for its own direct acts of negligence, as well as in instances where it voluntarily assumes certain duties regarding workplace safety when those duties are not performed in a reasonable and prudent manner. xxviii For purposes of Virginia s Workers Compensation Act, right of control is the determining factor in ascertaining parties status in analysis of employment relationship, and employer-employee status exists (with accompanying statutory tort immunity) if the party for whom the work is to be done has the power to direct means and methods by which the employee does the work. xxix In Washington, a parent company and its subsidiaries are treated as one entity for the purposes of immunity under the Washington Industrial Insurance Act. xxx Immunity from tort liability under the Worker s Compensation Act for the injuries of the employees of subsidiaries does not extend to a parent corporation which assumes a duty to its subsidiary employees, and that parent is held to a standard of reasonable care even if their actions are only supplemental to, rather than in lieu of, the practices of the subsidiary. xxxi B. Strict liability Equipment manufacturers and suppliers can be held strictly liable if their products cause or contribute to a worker s injury. Strict liability generally means that even if the manufacturer or supplier acted reasonably and exercised all possible care in designing, manufacturing, and selling the product, the manufacturer or seller will be found liable if the product was defectively designed or manufactured, or if it did not adequately warn the user relative to dangers inherent in the product. Whether a product was defectively designed or manufactured almost always requires expert testimony. Generally, when a plaintiff accuses a defendant of designing a defective product, the plaintiff must demonstrate that an alternative design capable of preventing the plaintiff s injuries existed at the time the product left the manufacturer s hands. Many steel mill accident cases involve equipment that was manufactured and sold 5, 10, sometimes 20 or 30 years before the accident. Accordingly, manufacturers and sellers of legacy equipment can expect a plaintiff to claim: 1) during the intervening 5, 10 or 30 years, the manufacturer became aware of technological advancements that rendered the equipment comparatively unsafe inasmuch as the advancements would have prevented the accident; and thus, 2) the manufacturer or seller should have recalled, retrofitted, or sent a post-sale warning notice to the end-user. In a 2013 Louisiana wrongful death case entitled Moyer v Siemens, xxxii a steel worker was injured while using an argon stir station and ladle transfer car manufactured and installed in Plaintiff argued that Siemens had a post-sale duty to warn Mr. Moyer s employer about technological improvements associated with argon stir stations and ladle transfer cars. Plaintiff also argued that patents in the early 1980s indicated that automatic gas coupling technology existed and was knowable at the time the manual coupling technology left Siemens predecessor s hands. (Siemens ultimately obtained a defense verdict at trial). And, in Solen v ArcelorMittal, the litigants alleged that manufacturers of the EAF and the water cooled side panels should have provided post-sale information about a) EAF off gas alarms; and, b) the use of EAF spray cooling as a safer alternative.
5 The following chart provides a state-by-state overview of the law pertaining to manufacturers post-sale duties: Mill Location Post- Sale Duty to Warn? Table II. Imposition of Post-Sale Duties (in steel mill states): Nature of the Duty Alabama No N/A Arkansas No N/A California No N/A Colorado Yes A product must have been defective and unreasonably dangerous at the time it was manufactured and sold in order for Colorado law to impose a post-sale duty to warn. xxxiii Georgia Yes Georgia law imposes a duty on manufacturers to warn of a danger arising from the use of a product once that danger becomes known to the manufacturer. This duty to warn is a continuing one and may arise months, years, or even decades after the date of the first sale of the product. xxxiv Illinois No N/A Indiana No xxxv N/A Iowa Yes Iowa has adopted the Restatement (Third) of Torts: Product Liability s formulation of the post-sale duty to warn. xxxvi This duty applies to situations in which the manufacturer learns of a defect or hazard in one of its products after some or all of that model or type of products have been sold, the end users can be identified and communicated with, and the risk of injury or death resulting from the hazard is greater than the burden of providing the notice to the end users. Kentucky Unclear The issue has not yet been decided, but the District Court for the Eastern District of Kentucky predicted that the duty would not be recognized. xxxvii However, if a manufacturer does undertake the duty to make a post-sale