Shellenbarger v. Longview Fibre Co.
Shellenbarger v. Longview Fibre Co.
Opinion of the Court
I
¶2 Longview Fibre Company operated a pulp and paper mill where Gerald Shellenbarger worked as a papermaker from 1960 to 1965 and from 1976 to 1996. For the first two years of his employment, Shellenbarger worked in various positions at the mill, and in 1962 secured a permanent position as a “broke beaterman.” Shellenbarger worked permanently on machines numbered four and five from 1962 to 1965. He left Longview Fibre in 1965 and spent the majority of the next 10 years as an ironworker. When he returned to work at Longview Fibre in 1976, Shellenbarger worked as a spare hand for several months before obtaining a permanent position as a papermaker on machines one and four. He worked in this position for 19 years, until his doctors instructed him to stop working due to his health problems.
¶3 Shellenbarger was exposed to asbestos at Longview Fibre in several ways. The most obvious exposure occurred from 1964 to 1965, when he worked as a broke beaterman on machines four and five. Shellenbarger was required to return waste paper products back into the pulp machine by
¶4 Shellenbarger may also have come into contact with airborne asbestos during “blow downs,” which occurred approximately twice a month as part of regular maintenance at Longview Fibre. Whenever a machine would break down, a crew went to the top of the machine and blew all the dust off of it in order to assist the mechanics and prevent fire. Dust would fill the air during blow downs, but the amount of asbestos within these dust clouds is uncertain.
f5 Finally, Longview Fibre used products on its work site that contained asbestos. Shellenbarger was required to handle dryer felts, which are machine parts that contained asbestos. Additionally, machine hoods and pipe coverings at the paper plant contained asbestos. The pipe coverings were eventually replaced with asbestos-free coverings. Shellenbarger recalls pieces of the old pipe covering falling down to the floor and blowing around the work area when the new insulation was being installed.
¶6 Longview Fibre became aware of the dangers of asbestos sometime in the 1960s. Longview Fibre purchased asbestos from Union Carbide. Union Carbide produced an asbestos toxicology report, which it gave to potential and current customers sometime in 1964. The report indicated that it was known for many years that “persons working in asbestos production were prone to develop a disabling lung disease,” and advised companies to control asbestos dust exposure. There is no evidence to confirm that Longview Fibre received a copy of this report.
¶8 In the early 1970s, Longview Fibre installed asbestos exposure controls into its workplace pursuant to the federal Occupational Safety and Health Act of 1970 and the Washington Industrial Safety and Health Act of 1973 (ch. 49.17 RCW). Rules were implemented to control levels of airborne asbestos and for safe asbestos handling. Additionally, Longview Fibre began conducting air sampling in 1972. The samples showed that Shellenbarger’s work area did not contain excess levels of asbestos. Longview Fibre stopped using asbestos as a pitch control agent by the end of 1977 and switched to asbestos-free gaskets in the mid-1970s. By the early 1990s, it had replaced almost all of its asbestos-containing insulation, although not legally required to do so.
¶9 Shellenbarger has a lung disease called pulmonary fibrosis, which can be caused by a number of agents. In March of 2000, Shellenbarger learned his lung disease may have been caused by asbestos exposure, and that he also has a condition called asbestosis. Not everyone who inhales asbestos develops lung disease; however, medical examinations of pulmonary tissue from Shellenbarger’s lungs indicated that he has levels of asbestos fibers above the usual background exposure levels.
¶10 We review the Shellenbargers’ appeal from summary judgment de novo. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. We must view the evidence in the light most favorable to the Shellenbargers.
¶11 By adopting the WIIA, the state of Washington ensured that all workers injured on the job would receive compensation, regardless of fault. In exchange, however, the legislature abolished the courts’ jurisdiction to hear civil causes of action for personal work injuries, with one exception.
f 12 Courts have interpreted deliberate intention to mean both the specific intent to injure and willful disregard of actual knowledge that the injury would occur.
¶13 The Shellenbargers claim that Longview Fibre willfully disregarded knowledge of certain injury. To satisfy the first inquiry, the Shellenbargers argue that they presented evidence sufficient for a finding of actual knowledge under the standard articulated by our Supreme Court in Birklid v.
114 The Shellenbargers face a difficult task in proving that Longview Fibre had actual knowledge of certain injury. The Washington Supreme Court adopted a literal meaning of “certain injury” when it expressly declined to adopt the “substantial certainty” test used in some other states. It noted that the legislature intended to give a very narrow meaning to the deliberate intent exception of the WIIA.
¶15 Certainty leaves no room for chance. Washington courts have repeatedly held that known risk of harm or carelessness is not enough to establish certain injury, even when the risk is substantial.
Although [the employer] reportedly admitted that she and her husband “knew this was going to happen” but just did not know when, this admission does not show actual knowledge that [the employee] was certain to be the injured party. As noted above, an employer acting with even a substantial certainty that injury will occur to the employee does not have the requisite*48 specific intent to injure that triggers the ROW 51.24.020 exception to employer immunity.
