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Breaking Legal Developments

08-13-2001

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Texas Court Reinstates Plaintiff's Claim of Phosgene Exposure
  2. California Governor Signs Bill Amending The Firefighter's Rule


(1) TEXAS COURT REINSTATES PLAINTIFF'S CLAIM OF PHOSGENE EXPOSURE

In Folse v. Vista Ridge Joint Venture, No. . 05-99-00878-CV, the Fifth District Court of Appeals reviewed a judgment entered against a plaintiff alleging phosgene exposure. The trial court had found the evidence submitted by the plaintiff insufficient and granted summary judgment for the defendant.

Folse was the manager of the Kay Jewelers store in Vista Ridge Mall. On Saturday, June 4, 1994, Folse was working at the Kay Jewelers store when she and several other mall patrons became ill from what may have been toxic gas in the air they breathed. The mall was evacuated. The smell of the gas and its effects were consistent with phosgene gas. Phosgene, which is similar to mustard gas, attacks the respiratory and central nervous systems, incapacitating the victim. Although she was healthy before June 4, 1994, Folse became debilitated that day and has remained at least partially incapacitated. A toxicologist testified that Folse's symptoms were consistent with phosgene poisoning.

Phosgene gas is created when the air conditioning refrigerant Freon is superheated. The Kay Jewelers store was air conditioned in part by Unit 32 of the mall's air conditioning system. Unit 32 had given the mall's maintenance employees, particularly Al Haney, a great deal of difficulty. Unit 32 contained two compressors and could operate with only one compressor. On June 2, 1994, two days before the incident, Haney installed a new compressor in Unit 32. Haney pulled a vacuum and charged the unit with Freon. On June 3, 1994, Haney checked the unit and found it would not work because the expansion valve, which meters Freon into the evaporator, was blocked. Haney turned off the compressor. Haney stated in his affidavit that he ordered a new expansion valve on June 3, 1994, and the records of Vista Ridge's purchases of air conditioning supplies show an invoice for an expansion valve dated June 7, 1994.

Haney testified that on June 4, 1994, at about 11:30 a.m., he was told to investigate a complaint of a bad smell at the Tie Rack shop. Haney went up to the roof to determine whether foul smelling air from outdoors may have entered the air conditioning system and have been blown into the shop. As he was returning to the mall from the roof, Haney was instructed by radio to return to the mall and investigate a complaint of a smell at Kay Jewelers. Haney arrived at Kay Jewelers while the Fire Department was putting tape around the perimeter of the store. Inside the mall and in the Kay Jewelers store, Haney smelled a strong odor that he could not identify. Haney saw several people lying on the floor and the security guards evacuating the mall. Haney testified he went onto the roof before noon and that he was on the roof for only thirty to forty-five minutes; however, the fire department did not arrive at the mall until 3:30 p.m.

The fire department asked Brian MacPherson, Vista Ridge's operations manager, to activate the mall's smoke evacuation equipment, and MacPherson instructed Jeff Powell, a security officer, to switch the air conditioning system to that mode. In this mode, the air conditioners pulled air from the roof and blew it into the mall. The firemen also activated the mall's large exhaust fans. Within a few hours, the mall was ready to be reopened. On June 9, 1994, five days after the incident, a technician from Beltline Mechanical Services, Inc. inspected and tested the air conditioning units servicing the Kay Jewelers store. The technician "thoroughly inspected the complete system and could find no evidence of freon leaks. The system was operating as designed with no malfunctions." On the maintenance records for Unit 32, the top line for the "history" of the air conditioning unit was obliterated by "white-out." When the white-out was removed, the entry stated that the expansion valve was changed on June 2 or 3, 1994. The next line indicates that a new compressor was installed on June 2, 1994. The next entry states the expansion valve was changed on June 13, 1994. Haney testified he probably put the white-out on the maintenance record because he wrote down the wrong date.

Vista Ridge argued that Folse could not present any evidence on each of the elements of her causes of action because she could not present any evidence showing how she was gassed by phosgene. To prove she was gassed with phosgene, Folse had to show: (1) there was a Freon leak; (2) the Freon was heated to a high temperature to convert the Freon into phosgene; and (3) the phosgene was delivered to her in the Kay Jewelers store. Folse's theory as to how phosgene was created and delivered to her is based on the deposition testimony of Richard Callendar, a mechanical engineer and expert on heating, ventilation, and air conditioning systems. That theory is as follows: The roof air conditioning unit serving Kay Jewelers, Unit 32, contained two compressors and could operate with only one compressor. On June 2, 1994, Haney installed a new compressor in Unit 32 and charged it with Freon. When he turned it on, he realized the expansion valve was blocked, and he turned it off. A new expansion valve was not installed until June 13. Callendar theorized that on June 4, while Haney was on the roof checking the smell complaint from the Tie Rack store, he decided to attempt to repair the expansion valve. Removal of the expansion valve required the use of a blow torch. Callendar asserted that Haney did not remove the Freon from the air conditioning unit before using the torch on the expansion valve. During removal of the expansion valve, Freon began to escape and was heated by the torch transforming the Freon into phosgene.

