Brown v. Olin Chemical Corp.

No. 00-30512 (231 F.3d 197, 51 ERC 1673) (5th Cir. November 6, 2000)

ELR Digest

The court affirms a district court's grant of summary judgment to a Louisiana sulfuric acid manufacturer, emissions from which allegedly harmed a casino and its employees. In order to complete construction of a riverboat, the casino rented riverfront space near the manufacturer. During construction, emissions from the manufacturer allegedly caused casino employees to fall ill, and, as a result, the casino had to stop construction and conduct monitoring. The court first holds that under Louisiana law, a showing of negligence is required in any claim for damages other than those caused by pile driving or blasting with explosives. The evidence does not show that the manufacturer exceeded acceptable emissions limits at any of the times at issue, nor was there any evidence adduced showing that the manufacturer exercised anything less than reasonable care in the operation of its plant. The court next holds that the doctrine of res ipsa loquitor does not apply. The casino failed to show that the damage caused here is of the type that does not ordinarily occur in the absence of negligence. The casino did not show that the workers fell ill as a result of chemical exposure or that they could not have fallen ill from chemical exposure when the nearby chemical plants were being operated with the exercise of reasonable care. When, as here, the source of the harm is not apparent on the face of the facts alleged, the plaintiff must put forth expert testimony to show that the harm could only have been caused by the negligence of the defendant, and the casino offered no such evidence. Additionally, the casino failed to negate the possibility that the chemical exposure to workers on the riverboat's construction site could have been caused by another source.

The full text of this decision is available from ELR (5 pp., ELR Order No. L-296).

Counsel for Plaintiffs
Robert E. Piper Jr.
Piper & Associates
624 Pierre Ave., Shreveport LA 71103
(318) 226-0826

Counsel for Defendants
Thomas M. Bergstedt
Bergstedt & Mount
Magnolia Life Bldg., 2d Fl., Lake Charles LA 70602
(337) 433-3004

[31 ELR 20242]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]