The Education and Training of Your Employees is More Important Than Ever
Some of you may have heard by now about a recent case decided in Texas recently which may have a profound impact on duty to warn concepts. In Humber Sand & Gravel, Inc. v. Raymond Gomez, the Texas Supreme Court held that although a supplier does not have a "duty to warn" companies that purchase its products of commonly known hazards (like silica) because they are "sophisticated users," the supplier may have a duty to warn those companies' employees. This is an interesting concept because the employees don't work for the supplier, they work for the contractor. So my guess is that one of these days these failure to warn cases are going to come full circle back to you - the employer. All the more reason to make certain that your employee education and training programs are up to snuff, particularly with respect to silica and wet Portland cement - two issues which OSHA has been paying a great deal of attention to lately. Compliance with OSHA standards is mandatory and instances of noncompliance will be used against a company in enforcement and tort litigation. The concern raised by this Humble Sand & Gravel case is that the existence of and compliance with OSHA standards that should protect end users and others may NOT be sufficient to defend successfully against allegations of a failure to warn in a tort case.
In light of this case, I'd like to offer a couple of recommendations: First, review all of your MSDS and training materials and expand them if necessary to make sure that accurate and consistent information is given to all employees (particularly temporary employees). If you don't have any training materials on silica, there are some e-tools on silica available on OSHA's website as well as a more extensive guide to silicosis on the website of the National Institute for Occupational Safety and Health (NIOSH). Additionally, MCAA will soon be adding silica to its Alliance with OSHA, so we intend to develop more information for members' use on this topic. I've also developed a more general e-tool on Portland cement; if you'd like a copy, please let me know. It's fairly general, so you can conform it to your current practices.
The second recommendation I'd offer is that you review current insurance coverage and locate "old" insurance policies because they potentially provide defense costs and coverage from the time of exposures. These steps should help insulate you should the Humble Sand & Gravel decision embolden plaintiff attorneys to expand silica and other similar cases beyond their already extensive growth trend.
As always, should you have questions about any of this, please don't hesitate to get in touch with me directly at email@example.com or by phone at 703-671-4468.
About the Author
Marian J. Marshall was the Director of Government Affairs for the Mason Contractors Association of America.