warning, it must make the warning available to the end user. xxxviii Kentucky imposes no independent duty to retrofit a product that is not defective at the time of sale. xxxix Louisiana Yes Manufacturer who, after its product has left its control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonable prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product. xl Michigan Yes If the manufacturer is not aware of the defect until after manufacture or sale, it has a duty to warn upon learning of the defect; if there exists a point-of-manufacture duty to warn, a postmanufacture duty to warn necessarily continues upon learning of the defect. xli Minnesota Yes Minnesota law imposes a post-sale duty to warn of dangers associated with using a product when the following special circumstances are present: knowledge of a problem with the product, continued sale or advertising of the product, and a pre-existing duty to warn of dangers associated with the product. xlii Mississippi No N/A Nebraska No xliii N/A New Jersey Yes When a manufacturer fails to include a warning on a product, but subsequently learns, or should have learned, of the dangers associated with the product (or if the product contains an inadequate warning to address the later-discovered danger), the manufacturer owes a duty to warn of the dangers as soon as reasonably feasible. xliv New York Yes Risks revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn (the question of what triggers the post-delivery duty to warn is a function of the degree of danger that the product presents, the number of instances reported, the burden of providing warning, and the burden or ability to track North Carolina Yes product after sale). xlv A manufacturer must keep abreast of the state of the art and may be liable for failing to warn of dangers that come to light after initial distribution of the product. xlvi However, New York courts have declined to impose a post-sale duty to recall or retrofit a product, and instead, have limited post-sale obligations to the duty to warn. xlvii Failure of a manufacturer or seller to give adequate warning or instruction is a basis for a statutory cause of action if, after the product left the defendant s control, defendant became aware that the product posed a substantial risk of harm to foreseeable users and yet did not
6 take reasonable steps to warn or instruct. xlviii This post-sale duty to warn does not extend beyond the six-year limit imposed by North Carolina s Statute of Repose. xlix Ohio Yes Ohio claimants may establish a post-marketing warnings defect by showing that the manufacturer knew or should have known of the relevant risk at a relevant time after [the product] left the control of its manufacturer and the manufacturer failed to provide the postmarketing warning or instruction that a manufacturer exercising reasonable care would have provided... in light of the likelihood that the product would cause harm of the type at issue and in light of the likely seriousness of that harm. l Oklahoma Probably No Unclear. In a case involving a drug manufacturer the Oklahoma Supreme Court found a continuing duty to warn of all potential danger, which the manufacturer knew, or should have known, in the exercise of reasonable care, to exist. This duty requires the manufacturer to maintain current information gleaned from research, adverse reaction reports, scientific literature, and other available methods. li However, the federal District Court for Oklahoma s Western District has found, in two decisions, that the above rule is inapplicable in a typical product liability case, and that evidence of remedial measures (including post-sale warnings) may not be used to prove negligence or to otherwise evidence culpable conduct. lii Oregon No liii N/A Pennsylvania Yes A post-sale duty to warn arises in Pennsylvania where a manufacturer believes it has sold a non-defective product and subsequently learns that the product was actually defective when placed in the stream of commerce. liv However, there is no post-sale duty to recall or warn about technological advances where the defect did not exist in the product at the time of sale. lv South No N/A Carolina Tennessee No N/A Texas Yes, but limited In Texas, a post-sale duty to warn only exists in two situations: (1) If the manufacturer regains a significant degree of control over the product, and the product is determined to be defective during that period of control, the manufacturer can be held liable for damages resulting from that defect under the theory of postsale strict liability; lvi OR (2) If a manufacturer assumes a post-sale duty and then does not use reasonable means to discharge that duty, the manufacturer may be liable for breach of a post-sale duty to warn. lvii Utah Yes The federal district court for the District of Utah, applying Utah law, concluded that the Utah Supreme Court would adopt a post-sale duty to warn for the original