Halterman v. Radisson Hotel Corp.

Present: All the Justices

JOHN D. HALTERMAN, JR.

v. Record No. 990311 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 14, 2000
RADISSON HOTEL CORPORATION, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge

In this appeal, we consider whether the trial court erred

in striking the plaintiff's evidence on a claim of negligence

per se.

John D. Halterman, Jr., filed an amended motion for

judgment against Radisson Hotel Corporation, Mark Center Hotel

Limited Partnership, and Radisson Mark Plaza Joint Venture

(collectively, Radisson), the owners and operators of the

Radisson Plaza Hotel at Mark Center (the hotel) in Alexandria.

He alleged that he was injured when he was exposed to hazardous

chemicals while repairing washing machines in the hotel's

laundry room.

In Count I, Halterman alleged that Radisson was guilty of

negligence per se because it violated a federal regulation

promulgated under the Occupational Safety and Health Act (OSHA),

29 U.S.C. §§ 651 through -678. The regulation, 29 C.F.R.

§ 1910.1200(e), known as the Hazard Communication Standard (HCS

regulation), requires, among other things, that employers
implement a written hazard communication program to provide

specified information to certain employees concerning hazardous

chemicals used at the employer's work sites. This regulation

provides, in material part:

(e) Written hazard communication program. (1)
Employers shall develop, implement, and maintain at
each workplace, a written hazard communication program
which . . . includes the following:
(i) A list of the hazardous chemicals known to be
present using an identity that is referenced on the
appropriate material safety data sheet (the list may
be compiled for the workplace as a whole or for
individual work areas); . . .
(ii) The methods the employer will use to inform
employees of the hazards of non-routine tasks . . .
(2) Multi-employer workplaces. Employers who
produce, use, or store hazardous chemicals at a
workplace in such a way that the employees of other
employer(s) may be exposed (for example, employees of
a construction contractor working on-site) shall
additionally ensure that the hazard communications
programs developed and implemented under this
paragraph (e) include the following:
(i) The methods the employer will use to provide
the other employer(s) on-site access to material
safety data sheets for each hazardous chemical the
other employer(s)' employees may be exposed to while
working;
(ii) The methods the employer will use to inform
the other employer(s) of any precautionary measures
that need to be taken to protect employees during the
workplace's normal operating conditions and in
foreseeable emergencies; and
(iii) The methods the employer will use to inform
the other employer(s) of the labeling system used in
the workplace.
(3) The employer may rely on an existing hazard
communication program to comply with these
requirements, provided that it meets the criteria
established in this paragraph (e).

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Halterman asserted that Radisson violated the HCS regulation "by

failing in all respects to provide information to him about any

chemicals known to be present in the laundry room in such a

manner that he may be exposed to them while doing the repair

work or in a foreseeable emergency."

In Count II, Halterman asserted a simple negligence claim.

He alleged that Radisson failed to maintain the hotel laundry

room in a reasonably safe condition and failed to warn him of

the hazards posed by chemicals contained in laundry products

used in the laundry room.

The following evidence was presented in a jury trial. In

March 1995, John Hieatt, the hotel's chief engineer, contacted

H & H Machine Company (H & H) to arrange for the repair of a

washing machine in the hotel's laundry room that had developed

cracks around its stainless steel door hinges. H & H sent

Halterman, a certified welder, and Robert Lankford, another

employee, to the hotel to perform the work. After Halterman

arrived at the work site, Hieatt directed him to repair an

additional washing machine that had similar cracks.

Halterman employed a welding process using tungsten inert

gas to repair the cracks. During this welding process, heat is

generated by electricity and conducted through a noncombustible

tungsten electrode to melt stainless steel filler rods and form

a weld. The repair work took several hours to complete, and

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Halterman spent about 30 to 45 minutes of that time welding the

cracks in the doors of the machines.

The hotel maintained a display unit on the wall of the

laundry room, which contained material safety data sheets for

all the laundry products used by the hotel. These sheets

contained information about hazardous components in the products

and included warnings and instructions about the proper use of

the products, protective measures to follow, and first aid

procedures to employ in the event of improper exposure.

