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Eagle-Picher Industries Inc. v. Balbos8/29/1990
through warnings provided by appellants. Bethlehem Steel's failure to warn alone would not have produced the injury had not the appellants also failed to warn. Appellants' failure to warn contributed as significantly to the lack of warnings as did Bethlehem Steel. Both the appellant
suppliers and Bethlehem Steel were in a position to ensure adequate warnings and both had the duty to do so. The appellants, as the suppliers, had the first opportunity to place warnings on the product. Their negligent act in failing to warn only exposed the employees to risk of injury in the case that Bethlehem Steel also negligently failed to warn.
Appellants point out that the products were removed from their packaging without the decedents ever seeing the packaging. However, in Section 6 above we concluded that labels would have prompted those handling the products to wear protective gear, thereby alerting bystanders, including the decedents, to take precautions to protect themselves.
Bethlehem Steel's negligent failure to warn was not a superseding cause under Banks or Restatement ยง 447 because this negligence was foreseeable and not highly extraordinary. A person of ordinary experience and sagacity acquainted with all the circumstances could reasonably have anticipated that Bethlehem Steel, as an employer, may have failed to warn of the dangerous use of these products. History has shown us that there is nothing highly extraordinary in an employer's failure to maintain a safe workplace. See also Van Buskirk, 760 F.2d at 496. As the appellees point out, Bethlehem Steel's failure to warn was particularly foreseeable in that the appellants themselves failed to warn of the hazards of asbestos. Regardless of the conduct of Bethlehem Steel, warnings by the appellants could have alerted the decedents to the dangers. We agree with Judge Marshall Levin that warnings by the appellants would have been just as effective as a warning by Bethlehem Steel. Judge Levin concluded that even though
Bethlehem Steel did direct the use of these products and it did control and monitor the workplace, . . . the point remains that inevitably the employees . . . were obliged to open the various containers and use the asbestos containing products contained therein in the course of their employment. In so doing they allegedly became exposed to the asbestos fibers to their detriment. They became exposed because they opened these containers by cutting . . . breaking . . . prying . . . (and) ripping them open, and otherwise getting to them so that they could apply these products as directed. It was entirely foreseeable by defendants that the above activity would occur. So even if defendants can prove that Bethlehem Steel should have warned its employees of the danger of these products, that does not exonerate the defendants from their duty to warn. At the precise point in time that Bethlehem Steel's employees somehow opened these asbestos containing products, there was no warning on any of the containers. If there had been, the employees might have chosen not to handle such products. Put differently, the containers reached the employees in the same condition as when they were shipped . . . and thus warning by the defendants would have been just as effective as a warning by Bethlehem Steel.
The appellants argue that Knuckles, in the ordinary course of his work, would not have had the opportunity to see the labels because when the products were delivered to the work area they were not in the manufacturer's packaging. As noted above in Section 6, although the actual warning label may not have been seen by the decedents, precautions taken by the workers who did see the labels would have foreseeably aler
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