manufacturer and seller if it was presented with the issue. lviii Virginia Split among courts The Supreme Court of Virginia has not yet affirmatively recognized a post-sale duty to warn on the part of a manufacturer. lix There is split authority in the lower courts. Washington Yes The Washington Product Liability Act adopts a common law negligence standard for providing warnings or instructions where the manufacturer learned or should have learned about a danger after the product was manufactured. The general rule is that a post-sale duty to warn arises after a manufacturer has sufficient notice about a specific danger associated with the product. lx In providing such warning, the manufacturer must act as a reasonably prudent manufacturer and exercise reasonable care to inform product users. lxi Wisconsin Yes Although Wisconsin does not recognize an absolute, continuing duty to warn of new safety devices that eliminate potential hazards, under limited circumstances, a manufacturer may be liable under a post-sale duty to warn. lxii C. Insurability of punitive damages Punitive damages are a special category of damages designed, not to compensate the plaintiff, but rather to punish a defendant for wanton or egregious conduct. In the event a defendant is named in a suit seeking punitive damages, a critical question is whether a punitive damages award is insurable. The answer to the question depends on the location of the mill. The following chart provides a state-by-state overview of the law pertaining to insurability of punitive damages:
7 Table III. Punitive Damages Insurability (in steel mill states) States in which Punitive Damages are Insurable Alabama, Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, North Carolina, Oregon, South Carolina, Tennessee, Virginia, Wisconsin States in which Punitive Damages are NOT Insurable California, Colorado, Illinois, Minnesota, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Utah States in which Punitive Damage Insurability is Unclear Indiana lxiii and Texas lxiv States in which Punitive Damages are Unavailable Michigan, Nebraska, Washington D. OSHA general duty clause During an OSHA accident investigation, OSHA will sometimes cite an injured steelworker s employer under the so-called general duty clause when the injury is linked to legacy equipment that lacks integrated safety features available on newer equipment. For example, OSHA recently invoked the general duty clause in the following instances: Moyer v Siemens accident- A ladle transfer car that did not allow for automatic coupling. OSHA imposed citations and indicated that a reasonable means of abatement would be Eliminat(ing) direct human contact with and being close to molten steel ladles by installing an automatic argon coupling system. lxv Solen v ArcelorMittal accident - Electric arc furnace water panels without integrated monitoring devices. OSHA imposed citations and indicated that a reasonable means of abatement would be installing resistance temperature detectors and related monitoring systems. lxvi Developing the hypothetical case A good plaintiffs lawyer will begin a lawsuit by casting a broad net and naming any entity with any connection to the ladle or the ladle transfer car. The lawyer will also try to proceed -- at least initially -- with as many theories of liability as possible. Oftentimes the lawyer will seek punitive damages in order to, among other things, drive a wedge between the defendant and the defendant s insurance company. As an initial matter, John Worker will file a lawsuit against 123 Manufacturing Company and XYZ Steel. He will proceed under negligence and strict liability theories and he will seek punitive damages. Plaintiff will file a Complaint and argue: XYZ Steel assumed a duty to John Worker and other steelworkers, negligently inspected the equipment, and negligently provided oversight relative to worker safety issues. If XYZ Steel had acted reasonably, it would have successfully recommended that ABC Steel Mill upgrade its ladle and ladle transfer car with automatic gas coupling technology. 123 Manufacturing Company s ladle and ladle transfer car were defective in their design by virtue of not possessing integrated, automatic argon gas coupling technology. 