Swope v. Columbian Chemicals Co.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-30216

CLAUDE SWOPE; SANDRA K. SWOPE,

Plaintiffs - Appellants,

VERSUS

COLUMBIAN CHEMICALS CO.; ET AL

Defendants,

COLUMBIAN CHEMICALS CO.; HENKEL CORP.; MILLENNIUM PETROCHEMICALS
INC., formerly known as National Distillers & Chemical Corp.,
also known as Quantum Chemicals Corp.

Defendants - Appellees.

Appeals from the United States District Court
for the Western District of Louisiana

January 24, 2002
Before JOLLY and DENNIS, Circuit Judges, and DOWD,* District Judge.

DENNIS, Circuit Judge, and DOWD, District Judge**:

Mr. Claude Swope and his wife brought this suit alleging that

*
The Honorable David D. Dowd, Jr., United States District
Judge for the Northern District of Ohio, sitting by designation.
**
Part I of this opinion was written by Judge Dowd.

1
he was rendered totally and permanently disabled by lung damage

caused through his inhalation of ozone during his employment as a

maintenance worker by Columbian Chemicals Company (“Columbian”).

Columbian is in the business of manufacturing carbon black with a

process that involves the use of ozone. Columbian purchased and

operated ozone generators manufactured by Emery Industries, Inc.

(“Emery”). Henkel Corporation/Millennium Petrochemicals, Inc.,

(“Henkel”) is Emery’s successor corporation and subject to

liability for harm to persons caused by Emery’s defective products.

Under the Swopes’ allegations of facts, Mr. Swope’s lung

damage resulted from hazardous characteristics of the Emery ozone

generators which made them unreasonably dangerous in design and

unreasonably dangerous for lack of an adequate warning of those

hazards. The Swopes allege that Columbian knew to a substantial

certainty that its continual exposures of Mr. Swope to harmful

amounts of ozone without providing him with any respiratory

protection would cause repeated damage to his lungs. Accordingly,

the Swopes sued for damages against Henkel under allegations

raising products liability theories and against Columbian for

intentional torts or batteries. The district court granted motions

for summary judgment by Columbian and Henkel rejecting all of the

Swopes’ claims, except that their products liability claim for

design defect was dismissed voluntarily without prejudice to its

refiling in the event of reversal of the summary judgment in favor

2
of Henkel on appeal.

The questions raised by the Swopes’ appeal from the district

court’s summary judgments against them are: (1) Does this court

have appellate jurisdiction? (2) If so, can the Swopes’ tort action

against Columbian survive a motion for summary judgment because of

a genuine dispute as to whether Columbian’s intentional tort of

battery caused Swope’s lung damage? (3) Is the Swopes’ products

liability action against Henkel time-barred under Louisiana Revised

Statute § 9:2772 because Emery, the manufacturer of the ozone

generators, performed a “construction of an improvement to

immovable property”? (4) If the Swopes’ product liability action

is not time barred under Louisiana Revised Statute § 9:2772, can it

survive a motion for summary judgment because Henkel failed to

carry its burden of showing that Columbian knew or reasonably

should have been expected to know of the dangerous characteristic

of the Emery generator that caused damage to Mr. Swope?

After reviewing the defendants’ motions for summary judgment

de novo, we reverse and remand the case for further proceedings.

I. JURISDICTION

On February 8, 1999, the district court entered an order

granting summary judgment to, and dismissing all claims against,

Columbian. On February 17, 1999, plaintiffs filed both a notice

of appeal from the district court’s February 8 ruling and a

motion to designate the February 8 order in favor of Columbian as

final under Federal Rule of Civil Procedure 54(b). On February

3
22, 1999, the trial court entered partial summary judgment in

favor of defendant Henkel, and dismissed all claims against

Henkel except for plaintiffs’ claim for defective design. The

same day, the district court denied the Swopes’ Rule 54(b) motion

to designate the court’s February 8 ruling as final.

On April 23, 1999, plaintiffs filed a “Rule 41(a)”

stipulated motion to dismiss the remaining claim against Henkel

and a motion to designate both the February 8 and the February 22

orders granting summary judgment as final pursuant to Fed. R.

Civ. P. 54(b). The plaintiffs also filed a second notice of

appeal on both grants of summary judgment. The plaintiffs’

stipulated motion to dismiss was qualified. The dismissal was to

be with prejudice if the trial court’s summary judgment ruling in

favor of Henkel was affirmed on appeal, and without prejudice if

the district court was reversed. On May 3, 1999, the district

court entered an order dismissing without prejudice the remaining

claim against Henkel.1 Also on that day, the district court

granted plaintiffs’ second Rule 54(b) motion and expressly

designated the February 8 and February 22 summary judgment

1
The order reads, in its entirety, “It is hereby ordered,
pursuant to the foregoing Motion to Dismiss Without Prejudice, that
the remaining claim of complainants against Henkel Corporation and
Millennium Petrochemicals, Inc., be dismissed without prejudice.”
The order did not refer to the qualified nature of the parties’
stipulated motion.

4
rulings as final judgments.2

On appeal, Columbian filed a motion to dismiss for lack of

appellate jurisdiction, arguing that appellate jurisdiction is

defective because appellants’ notice of appeal preceded the trial

court’s designation of its summary judgment decisions as final.

Henkel has filed a motion making essentially the same arguments.

The Swopes have filed memoranda in opposition, and Henkel has

replied.

This Court’s jurisdiction is limited by 28 U.S.C. § 1291,

which authorizes appeals from “final decisions of the district

courts.” Hence, as a general rule, all claims and issues in a

case must be adjudicated before appeal, and a notice of appeal is

effective only if it is from a final order or judgment. There

are exceptions, of course, and one such exception is found in St.

Paul Mercury Insurance Co. v. Fair Grounds Corp.3 In that case,

this Circuit held that “a premature notice of appeal is effective

if Rule 54(b) certification is subsequently granted.”4 Here, the

Swopes filed a notice of appeal at the same time they filed for

Rule 54(b) certification. Since the Swopes’ Rule 54(b) motion

2
The order reads, in its entirety, “It is hereby ordered that
the Memorandum Rulings issued on February 8, 1999 and February 22,
1999, be and are hereby rendered as final judgments pursuant to the
Federal Rule of Civil Procedure 54(b), thereby allowing
Complainants the opportunity to appeal the rulings with the United
States Fifth Circuit Court of Appeal.”
3
123 F.3d 336 (5th Cir. 1997).
4
Id. at 338.

5
was subsequently granted,5 the rule in St. Paul Mercury Insurance

Co. controls and appellate jurisdiction is proper.

Appellees argue, however, that St. Paul Mercury Insurance

Co. is inconsistent with United States v. Cooper6 and FirsTier

Mortgage Co. v. Investors Mortgage Ins. Co.7 FirsTier involved a

plaintiff who had filed a notice of appeal close to a month

before entry of judgment, but after a bench ruling on the same

claims. FirsTier held that Federal Rule of Appellate Procedure

4(a)(2) “permits a notice of appeal from the final judgment only

when a district court announces a decision that would be

appealable if immediately followed by the entry of judgment.”8

In Cooper, the Fifth Circuit relied on FirsTier to hold that

no appellate jurisdiction existed where a plaintiff purported to

appeal from a magistrate’s report and recommendation, even though

the district court subsequently entered final judgment.9 In so

5
Rule 54(b) requires an “express determination that there is
no just reason for delay.” The Fifth Circuit does not require a
mechanical recitation of the rule’s requirements, but rather
requires that the district court manifest “unmistakable intent” to
make its judgment final. See Briargrove Shopping Ctr. Joint Venture
v. Pilgrim Enters., Inc., 170 F.3d 536, 539 (5th Cir. 1999). The
district court’s order meets this requirement. Cf. id.; see supra
note 2.
6
135 F.3d 960 (5th Cir. 1998).
7
498 U.S. 269 (1991).
8
Id. at 276.
9
Id. at 963.

6
holding, it disapproved the “Jetco-Alcorn-Alcom” line of cases,

which had held that the circuit can consider a premature appeal

where judgment becomes final prior to disposition of the

appeal.10 Though Cooper did not discuss St. Paul Mercury

Insurance Co., it stated that “to the extent that our prior cases

allowed appeal of non-final decisions, they are no longer good

law . . . . ”11

Cooper does not abrogate St. Paul Mercury Insurance

Co.—Cooper is not an en banc opinion, and FirsTier (decided in

1991) is not an intervening decision (St. Paul Mercury Insurance

Co. was decided in 1997). Hence, the Cooper panel cannot have

overruled St. Paul Mercury Insurance Co.12 Moreover, the logic

of Cooper is not inconsistent with that of St. Paul Mercury

Insurance Co. St. Paul Mercury Insurance Co. may be limited to

the Rule 54(b) scenario, because Rule 54(b) was created

specifically to avoid piecemeal appeals and to create finality

for appeal.13 Cooper, on the other hand, applies to non-final

orders that become final through means other than a Rule 54(b)

motion; and arguably it may apply only in the more limited

10
Id.
11
Id.
12
See Woodfield v. Bowman, 193 F.3d 354 (5th Cir. 1999); Burge
v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999); United
States v. Short, 181 F.3d 620 (5th Cir. 1999).
13
See FED. R. CIV. P. 54(b) advisory committee’s notes.