One of the products that the hotel used in the laundry room

was a laundry sour known as Liquid Lusterfixe. A material

safety data sheet in the display unit noted that Liquid

Lusterfixe contained a 15% to 40% concentration of

hydrofluosilicic acid, and that this acid was a "hazardous

component."

The display unit for the material safety data sheets was

located ten feet to the left of the door through which Halterman

entered the laundry room. To reach the washing machines,

Halterman was required to turn to his right after passing

through the door. Hieatt did not point out the display unit to

Halterman or otherwise advise him about hazardous chemicals used

in the laundry room.

Halterman testified that he was in good health when he

arrived at the hotel but, before leaving the premises, he had

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developed a cough. During the remainder of the day and the

following night, Halterman's cough worsened and he developed

shortness of breath.

Dr. Mohammad Taleghani, a pulmonary disease specialist who

treated Halterman, testified that Halterman contracted acute

chemical pneumonitis as a result of being exposed to Liquid

Lusterfixe. Dr. Taleghani explained that Halterman's

pneumonitis eventually "resolved itself" into a condition known

as interstitial fibrosis, or scarring of the lung tissue. Dr.

Taleghani further stated that, as a result of the fibrosis,

Halterman lost about one-third of his vital lung capacity.

Dr. Laura Welch, an occupational medicine specialist,

testified that in her opinion, Halterman's lungs were injured

when the welding process heated the hydrofluosilicic acid

contained in the Liquid Lusterfixe residue that had accumulated

in the cracks around the washing machines' hinges. She stated

that this heat "acted on" the hydrofluosilicic acid "to create"

a gas of hydrogen fluoride or another fluorine-based compound,

which are toxins known to cause pneumonitis.

At the conclusion of Halterman's evidence, the trial court

granted Radisson's motion to strike Halterman's evidence on

Count I, the claim of negligence per se. The court ruled that

Halterman was not within the class of persons that the HCS

regulation was intended to protect. The court then denied

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Radisson's motion to strike Halterman's evidence on Count II,

the simple negligence claim.

After Radisson presented testimony and rested its case, the

trial court denied Radisson's renewed motion to strike

Halterman's evidence on the simple negligence claim. The court

also refused Halterman's proposed jury instruction no. 14, which

contained the definition of the term "hazardous chemical" used

in the HCS regulation, and proposed instruction no. 15, which

stated the duties imposed by the HCS regulation on an employer

at a "multi-employer workplace." The jury returned a verdict in

favor of Radisson on the simple negligence claim and the trial

court entered final judgment in accordance with the jury

verdict.

On appeal, Halterman contends, among other things, that

Radisson violated the HCS regulation by failing "to ensure that

the hazards of Liquid Lusterfixe, plainly set out in its

material safety data sheet, were communicated to [him]." He

asserts that the "multi-employer workplaces" provision of the

HCS regulation, 29 C.F.R. § 1910.1200(e)(2), imposed this duty

on Radisson, and that Radisson's violation of that provision

entitled him to assert a claim of negligence per se against

Radisson for the injuries he sustained. We disagree with

Halterman's arguments.

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 The requirements for proving a claim of negligence per se

are well established. First, a plaintiff must establish that

the defendant violated a statute that was enacted for public

safety. 1 MacCoy v. Colony House Builders, Inc., 239 Va. 64, 69,

387 S.E.2d 760, 763 (1990); Virginia Elec. and Power Co. v.

Savoy Const. Co., 224 Va. 36, 45, 294 S.E.2d 811, 817 (1982).

Second, the plaintiff must prove that he belongs to the class of

persons for whose benefit the statute was enacted, and that the

harm that occurred was of the type against which the statute was

designed to protect. Williamson v. The Old Brogue, Inc., 232

Va. 350, 355, 350 S.E.2d 621, 624 (1986); Pearson v. Canada

Contracting Co., 232 Va. 177, 186, 349 S.E.2d 106, 112 (1986);

Virginia Elec. and Power Co., 224 Va. at 45, 294 S.E.2d at 817.