123 Manufacturing had a duty that arose at least four years before the accident to do the following: a) send a warning letter to the mill; and b) initiate a recall; or c) offer to retrofit the existing equipment with automatic argon gas coupling technology. Plaintiff will point to the OSHA report and the OSHA general duty citations in support of his claims that: automatic gas coupling was a feasible alternative at the time of the accident, and the steel mill s parent XYZ Steel failed to furnish a place of employment that is free from the recognized hazard of coming in contact with molten steel during the process of making steel when it took on a safety role and assumed a duty to John Worker and other steelworkers in ABC Steel s mill. Given that Colorado is the hypothetical situs of John Worker s accident, the hypothetical litigation can be evaluated as follows: XYZ s Steel s insurance company and 123 Manufacturing Company s insurance company will not be responsible for covering any punitive damages at trial; Under Colorado law, there is "no post-sale duty to warn or remedy when the product was non-defective under standards existing at the time of manufacture. lxvii " There have never been U.S standards dictating automatic or manual coupling for ladle transfer cars. Accordingly, the critical question is whether, at the time the ladle transfer car was sold 20 years ago, automatic coupling technology was known or knowable in light of the generally recognized and prevailing scientific and technical knowledge available at the time of
8 manufacture and distribution. lxviii Thus, if it was knowable that automatic coupling technology was a safer alternative at the time 123 Manufacturing Company sold the manual coupling technology 20 years ago, then the manual coupling technology was arguably defective when it left 123 Manufacturing Company s hands, and 123 Manufacturing Company had a duty over the intervening 20 years to notify ABC Steel Mill about the existence of automatic gas coupling technology. Notably, Colorado courts have held that there is no duty to retrofit or recall under these types of circumstances. lxix Under Colorado law, a parent and subsidiary enjoy and benefit from corporate separateness and must bear the responsibility and liability of such separateness. Accordingly, XYZ Steel will likely be unable to avail itself of the workers compensation immunity enjoyed by ABC Corporation. Each of the defendants will answer the complaint and deny all material allegations. Thereafter, a lengthy period of discovery will ensue including document exchanges and witness depositions. Plaintiff s attorneys will attempt to elicit the following with respect to XYZ Steel: XYZ had a history of issuing worker safety recommendations to ABC. XYZ reviewed, approved, and/or edited job safety analysis sheets or job protocol sheets. XYZ knew about automatic coupling technology before the accident. XYZ could have, but did not, recommend upgrading to automatic coupling technology. XYZ was part of the accident investigation team and made recommendations relative to equipment upgrades and expenditures. This evidences the ability to control its subsidiary s operation and worker safety program and/or the ability to dictate equipment upgrades. Plaintiff s attorneys will attempt to elicit the following with respect to 123 Manufacturing Company: Automatic gas coupling technology obviates the need for a steelworker to come in close proximity to the ladle. John Worker s accident would not have occurred if automatic gas coupling technology had been integrated into the ladle and ladle transfer car. 123 Manufacturing had automatic gas coupling equipment in its product portfolio before the accident, but it did not send a product safety advisory, retrofit notice, or recall notice to ABC. At the time the ladle transfer car left 123 Manufacturing Company s hands 20 years before the accident, the ladle transfer car was defective because the superior alternative design (i.e. automatic gas coupling) existed. Plaintiff will thus conduct extensive discovery to establish that automatic coupling was being used in a steel mill (somewhere in the world) at the time 123 Manufacturing Company sold the manual coupling technology to ABC Steel Mill. If Plaintiff cannot establish this, then Plaintiff will use his expert to conduct a US patent and international patent search to show that an automatic coupling design had been conceived and was known or knowable at the time 123 Manufacturing sold the manual coupling technology to ABC Steel Mill. XYZ s attorney will attempt to establish the following: XYZ had no binding authority to issue safety recommendations to ABC. ABC was not obligated to follow the safety recommendations. XYZ made simple recommendations (e.g. install guarding, update job safety analysis sheets, improve job training, etc.). XYZ never made recommendations for massive equipment upgrades or overhauls. John Worker was contributorily negligent. 123 Manufacturing Company s attorney will attempt to establish the following: Before the accident, ABC Steel Mill knew (or should have known) about automatic gas coupling as an alternative to manual coupling. 123 Manufacturing Company would have no obligation to warn an entity about information with which the entity is already institutionally familiar. While automatic gas coupling is indeed safer than manual coupling, manual coupling is not inherently unsafe. Manual coupling can be accomplished safely if the mill takes proper precautions (i.e. guarding, proper personal protective equipment, best practices relative to freeboard and adding alloys, etc.)
