In Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928), which we all remember from our first-year torts class, Judge Benjamin Cardozo restated, in his uniquely pithy manner, the common law rule that whether a duty of care exists depends on the foreseeability of harm: “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. . . . [W]rong is defined in terms of the natural or probable, at least when unintentional. The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.” (Citations omitted.)
In Palsgraf itself, the court reversed a judgment in favor of the plaintiff and dismissed the case, holding as a matter of law that that the injury to the plaintiff was not foreseeable. This week’s case, Scott v. Dyno Nobel (8th Cir., No. 22-3034, 7/11/2024), applies Palgraf’s court-or-jury foreseeability distinction in the opposite procedural situation. The district court found no foreseeability as a matter of law and granted summary judgment on that basis; the Eighth Circuit reversed and remanded, holding that in this case the question of foreseeability was for the jury; the trial resulted in a verdict and judgment for the plaintiffs; and the defendant appealed, raising foreseeability (again) and several other issues. The Eighth Circuit affirmed (except for the award of punitive damages), citing ample evidence, specifically including the testimony of the plaintiffs’ expert, to support the jury’s express finding, in answer to a special interrogatory included in the verdict sheet, that the defendant’s actions “create[d] some probability of harm . . . sufficiently serious that ordinary persons would take precautions to avoid it.”
The opinion briefly summarizes the procedural history and sets forth the facts as follows:
Teddy and Melanie Scott (the Scotts) brought this diversity action against Dyno Nobel, Inc. (Dyno), alleging they suffered serious injuries when Teddy was exposed to a cloud of toxic gas negligently emitted from Dyno’s nitric acid plant in Louisiana, Missouri (the LoMo plant). The district court initially granted summary judgment in favor of Dyno, but we reversed. Scott v. Dyno Nobel, Inc., 967 F.3d 741 (8th Cir. 2020) (Scott I). [T]he jury found in favor of the Scotts, awarding Teddy $13,750,000 in compensatory damages and $30 million in punitive damages on his negligence claim and Melanie $3 million in compensatory damages on her derivative loss of consortium claim. . . . We reverse the award of punitive damages and otherwise affirm.
To produce nitric acid at the LoMo plant, Dyno converts ammonia into nitrogen oxide and nitrogen dioxide (NOx), which the Environmental Protection Agency lists as “Extremely Hazardous Substances” . . . . Water combines with NOx at high pressure to create nitric acid. During this process . . . Dyno emits unconverted NOx gas through a 108-foot stack to prevent exposing nearby people to the toxic gas. Dyno’s air permit allows specified levels of NOx emissions from the stack during normal operations. These emissions caps do not apply during Dyno’s post-maintenance startups, when emissions contain higher concentrations of NOx and become more opaque, appearing yellow, red, or brown in color. Dyno typically conducts startups during early morning hours, when persons are unlikely to be visiting or working at neighboring facilities . . . . Dyno avoids starting up if the wind is blowing toward the Calumet synthetic lubricant plant located next to the LoMo plant.
On March 20, 2015, Dyno began a startup at 3:30 a.m. following a shutdown for routine maintenance. At 5:30 a.m., an equipment failure shut the plant down again. After repairs, Dyno reinitiated the startup after 8:00 a.m., during working hours at Calumet. That morning, Teddy was working at the Calumet plant as general foreman of a crew . . . . Around 8:20 a.m., a member of Teddy’s crew noticed a “reddish brown, kind of orangish cloud” coming from Dyno’s stack a few hundred feet away. Teddy confirmed that a massive cloud was coming from Dyno’s property and directed his crew to evacuate the area.
The crew initially believed the wind was blowing away from Calumet, taking the dark cloud with it. But they noticed a shift in the wind, “like a rogue gust,” redirecting the cloud towards Calumet. Teddy, enveloped by the cloud, became “disoriented,” with his throat and nose “burning instantly.” . . . Since then, Teddy has seen numerous doctors. He has been diagnosed with irritable larynx syndrome, which causes laryngeal spasms. He suffers from headaches and back pain resulting from falling when he lost consciousness. He has not worked since March 20, 2015. . . .
The substantive law of Missouri applies in this diversity case, so the Eighth Circuit’s opinion cites and quotes from numerous Missouri cases, especially Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151 (Mo. Banc 2000). In the remainder of this post, I will include the court’s citations and internal quotation marks for Lopez and Scott I. I will not add “citations and internal quotation marks omitted” after the many other instances in which the court and cites and quotes from other cases.
As noted above, Dyno raised numerous issues on appeal, but I will be focusing solely on the court’s discussion of foreseeability. In that discussion, the court begins by restating, and explaining the effect of, its decision in Scott I:
Dyno argued it had no legal duty to protect Teddy from the injury he suffered because in all the years it had operated the LoMo plant, “no one has ever been injured by, or claimed to have had any health issues arising out of, emissions from a startup until this case. Certainly, no one has ever seen or heard allegations of a plume behaving in the manner described in this case.” The district court granted the motion for summary judgment, accepting this argument “as establishing that Dyno owed Teddy Scott no duty of care, a question of law.” Scott I, 967 F.3d at 744. The Scotts appealed. We reversed. Our reasoning is essential to this appeal, as it established Missouri law of the case for the district court on remand:
[W]hether a defendant owed a duty to a particular plaintiff depends in part on whether the risk in question was foreseeable. “Foreseeability for purposes of establishing whether a defendant’s conduct created a duty to a plaintiff depends on whether the defendant should have foreseen a risk in a given set of circumstances.”