7
situation where the order purportedly appealed from “can never be

a final decision.”14 In any event, it is unnecessary to decide

today the exact scope of Cooper, since it does not conflict with

St. Paul Mercury Insurance Co., by which we are bound.

We observe that finality in this case was not created by the

filing or granting of the stipulated motion that purported to be

a Rule 41(a) dismissal of the remaining claim against Henkel.15

Hence, the trial court’s granting of the Rule 54(b) motion was

not superfluous and St. Paul Mercury Insurance Co. controls.

It is a settled rule in the Fifth Circuit that appellate

jurisdiction over a non-final order cannot be created by

dismissing the remaining claims without prejudice. This rule

originated in Ryan v. Occidental Petroleum Corp., in which a

14
Id.; see Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585-87
(3d Cir. 1999) (criticizing Cooper as reading FirsTier too
broadly).
15
Rule 41(a) contemplates dismissal of an “action” rather than
a “claim” or “claims.” At least one court has refused to permit a
Rule 41(a) dismissal of a single claim against a defendant where
other claims remain against that same defendant. See Exxon Corp.
v. Maryland Cas. Co., 599 F.2d 659 (5th Cir. 1979); see also Ryan
v. Occidental Petroleum Corp., 577 F.2d 298, 302 n. 2 (5th Cir.
1978) (stating in dicta that the proper way to dismiss claims
against a remaining defendant is to move for amendment under
Federal Rule of Civil Procedure 15).
It is unnecessary to decide whether the stipulated motion
properly came under Rule 41(a), or whether the dismissal took
effect upon filing, or upon the trial court’s granting, of the
motion. For this reason, we will not consider Henkel’s argument
that the stipulation lacked effect under Rule 41(a) because it was
not signed by all parties.

8
district court granted a defendant’s motion and dismissed the

majority of plaintiff’s complaint.16 In order to appeal, the

plaintiff obtained an order dismissing without prejudice his

remaining substantive claims against the would-be appellees; but

the plaintiff did not file a Rule 54(b) motion to designate the

earlier ruling as final.17 The Ryan court found it lacked

appellate jurisdiction because a dismissal without prejudice

“cannot be regarded as terminating the litigation between the[ ]

parties.”18 In the absence of Rule 54(b) certification, the

trial court’s rulings were held to lack finality under 28 U.S.C.

§ 1291.19

The Ryan rule is employed by three of our sister circuits.20

But two circuits have adopted a rule directly contrary to that of

Ryan.21 In addition, three circuits have adopted a sort of

middle way that requires them to evaluate cases on an individual

16
577 F.2d 298 (5th Cir. 1978).
17
Id. at 300.
18
Id. at 302.
19
Id.
20
See Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147 (10th
Cir. 1992); Chappelle v. Beacon Communications Corp., 84 F.3d 652
(2d Cir. 1996); State Treasurer v. Barry, 168 F.3d 8 (11th Cir.
1999).
21
See Hicks v. NLO, Inc., 825 F.2d 118, 120 (6th Cir. 1987);
Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538, 540 (8th
Cir. 1991).

9
basis.22 Perhaps because of these widely varying approaches, the

merits of the Ryan rule were discussed extensively in the

Eleventh Circuit opinion of State Treasurer v. Barry.23 There, a

majority of the court defended the Eleventh Circuit’s maintenance

of the Ryan rule while Judge Cox, in a special concurrence, urged

en banc reconsideration of the rule.

As Ryan and other courts have stated, a party seeking to

create finality through dismissal without prejudice of remaining

claims must file for Rule 54(b) certification with the trial

court.24 This permits a trial court to control its docket and

make an independent determination whether an appeal is warranted

under the circumstances of the case.25 Judge Cox’s approach,

which would grant parties automatic right of appeal where they

dismiss all remaining claims without prejudice, is dubious for

relying on the “built-in deterrents” to party manipulation.26

22
See Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1155 (3d
Cir. 1986); Horwitz v. Alloy Auto. Co., 957 F.2d 1431, 1435-36 (7th
Cir. 1992); Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073,
1075 (9th Cir. 1994).
23
168 F.3d 8 (11th Cir. 1999).
24
Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 (5th
Cir. 1978); Mesa v. United States, 61 F.3d 20, 22 (11th Cir. 1995);
see also Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d
278, 279 n. 1 (5th Cir. 1987); Oswalt v. Scripto, Inc., 616 F.2d
191, 193 (5th Cir. 1980).
25
See Barry, 168 F.3d at 14.
26
See id. at 20.

10
Further, any factors which make an appeal meritorious, and which

support the argument for appeal as of right, are properly within

the cognizance of the trial court in deciding a Rule 54(b)

motion.

Hence, the Ryan rule requiring Rule 54(b) certification to

create finality will not prevent an appeal where one is

warranted. This is especially so since the abrogation of Ryan’s

other rule that Rule 54(b) certification is only to be granted in

the “infrequent harsh case.”27 The fact that the denial of a

Rule 54(b) certification is reviewable for abuse of discretion is

additional insurance.

The Seventh and the Ninth Circuits have adopted an in-

between rule that allows jurisdiction as long as the parties have

not intended to manipulate the system.28 However, here we agree

with Judge Cox and reject the “practice of combing the record for

manipulative intent” since it “waste[s] resources better spent on

the merits of an appeal.”29 Ryan’s bright-line rule is therefore

preferable as it fosters predictability and streamlines review.30

27
See Federal Sav. & Loan Ins. Co. v. Cribbs, 918 F.2d 557 (5th
Cir. 1990) (noting abrogation by Curtiss-Wright Corp. v. General
Elec. Co., 446 U.S. 1, 10 (1980)).
28
See Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073,
1075 (9th Cir. 1994); Horwitz v. Alloy Auto. Co., 957 F.2d 1431,
1435-36 (7th Cir. 1992).
29
See Barry, 168 F.3d at 21 (Cox, J., specially concurring).
30
Id.

11
 In short, Ryan means that finality was created when the

district court granted the Swopes’ Rule 54(b) motion, and St.

Paul Mercury Insurance Co. means that appellate jurisdiction is

proper because, although the Swopes filed a premature notice of

appeal, the orders appealed from were subsequently deemed final

pursuant to Rule 54(b).

II. Intentional Tort

Columbian is not entitled to summary judgment dismissing the

Swopes’ suit against it for damages based on intentional torts or

batteries. There are genuine issues as to the material facts

that Columbian knew to a substantial certainty that it was

continually causing Mr. Swope bodily harm by exposing him to

dangerous amounts of ozone without providing him with any

respiratory protection.

Many of the principal facts are undisputed. Mr. Claude

Swope was employed by Columbian from March 1987 until several

days after his final inhalation of ozone on July 10, 1996.

Columbian continually required Mr. Swope to breathe ozone without

protective respiratory equipment throughout his nine years and

some months of employment. Columbian in this manner repeatedly

caused him and other employees to breathe levels of ozone high

enough to cause them respiratory discomfort, “choke ups,” nausea,

headaches, and chest pains. On at least three occasions,

employees other than Mr. Swope had passed out from breathing too

12
much ozone and had been taken to hospital emergency rooms or

given oxygen on the plant premises. Many other times, employees

had to flee the immediate vicinity in which they were working

because the ozone level had become intolerable. In fact, from

the deposition testimony, it appears that the only safety

instruction Columbian ever gave to Mr. Swope and his fellow

employees for dealing with such levels of ozone was to vacate the

area of excessive concentration of ozone, get some fresh air, and

return to work when feeling better. Thus, Mr. Swope was aware

that Columbian continually required him to breathe high levels of

ozone, but he was not aware that his inhalation of the ozone was

damaging his lungs. It is not disputed for purposes of the

motion for summary judgment, however, that Columbian’s continual

exposures of Mr. Swope to ozone caused him to sustain repetitive

damage to his lungs. Mr. Swope’s physician, Doctor Thomas

Callendar, declared in an affidavit that he had diagnosed Mr.

Swope to suffer injury from frequent exposures of ozone and other

toxic substances over a period of years during the course and

scope of his employment at Columbian. According to Doctor

Callendar, Mr. Swope’s injury occurred due to repeated exposures

to ozone, not solely as a result of his last date of exposure on

July 10, 1996. Therefore, the only question presented at this

stage of the proceedings is whether there is a genuine issue as

to whether Columbian knew to a substantial certainty that its

deliberate continual exposures of Mr. Swope to such levels of

13
ozone without respiratory protection were causing him to sustain

repetitive physical impairments to his bodily condition.

In order to recover from Mr. Swope’s employer in tort, the

plaintiffs must demonstrate that their action falls within the

intentional tort exception to the exclusive remedy rule of the

Louisiana Workers’ Compensation Act. The Act provides that

“[e]xcept for intentional acts . . . the rights and remedies . .

