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ALCOA, Inc. v. Behringer

Court of Appeals of Texas, Fifth District, Dallas

October 11, 2007, Opinion Issued

No. 05-06-00136-CV

Opinion

 [*457]  OPINION ON MOTION FOR REHEARING

In their motion for rehearing, appellants advised this court that an opinion of our sister court referenced at the conclusion of our prior opinion was subsequently withdrawn by that court. 2 We therefore withdraw our earlier opinion to omit reference to our sister court's withdrawn opinion. This is now the opinion of the court. The motion for rehearing is overruled. 

 [*458]  Appellant Alcoa, Inc. appeals the judgment on a jury verdict in favor of appellees Barbara Behringer and Leroy Behringer, for damages they allege arose because Mrs. Behringer contracted mesothelioma by breathing asbestos dust brought home  [**2] in the 1950s on her then-husband's work clothes. Under the facts of this case, we conclude Alcoa did not owe a legal duty to Mrs. Behringer. Accordingly, we reverse the judgment of the trial court and render judgment that appellees take nothing on their claims against Alcoa.

FACTUAL BACKGROUND

Mrs. Behringer was married to John Alford from 1951 until 1959. During four years of their marriage, from 1953 until 1955, and from 1957 until 1959, Alford worked for Alcoa. Specifically, Alford worked in the "potrooms" at Alcoa's Rockdale, Texas, plant in which aluminum ore was made by smelting raw materials in large industrial pots, each approximately twelve-feet wide, twenty-feet long, and over three-feet tall. The pots were lined with insulation blocks containing asbestos. According to Alford's testimony, the "pot-liners" at Alcoa routinely removed the insulation with jackhammers and replaced it, a process that took approximately three days per pot. In the 1950s, Alcoa's potrooms contained over 800 pots, divided into roughly 72 pots per potroom. Each potroom was a semi-enclosed area that measured about three football fields long and one football field wide with a ceiling about one hundred feet  [**3] high. The potrooms had large overhead doors on each end and ventilators on the roof, which were all typically left open for ventilation.

Alford was not a pot-liner, but he worked near them "on and off" and was exposed to the white dust created during the jackhammering phase of the insulation-removal process. It is undisputed Alford's work clothes were dusty with white powder. However, it is also undisputed the two raw materials used to smelt aluminum ore -- lumina and floride -- are also white powders. There is no evidence in the record of how much of the dust on Alford's clothes was asbestos as opposed to alumina or floride. At the end of the day, Alford removed his work clothes at Alcoa, showered in the changing room, and took his work clothes home in a bag. Every other day during the four years at issue, Mrs. Behringer (then Mrs. Alford) would take Alford's dusty work clothes outside, shake them off, and then bring them back inside to wash them in the family's washing machine. Although Alford continued to work for Alcoa after 1959, as a result of their divorce, Mrs. Behringer no longer came in contact with his clothing after that time. 3 Mrs. Behringer was diagnosed with pleural  [**4] mesothelioma in November 2003. 4 

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235 S.W.3d 456 *; 2007 Tex. App. LEXIS 8070 **

ALCOA, INC., Individually and as Successor-in-Interest to REYNOLDS METAL COMPANY, Appellant v. BARBARA BEHRINGER and LEROY BEHRINGER, Appellees

Subsequent History: Released for Publication November 1, 2007.

Petition for review denied by Behringer v. Alcoa Inc., 2008 Tex. LEXIS 1084 (Tex., Nov. 21, 2008)

Prior History:  [**1] On Appeal from the 116th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 04-00176-F.

ALCOA, Inc. v. Behringer, 2007 Tex. App. LEXIS 5969 (Tex. App. Dallas, July 27, 2007)

CORE TERMS

foreseeability, legal duty, asbestos, non-occupational, exposure to asbestos, memorandum, employees, clothes, asbestos exposure, mesothelioma, respirators, damages, hazards, work clothes, trial court, exposure, potrooms, pots

Torts, Negligence, Elements, Elements, Duty, General Overview, Civil Procedure, Appeals, Standards of Review, De Novo Review, Trials, Jury Trials, Province of Court & Jury, Foreseeability of Harm, Strict Liability, Abnormally Dangerous Activities, Types of Activities, Business & Corporate Compliance, Labor & Employment Law, Occupational Safety & Health, Industry Standards