Third, the plaintiff must prove that the statutory violation was

a proximate cause of his injury. Thomas v. Settle, 247 Va. 15,

20, 439 S.E.2d 360, 363 (1994); Hack v. Nester, 241 Va. 499,

503-04, 404 S.E.2d 42, 43 (1990); Pullen v. Nickens, 226 Va.

342, 349, 310 S.E.2d 452, 455 (1983).

We first consider whether Halterman proved that Radisson

violated the HCS regulation. Since the trial court struck

1
We note that Radisson does not argue that an OSHA
regulation is not the equivalent of a statute enacted for public
safety for purposes of establishing a claim of negligence per
se. Thus, in resolving the issues raised in this appeal we will
assume, without deciding, that the violation of an OSHA

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Halterman's evidence, we will review the evidence and the

inferences reasonably raised by the evidence in the light most

favorable to him. Claycomb v. Didawick, 256 Va. 332, 335, 505

S.E.2d 202, 204 (1998); A.H. v. Rockingham Pub. Co., 255 Va.

216, 219, 495 S.E.2d 482, 484 (1998).

In deciding this issue, we need not determine whether

Halterman, a repairman sent to the workplace by his employer,

was within the class of persons that the "multi-employer

workplaces" provision of the regulation was intended to protect.

Even if Halterman was within this class of persons, his evidence

failed to show that Radisson violated any requirements imposed

by that provision.

At trial, Halterman did not present any evidence that the

material safety data sheets Radisson maintained at its workplace

lacked sufficient warnings about the hazardous chemicals

contained in Liquid Lusterfixe or the potential consequences of

exposure to those chemicals. Instead, he based his claim of

negligence per se solely on Radisson's violation of an alleged

requirement in the "multi-employer workplaces" provision to

provide this information about the chemicals directly to him, or

to show him the location of the material safety data sheets in

the laundry room.

regulation is the equivalent of such a statutory violation in
asserting this type of claim.

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 The provisions of the HCS regulation apply to "any chemical

which is known to be present in the workplace in such a manner

that employees may be exposed under normal conditions of use or

in a foreseeable emergency." 29 C.F.R. § 1910.1200(b)(2). The

HCS regulation required Radisson, among other things, to provide

the required information at its workplace to its own employees.

See 29 C.F.R. § 1910.1200(e)(1). Under the "multi-employer

workplaces" provision of the HCS regulation, Radisson also was

responsible for providing information about its hazard

communications program to the employer(s) of other employees

working at the same work site. See 29 C.F.R. § 1910.1200(e)(2).

The required information included, among other things, the

"methods the employer will use to provide the other employer(s)

on-site access to material safety data sheets for each hazardous

chemical the other employer(s)' employees may be exposed to

while working." 29 C.F.R. § 1910.1200(e)(2)(i)(emphasis added).

The plain language of this provision did not obligate

Radisson to communicate information about the chemicals in use

in the laundry room directly to Halterman, the employee of

another employer, but only obligated Radisson to communicate or

to make available any required information to Halterman's

employer, H & H.

The record contains no evidence that Radisson failed to

provide to H & H any information required under the HCS

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regulation. Thus, we hold that Halterman failed to prove that

Radisson violated the HCS regulation, and we conclude that the

trial court did not err in striking Count I of the amended

motion for judgment. Since the trial court reached the correct

result for reasons not stated in its ruling, we will uphold that

result. 2 First Sec. Federal Sav. Bank, Inc. v. McQuilken, 253

Va. 110, 115, 480 S.E.2d 485, 488 (1997); see Robbins v. Grimes,

211 Va. 97, 100, 175 S.E.2d 246, 248 (1970).

For the reasons stated in this opinion, we will affirm the

trial court's judgment.

Affirmed.

2
Because the trial court properly struck the evidence on
Count I, we also conclude that the court did not err in refusing
proposed jury instructions nos. 14 and 15, which were based on
the HCS regulation.

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