. granted to an employee or his dependent on account of [a work-

related] injury, or compensable sickness or disease for which he

is entitled to [workers’ compensation benefits] shall be

exclusive of all other rights, remedies, and claims for damages .

. . .”31 The Act also provides that nothing “shall affect the

liability of the employer, or any officer, director, stockholder,

partner, or employee of such employer or principal to . . . the

liability, civil or criminal, resulting from an intentional

act.”32

The Louisiana Supreme Court held in Bazley v. Tortorich,

that under Section 1032 of the Workers’ Compensation Act “the

words ‘intentional act’ mean the same as ‘intentional tort’ in

reference to civil liability.”33 Observing that the word

“intent” has generally accepted meaning in the fields of tort and

31
La. Rev. Stat. Ann. § 23: 1032A(1)(a) (West 1998).
32
Id. § 1032B.
33
397 So. 2d 475, 480 (La. 1981).

14
criminal law, the court held that “[t]he meaning of ‘intent’ is

that the person who acts either (1) consciously desires the

physical result of his act, whatever the likelihood of that

result happening from his conduct; or (2) knows that that result

is substantially certain to follow from his conduct, whatever his

desire may be as to that result.”34

In Caudle v. Betts, the court held that when an employee

seeks to recover from his employer for an intentional tort, a

court must apply the legal principles of “general tort law

related to the particular intentional tort alleged in order to

determine whether he has proved his cause of action and damages

recoverable thereunder.”35 The court in Caudle also adopted and

reaffirmed the definition and principles of law set forth in the

Louisiana jurisprudence and the Restatement (Second) of Torts

concerning the intentional tort of battery:

A harmful or offensive contact with a person,

resulting from an act intended to cause the plaintiff

to suffer such a contact, is a battery. The intention

need not be malicious nor need it be an intention to

inflict actual damage. It is sufficient if the actor

intends to inflict either a harmful or offensive

34
Id. at 481 (citing Restatement (Second) Torts § 8 (1965);
LaFave & Scott, Criminal Law, § 28 (1972); W. Prosser, Law of
Torts, § 8 (4th ed. 1971)).
35
512 So.2d 389, 391 (La. 1987).

15
contact without the other’s consent. . . .

The original purpose of the courts in providing

the action for battery undoubtedly was to keep the

peace by affording a substitute for private

retribution. The element of personal indignity

involved always has been given considerable weight.

Consequently, the defendant is liable not only for

contacts that do actual physical harm, but also for

those relatively trivial ones which are merely

offensive and insulting.

The intent with which tort liability is concerned

is not necessarily a hostile intent, or a desire to do

any harm. Rather it is an intent to bring about a

result which will invade the interests of another in a

way that the law forbids . . . .

Bodily harm is generally considered to be any

physical impairment of the condition of a person’s

body, or physical pain or illness. The defendant’s

liability for the resulting harm extends, as in most

other cases of intentional torts, to consequences which

the defendant did not intend, and could not reasonably

have foreseen, upon the obvious basis that it is better

for unexpected losses to fall upon the intentional

16
 wrongdoer than upon the innocent victim.36

In Louisiana, “[b]attery does not require direct bodily

contact between the actor and the victim.”37 “The contact may be

with an inanimate object controlled or precipitated by the actor,

such as the surgeon’s scalpel, a bullet or even a thrown

hamburger. The victim need not be aware of the contact when it

occurs.”38 Consequently, the Swopes, by alleging that Columbian

frequently exposed Mr. Swope to excessive levels of ozone that it

36
Id. at 391-92 (citations omitted).
37
Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law §2-
6(a), at 28 (1996).
38
Id. (citing Saucier v. Belgard, 445 So. 2d 191 (La. Ct. App.
3d Cir. 1984); England v. S & M Foods, Inc., 511 So. 2d 1313 (La.
Ct. App. 2d Cir. 1987); Prosser, supra note 34, § 9, at 40)
(footnotes omitted)). See also Fricke v. Owens-Corning Fiberglas
Corp., 571 So. 2d 130 (La. 1990)(implicitly recognizing an action
for battery resulting from an employer’s intentional exposure of an
employee to harmful gases); Thorning v. Shell Oil Co., 522 So. 2d
558, 559 (La. 1988) (reversing summary judgment against an employee
who introduced evidence that an employer intentionally injured him
by releasing dangerous chemicals with full knowledge of the
damaging effect of such chemicals); Belgard v. Am. Freightways,
Inc., 755 So. 2d 982, 984 (La. Ct. App. 3d Cir. 1999) (reversing
summary judgment in favor of an employer when an employee suffered
debilitating injuries after being ordered to move a trailer soaked
with a toxic liquid ammonium hydroxate solution); Quick v. Myers
Welding & Fabricating, 649 So. 2d 999, 1003 (La. Ct. App. 3d Cir.
1994) (reversing summary judgment in favor of an employer whose
employee was burned after pure oxygen was deliberately introduced
into a tank in which he was welding); Trahan v. Trans-Louisiana Gas
Co. Inc., 618 So. 2d 30, 31 (La. Ct. App. 3d Cir. 1993) (reversing
an exception of no cause of action because an employee’s “neuro-
toxic” injuries were substantially certain to follow from his
exposure to excessive levels of mercaptan); Major v. Fireman’s Fund
Ins. Co., 506 So. 2d 583, 584 (La. Ct. App. 4th Cir. 1987)
(reversing summary judgment in favor of an employer who ordered an
employee to work on the “hot rollers” after being informed that the
plaintiff could not work around chemicals)

17
knew to a substantial certainty would be harmful to his health,

stated a valid cause of action in battery against Columbian.

Rule 56(c) of the Federal Rules of Civil Procedure allows

the court to enter summary judgment in favor of the moving party

only “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of

law.”39 The moving party has the burden of demonstrating

clearly that there is no genuine issue of fact.40 Moreover, the

evidence presented at the hearing on the motion must be

considered in the light most favorable to the opposing party, and

he must be given the benefit of all inferences that might

reasonably be drawn in his favor.41

When the nonmovant would bear the burden of proof at trial,

however, the moving party can make a proper summary judgment

motion in reliance on the pleadings and the allegation that the

nonmovant has failed to establish an element essential to that

39
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
40
Celotex, 477 U.S. at 323.
41
W.H. Scott Constr. Co., Inc. v. City of Jackson, Mississippi,
199 F.3d 206, 211 (5th Cir. 1999) (citing King v. Chide, 974 F.2d
653, 655-56 (5th Cir. 1992)).

18
party’s case.42 Rule 56(e) then would require the opposing party

to go beyond the pleadings and to designate specific facts

showing there was a genuine issue for trial.43 However, “[t]he

burden on the nonmoving party is not a heavy one; the nonmoving

party simply is required to show specific facts, as opposed to

general allegations, that present a genuine issue worthy of

trial.”44

In the present case, the Swopes satisfied this requirement

by introducing the countervailing evidence discussed below.

Columbian had been provided Material Safety Data Sheets (MSDS)

regarding ozone for at least ten, and probably twenty, years

prior to Mr. Swope’s disability. The MSDSs dated April 3, 1986,

and April 12, 1994, state, inter alia,: “DANGER! OZONE IS A

HIGHLY TOXIC, IRRITANT GAS! MAY BE FATAL IF INHALED! MAY CAUSE

DAMAGE TO THE LUNGS, RESPIRATORY SYSTEM, AND EYES! DO NOT GET IN

EYES, ON SKIN, OR ON CLOTHING. DO NOT BREATHE GAS OR VAPOR. USE

ONLY WITH ADEQUATE VENTILATION. WASH THOROUGHLY AFTER HANDLING.

42
Celotex, 477 U.S. at 323.
43
Id. at 327.
44
10A Charles Alan Wright et al., Federal Practice and
Procedure § 2727, at 490 (3d ed. 1998) (citing First Nat. Bank v.
Cities Serv. Co., 391 U.S. 253, 288-89 (1968)(“It is true that the
issue of material fact required by Rule 56(c) to be present to
entitle a party to proceed to trial is not required to be resolved
conclusively in favor of the party asserting its existence; rather,
all that is required is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial.”)).

19
KEEP AWAY FROM COMBUSTIBLE MATERIALS.” The MSDS also contained

the following warnings concerning long term exposure to various

concentrations of ozone:

Effects of prolonged, low level (0.3 ppm) exposure are

not well defined; however, scarring and thickening of

small air passages may result in chronic lung disease.

In addition, people with existing lung disease may show

earlier and more severe symptoms when exposed to ozone.

An increased susceptibility to lung disease and

infection may also occur. . . . Symptoms usually begin

with a sensation of tightness in the chest on deep

inspiration and discomfort under the breastbone . . . .

Uncontrollable coughing spasms develop with prolonged

exposure.

The Swopes introduced deposition testimony demonstrating

Columbian’s knowledge that it was requiring Mr. Swope and other

employees to inhale dangerous levels of ozone without protective

equipment. Mr. Bobby Jordan, Columbian’s general plant manager,

and Mr. Richard Bianchi, Columbian’s maintenance supervisor,

former project engineer, and 30(b)(6) witness, testified that

Columbian knew during Mr. Swope’s employment that inhalation of

ozone could be fatal to workers and damaging to their lungs.