As the phosgene entered the air conditioning unit, the smoke detector system within the unit sensed the phosgene and automatically activated the mall's smoke evacuation system, which would pull the air, including the phosgene, from the roof around the compressor into the unit and blow it into the Kay Jewelers store. The court had to determine whether Folse produced sufficient evidence to create a fact question on each step of this theory and on each element of her cause of action.

Vista Ridge asserted no evidence shows Folse was gassed with phosgene. In her response to Vista Ridge's second motion for summary judgment, Folse attached her affidavit in which she stated that she had read extensively about "the symptoms experienced with significant exposure to phosgene gas and my symptoms are substantially the same as those determined to be consistent with significant phosgene gas exposure." This statement is at least some evidence that she was exposed to phosgene. Dr. Thomas Dydek, a toxicologist and professional engineer, testified in his affidavit attached to Folse's response to the second motion for summary judgment, that the reports of the witnesses regarding the smell of the gas were consistent with phosgene. Dydek also stated that the only other chemical with a similar smell is formaldehyde, but there was no reason for formaldehyde to be released into the mall. This statement is also some evidence that the substance encountered by Folse was phosgene.

Vista Ridge asserts it conclusively proved phosgene was not created because testing of the air and other materials after the incident failed to detect phosgene. Dr. Gunter's testing of the air occurred more than six weeks after the incident; testing by Armstrong Forensic Laboratories of an article of clothing occurred between June 20 and July 20, 1994; testing by Armstrong Forensic Laboratories of dust from air filters and smoke detectors occurred seven months after the incident; and testing by Dr. Gunter of clothing occurred more than two years after the incident. However, Vista Ridge presented no evidence that phosgene, if present, would have left a residue that would have been detectable at the time of the testing. Therefore, the failure to find phosgene in the air, dust, and clothing weeks, months, and years after the incident does not prove as a matter of law that phosgene was not present on June 4, 1994.

Vista Ridge asserts Folse failed to present any evidence of how phosgene gas could have been created. Folse's theory depends upon someone using a blow torch on Unit 32 in such a manner as to cause a release of Freon that would be heated by the blow torch. Haney testified that the expansion valve meters Freon into the evaporator and that removal of the expansion valve required a blow torch. MacPherson testified that removal of the valve without first evacuating the Freon would cause the Freon to escape from the valve's location. If the Freon then passes through a blow torch that is being used to remove the expansion valve, then that Freon will be converted to phosgene. Thus, the issue of whether phosgene gas could have been created depends upon whether Haney used a blow torch on the expansion valve without first evacuating the Freon from the air conditioner.

Haney testified that he did not use a blow torch on Unit 32 on June 4. However, the determination of whether he did so depends upon the determination of Haney's credibility. Because Haney could face adverse consequences if he admitted committing the acts leading to the creation of phosgene, he is an interested witness. As an interested witness, his testimony will not support Vista Ridge's motion for summary judgment unless it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been effectively countered by opposing evidence. Haney's testimony that he did not use a blow torch on Unit 32 cannot be effectively countered by opposing evidence. The expansion valve was replaced nine days after the incident, and no other witness was present on the roof of the building to confirm or deny Haney's statement that he did not use a blow torch on Unit 32 on June 4, 1994. Accordingly, Haney's testimony cannot support Vista Ridge's motion for summary judgment.

The evidence shows Haney's use of a blow torch on Unit 32 was necessary to create phosgene. The evidence shows Haney was on the roof at the time of the incident, the blow torch was also on the roof, and a reason, repairing the expansion valve, justified Haney's use of a blow torch on Unit 32 at that time. Moreover, Vista Ridge's summary judgment evidence creates a genuine issue of material fact on the issue of whether Haney used a blowtorch on Unit 32 on June 4, 1994. Haney testified that he shut down one of the compressors of Unit 32 because of the blocked expansion valve. He testified the compressor could not be operated until the expansion valve problem was fixed, and the maintenance records show he did not replace the expansion valve until June 13. This constitutes evidence that one of the compressors of Unit 32 was not operating between June 3 and June 13 because of the blocked expansion valve.

However, Beltline Mechanical Services tested the air conditioning system on June 9, 1994, five days after the incident and four days before Haney changed the expansion valve, and found "[t]he system was operating as designed with no malfunctions." For Unit 32 to be "operating as designed with no malfunctions," the expansion valve had to be operating on June 9, contradicting the substance of Haney's testimony that the expansion valve and one of the compressors were not operable on June 9. This evidence casts further doubt on Haney's credibility and constitutes circumstantial evidence that Haney repaired the expansion valve between June 3 and June 9. The trier of fact could infer that Haney did so on June 4, the day of the incident. We conclude that this is some circumstantial evidence supporting Folse's theory for the creation of phosgene as well as evidence of some activity by Vista Ridge's employee Haney that created an unreasonably dangerous condition.