Id. at 744-45, citing and quoting Lopez, 26 S.W.3d at 156. “[I]n this case, foreseeability turns on Dyno’s conduct in emitting NOx gas from a 108-foot smokestack above the Calumet worksite on the day in question.” Id. at 745. Though whether a duty of care exists is a question of law,
In Lopez, the [Supreme] Court [of Missouri] explained . . . that “[i]n some cases, the jury may be charged with determining whether facts exist that may give rise to a finding of foreseeability, and, in turn, duty.” 26 S.W.3d at 156 n.1. In other words, as we understand this footnote, if duty turns on foreseeability, and varying inferences are possible, the issue is one for a jury.
Id. at 746 (emphasis added). [W]e reversed the grant of summary judgment and remanded for further proceedings, concluding that “a reasonable jury could find that the circumstances of the emissions in this case created ‘some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.’” Id. at 747, quoting Lopez, 26 S.W.3d at 156.
On remand, the case proceeded to trial. . . . At the close of the Scotts’ evidence and again at the close of all evidence, Dyno moved for a directed verdict on the negligence claim, arguing there was (1) no submissible case of foreseeability . . . . Dyno filed post-trial motions for judgment as a matter of law or a new trial, renewing the arguments made in its original motion. It also moved for a new trial based on alleged legal and evidentiary errors: . . . (3) admitting the testimony of the Scotts’ chemical engineering expert, Jennifer Morningstar . . . .
The district court denied Dyno’s pre-verdict and post-trial motions. On appeal, said the Eighth Circuit, “We will begin with the most difficult element in this case, the issue of foreseeability and Dyno’s duty of care.”
Dyno argues the Scotts submitted insufficient evidence to establish duty and foreseeability and therefore the district court erred in denying Dyno’s motion for judgment as a matter of law. Reviewing the evidence at trial in the light most favorable to the verdict, we conclude the jury was presented sufficient information to find that the circumstances on March 20, 2015 created a foreseeable risk of ground-level exposure of hazardous NOx emissions to persons outdoors at the Calumet plant, including Teddy. It is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable. [Emphasis in original.]
There was undisputed evidence that Dyno knew NOx gas is hazardous and took substantial efforts to prevent exposing other persons, including its employees, to NOx emissions; that the danger increases as the concentration of NOx increases; and that stack emissions have significantly higher concentrations during startups and shutdowns. The Scotts introduced substantial evidence that Dyno knew that persons working outdoors at Calumet were within the class of people that could be harmed by NOx emissions from Dyno’s stack, based on the proximity of the Calumet site to Dyno’s LoMo plant. . . .
There was also substantial, albeit disputed, evidence that weather conditions present on March 20, 2015 – cool and cloudy with high humidity – created a higher likelihood of emissions falling to ground-level from Dyno’s stack. Much of the Scotts’ evidence on the effects of weather and temperature was presented by their expert witness, Jennifer Morningstar. . . . Dyno argues that Ms. Morningstar’s trial testimony regarding ground-level exposure factors “did not address the probability or likelihood of such an impact,” and therefore cannot support a finding of foreseeability. “Although foreseeability is forward-looking,” Dyno argues, “Morningstar conducted her analysis using hindsight.”
We disagree with Dyno’s characterization of Ms. Morningstar’s testimony. Ms. Morningstar, a professional engineer in chemical engineering, structured her analysis around an industry safety hierarchy, “the overlying engineering principle” that chemical engineers use to address hazards: if possible, eliminate the hazard through design; if elimination is not possible, control the hazard; if the hazard cannot be controlled, warn people of the hazard and consider the use of personal protective equipment. Ms. Morningstar identified acts that an ordinarily careful chemical manufacturer must take to manage the risk of its emissions, pursuant to the safety hierarchy, based on thermodynamics, the physical properties of NOx, and topography. Dyno’s own documents and witnesses agreed on the accepted use of the safety hierarchy . . . . This was sufficient to set forth the standard of care to which Dyno would be held. . . .
. . . . [O]ur divided panel concluded in Scott I that under Missouri law foreseeability determines the issue of legal duty and is an issue for the jury in this case. “Although there was no evidence that emissions of NOx gas from the Dyno -8- smokestack previously had caused injury to workers at the nearby Calumet site, a reasonable jury could find that the circumstances of the emissions in this case created ‘some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.’” Id. at 747 (emphasis added), quoting Lopez, 26 S.W.3d at 156.
Foreseeability analysis under Missouri law does not require plaintiff to establish with mathematical precision the probability of harm, only that there exists “some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it.” Lopez, 26 S.W.3d at 156. “It is not our task to weigh these disputed fact contentions . . . . We only conclude that a reasonable jury could find that the combination of circumstances created some probability of harm to Calumet workers sufficiently serious that ordinary persons would take precautions against it.” Scott I, 967 F.3d at 747-48. [W]e conclude the district court did not err in submitting this issue to the jury and denying Dyno’s post-verdict motion for judgment as a matter of law. . . . If low cloud cover could prevent NOx emissions from rising, as Ms. Morningstar testified, a reasonable jury could find that an ordinarily careful manufacturer would delay a startup if weather conditions increased the likelihood that emissions would fall to ground level, creating a risk to employees and others known to be working nearby.
Scott v. Dyno Nobel provides two lessons for trial lawyers. First, in any case in which foreseeability is at issue, counsel must determine whether it’s question of law for the court or a question of fact for the jury. Second, if it’s the latter, expert testimony is essential to establish facts that would support (or mitigate against, in a defense case) a jury finding of foreseeability.