The Swopes presented evidence from which a reasonable jury

could find that Columbian was forewarned that it was exposing Mr.

Swope and other employees without protection to lung-damaging

20
concentrations of ozone. On July 17, 1987, Mr. Thomas McQuiston,

an industrial hygienist on behalf of the International Chemical

Workers Union, Local 638, warned Columbian of the danger of ozone

damage to workers in the Columbian plant. Mr. McQuiston’s

report, based on his August 7, 1986 tour of the plant, described

to Columbian the long-term effects of excessive ozone exposure

and specifically warned Columbian that workers’ complaints of

ozone exposure indicated “that the enclosed systems are not

adequately designed and/or maintained to provide adequate

protection against exposure” and that a “preventative maintenance

program should be implemented [to] assure[] potential leaks in

the system are prevented.” (emphasis added). His report to

Columbian stated that excessive ozone exposure could result

“scarring and thickening of the small air passages” and could

result in “chronic lung disease” and noted that “[w]orkers have

complained of symptoms related to ozone exposure[].” Mr.

McQuiston’s report also warned Columbian that “[c]hronic exposure

tends to decrease a worker’s ability to sense the presence of

ozone;” although “[s]ome workers can detect the [ozone] odor down

to 0.05 ppm . . . , chronically exposed workers have not been

able to sense the presence of ozone at 0.3 ppm (three times the

OSHA limit).” A year before Mr. Swope’s last ozone exposure,

Columbian was again warned that it was exposing its employees to

harmful levels of ozone. On June 14, 1995, Mr. Laurence Durio of

Durio Consulting Services, an industrial hygiene consulting

21
group, advised Columbian that the Short Term Exposure Limit for

ozone was 0.2 parts per million. “With that as a basis for

comparison,” the report concluded, “excessive ozone

concentrations were found around the ozone generators and the

number two ozone treater [in Columbian’s plant], which would

likely translate into excessive employee exposures.” (emphasis

added). Moreover, Mr. Bianchi admitted that despite several

surveys and recommendations made by the workers’ union to install

air-monitoring equipment, Columbian did not purchase or install

any ozone monitors until after Mr. Swope’s final inhalation on

July 10, 1996.45 He added that the monitors were removed soon

afterwards because they constantly sounded alarms indicating

excessive concentrations of ozone in the plant. In this regard,

Mr. Bianchi stated, “[Y]ou can’t walk--you can’t walk outside the

building without it sounding whether you’re in here in this

office or anywhere else.” The Swopes also introduced the

December 9, 1998 report of Mr. Joseph Wood, an Industrial

Hygienist and Safety Professional certified by both the American

Board of Industrial Hygiene and the Board of Certified Safety

Professionals, who concluded that “Columbian purposely

disregard[ed] the health of their employees by allowing them to

be exposed to potentially harmful concentrations of ozone.”

45
Although Mr. Bianchi’s deposition does reveal that Dasivi
monitors were installed in the mid-seventies, they were removed
long before Mr. Swope began his employment with Columbian and are
not relevant here.

22
(emphasis added). Mr. Wood evaluated Mr. Swope’s accident in

light of existing OSHA compliance issues and based his

conclusions on the absence of ongoing ozone monitoring programs,

the absence of historical data showing that monitoring was not

necessary, the findings of multiple industrial hygienists that

ozone levels exceeded permitted limits during normal operations,

the knowledge that maintenance activities involve higher levels

of ozone containment, and the absence of point source ozone

monitoring at the generators prior to opening.

Furthermore, the Swopes introduced other evidence from which

it reasonably may be inferred that Columbian knew that Swope and

other employees were being bodily harmed by their unprotected

exposures to ozone. Mr. Bianchi testified that Columbian knew

that union members at its plant had complained about exposures to

ozone. Ozone leaks, according to Mr. Bianchi, “could [occur]

once a month, sometimes once a week.” In fact, Mr. Bianchi,

himself, admitted to having been exposed to ozone, and, over the

course of his thirty years of employment, Mr. Bianchi said the

smell of ozone has “always been there.” Mr. Swope’s fellow

mechanic and relief foreman Mr. Russell Salkowitz testified

during his deposition that “everyone” complained about ozone

exposure. Mr. Salkowitz claimed that “at least 90 percent of the

plant had bad whiffs of ozone” causing headaches, upset stomach,

and chest pains. Mr. Salkowitz further testified that he had

been exposed to ozone in the plant a couple of hundred times.

23
Plant foreman Mr. David Self also recounted his own exposures to

ozone, causing him coughing spasms, and estimated that operators

at the plant had a “choke up” from ozone exposures “once a day or

once a week.” Mr. Self further testified that sometimes ozone

exposure became so pervasive and intense that the whole plant had

to be shut down. Depositions taken from Columbian employees Mr.

Leonce Boudreaux and Mr. Curtis Shoop corroborated the testimony

of Mr. Salkowitz, Mr. Swope, and Mr. Self, regarding the

frequency of worker exposure to ozone. Mr. Boudreaux testified,

“[S]ometimes it was -- ozone was strong enough where you

couldn’t, you know, really go in there [the plant] and work on

the generators.” When asked how many times Mr. Shoop had inhaled

ozone in his work at Columbian, he replied, “It cannot be

numbered. . . . A bunch.”

Mr. Bianchi testified that he knew of at least one case in

which an operator got sick and was taken to the emergency room

because of inhaling or coming into contact with ozone. Mr.

Boudreaux testified that he now suffers from headaches that he

did not have before he worked at Columbian. Mr. Boudreaux also

testified that he missed work because of ozone exposure but that

his absences were not recorded. Mr. Boudreaux recounts that one

night when he arrived at work the ozone smell was so strong that

it pervaded the entire parking lot. When Mr. Boudreaux began

work that night, the union president “called S-Unit and told them

they needed to clear up because the ozone was too strong.” That

24
night when Mr. Boudreaux went home, he suffered a migraine

headache lasting through the entire next day, vomited, and did

not return to work the next night. Mr. Curtis Shoop, another

Columbian employee, testified that he has had coughing and

gasping episodes from ozone and that he witnessed a co-worker,

Mr. Tommy Comeaux, collapse on the job as a result of ozone

exposure. Mr. Van Adams testified that as a result of ozone

exposure he experienced nausea and a tightness in his chest. Mr.

Swope testified that he knew of two other Columbian employees,

Mr. Mike Chauvin and Mr. Harry Johnson, who had been taken to the

hospital because of ozone exposure.

Mr. Swope testified that Columbian never informed him of the

characteristics of ozone, its chemical properties, or the danger

of lung damage from excessive ozone exposure. He stated that

Columbian gave him no special handling instructions regarding

ozone, even though he was constantly exposed to the gas emitted

by the generators during his work. Mr. Swope described the

employees’ exposures and Columbian’s attitude and response to

their painful or distressing inhalation of ozone as follows:

We were constantly exposed to -- from working on the
generators on a -- you know, quite often basis. We
worked -- you know, it seems like they could have
schooled us a little, or maybe went over some material
data sheets on this chemical to let us know the
severity of it and maybe supplied us with, you know,
protective, personal protection equipment, properly
handled the situation. And it was -- you were exposed
to ozone on a routine basis, and they took it like it
wasn’t no big deal. If you breathe some, they would
suggest, you know, you go outside and get some fresh

25
 air and -- you know, if you’re exposed to it, get out
and breathe some fresh air and then go back to work. .
. . Several people complained about -- you know,
complained about it. . . . [T]wo other people were
exposed to it and had to be sent to the emergency room.
Not on a particular piece of equipment I was working
on, but in operations they were exposed to the chemical
and had to be treated for it in emergency. One of them
spent the night in emergency -- in the hospital, and
I’m not sure of the treatment of the other fellow. It
seemed like that would have sent some warning flags off
to further educate your employees about the severity of
the chemical that you had the possibility of being
exposed to.

Co-workers Mr. Shoop, Mr. Self, and Mr. Van Adams corroborated

Mr. Swope’s testimony and stated that Columbian never warned its

employees that chronic ozone exposure could be fatal and cause

permanent lung damage.

Columbian’s officers, Mr. Bianchi and Mr. Jordan, admitted

that the company had refused to monitor ozone levels during Mr.

Swope’s employment, despite OSHA regulations requiring it to

report ambient ozone levels of over .06 grams per cubic meter.

And, because of Columbian’s lack of monitoring and testing of air

quality, Mr. Bianchi conceded that he could not say whether

Columbian was in compliance with OSHA. According to Mr. Jordan,

Columbian had fewer than five self-contained breathing

apparatuses to meet the needs of one hundred twenty shift

workers, and these remained stored in a shed three hundred yards

away from the ozone generator buildings.

