Cogan Kibler, Inc. v. Vito

RODOWSKY, Judge. This negligence claim alleges personal injuries resulting from the inhalation of paint primer fumes in a business office during working hours. At issue is the sufficiency of the plaintiffs evidence of the defendant painter’s primary negligence. The circuit court held that the plaintiff failed to satisfy the requirements of a res ipsa loquitur case.

The Court of Special Appeals held that those requirements were satisfied. Vito v. Sargis & Jones, Ltd., 108 Md.App. 408 , 672 A.2d 129 (1996). We shall affirm the Court of Special Appeals because, without the need to rely on res ipsa loquitur, the plaintiff circumstantially proved primary negligence. The action before us arises out of an occurrence on Friday, May 11,1990, that took place in a multi-story office building at 2240 Broad Birch Drive in Silver Spring, Maryland that is occupied by USA Today’s publisher (USAT).

USAT had moved to the building in Silver Spring from Rosslyn, Virginia in 1986. In May 1990 certain construction work was being performed within the USAT building. At least some of that work was being performed in an area adjacent to, and previously separated by an interior wall from, the area occupied by ²⁰³ USAT’s customer service department (the Department). At that time one of the respondents, Alice M. Vito (Vito), was a customer service representative in the Department.

The prime contractor for the construction work was the other respondent, Sargis & Jones, Ltd. (S & J). S & J’s painting subcontractor for the USAT project was the petitioner, Cogan Kibler, Inc. (C-K). In the late morning of May 11, 1990, one of C-K’s employees, John Dray (Dray), was applying paint primer to a wall within the work area adjacent to the Department. Dray had been applying the primer, by his estimate for approximately twenty minutes, when “at some point” the S & J supervisor told Dray to stop working because of a complaint that Dray said related to the smell.

According to USAT’s Customer Service Manager at the time of the occurrence and of trial, Carolyn C. Webb (Webb), eight people in the Department were complaining “that their eyes were burning, ... their throats were hurting and they weren’t feeling well.” One of these persons was Vito. Vito sued S & J and C-K, and C-K cross-claimed against S & J. The case was tried to a jury. At the conclusion of the plaintiffs case both defendants moved for judgment, and the court “reserved” ruling. Neither defendant elected to stand on the record.

Two witnesses, called by the defendants, testified in the defendants’ case before the court ruled. These were Webb and Dr. Elliott Goldstein, a pulmonologist. At the conclusion of proceedings on the day when these defense witnesses testified, the court entered judgment in favor of the defendants as a matter of law. Under these circumstances the testimony of the two defense witnesses forms part of the record for determining the sufficiency of the plaintiffs evidence of liability. 1 ²⁰⁴ On Vito’s appeal the Court of Special Appeals reversed as to C-K, concluding that Vito had presented facts sufficient to invoke res ipsa loquitur.

Vito v. Sargis & Jones, Ltd., 108 Md.App. at 433 , 672 A.2d at 141-42 . With respect to S & J, the Court of Special Appeals affirmed because there was insufficient evidence to support a finding that Dray was the servant of S & J. Id. at 433-35 , 672 A.2d at 142 . The matter was remanded to permit C-K to complete producing evidence on its cross-claim against S & J. Id. at 434-35 , 672 A.2d at 142 . C-K petitioned this Court to review the determination adverse to C-K by the Court of Special Appeals.

There was no cross-petition by Vito seeking review of the affirmance of the judgment in favor of S & J. Nor does S & J seek review of that portion of the mandate permitting C-K’s cross-claim to continue. C-K’s principal argument to us is that res ipsa loquitur cannot be applied here as a matter of law because C-K did not have exclusive control over the heating, ventilating, and air conditioning (HVAC) system in the USAT building which, CK contends, delivered the fumes from the area where Dray was working to the Department. The short answer to this contention is that the evidence most favorable to the plaintiff permits an inference that that portion of the building’s HVAC system that would serve the area where Dray was working was not yet in service. The long answer to C-K’s contention is that Vito produced sufficient evidence of negligence on the part of C-K without the need to rely on res ipsa loquitur.

In resolving the issue before us, we are not concerned with the extent of the harm to the plaintiff, even though the record of the aborted trial reflects the nature and extent of Vito’s injury to have been vigorously contested. For present purposes the sensations of burning in the eyes and throat and of nausea are sufficient harm to support some compensatory ²⁰⁵ damages, if Vito established the other elements of the tort of negligence. The presentation of Vito’s case did not include any floor plan of the areas of the USAT building involved in the occurrence, any diagram of the HVAC system or systems in those areas, or any orderly and detailed description of those areas in the testimony of a witness called for that purpose. Consequently, our statement of the evidence most favorable to the plaintiff, set forth below, is based on bits of testimony from a number of witnesses.

The Department was located on the same level of the building that formed the bottom of the building’s atrium. The Department adjoined the atrium, and for some distance along their common boundary the atrium and the Department were separated by a wall. The Department occupied a large area that was divided into approximately seventy workstations for the customer service representatives. They responded to telephone inquiries and complaints from USAT customers.

The height of the partitions separating the representatives’ workstations one from another did not reach to the ceiling of the room. The upper portion of the room was entirely open, permitting a clear field of vision for two or more supervisors who worked on elevated platforms in the Department. This area was equipped with air conditioning. Vito said her workstation was directly beneath one of the “air conditioning ducts” in the Department.

Jurors could have understood the term “duct” to mean a vent or opening in the ductwork (either exposed or concealed) of the HVAC system. The record does not inform us, however, whether that vent brought fresh or cooled air into the Department, or whether it drew return air from the Department. Construction work adjacent to the Department had been ongoing for a number of weeks prior to May 11, 1990. The purpose was to expand the Department into space previously forming part of the atrium.