9 At the time the ladle transfer car left 123 Manufacturing Company s hands 20 years ago, a superior alternative design (i.e. automatic gas coupling) was not in use in any steel mill, and irrespective of whether plaintiff can point to a 20 year old automatic gas coupling patent, plaintiff cannot show that the patented design could have been successfully developed and put into trade or commerce. CONCLUSIONS Here are three obvious statements: 1) technology is constantly evolving; 2) accidents happen; and, 3) the United States is uniquely litigious. With these truisms in mind and in order to maximize productivity and profitability, and ensure worker safety - mills and manufacturers should be cognizant of: state-specific, post-sale duties; OSHA s use of the general duty clause when arguably obsolete legacy equipment is implicated in a steelworker accident; state-specific rules regarding punitive damages insurability; and, the interplay between workers compensation immunity and the assumption of duty doctrine. ACKNOWLEDGMENTS The author thanks Joseph Jacobs for his valuable research assistance. Mr. Jacobs is a third year law student at Fordham University School of Law, and an intern with The Sultzer Law Group, P.C. REFERENCES i Solen, Winski, Rogers v ArcelorMittal USA, et al. Philadelphia Court of Common Pleas, May Term, 2009 No ii Richardson v. PSB Armor, Inc., 682 So.2d 438 (Ala. 1996). iii Palmer v. Tracor, Inc., 856 F.2d 1131 (8 th Cir. Ct. App. 1988). iv Gigax v. Ralston Purina Co., 136 Cal.App.3d 591 (1982). v Peterson v. Trailways, Inc. 555 F.Supp. 827 (D.Colo. 1983); see also Gaber v. Franchise Services, Inc., 680 P.2d 1345 (Colo. Ct. App. 1984). vi O Brien v. Grumman Corp., 475 F.Supp. 284 (S.D.N.Y. 1979)(applying Georgia law)(citing Ga. Code ). vii McDaniel v. Johns-Manville Sales Corp., 487 F.Supp. 714 (N.D. Ill. 1978)(citing S.H.A. Ill. Ch ). viii McQuade v. Draw Tite, Inc., 659 N.E.2d 1016 (Ind. 1995). ix Veasley v. C.R.S.T. Intern., Inc., 553 N.W.2d 896 (Iowa 1996). x Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6 th Cir. Ct. App., 1979); see also K.R.S et seq., (2), xi Bujols v. Entergy Services, Inc., 922 So.2d 1113 (La. 2004). xii Green v. Windsor Mach. Products., Inc., 173 F.3d 591 (6 th Cir. Ct. App. 1999). xiii Thao v. St. Jude Medical, Inc., 2004 WL , *2 (Minn. Ct. App. 2004). xiv Mississippi Code 1942, , xv Index Drilling Co. v. Williams, 137 So.2d 525 (Miss. 1962). xvi Hofferber v. City of Hastings, 275 Neb. 503 (Neb. 2008). xvii Mingin v. Continental Can Co., 171 N.J. Super. 148 (1979); Lyon v. Barrett, 89 N.J. 294, 302 (1982)( Related corporations may not extend from one to another the immunity accorded by workers compensation laws. ). xviii Samaras v. Gatx Leasing Corp., 75 A.D.2d 890 (N.Y. Sup. Ct. A.D. 1980). xix Phillips v. Stowe Mills, Inc., 167 S.E.2d 817 (N.C. Ct. App. 1969)(Immunity from suit under Workmen s Compensation Act does not necessarily extend to employer s parent corporation when the parent owns the building in which the employee worked, even though the parent owned all of the employer s stock and had common offices and management). xx Richmond v. Indalex Inc., 308 F.Supp.2d 648 (M.D.N.C. 2004). xxi Nemeth v. J.C. Baxter Co., Inc., 1982 WL 6256 (Ohio Ct. App. 1982). xxii Love v. Flour Mills of America, 647 F.2d 1058 (1981); see also Hearn v. Petra Intern. Corp., 710 P.2d 769 (Okla. Ct. App. 1985)( [T]he tort system should not deny recovery in an increasingly concentrated economy to an injured employee due to the fortuitous circumstances that the tortfeasor is not a stranger but is controlled by the same business enterprise that controls his immediate employer. ). xxiii Laubach v. Industrial Indem. Co., 286 Or. 217 (1979); citing W. **1150 Prosser, Torts , s 56 (4th ed 1971). xxiv Mohan v. Continental Distilling Corp., 422 Pa. 588, (1966); Ropele v. Dravo Corporation, 1980 WL (Ohio Ct. App. 1980). xxv Poch v. Bayshore Cocnrete Products/South Carolina, Inc., 747 S.E.2d 757 (S.C. 2013). xxvi Latham v. Technar, Inc., 390 F.supp (E.D. Tenn. 1974).