Columbian supported its motion for summary judgment with the

affidavit of its general manager, Mr. Bobby Jordan, who stated in

26
conclusory fashion that Columbian “did not subjectively intend

Mr. Swope’s alleged injuries to result from the work tasks

assigned to” him and that Columbian “was not substantially

certain that Mr. Swope’s injuries would follow from performing

the assigned work tasks. . . .” Although Mr. Jordan did attest

that he had personal knowledge of the matters in his affidavit,

he did not state what, if any, underlying facts within his

knowledge enabled him to reach those conclusions. Mr. Jordan’s

only statement clearly based on his direct personal knowledge was

that he “did not observe harmful or toxic exposure to plant

employees on a routine basis, nor [was he] aware that other

Columbian employees observed such exposures.” Yet in his final

statement Mr. Jordan admitted that “in any situation in which,

through upset, there have been any kind of exposures, Columbian

Chemicals always took action to make them as short as possible by

terminating the cause of the incident and taking appropriate

remedial action.” Moreover, in his deposition Mr. Jordan did not

profess to be very knowledgeable about ozone at the plant. He

instead deferred to Mr. Bianchi to answer questions concerning

ozone hazards and safety. Mr. Bianchi, on the other hand, who

was designated as Columbian’s 30(b)(6) witness and who was best

qualified to answer questions regarding the operations and

maintenance of the ozone generators by virtue of his 30 years of

experience with the company, did not at any time during his two

depositions deny that he and Columbian knew to a substantial

27
certainty that Columbian had continually exposed Mr. Swope and

other employees to bodily harmful concentrations of ozone during

the period of Mr. Swope’s employment.

Consequently, considering all of the evidence of record it

is clear that a reasonable jury could find that Columbian knew to

a substantial certainty that it was continually exposing Mr.

Swope to high levels of ozone without affording him the

protection of any respiratory safeguard and that his direct

inhalations of such large quantities of ozone would do gradual,

but definite and repeated, bodily harm to him. At the very

least, there is a genuine issue as to whether Columbian knew to a

substantial certainty that its activities would cause a physical

impairment of the condition of Mr. Swope’s body or cause him pain

or illness. Under Louisiana law, in order to prove a battery, it

is not necessary for the plaintiff to show that a tortfeasor

desired to do any harm or even that the defendant knew to a

substantial certainty the full extent of the bodily harm that

would result.46 Because the pleadings, affidavits, and

depositions present conflicting evidence from which a jury could

reasonably reach different conclusions as to whether Columbian

knew that some physical impairment to the condition of Mr.

Swope’s body was substantially certain to follow from his

46
Fricke v. Owens-Corning Fiberglas Corp., 571 So.2d 130, 132
(La. 1990); Caudle v. Betts, 512 So.2d 389, 391-92 (La. 1987);
Restatement (Second) of Torts § 16 (1965).

28
repeated exposures to and unprotected inhalations of ozone, we

conclude that the district court fell into error in granting

Columbian’s motion for summary judgment.

III. PEREMPTION UNDER LA. REV. STAT. § 9:2772

The district court granted Henkel’s motion for summary

judgment against the Swopes based on a statute of peremption or

repose, Louisiana Revised Statute § 9:2772, which provides, in

pertinent part, that “[n]o action . . . to recover damages shall

be brought . . . against any person performing . . . services

preparatory to construction, or against any person performing or

furnishing the design, planning, supervision, inspection, or

observation of construction or the construction of an improvement

to immovable property” more than ten years after an acceptance or

occupation of the work or the improvement by the owner.47 The

Swopes do not dispute that ten years elapsed between Columbian’s

acceptance or occupation of the installation of the generators

and the discovery of their claims against Henkel on or about July

10, 1996. To be entitled to the benefits of the statute,

however, Henkel must prove that the equipment manufactured by its

predecessor, Emery, became part of an improvement to immovable

property,48 and that Emery performed the construction of that

47
La. Rev. Stat. Ann. § 9:2772 (West 1991).
48
Moll v. Brown & Root, Inc., 218 F.3d 472, 475 (5th Cir. 2000)
(per curiam).

29
improvement,49 as the statute is “inapplicable to contracts of

sale.”50 Upon review of the summary judgment record, we conclude

that Henkel has failed to show that there is no genuine issue as

to any material issue and that it is entitled to judgment as a

matter of law.51

The Louisiana Civil Code defines an obligation as “a legal

relationship whereby a person, called the obligor, is bound to

render a performance in favor of another, called the obligee.”52

That performance “may consist of giving, doing, or not doing

something.”53 “The obligation to give is one whereby the obligor

binds himself to transfer to the obligee the ownership of a thing

49
Riley Stoker Corp. v. Fid. & Guar. Ins. Underwriters, Inc.,
26 F.3d 581, 591 (5th Cir. 1994); Bunge Corp. v. GATX Corp., 557
So.2d 1376, 1381 (La. 1990); Smith, III v. Arcadian Corp., 657
So.2d 464, 469 (La. Ct. App. 3d Cir. 1995); Jones v. Crane, 653
So.2d 822, 827 (La. Ct. App. 2d Cir. 1995); DeWoody v. Citgo
Petroleum Corp., 604 So.2d 92, 99 (La. Ct. App. 3d Cir. 1992);
Tenneco Oil Co. v. Chicago Bridge & Iron Co., 495 So.2d 1317, 1322
(La. Ct. App. 4th Cir. 1986); Summerfield v. Harnischfeger Indus.,
Inc., No. Civ. A. 97-3683, 1998 WL 726080, at * 2 (E.D. La. Oct.
13, 1998).
50
KLSA-TV, Inc. v. Radio Corp. of Am., 693 F.2d 544, 545 (5th
Cir. 1982) (per curiam).
51
Louisiana Revised Statute § 9:2772 also provides for the
peremption or repose of actions against persons performing certain
types of land surveying services. La. Rev. Stat. Ann. § 9:2772
(West 1991). However, we are not concerned with any of these types
of actions in this appeal.
52
La. Civ. Code Ann. art. 1756 (West 1996).
53
Id.

30
or to grant him some other real right in a thing.”54 “The

obligation to do is one whereby the obligor binds himself to

carry out or execute an act, or a series of acts, other than the

transferring a real right, such as making or manufacturing

something or rendering a service.”55 The distinction between

obligations to give, e.g., sales, and obligations to do, e.g.,

building constructions, is material to the judicial determination

of questions involving transfer of ownership, risk of loss,

prescription, and remedies. Consequently, Louisiana courts (and

federal courts applying Louisiana precedents) are frequently

required to classify contracts as one or the other when one

obligor is bound under one contract both to transfer things and

provide services or labor to the obligee.56

54
Saúl Litvinoff, Obligations, § 1.4, at 7 (5 Louisiana Civil
Law Treatise 2d ed. 2001) (“Litvinoff II”).
55
Id. § 1.4, at 8.
56
See, e.g., Harris v. Black Clawson Co., 961 F.2d 547, 553
(5th Cir. 1992)(Obligor Black Clawson designed and participated in
the construction and installation of a hydrapulper, a reinforced
concrete tub measuring twelve by eighteen feet, inside the
obligee’s forest products plant. The court concluded that the
obligor’s obligation was to construct the hydrapulper, not merely
to sell it to the obligee. “[I]t is simply not possible that such
a large structure could be constructed elsewhere and shipped to the
site for installation. . . . [I]t cannot be said that the
installation provision of the contract for the design and
installation of the tub was merely incidental to the tub’s sale.”);
KSLA-TV, Inc. v. Radio Corp., 501 F.Supp. 891, 896 (W.D. La. 1980),
aff’d and adopted by, 693 F.2d 544 (5th Cir. 1982)(KSLA-TV
contracted with RCA to design, fabricate, and install a television
antenna tower. Using the fundamental obligation test supplemented

31
 When it is possible to isolate one type of obligation from

another owed by the same obligor, each obligation remains subject

to the rules applicable to its own kind.57 But when a single

obligor’s plural obligations are intimately connected, one of the

obligations must be recognized as fundamental, and the whole

contract treated as giving rise to obligations of that kind.58

Analogously, when two obligors are each bound to perform a

different obligation for the same obligee, if the performance of

each may be separately identified, each obligation remains

subject to the rules applicable to its own kind. For example, in

Conmaco v. Southern Ocean Corp., Conmaco, an independent

distributor, sold a craning block to Ocean Salvage, which had

been constructed by McKissick.59 Although the block was built

by a balancing of economic factors the court determined that the
contract involved primarily an obligation to do, “primarily the
furnishing of labor and the contractor’s skill in the performance
of the job.”); Rasmussen v. Cashio Concrete Corp., 484 So.2d 777,
778 (La. Ct. App. 1st Cir. 1986)(Obligor furnished and installed a
5.58 ton home sewer treatment plant. The court concluded that the
primary object of the agreement was the sale of a workable sewer
treatment plant; the installing of the unit was secondary,
ancillary, to the sale.); Papa v. Louisiana Awning Co., 131 So.2d
114, 117 (La. Ct. App. 2d Cir. 1961)(The obligor contracted to
assume two obligations: to deliver or transfer to the obligee a
patio cover and to install and attach it to the obligee’s house.
The court found that the obligation to do was fundamental.).
57
2 Saúl Litvinoff, Obligations, § 157, at 287-88 (7 Louisiana
Civil Law Treatise 1975) (“Litvinoff I”).
58
Conmaco, Inc. v. S. Ocean Corp., 581 So.2d 365, 368 (La. Ct.
App. 4th Cir. 1991)(citing Litvinoff I, § 158 at 291).
59
Id. at 366.