The work included cutting through the wall between the Department and the atrium and creating offices for the Department in the former atrium ²⁰⁶ space. 2 After the construction workers had cut through the wall, they hung a plastic sheet over the opening. This plastic sheet was not stapled or taped closed but simply hung loosely. Vito’s workstation was within a few feet of the construction activity, which produced loud noise, “different weird smells here and there,” and “a lot of dust flying around.” The evidence is that, prior to May 11, 1990, no person in the Department became ill for any reason associated with the construction activity in the expansion area. Sometime prior to midday on May 11, 1990, Dray began applying paint primer to the newly constructed walls of the offices in the expansion area, using Duron Stain Killer.

The manufacturer’s label on cans of Duron Stain Killer contained the following warning in a square formed by a black border around the text. “CONTAINS PETROLEUM DISTILLATE “Keep away from heat and flame. To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying. If you experience eye watering, headaches or dizziness, increase fresh air or wear respiratory protection ... or leave the area. Close container after each use.

Avoid contact with skin. FIRST AID: If swallowed, do not induce vomiting. Call physician immediately. Use With Adequate Ventilation.

NOTICE: Reports have associated repeated and prolonged occupational over-exposure to solvents with permanent brain and nervous system damage. Intentional misuse by ²⁰⁷ deliberately concentrating and inhaling the contents may be harmful or fatal. KEEP OUT OF REACH OF CHILDREN” Dray applied Duron Stain Killer by first pouring it into a pan and then rolling it onto the walls by means of a paint roller with an extension attached to the roller arm. Stain Killer is non-pungent and has virtually no odor.

Dray did not suffer any ill effects while working with it. Dray could not recall whether there were any outside windows or doors in the area where he was applying the primer, and there is no evidence from any other source on the subject. Sometime after Dray began applying Duron Stain Killer in the expansion area, and prior to the time when S & J’s supervisor advised Dray that there had been a complaint, one of Vito’s co-workers became ill. Webb’s superior helped that customer service representative out of the building “because she was getting very sick, like she was going to get sick to her stomach.” Thereafter approximately eight more employees, including Vito, became ill.

Vito testified that she “passed out” and had to be assisted in leaving the building. The USAT supervisory personnel immediately sent the ill employees outside. Webb then ordered all of the Department employees out of the building. Indeed, the entire building was evacuated.

Four or five ambulances had been called to the USAT building, and the paramedics set up triages on the scene, identifying persons who should be taken to a hospital and those who needed no further examination or treatment. Vito was among those who were taken to Holy Cross Hospital. Webb identified, by name, six other employees who were also taken to that hospital. Webb, who suffered no ill effects whatsoever, went to Holy Cross Hospital to “stay with the people that were sick.” By 4:00 p.m. that day the hospital had released all of the USAT employees, other than Vito.

Vito, a longtime smoker with a history of asthma, was given oxygen and placed on a monitor, ²⁰⁸ and the hospital did not release her until around 5:00 p.m. on the day of the occurrence. Webb returned to the USAT building from the hospital in order to pick up her belongings. On cross-examination she testified as follows: “Q Now, when you came back to USA Today were there still fire engines and ambulances around? “A No. “Q Were there exhaust fans turned on? “A There were three large fans in the facility.” The jury could have considered the answer to the second quoted question as a responsive answer, but one intended to convey that portable fans had been brought into the “facility” to clear it. Vito presented evidence from which the jury could find all of the elements of a negligence claim.

In Graham v. Canadian Nat’l Ry. Co., 749 F.Supp. 1300 (D.Vt.1990), property owners sued for personal injuries and property damage resulting from a railroad’s application of herbicides along its right of way adjacent to the plaintiffs’ properties. With respect to the defendant’s duty, the court said: “The herbicide is marketed under a label which publishes precautionary instructions that it may present hazards to the environment with specific reference to workers exposed in the area to be treated ‘directly or through drift.’ The label warns that exposure ‘MAY IRRITATE EYES, NOSE, THROAT AND SKIN.’ “The presence of known danger created the duty of reasonable care on the part of the railroad to avoid injury to the plaintiffs and their animal stock. Indifference to the consequences of dealing with a hazardous substance is lack of due care.” Id. at 1318 .

C-K’s employee, Dray, was on notice from the warning label on cans of Duron Stain Killer that its fumes could be harmful, absent adequate ventilation. Dray also knew, or should have ²⁰⁹ known under the circumstances, that there were people working in the Department, on the other side of the plastic sheet. Dray was negligent, the jury could find, in failing to insure adequate ventilation. If the jury concluded that it was highly unusual for ten percent of the population of the Department to be so adversely affected by the fumes as to require hospital examination, the jury could also infer that any belief by Dray that there was adequate ventilation under the circumstances was unreasonable.

Thus, duty and breach were sufficiently proved. Proximate causation and harm are not issues on this appeal. The parties stipulated that the testimony from Vito’s medical witnesses “if believed by the jury, established that Ms. Vito suffered permanent lung damage as a result of inhaling the fumes from the paint primer on May 11, 1990.” Vito v. Sargis & Jones, Ltd., 108 Md.App. at 414 -15 & 415 n. 2, 672 A.2d at 132 -33 & 133 n. 2. C-K’s argument depends wholly on this Court’s classifying the plaintiffs proof as an application of res ipsa loquitur.

Res ipsa loquitur apparently was first injected into this case by plaintiffs counsel in off-the-record conversations with defense counsel and the trial judge. In any event, the arguments by the defendants in support of their motions for judgment at the end of the plaintiffs case treated the evidence as if res ipsa loquitur were the