Gross negligence and the failure to follow safety procedures is not enough to show deliberate intention.[13 ]
The limited cases in which courts have held that there was a genuine issue of fact regarding knowledge of certain injury involved situations in which there was virtually no doubt injury would occur.
f 16 Applying the standard articulated by Washington courts, a fact finder could not reasonably conclude that Longview Fibre had actual knowledge of certain injury. The most egregious use of asbestos occurred from 1964 to the mid-1970s, when broke beatermen were required to slice open bags of asbestos and dump them into machine number five. Shellenbarger performed this job for one year, from 1964 to 1965. At best, the evidence establishes that Long-view Fibre may have received a report in 1964 on the dangers of asbestos.
¶17 By the time Shellenbarger returned to Longview Fibre in 1976, the evidence is reasonably sufficient to establish that Longview Fibre had knowledge of the dangers of asbestos. In fact, Longview Fibre released an instructional hazards manual in 1968, implemented rules and procedures pursuant to legal requirements in 1973, and stopped using asbestos in the production process by
¶18 The Shellenbargers argue that Longview Fibre knew asbestos was certain to cause injury and point to Vaught’s testimony that he was told asbestos “had long-term health effects if you breathe it.” After examining all of the evidence in the light most favorable to the Shellenbargers, however, a fact finder could not conclude that Longview Fibre knew injury was certain to occur. The Shellenbargers have taken a small piece of Vaught’s testimony and construed it incorrectly. A more thorough look at the evidence Vaught supplied indicates that Longview Fibre believed the workplace was safe. We know now that asbestos exposure does not result in injury to every person, and the evidence does not suggest Longview Fibre believed otherwise 30 years ago. Workers were not exhibiting signs of injury. More importantly, Longview Fibre complied with federal and state asbestos safety standards by implementing rules and procedures. Air testing, which began in 1972, showed that Shellenbarger’s work station had acceptable levels of asbestos. Although Longview Fibre may have been negligent by creating unsafe working conditions, a reasonable fact finder could not conclude that the company knew with certainty that Shellenbarger, or any employee, would be injured by asbestos exposure in the workplace.
¶19 Viewing the evidence in the Shellenbargers’ favor, it is insufficient to support a finding that Longview Fibre possessed actual knowledge of certain injury. We do not reach the second prong of the deliberate intent test.
¶20 Affirmed.
Ellington, A.C.J., and Coleman, J., concur.
Review denied at 154 Wn.2d 1021 (2005).
Title 51 ROW.
Stenger v. Stanwood Sch. Dist., 95 Wn. App. 802, 812, 977 P.2d 660 (1999).
RCW 51.04.010.
RCW 51.24.020.
Birklid v. Boeing Co., 127 Wn.2d 853, 862-63, 904 P.2d 278 (1995).
Birklid, 127 Wn.2d at 861-62.
Birklid, 127 Wn.2d at 865.
Birklid, 127 Wn.2d at 865.
127 Wn.2d 853, 904 P.2d 278 (1995). Alternatively, the Shellenbargers argue that this court should adopt the “continually operative dangerous condition” standard for actual knowledge of certain injury, articulated by the Michigan Supreme Court in Golec v. Metal Exchange Corp., 453 Mich. 149, 551 N.W.2d 132 (1996). They argue that Michigan’s interpretation is particularly persuasive because the Washington Supreme Court derived the deliberate intent standard from Michigan’s industrial insurance statute. However, our Supreme Court has articulated the standard for determining certain injury under the WIIA. We cannot adopt Michigan’s more lenient standard.
Birklid, 127 Wn.2d at 865.
E.g., Folsom v. Burger King, 135 Wn.2d 658, 667, 958 P.2d 301 (1998).
119 Wn. App. 61, 72, 79 P.3d 6 (2003).
Schuchman, 119 Wn. App. at 72 (citations omitted).
For example, Birklid, 127 Wn.2d 853, and Hope v. Larry’s Markets, 108 Wn. App. 185,189-91, 29 P.3d 1268 (2001) involved employees who were forced to work with harmful chemicals in their workplace. Workers exhibited signs of illness and complained to their employers when they used the chemicals. The employers knew that injury was certain to occur, yet required the employees to continue using the chemicals. Birklid, 127 Wn.2d at 856-57; Hope, 108 Wn. App. at 189-91. Perhaps the only case leaving any question regarding certainty was Stenger, 95 Wn. App. 802. Stenger involved injury suifered by a school aide, which was caused by a mentally handicapped student who had a history of violence. The child had inflicted over 1,300 injuries to employees in the preceding three years. Arguably, the school aide’s injury was not certain because a human being’s actions are not 100 percent predictable. But given the frequency of the child’s outbursts and the number of injuries he inflicted, we reasoned that a jury could conclude the District had actual knowledge of certain injury. Stenger, 95 Wn. App. at 813.
Baker v. Schatz, 80 Wn. App. 775, 780, 912 P.2d 501 (1996).
Reference
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- Gerald A. Shellenbarger v. Longview Fibre Company
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- Published