32
according to specifications furnished by Ocean Salvage, and there

had been consultations between all three parties in drawing up

the specifications, the court held that Conmaco’s obligation was

one to give, i.e., to sell or transfer ownership of the block to

Ocean Salvage, and not an obligation to do: “The mere fact than

an obligor may be involved in the installation and delivery of

the equipment will not change the characterization of the

obligation from that of a sales contract and therefore the rules

governing a sale will control.”60

In DeWoody v. Citgo Petroleum Corp., Nelson Electric Company

manufactured and sold a 4,160 volt motor starter to Industrial

Supply Company, which in turn sold and delivered the product to

Citgo.61 The motor starter was installed in Citgo’s refinery,

evidently by a person other than Nelson Electric Company.62 In

determining that a claim against Nelson Electric was not

extinguished by peremption or repose, the court necessarily

concluded that the obligation performed by Nelson Electric was

that of a sale of its product, not an obligation to build or

install the product in Citgo’s refinery.63 “To be entitled to

60
Id. at 370.
61
604 So.2d 92, 98 (La. Ct. App. 3d Cir. 1992).
62
Id. at 98-99.
63
Id. at 99.

33
the benefits of La. R.S. 9:2772, it was not enough that it be

shown that the equipment manufactured by Nelson Electric

ultimately became an improvement to immovable property. . . .

[I]t must be shown that Nelson Electric was a contractor.”64

In Tidewater, Inc. v. Baldwin-Lima Hamilton Corp., Boyce

Machinery Corporation sold a crane to Tidewater which Boyce had

acquired from Baldwin-Lima, the crane’s manufacturer.65 An

independent shipbuilder installed the crane on a vessel it

constructed for Tidewater.66 Boyce inspected the crane after its

installation for proper working order and to make certain

Tidewater’s employees were instructed in the crane’s proper

operation and care.67 The court concluded that the contract

between Boyce and Tidewater was a contract of sale.68 “Although

the manufacturer and [Boyce] may have consulted with the

plaintiff and jointly participated in the drawing up of

specifications for the crane . . . [,] these actions do not

change [the] sales contract to an obligation to do or not to do.

The mere fact that an obligor may be involved in the installation

64
Id.
65
410 So.2d 355, 355-56 (La. Ct. App. 4th Cir. 1982).
66
Id. at 356.
67
Id.
68
Id. at 357.

34
and delivery of the equipment will not change the . . .

obligation from that of a sales contract. . . .”69

In Jones v. Crane Co., Crane manufactured a central heating

unit which ultimately was installed in a house during its

construction by an independent building contractor.70 Crane did

not install the unit, the ventilation system, the gas plumbing,

the interior wires, or the duct system to which the unit was

connected.71 In addition, “[n]othing in the record indicate[d]

that the [central heating] unit was designed or manufactured

specifically for th[at] particular house.”72 Consequently, the

court held that Louisiana Revised Statute § 9:2772 was not

applicable because Crane had not proved that it had entered or

performed a contract to build or install the central heating unit

in the house.73

Applying the foregoing principles of law to the present

case, we conclude that Henkel is not entitled to a summary

judgment as a matter of law declaring that its obligation to the

Swopes as successor to the manufacturer of the generators in

69
Id.
70
653 So.2d 822, 827 (La. Ct. App. 2d Cir. 1995).
71
Id.
72
Id.
73
Id.

35
question under the LPLA has been extinguished by peremption or

repose under Louisiana Revised Statute § 9:2772. It is

undisputed that Columbian purchased the generators in question

from Henkel’s predecessor, Emery, and contracted with an

independent building contractor to have them installed on

Columbian’s property; that the independent construction

contractor installed the generators either autonomously or under

the surveillance of Columbian; and that Emery’s post-sale

services were limited to the secondary, ancillary, chores of

inserting glass dielectric tubes and checking to see that the

generators were in proper working order. Mr. Richard Bianchi of

Columbian testified that “construction was done through an

independent contractor retained by Columbian” and that Henkel had

“absolutely nothing to do with the installation of the unit after

it was delivered to Columbian.” Thus, the summary judgment

evidence indicates that Emery did not supervise or participate in

the installation. Emery advised only on how to “operate the

equipment,” not how to install it. In fact, the record indicates

that Emery may not have even arrived at the scene until the

generators were “almost ready to go.” The summary judgment

evidence is also clear that the work of connecting external

piping and tubing to the generators as sold by Emery was all

supplied by Columbian.

Moreover, from the evidence in the record, it does not

36
appear that Emery custom-made or designed the generators

specifically for Columbian. The record indicates that Columbian

assigned Mr. Bianchi the responsibility for the purchase and

installation of the new ozone generators. Mr. Bianchi went to

Emery’s factory in Cincinnati, “looked at [the Emery] equipment,”

and placed an order: “We purchased them and they worked.”

Evidently, Emery manufactured several different models of

generators in standardized forms, each with different

characteristics and capabilities. The record indicates that

Columbian simply related the production capacity it needed within

its particular plant environment, and Emery sold Columbian the

particular model of generator that would meet these needs. Mr.

Bianchi testified that the information provided to Emery was

limited to “how much ozone they would produce per hour or pounds

per day, the concentration, the voltage that they operated at or

the incoming voltage, . . . [and] the type of air [we] had.”

These figures were simply the raw data used by Emery to decide

which model of its generator to recommend and sell to Columbian.

Columbian’s “needs” data no more amounted to the specifications

for a custom-designed or custom-made generator than would a

request for a standard truck model having a certain load or power

capacity. Furthermore, nothing in the record specifies any

modifications in model structure, characteristics, or

capabilities to be performed by Emery in connection with the sale

37
and delivery of the generators.

Finally, even if Emery owed two obligations, one to give,

i.e., to sell, and one to do, i.e., perform incidental services,

the performance of the obligations would not fall within the

ambit of the statute of peremption or repose because the

inspection and insertion of the glass tubes into the generators

was de minimis in comparison with the performance of the

obligation to give or sell the generators. The parties’ failure

to assign any value or cost to Emery’s post-sale services plainly

indicates that they were insignificant in economic value in

relation to the performance of the obligation to give or sell.

In sum, Emery, the vendor of the generators, performed an

obligation to give, i.e., sale of equipment, to the obligee,

Columbian, and the independent building contractor performed the

obligation to do, i.e., installation and assembly of the

generators for the obligee. Consequently, Henkel failed to

demonstrate the absence of a genuine issue of material fact that,

as a matter of law, it performed an obligation to do, i.e.,

install or construct, rather than an obligation to give, i.e., to

transfer ownership of the ozone generators to Columbian.

IV. INADEQUATE WARNING

At the outset, it is important to note that in this section

we deal with the issue of whether Columbian knew or reasonably

should have been expected to know of the alleged dangerous

38
characteristic of the generator that allegedly caused bodily harm

to Mr. Swope on July 10, 1996. This is different from the issue

we dealt with in Section II, viz., whether Columbian knew to a

substantial certainty that its operations in general, over a

period of time, were exposing Mr. Swope to harmful levels of

ozone caused not only by purgation defects in generators, but

also by other exposures, including during Columbian’s manufacture

of carbon black using ozone after it had been produced by the

generators.

In support of its motion for summary judgment seeking

dismissal of the Swopes’ products liability claim, Henkel argues

that “it is sufficient that the manufacturer prove that the

plaintiff (or his employer) should have known of the danger. . .

[and that] there is no duty under Louisiana law to warn an

employee of a sophisticated user or purchaser of the dangers of a

product.”74 Henkel relies exclusively upon a sophisticated user

or purchaser defense to excuse Emery from its duty as

manufacturer to use reasonable care to provide users and handlers

of the product with an adequate warning75 about the product’s

74
Henkel Br. at 16-17 (emphasis in original).
75
LPLA § 2800.53(9) provides: “‘Adequate warning’ means a
warning or instruction that would lead an ordinary reasonable user
or handler of a product to contemplate the danger in using or
handling the product and either to decline to use or handle the
product or, if possible, to use or handle the product in such a

39
dangerous characteristics at the time it left the manufacturer’s

control.76 The Louisiana Products Liability Act “establishes the

exclusive theories of liability for manufacturers for damage

caused by their products.”77 The only provision of the LPLA that

affords a basis for arguing or guessing that manufacturers’

liability is limited by a sophisticated user or purchaser defense

is section 2800.57(B)(2), which states that a manufacturer is not

required to provide an adequate warning about his product if the

“user or handler of the product already knows or reasonably

should be expected to know of the characteristic of the product

manner as to avoid the damage for which the claim is made.” La.
Rev. Stat. Ann. § 9:2800.53(9) (West 1997); see also Thomas C.
Galligan, Jr., The Louisiana Products Liability Act: Making Sense
Of It All, 49 La. L. Rev. 629, 675-76 (1989) (“A striking element
of the definition is that it equates warning and instruction. . .
. The ‘warning’ under the Act must both alert and instruct. The
conjunctive nature of the definition demands [that] the warning
must both lead the ordinary user or handler to contemplate the
danger in using the product (the warning component) and to either
use it safely (the instruction component) or to decline to use
it.”).
76
La. Rev. Stat. Ann. § 9:2800.57(A) (West 1997) (defining
“unreasonably dangerous because of an inadequate warning”). It
deserves emphasis that Henkel did not move for summary judgment on
other grounds, such as, e.g., that the 30-minute purgation
instruction provided an adequate warning of that hazard, or that
Emery did not know or reasonably could not have known of the
dangerous characteristic of the generator. Consequently, we
presume these factual issues to have been resolved in favor of the
non-movant, the Swopes, for purposes of our de novo summary
judgment review.
77
La. Rev. Stat. Ann. § 9:2800.52 (West 1997).