10 xxvii Stoddard v. Ling-Temco-Vought, Inc., 513 F.Supp. 314 (C.D. Cal. 1980)(applying Texas law). xxviii Smith v. Atlantic Richfield Co., 814 F.2d 1481 (10 th Cir. Ct. App. 1987). xxix Intermodal Services, Inc. v. Smith, 364 S.E.2d 221 (Va. 1988)(citing Va. Code 1950, et seq.) xxx Minton v. Ralston Purina Co., 47 P.3d 556 (Wash. 2002); RCWA , xxxi Miller v. Bristol-Myers Co., 485 N.W.2d 31 (Wis. 1992). xxxii Moyer v. Siemens Vai Servs., LLC, 2013 U.S. Dist. LEXIS (E.D. La. June 28, 2013). xxxiii Romero v. Int l Harvester Co., 979 F.2d 1444, 1450 (10 th Cir. 1992).; Perlmutter v. U.S. Gypsum Co., 4 F.3d 864, 870 (10 th Cir. 1993). xxxiv Ga. Code Ann (c); Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11 th Cir. 1999). xxxv Tober v. Graco Children s Prods., 431 F.3d 572, 579 (7 th Cir )(leaving open the possibility of future recognition of such a duty under the Indiana Product Liability Statute, but declining to create one in the case at issue). xxxvi Lovick v. Wil-Rich, 588 N.W.2d 688, 696 (1999). xxxvii Cameron v. DaimlerChrysler, Corp., 2005 U.S. Dist. LEXIS 24361, at *17-20((E.D. Ky. Oct. 20, 2005). xxxviii Montgomery Elevator Co. v. McCullough,, 676 S.W.2d 776, (Ky. 1984). xxxix Ostendorf, 122 S.W.3d at xl La. Rev. Stat. Ann. 9: C. xli Gregory v. Cincinnati, Inc., 450 Mich. 1, 11 (1995). xlii Kociemba v. G.D. Searle & Co. 707 F.Supp. 1517, 1528 (D.Minn. 1989). xliii The 8th Circuit applying Nebraska law, has predicted that Nebraska law would hold that a manufacturer does not have either a post-sale duty to warn of dangers or a post-sale duty to retrofit a product, but expressly did not address whether others in the chain of distribution might have such a duty. Anderson v. Nissan Motor Co., 139 F.3d 599, (8 th Cir. 1998). xliv N.J. Stat. Ann. 2A:58C-4; Dixon v. Jacobsen, 270 N.J. Super. 569 (App. Div. 1994); Molino v. B.F. Goodrich Co., 261 N.J. Super. 85 (App. Div. 1992); Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J. Super. 1 (App. Div. 1992); Lally v. Printing Mach. Sales & Serv. Co., 240 N.J. Super. 181 (App. Div. 1990). xlv Cover v. Cohen, 61 N.Y.2d 261, 275 (1984). xlvi Id.; See also Lindsay v. Ortho Pharm. Corp., 637 F.2d 87, 91 (2d Cir. 1980). xlvii Adams v. Genie Indus., Inc., 14 N.Y.3d 535, (2010). xlviii N.C. Gen. Stat. 99B-5(a)(2); Smith v. Selco, Inc., 96 N.C.App. 151, 158 (1989). xlix Mills v. G.M., 1997 U.S. App. LEXIS 18839, *6 (4 th Cir. 1997). l Ohio Rev. Code Ann (A)(2). li McKee v. Moore, 1982 OK 71m 648 P.2d 21; See also Shuman v. Laverne Farmers Co-op., 1991 OK CIV APP 2, 809 P.2d 76 (accepting, with minimal analysis, the proposition that every manufacturer has a continuing duty to warn). lii Wicker v. Ford, 393 F.Supp.2d 1229 (W.D. Okla. 