Appellee=s Second Motion for Rehearing Overruled and Second Motion for En Banc Rehearing is overruled as moot; Reversed and Rendered and Substitute Majority Opinion and Concurring Opinion filed April 19, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-04-01133-CV
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EXXON MOBIL CORPORATION, Appellant
V.
LOUISE ALTIMORE, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 03CV0588
CONCURRING OPINION ON REHEARING
I acknowledge that foreseeability of the risk of harm is the foremost and dominant factor to be considered in determining existence of a legal duty. However, I disagree with the majority=s emphasis and disposition based on lack of foreseeability of the risk of harm to Mrs. Altimore.
In the context of legal duty, some of the confusion relative to foreseeability, rests on the shoulders of the Texas Supreme Court. For example, the court has previously analyzed foreseeability under the heading of proximate cause; however, in defining foreseeability, the court has cited cases dealing with both duty and proximate cause. See Nixon v. Mr. Prop. Mngt. Co., 690 S.W.2d 546, 551 (Tex. 1985) (citing Missouri Pac. R.R. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977) (dealing with proximate cause); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 64 (Tex. App.CSan Antonio 1983, writ ref=d. n.r.e.) (pertaining to duty); Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 625S26 (Tex. App.CHouston [14th Dist.] 1979, writ ref=d n.r.e.) (dealing with both duty and proximate cause)). Consequently, I am not surprised that the majority relies on the long-recognized, two-pronged test for foreseeability frequently recited by the Texas Supreme Court which requires: (1) the injury to be of such a general character as might reasonably have been anticipated; and (2) the injured party should be so situated relative to the wrongful act that injury to him or one similarly situated might reasonably have been foreseen. See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality opinion) (citing Nixon, 690 S.W. 2d at 769). The plurality in Mellon purports to resolve the confusion with the suggestion that the answer is simple: AThe foreseeability analysis is the same for both duty and proximate cause.@ Id at 659. However, in his concurring opinion, Justice Baker reminded his fellow jurists that proximate cause is usually a jury issue and duty is a threshold question to be decided by the court. He recalled Dean Keeton=s approach to duty and proximate cause: questions about whether a defendant=s liability extends to a particular class of plaintiffs are questions of proximate cause, not duty. Id. at 663. Justice Baker=s concern about improper bootstrapping of proximate-cause foreseeability into the threshold duty question was echoed in Justice O=Neill=s dissenting opinion, joined by Chief Justice Phillips and Justice Hankinson. Id. at 665B68. I share their concerns.
The analytical difficulty arises because the second prong of the above-mentioned two-pronged test should be applied when determining proximate cause, not legal duty. Much of the evidence considered by the majority in this case is derived from epidemiological studies. Epidemiology necessarily involves classification of persons in different environments for statistical analysis and forensic studies. Determining legal duty by describing the amount and quality of forensic studies which might have informed Exxon regarding the risk of harm to Mrs. Altimore or those Asimilarly situated@ takes the focus off Exxon=s knowledge of a general danger relative to the qualities of asbestos. By focusing on epidemiological studies, the majority fails to follow our earlier pronouncement that foreseeability does not require a person to anticipate the precise manner in which an injury will occur, once the person negligently creates a dangerous situation. See Taylor v. Carley, 158 S.W.3d 1, 9 (Tex App.CHouston [14th Dist.] 2004, pet. denied). In Taylor, we explained that foreseeability requires only the general danger, not the exact sequence of events which produces the harm, be foreseeable. Id. Therefore, foreseeability of the risk of harm exists when it reasonably appears or should appear that others may be injured. Shell Oil Co. v. Humphery, 880 S.W.2d 170, 175 (Tex. App.CHouston [14th Dist.] 1994, writ denied). Alternatively, relative to legal duty, foreseeability means that the actor, as a person of ordinary prudence should have anticipated the danger that his negligent act created for others. Isbell v. Ryan, 983 S.W.2d 335, 339 (Tex. App.CHouston [14th Dist.] 1998, no writ).
The majority has conflated reliability of scientific information for proof of causation with the degree or amount of knowledge a person must have about the risk of harm before a legal duty attaches. Relative to determination of proximate cause, I agree that the law must follow development and accumulation of reliable scientific data. See Merrrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 728 (Tex. 1997). However, if foreseeability of the risk of harm, prerequisite to existence of a legal duty, is not established until a defendant receives scientific data recognized and accepted within the scientific community, many citizens could be seriously injured or killed before a defendant has impetus to alter its behavior. Here, there is no dispute between the parties that Exxon was aware of the danger associated with exposure to asbestos. Exxon acknowledges that it warned Baytown employees of potential health effects of asbestos as early as the 1930s. Based on my review of the appellate record, I would conclude that the risk of harm to Mrs. Altimore was foreseeable because Exxon had knowledge of a general danger associated with using or handling asbestos during the relevant period of time. Consequently, I cannot join the majority opinion.
Finally, I note that the majority=s analysis of Exxon=s legal duty to warn Mr. and Mrs. Altimore about the dangers of asbestos dust or to require Mr. Altimore to remove his clothes and shower before leaving the Baytown plant is incomplete. The majority failed to consider other interrelated factors, including: (1) type of risk, (2) likelihood of injury, (3) social utility of the defendant=s conduct, (4) magnitude of the burden on the defendant, and (5) consequences of placing the burden on the defendant. See Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994). Accordingly, my conclusion regarding foreseeability as a factor in determining legal duty would not militate a finding that Exxon had a legal duty to Mrs. Altimore.[1] Because of offsets and credits resulting from settlements prior to trial, the judgment and award which is the subject of this appeal is limited to punitive damages. Consequently, I would focus appellate review on appellant=s issues pertaining to exemplary damages. After reviewing the record, prerequisite to determining legal sufficiency of the evidence, I would hold that the evidence is legally insufficient to support punitive damages.
For the reasons stated above, I concur with the majority=s decision to reverse the judgment of the trial court and render judgment that Mrs. Altimore take nothing.
/s/ Charles Seymore
Justice
Judgment rendered and Substitute Majority Opinion and Concurring Opinion on Rehearing filed April 19, 2007.
Panel consists of Justices Anderson, Edelman, and Seymore. (Anderson, J., majority).
[1] However, considering two of the interrelated factors, our Legislature has long recognized that the surviving spouse of an employee whose death was caused by the employer=s gross negligence may recover exemplary damages if the injury that caused death occurred while the employee was in the course and scope of employment. Tex. Labor Code Ann. ' 408.001(b) (Vernon 2006). Arguably, Texas courts would not create a new class of plaintiffs by acknowledging that the non-delegable duty to provide a safe place to work extends to an employee=s spouse who sustains bodily injury because of exposure to toxin transported from the work site.