40
that may cause damage and the danger of such characteristic.”78

Consequently, as Henkel concedes, under any sophisticated

intermediary defense the threshold burden is on the manufacturer

to prove that the purchaser-intermediary knew or reasonably

should have been expected to know of the dangerous characteristic

of the product that caused the damage.79 In a jury trial, if

reasonable minds could differ on that question, the court must

submit the issue to the jury with a proper instruction.80

Consequently, in seeking summary judgment on this issue, Henkel

has the threshold burden of demonstrating that there is no

genuine issue as to the fact that Columbian already knew or

reasonably should have known of the dangerous characteristic of

78
Id. § 9:2800.57(B)(2); see also Davis v. Avondale
Industries, Inc., 975 F.2d 169, 172-73 (5th Cir. 1992)(citing LPLA
§9: 2800.57(B)(2) as statutory authority for an Erie guess “that
Louisiana courts would likely hold that in a setting such as this
the product manufacturer owes no duty to the employee of a
purchaser if the manufacturer provides an adequate warning of any
inherent dangers to the purchaser or if the purchaser has knowledge
of those dangers and the duty to warn its employees thereof.”)
(emphasis omitted). Subsequent to the enactment of the LPLA and
this court’s decision in Davis one Louisiana intermediate appellate
court has expressed uncertainty as to whether the LPLA perpetuates
a sophisticated purchaser or user defense. Black v. Gorman-Rupp,
655 So.2d 717, 722 (La. Ct. App. 4th Cir. 1995) (“The LPLA does not
explicitly address this ‘sophisticated user’ concept, but instead
speaks of ‘the ordinary user or handler of the product.’ At the
present time, we need not decide . . . the issue of whether the
‘sophisticated user’ defense is carried forward under the LPLA . .
. .”) (citations omitted).
79
Henkel Br. at 16-17; see also Davis, 975 F.2d at 174.
80
See Davis, 975 F.2d at 172-75.

41
the generator, viz., its propensity to retain and recycle ozone

so that, contrary to Emery’s instructions and representations, a

30-minute purgation period was not a sufficient precaution to

ensure the safety of a worker opening the generator door to

replace a glass dielectric tube. We conclude that Henkel did not

carry this burden because based on the record presented for our

review a reasonable jury easily could find that Columbian did not

already know and reasonably should not have been expected to know

of that hazardous characteristic of the generator and the nature

and magnitude of the danger it entailed.

In support of its motion, Henkel relied upon evidence in the

record that Columbian manufactured carbon black with a process

that involves the use of ozone for over 55 years and held a

patent on its process; and that since 1982 or 1983 Columbian has

used the Emery generators in question to produce ozone for

subsequent use in its carbon black manufacturing process. The

record reflects, however, that Columbian’s process of making

carbon black with ozone is distinct from the generation of the

ozone with the Emery and other makes of generators. Discovery

was limited to issues concerning the Emery ozone generators;

Columbian did not permit questions concerning the use of ozone

after it left the generators and was used in the actual carbon

black manufacturing process in which Columbian had a proprietary

interest. Nevertheless, Henkel contends, in effect, that a

42
reasonable jury would be unable to find that Columbian did not

already know or should not have been expected to know of the

dangerous characteristic of the Emery generator and the

inadequacy and inaccuracy of Emery’s safety instructions and

representations. We disagree – especially in light of the

countervailing evidence presented by the plaintiffs.

In opposition to Henkel’s motion for summary judgment the

Swopes presented, inter alia, the report of their expert witness,

Mr. Stephen A. Killingsworth, a registered professional

mechanical engineer, and the depositions of Mr. Richard Bianchi,

Columbian’s maintenance supervisor and former project engineer,

Mr. Swope, and other employees of Columbian. Mr. Killingsworth

reported on the characteristics of the ozone generator that

caused damage to Mr. Swope, in pertinent part, as follows:

• Observations/Opinions - Emery did not provide a

method to monitor and/or determine the presence of

ozone within the ozone generator during system

shutdown and/or maintenance of the generator,

specifically when the generator heads are removed.

Emery acknowledged and incorporated safety

relative to the protection of the equipment such

as high and low air pressure, low cooling water

flow and high gas and water temperature. However,

Emery does not acknowledge and incorporate safety

43
 into the design of the generator relative to the

protection of the individual or work[er]

maintaining the equipment, specifically installing

a monitor and/or detection system to determine the

presence of ozone prior to or during maintenance

of the generators. The design of Emery ozone

generators should have included an ozone

monitoring and/or detection system.

• Observation/Opinions - Emery’s maintenance and

safety procedures do not include considerations

for leakage and/or improper system purging.

Emery’s procedure requires a post-purge of the

entire system for a minimum of 30 minutes to drive

the ozone out of the ozone generator and all

downstream piping. However, the process is

flawed. The ozone generator and piping does not

include a monitor and/or detection system to

determine if the system is truly purged of all

ozone. Ozone may remain within the system or re-

enter the system through valve leakage, improper

purging including insufficient purge time or

insufficient flow of the purging media or simply

human error. Emery should have provided a

maintenance and safety procedure that included

44
 considerations for leakage, improper purging and

human error.

Thus, Mr. Killingsworth reported that Emery’s purging

instructions were both inadequate and untrue because they

inaccurately represented that the prescribed 30-minute purge was

sufficient to remove all ozone from the generator and make it

safe to be opened for maintenance. Mr. Bianchi testified that

under the guidance and instruction of Emery employees, Mr. Quisno

and Mr. Merit, he helped write operation and repair procedures

for the Emery generators based on Emery’s operation manual; and,

that among the operations and repair procedures necessary to

insure a safe work environment is a prescribed 30-minute purge of

the generators. Mr. Killingsworth’s report stated that he had

taken into account an itemized list of materials, including “[a]

copy of the Emerzone Ozone Treatment System’s Operation and

Maintenance Manual for the Columbian Chemicals Company North Bend

Ozone Facility[.]” A reasonable jury could infer from Mr.

Killingsworth’s report and Mr. Bianchi’s deposition that Emery

conveyed to Columbian the inadequate and inaccurate purging

instructions described by Mr. Killingsworth via the Emery

operation and maintenance manual and other written and oral

communications. The deposition of Mr. Bianchi combined with that

of Mr. Swope tend to corroborate the inadequacy and inaccuracy of

the purging instructions. Although Mr. Bianchi could not say for

45
certain how long the generator that delivered the last blast of

ozone to Mr. Swope on July 10, 1996, had been shut down, he did

testify that at the time a “thirty-minute purge” was the standard

time for pre-maintenance shutdown. Mr. Swope testified that after

he and a co-worker opened the generator door and replaced the

dielectric tube, they shut the door temporarily while the co-

worker fetched some silicone to apply to a gasket. When the door

was reopened and after Mr. Swope began to apply the silicone, he

was struck in the face by a blast of ozone mist. He fell to his

knees, unable to breathe, and crawled away from the open

generator door vomiting. Afterwards he suffered from respiratory

difficulties, was given oxygen, and spent the remainder of the

work day in the company’s air conditioned lunch room. Mr. Leonce

Boudreaux, the co-worker who witnessed the accident, corroborated

Mr. Swope’s testimony.

Henkel does not address the evidence of record in any detail

in an effort to show that there is no genuine issue as to whether

Columbian already knew or reasonably should have been expected to

know of the Emery generator’s dangerous characteristic of

retaining ozone after the 30-minute purgation period in

contradiction to Emery’s safety instructions and representations

of facts. Henkel presents two arguments based on the general

facts that Columbian had extensive knowledge and experience in

making carbon black with a process involving ozone; and that

46
Columbian had used the Emery ozone generators to produce ozone

for this process.