2005). (No duty to retrofit or warn post-sale); Smith v. Sears Roebuck & Co., 2006 WL (W.D. Okla. Jan. 9, 2006). liii The Oregon Supreme Court held that the ordinary contract relationship for the sale of goods does not create an active and continuous relationship and consequently does not call for the imposition of a special rule creating a post-sale duty to warn. Cavan v. General Motors Corp., 280 Ore. 455, 458 (1977). However, a post-sale duty to warn has been imposed on drug manufacturers, although Oregon courts have not articulated circumstances in which other sellers may have such a continuing duty to warn. McEwan v. Ortho Pharm. Corp., 270 Or. 375, 385 (1974). liv Padilla v. Black & Decker Corp., 2005 U.S. Dist. LEXIS 4720, *17 (E.D. Pa. 2005). lv Lance v. Wyeth, 4 A.3d 160, (Pa. Super. 2010); DeSantis v. Frick, 745 A.2d 624 (Pa. Super. 1999); Lynch v. McStome & Lincoln Plaza Assocs. 548 A.2d 1276 (Pa. Super. 1988). lvi Torres v. Caterpillar, Inc., 928 S.W.2d 233, 240 (1996). lvii Bryant v. Giacomini S.p.A., 391 F.Supp.2d 495, 503 (N.D. Texas 2005). lviii Dowdy v. Coleman Co., Inc., 2011 WL (D. Utah 2011). lix Harris v. T.I., Inc., 243 Va. 63 (1992)(assuming, without deciding, that in a proper case the Supreme court of Virginia would recognize a successor corporation s post-sale duty to warn, although no such duty could arise under the facts alleged.) lx Esparza v. Skyreach Equip., Inc., 103 Wash. App. 916, 935 (2000). lxi Wash. Rev. Code (1)(c); see Couch v. Mine Safety Appliances Co., 107 Wash. 2d 232, 239 n.5(1986). lxii See, e.g., Sharp ex rel. Gordon v. Case Corp., 227 Wis. 2d 1, 26 (1999). lxiii A federal district court, predicting Indiana law, held that Indiana public policy would be violated if a defendant were permitted to pass punitive damages on to an insurance company. See Grant v. N. River Ins. Co., 453 F. Supp (N.D. Ind. 1978). lxiv The Texas Supreme Court explained that Texas public policy does not prohibit insurance coverage for punitive damages within the context of workers compensation claims. Fairfield Ins. Co. v. Stephens Martin Paving, L.P., 246 S.W.3d 653 (Tex. 2008). The Court declined to decide the extent to which punitive damages are insurable in other contexts (e.g. personal injury lawsuits). Accordingly, the issue remains undecided.
11 lxv https://www.osha.gov/pls/imis/establishment.violation_detail?id= &citation_id=01001 lxvi https://www.osha.gov/pls/imis/establishment.violation_detail?id= &citation_id=01001 lxvii Perlmutter v. United States Gypsum Co., 4 F.3d 864, 869 (10th Cir. Colo. 1993). lxviii Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1175 (Colo. 1993). lxix Romero v. International Harvester Co., 979 F.2d 1444, 1452 (10th Cir. Colo. 1992).