Henry v. Merck & Co.
1989 WL 71747, 877 F.2d 1489 (1989)
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Rule of Law:
Under Oklahoma law, a party generally owes no duty to an unrelated third party to anticipate and prevent the unforeseeable intentional or criminal acts of another, and such an act will typically constitute a supervening cause that severs the chain of proximate causation, relieving the original actor of liability.
Facts:
- Kelco operated a chemical manufacturing plant in Okmulgee, Oklahoma, which included a laboratory on the third floor where various chemicals were stored.
- Kelco kept a gallon bottle of 98% chromic sulfuric acid, used for cleaning glassware, under an unlocked fume hood in its laboratory, accessible to all laboratory personnel.
- Valerie Jones worked as a technician in Kelco's laboratory for approximately four and one-half years and was considered a good, responsible employee with no known criminal propensities.
- On September 3, 1984, Valerie Jones stole a cupful of concentrated sulfuric acid from the gallon bottle under the fume hood in Kelco’s laboratory.
- After work, Valerie Jones took the stolen acid from Kelco’s premises, drove to Gwendolyn Henry’s home, and, following a brief verbal altercation, threw the sulfuric acid in Ms. Henry’s face.
- Gwendolyn Henry, who had never been employed by Kelco and had no prior relationship with the company, suffered severe and permanent injuries from the sulfuric acid.
Procedural Posture:
- Gwendolyn and Hilery Henry filed a diversity action in the United States District Court for the Eastern District of Oklahoma against Merck & Company, Inc. and its wholly owned subsidiary Kelco, alleging negligent storage of sulfuric acid.
- The district court granted summary judgment in favor of Kelco on the strict liability claim.
- The negligence claim proceeded to a jury trial.
- After the Henrys' presentation of evidence, Kelco moved for a directed verdict, which the district court denied.
- Kelco renewed its motion for a directed verdict at the end of its case, which the district court again overruled.
- The jury returned a verdict of $450,000 for Ms. Henry for her injuries and $35,000 for Mr. Henry for loss of consortium.
- Kelco appealed from both judgments to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does a chemical manufacturer owe a duty to an unrelated third party to prevent an employee's unforeseeable criminal act of stealing a chemical and intentionally using it as a weapon, and do such criminal acts constitute a supervening cause breaking the chain of proximate causation, thereby relieving the manufacturer of liability?
Opinions:
Majority - EBEL, Circuit Judge
No, Kelco owed no duty to Gwendolyn and Hilery Henry to store its acid in a way that would prevent Ms. Jones's criminal acts, and Ms. Jones's actions of stealing and using the acid constituted a supervening cause of Ms. Henry’s injuries. Under Oklahoma law, there is a general rule that no duty is imposed on a party to anticipate and prevent the intentional or criminal acts of a third party, absent special circumstances. The court identified two types of special circumstances: (1) a special responsibility toward the one who suffers the harm, or (2) the actor’s own affirmative act created or exposed the other to a recognizable high degree of risk of harm through such misconduct. The court found no special responsibility here because Ms. Henry had no prior relationship with Kelco and was not on Kelco’s property, and Kelco had no knowledge that she might be harmed. There was also no high degree of risk created by Kelco's acts, as Ms. Jones was a model employee with no known criminal propensities, sulfuric acid is readily available, and there was no evidence that it is commonly stolen or used as a weapon, making the specific harm unforeseeable. Furthermore, Ms. Jones's theft and criminal use of the acid served as a supervening cause, breaking the chain of proximate causation. For an intervening act to be a supervening cause, it must be (1) independent of the original act, (2) adequate of itself to bring about the result, and (3) one whose occurrence was not reasonably foreseeable. Ms. Jones's acts were independent of Kelco's storage, directly caused the injury, and were not reasonably foreseeable, especially given Ms. Jones's prior conduct and the nature of the stolen item and its misuse as a weapon. Comparing it to Joyce v. M & M Gas Co. (stolen truck), the court reasoned that Ms. Jones's intentional criminal acts were even less foreseeable than negligent driving of a stolen vehicle, making Kelco’s storage a mere condition rather than a proximate cause.
Analysis:
This case significantly clarifies the limits of negligence liability in Oklahoma, particularly regarding an employer's duty to prevent unforeseeable criminal acts by employees against unrelated third parties. It establishes a high bar for proving both duty and proximate causation in such circumstances, emphasizing that intentional criminal acts by a third party generally break the causal chain. The decision reinforces the principle that liability typically does not extend to highly attenuated and unpredictable consequences, especially when the actions of an independent third party are criminal in nature and not reasonably foreseeable. This ruling provides a strong defense for businesses against claims arising from extreme and unforeseen misuse of their property by employees outside the scope of employment.
