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).
2
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
3
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
4
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
5
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.
6
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
7
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.
8
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
9
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.
10