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Humble Sand & Gravel9/17/2004
he product breaks down further and becomes even more dangerous. Inhalation of this fine dust can lead to silicosis, an incurable disease that permanently scars the lungs and reduces the body's ability to take in air. Once inhaled, the dust cannot be removed. Individuals with silicosis face not only limited occupational prospects, but also a significantly shortened life span. The grave health risks posed by silica dust weigh against relieving Humble of the duty to warn likely users of the dangers inherent in silica's use.
D. The Burdens Imposed on the Supplier by Requiring that all Users be Directly warned
Requiring Humble to place an adequate warning on its 100-pound bags of silica flint would not be burdensome; indeed, Humble was already placing a warning on its bags in 1983 and has continued to do so. That more information was necessary to make the warning adequate does not make it burdensome. The much more thorough warning that Humble later placed on its bags is slightly longer than the original warning and considerably more informative, requiring nothing more to produce than additional ink.
The Court acknowledges that the burden on a supplier of bagged flint to warn "is either inconsequential or nonexistent," but expresses concern that the warning might not actually reach blasting workers and might be ineffectual if it did. ___ S.W.3d at ___. But application of this factor does not turn on the burden a manufacturer would face if it were required to warn every possible party affected by the product. Comment l to section 388 of the Restatement (Second) of Torts makes clear that " he supplier's duty is to exercise reasonable care to inform those for whose use the article is supplied of dangers which are peculiarly within his knowledge." RESTATEMENT (SECOND) OF TORTS ยง 388 cmt. l (1965) (emphasis added). If the burden this factor contemplates was to ensure that warnings would be read by every possible person using the product, as the Court posits, suppliers would routinely be relieved of any duty to place warnings on packaged goods. While Humble might be able to argue under different circumstances that its warning would not likely reach most users, the facts here belie any such concern. In this case, Gomez routinely handled Humble's bags and actually read Humble's inadequate warning. And Gomez was exactly the type of worker who would be expected to handle Humble's product and see its warning. Spincote even requested that Humble include a Spanish version of the warning placed on its bags, indicating that Spincote believed the warning would reach its employees and that they would heed it. Clearly, this factor weighs against applying the sophisticated-user doctrine in this case.
E. Reliability of the Third Party as a Conduit of Necessary Information
The Court proceeds from the premise that the sandblasting industry has known the dangers involved in silica's use since the early 1930s. While this may be generally true, much of the evidence regarding industry knowledge indicates that the extent of the danger was not widely appreciated. Ken Gray, vice president and head of safety at Spincote, regularly walked through the blast house without respiratory protection, exposing himself to fine silica dust. Gray testified that he initially believed that silica was a "nuisance dust" and was continually learning about the dangers of silica. He had not even heard the term "silicosis" until 1986, when a former employee contracted the disease. Gray also acknowledged that when he arrived at Spincote in 1981, the danger of silica was not fully understood.
Other testimony revealed significant safety problems in the decade prior to Gomez's employment at Spincote.
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