The first argument, in effect, merely suggests that because

of Columbian’s experience with the Emery generators, a reasonable

inference could be drawn that it already knew or should have

known of their dangerous characteristics. We need not decide

whether this is a reasonable inference which could be drawn from

the record evidence. Assuming arguendo that it is, a jury could

with equal, if not more, reasonableness find that Columbian

reasonably relied on the safety instructions and representations

of Emery and did not discover their inaccuracy and the dangerous

characteristic of the generator to retain ozone after purgation

until Mr. Swope’s final exposure caused by that characteristic on

July 10, 1996.81

The second argument begs the question and improperly inverts

the analysis required by LPLA § 2800.57(B)(2). Simply put, the

argument is that because of Columbian’s extensive experience in

making carbon black with a process using ozone, Columbian is a

81
Moreover, as we read LPLA § 2800.57(A)and (B) together, the
manufacturer is relieved of the duty of providing an adequate
warning about dangerous characteristics at the time the product
left its control only if the user or handler at that time already
knew or reasonably should have been expected to know of the
characteristic and its danger. We do not base our decision herein
on this statutory nuance, however, because there is no evidence
that Columbian ever acquired actual or constructive knowledge of
the dangerous characteristic prior to Mr. Swope’s exposure to ozone
on July 10, 1996.

47
sophisticated purchaser and user of anything involving ozone in

its business, and therefore Columbian should have been expected

to know of the latent dangerous characteristic of the generator

contradicted by Emery’s safety instructions and representations.

However, LPLA § 2800.57(B)(2) explicitly requires that the

manufacturer, in order to be relieved of his duty to warn, prove

that the user or handler of the product already knew or

reasonably should have been expected to know of the product’s

dangerous characteristic.82 Once this threshold burden of proof

has been met, it may be plausible to find an implication in the

statute that the purchaser becomes a sophisticated intermediary

with an exclusive or concurrent duty to warn his employee users

and handlers of the danger. But the statute plainly does not

authorize courts to judicially notice or assume ipse dixit that a

particular purchaser is a sophisticated intermediary with respect

to a specific latent dangerous characteristic of a product. The

argument begs the question because it “bas[es] a conclusion on an

assumption that is as much in need of proof or demonstration as

the conclusion itself.”83

The record does not contain evidence of sufficient concrete

facts to demonstrate that there is no genuine dispute that

82
La. Rev. Stat. Ann. § 9:2800.57(B)(2) (West 1997).
83
Bryan A. Garner, A Dictionary of Modern Legal Usage 82
(1987).

48
Columbian should have known of the latent dangerous

characteristic of the ozone generators it purchased from Emery.

In fact, it is undisputed that these were the first ozone

generators Columbian had ever purchased from Emery and that the

vast majority of Columbian’s experience had been with other makes

and models of generators. Moreover, there is nothing in the

record to suggest why even a highly experienced user or handler

of ozone generators should have been expected to know that the

particular Emery generators purchased by Columbian could not be

safely and adequately purged in the manner prescribed by Emery.

Just as an experienced trucking firm or its professional drivers

might not be expected to anticipate an unusual hidden danger

involved in a routine engine maintenance procedure, we see no

reason in this record to believe that an experienced user of

ozone generators should have been aware of the specific dangerous

propensity of the Emery ozone generators to recycle and retain

ozone even after following the manufacturer’s prescribed purging

procedure. Based on the present record, a reasonable jury could

infer that a carbon black manufacturer in Columbian’s position

reasonably should not be expected to know that the Emery

generators could not safely be purged according to Emery’s own

instructions and representations, although that manufacturer

might reasonably be expected to know everything about how to use

the ozone subsequent to its generation in its patented carbon

49
black manufacturing process. There is nothing in the record to

indicate that Columbian had ever made an ozone generator or had

any occasion to delve into the intricacies of its internal

operation. Indeed, it is undisputed that Columbian had never

dismantled or performed major internal maintenance on the Emery

generators or had even opened anything on such a generator other

than its outer door for the minor maintenance purpose of

replacing glass dielectric tubes. Mr. Jordan explicitly stated

in his deposition that as far as he knew a “turnaround”84 was

never done by Columbian on an Emery ozone generator, and Mr.

Bianchi confirmed that belief. Mr. Bianchi testified that no

periodic inspections or maintenance procedures were done on the

Emery generators, other than the replacement of the glass

dielectric tubes.

The cases cited by Henkel do not conflict with the foregoing

analysis or require a conclusion that there is no genuine issue

as to whether Columbian already knew or reasonably should have

been expected to know of the latent dangerous characteristic of

the Emery ozone generator despite Emery’s inaccurate and

inadequate safety instructions and representations. For example,

Henkel cites Davis v. Avondale Industries, Inc.85 for the

84
According to Mr. Jordan, a “turnaround” is “when we take a
unit down and go through the complete unit and take a look at all
of the equipment and do maintenance work on all of the equipment.”
85
975 F.2d 169 (5th Cir. 1992).

50
proposition that “if Columbian was a sophisticated user. . . then

the Henkel defendants owed no duty to warn Columbian or Swope. .

. .”86 In the present case, however, we do not reach the question

of what would be the effect of Henkel having carried its burden

of showing that Columbian was a sophisticated intermediary. We

cannot do so because there is a genuine dispute as to whether

Columbian already knew or reasonably should have known of “the

characteristic of the product that may cause damage and the

danger of such characteristic.”87 In Washington v. Department of

Transportation, this court, in a harmless error analysis of an

evidentiary ruling that was assumed to be erroneous arguendo,

cited Davis and concluded that the manufacturer had no duty to

warn because the purchaser-intermediary’s representative

testified he actually already knew of the pertinent danger.88

Henkel cites a number of cases that are inapposite because,

among other reasons, they applied pre-LPLA law and did not

involve alleged sophisticated intermediaries. All but one were

decided after a full trial and not on a motion for summary

86
Henkel Br. at 17.
87
La. Rev. Stat. Ann. 9:2800.57(B)(2) (West 1997) (emphasis
added); accord Davis, 975 F.2d at 172-75 (implicitly recognizing
that this and related issues must be submitted to the jury with
proper instructions if reasonable minds could differ, as the court
in Davis evaluated the adequacy of a jury instruction on the
“sophisticated purchaser” defense).
88
8 F.3d 296, 300 (5th Cir. 1993).

51
judgment. Hines v. Remington Arms Co. is inapposite for the

additional reasons that the court found de novo from the jury

trial record that the trial court’s exclusion of warning evidence

was harmless because (a) the gunpowder manufacturer “provided

ample warning of the flammability and danger of the product,”

(b) the plaintiff admitted he was well aware of the danger of

firing a bullet into a container of gunpowder, and (c) the danger

of pointing “a loaded high powered rifle at gunpowder, [is] well

known and obvious to the ordinary consumer, especially one such

as Hines, who is a sophisticated user of rifles and gunpowder.”89

The court’s use of the term “sophisticated user” in Hines is not

relevant to the present case. In Todd Shipyards Corp. v.

Hercules, Inc., this court held that the district court was not

clearly erroneous in finding after a full trial that the

defendant manufacturer adequately warned Todd of the application

and limitations of the product, thermal barrier cloth.90 The

purchaser and his employees admitted to having knowledge of the

danger that the cloth could burn, and the defendant introduced

expert testimony that this danger was common knowledge in the

industry.91 The court’s statement that the plaintiff was a

“sophisticated user” was not especially meaningful or crucial to

89
648 So.2d 331, 337 (La. 1995).
90
859 F.2d 1224-25 (5th Cir. 1988).
91
Id. at 1226.

52
the holding. In Ducote v. Liberty Mutual Insurance Co., the

trial court found, after a full trial, that the manufacturer’s

warning that the electrical saw should be grounded while in use

to protect the user from electric shock was adequate to warn an

experienced carpenter of the danger of death by electrocution.92

The trial court based its decision on a finding that the warning

was adequate, not on whether the manufacturer had been relieved

of a duty to warn; the use of the term “sophisticated user” in

the appellate opinion was unnecessary and irrelevant.93 Finally,

the court in Scallan v. Duriron Co., applying pre-LPLA law,

affirmed a summary judgment relieving the manufacturer of a duty

to warn because the danger was obvious to an ordinary, not a

sophisticated, user.94

Moreover, none of these cases presented an issue of whether

there was a genuine issue of material fact for trial as to

whether a purchaser already knew or reasonably should have known

92
451 So.2d 1211 (La. Ct. App. 4th Cir. 1984).
93
Id. at 1215 (“Having determined that the trial court did not
clearly err in finding that Skil Corporation’s warnings were
adequate, we must affirm the judgment.”).
94
11 F.3d 1249, 1252 (5th Cir. 1994). Although the court in
Scallan does make mention of the term “sophisticated user,” its
holding is clear: “The danger inherent in pumping chlorine through
a hydraulic pump is obvious to an ordinary user of hydraulic pumps,
such as Allied. Consequently, no genuine issue of material fact
exists as to whether Duriron had a duty to warn that the pump
should be fitted with an automatic sensing mechanism or used with
an inert hydraulic fluid.” Id.

53
of the dangerous characteristic of a product so as to excuse a

manufacturer’s failure to provide an adequate warning. All

except one were decided after a trial, and the one was a case of

summary judgment based on a danger obvious to an ordinary user.

V. CONCLUSION

For the foregoing reasons, the judgment of the district

court in favor of defendants, Columbian and Henkel, is REVERSED

and the case is REMANDED for proceedings consistent with this

opinion.

54