Vista Ridge cites to Beltline Mechanical Services report showing that Unit 32 was not leaking Freon either before or after the incident. However, this evidence shows that any Freon leak that could be heated to create phosgene had to be caused by human error, such as Haney's removing the expansion valve without evacuating the Freon. Vista Ridge asserts no evidence shows it should have known that any negligent activity could have injured Folse. Haney testified in his deposition that he would have to be "crazy" to use a blow torch on Freon lines without first evacuating the Freon. He also testified he understood that phosgene can be "very hazardous" in an enclosed area.

This constitutes some evidence that Vista Ridge should have known that the negligent activity, Haney's use of the blow torch without evacuating the Freon, could injure Folse, who was in the confined space of the Kay Jewelers store. Vista Ridge also asserts no evidence shows the phosgene gas was delivered to Folse. Callendar testified the phosgene gas would have set off the smoke detector in the air conditioning unit putting the air conditioner into the smoke evacuation mode, which would blow the air from around the air conditioner unit on the roof, including any phosgene gas, into the Kay Jewelers store where it was breathed by Folse. This is some evidence the phosgene was delivered to Folse. Vista Ridge asserts it disproved this theory as a matter of law through Haney's and MacPherson's testimony that Unit 32 did not have an Internal smoke detector. This evidence is contrary to Callendar's testimony that Unit 32 had a smoke detector and, under the standard of reviewing summary judgments, Haney and MacPherson's contrary evidence must be disregarded. Vista Ridge also asserts Powell's testimony that he did not place the mall's air conditioning system into the smoke evacuation mode until he was instructed to do so by the fire department, which was after the problem at Kay Jewelers began, proves as a matter of law that any phosgene gas was not delivered to Folse through the air conditioning system being in the smoke evacuation mode. The court disagreed.

The summary judgment evidence shows the smoke detectors in the air conditioners can automatically trigger the smoke evacuation mode. The evidence does not show that the air conditioning system being in the smoke evacuation mode is discernable to someone standing in the mall. MacPherson testified in his affidavit that the triggering of the smoke evacuation mode sends a message to the mall office, but nothing in the record shows that anyone was in the mall office. Powell stated in his deposition that there would have been no reason for the fire department to ask that the smoke evacuation system be activated and no reason for him to activate it if it already was activated; however, the evidence does not show that the smoke evacuation mode is discernable. Vista Ridge has not proven as a matter of law that any phosgene Haney may have created was not delivered to Folse through the smoke evacuation system.

Vista Ridge also asserted that Folse had no evidence showing that her injuries were proximately caused by breathing phosgene. Dr. Dydek stated in his affidavit attached to Folse's response to the second motion for summary judgment that Folse's symptoms were consistent with the ingestion of phosgene. The only other chemical with a smell and symptoms similar to phosgene is formaldehyde, and Dr. Dydek concluded there was no reason for formaldehyde to be present. Folse testified in her affidavit attached to her response to the second motion for summary judgment that she did not begin to experience the symptoms until the incident on June 4, 1994. We conclude this evidence raises a fact question concerning whether Folse's injuries were proximately caused by breathing phosgene gas created by Haney's use of a blow torch on Unit 32. The court concluded Folse has produced sufficient evidence to create a fact question on each element of her factual theory for her injuries being caused by Vista Ridge as well as each element of her cause of action for which Vista Ridge asserts there is no evidence. The court also conclude that Vista Ridge has failed to negate as a matter of law any element of Folse's cause of action. Accordingly, the appellate court held the trial court erred in granting Vista Ridge's motion for summary judgment.


(2) CALIFORNIA GOVERNOR SIGNS BILL AMENDING THE FIREFIGHTER'S RULE

On August 6, 2001, California Governor Gray Davis signed the Brett Alan Laws Act modifying the Firefighter's Rule in California. The Firefighter's Rule had been adopted in California when the legislature had enacted Civil Code section 1714.9. The Rule before being amended had forced an injured firefighter, police officer, EMT or lifeguard to be limited to worker compensation benefits when injured. The Firefighter's Rule applies throughout many states of this country. What that Rule means if an emergency responder is injured at a scene he or she is limited to worker's compensation benefits. This puts the burden on the fallen firefighter's family. Other government employees are not limited to worker compensation benefits. The Rule unfairly discriminates against emergency responders treating them differently than other government workers.

This new bill came about after Brett Alan Laws and Bryan Golden were crushed to death in a fire in Stockton, California. The fire was caused by an electrical failure. However, the firefighters were killed because an illegally modified addition collapsed on them without warning.

After the families lawsuits were thrown out of court because of the Firefighter's Rule, a bill was later introduced by Senator Perata to modify the rule. The co-sources of the bill were the California State Firefighters' Association, Inc. and the Peace Officers Research Association of California. Judy is the mother of Brett Alan Laws. Judy closely worked with the Senator Perata and the co-sources on the bill. The legislative digest of the bill and the text of the new language of Civil Code section 1714.9 is at this link http://www.leginfo.ca.gov/pub/01-02/bill/sen/sb_0401-0450/sb_448_bill_20010806_chaptered.html.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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