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1in the Chemical Iaborafory I '. " '
I XLI. Laboratory Accident Liability: Industrial
Edited by NORMAN V. STEERE, 140 Melbourne Ave., S.E. Minneapolis, Minn., 55414
Academic and
THOMAS M. SCHMITZ and RALPH K. DAVIES Modern technology makes use of the dynamic forces of steam, electricity, chemicals, and s. most powerful energyionizing radiation. These forces multiply human power s. thoustlndfald when under control hut are equally destructive when oot of control.' New adaptrttions of known technologies often produce unforeseen hazards in unehartered areas of
vironment.'
Academic laboratory Liability A steady srrratn of new materials aud nrtv terhntealsrudy aubjertsmlrkessrlrncr education exciting; but to some, these unknowns make science education a bit frightening.= A recent educational hulletin descrihed an incident in which a. chemistry student was diligently completing his experiment report a t a lahoratory table when a fellow student's experiment exploded nearby. Although rtn innocent bystander, the first student spent weeks in the hospital recovering from an eye injury and narrowly escaped blindness.' Some lahoratory accidents are far more serious,' however, and could often he avoided if schools exerted due mre in handling academic laboratory experiments."
Editor's Nate The article here presented deals with an important consequence of oversight or ignorance of safety in the lahoratory. Consequently, we feel that it has a place in this Series. I t is reprinted here with the permission of the Editor of the Cleveland-Marshall Law Review where it first appemed in Volume 16, page 75, January, 1967. The extensive footnote references are retained in the style initially published. Mr. Schmitz is a registered prof~4sional engineer in Ohio, with a B.S. in Chemical Engineering from Case Institute of Technology. He is a fourth year student in the Cleveland-Marshall Law School of Baldwin Wallace College. Professor Davies is associate professor of chemistry a t Baldwin Wallace College, Berea, Ohio. We acknowledge with thanks the permission of Dean Howard L. Ole& of the Cleveland-Marshall Law School for this reprinting.
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lourno1 of Chernicol Education
Hence, with the steady advancement of scientific research and the increased emphasis on scientific education, it behooves educational institutions to educate themselves regarding potential legal repercussions evolving from inevitable laboratory accidents.' Since the B~igham Ymrng University case,s educational institutions may not rely on charitable immunity to obtain relief from tort liability arising from laboratory injuries.' In the Brigham Young case a freshman student misused red phosphorus (a highly reactive and potentially dangerous mrtterid,l0) crtusing a. violent explosion which seriously injured the student. The court concluded that the student's injury was proximately caused by the laboratory instructor's negligenee." The instructor was acting within the scope of his duties, and the general rules of tort liability and agency were spplicahle. Thus, the school was held to be the legal cause of the injuries sustained.'z No charitable immunity from tort liability was granted, and the school was held responsible far the ensuing damages.'"
Schools' Duty of Caw Educational institutions undertaking to provide laboratory courses in their prescribed curricula.have a duty to provide an outline of reasonably safe chemical experiments." Due care should he exercised to exclude dangerous experiments where the limited educational benefit derived does not justify the potential risk of serious injury to the student.'$ Laboratories must he equipped with necessary safety devices such as proper ventilation and hazardous fume hoods,lB operable fire fighting equipment," safe fire escapes,ls and adequate access to first aid facilities must he provided.1' Laboratory safety rules should be devised, and instructors are expected to enforce them.90 Schools have a duty to furnish qualified and responsible instruotors educated in the science and having a knowledge of the specific dangers involved in h~ndling chemicals.'' Instructors must exercise reasonable prudence in ascertaining the dangerous characteristios of experiments and exercise due care to provide proper safety precautiom'2 Laboratory instructors have an active duty to maintain proper supervision commensurate with potential dangers surrounding the prescribed experiments.'3 Minimum supervision requires the instructor'" be present in the laboratory for the durstion of the experiments and to maintain close surveillttnce of experiments
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known to be troublesome and dl~ngerous.~s Instructors must educate students in relation to the students' age, experience, and the dangers invo1ved.l" Pupils receiving instructions in the rudiments of chemistry cannot be expected to know in advance matters in which they me receiving instru~tion.~' Hence, hboratory procedure manuals cannot be relied upon to s~ficientlyinstruct students, andspecific warnings describing latent dangers of each experiment must he conveyed by the instrnctor.2' Advanced students may he relied upon to mix the proper chemicals according to a manual's directions, since it is difficult for instructors to distinguish chemicals once tbeyhave beenintermixed." .4 young and inexperienced student, however, would require thestrictest supervision in selecting chemicals and compounding the mixture while formulating sn explosive substance.'0 No reliance may he placed in lahoratory manual procedural instructions which, if not performed precisely correctly, may result in a violent explosion." In the Mastrangelo case,a2a student was required to compound and ignite an explosive gunpowder material. Instructions for the gunpowder experiment directed the student to select three different chemical powders and m pulvcrire rarb poacler ~ r p u r o t e l ys i t h a rnorrsr and prsrlc. The st~tler.r trladvertrnrly inrcrmiwl rhe three dry chemicals &d then pulverized the powders m m t l y , contrary to the manual's procedural instructions. An ensuing violent and unexpected explosion occurred, seriously injuring the student. The court held that the error was not unreasonable and that the student's inadvertence was not contributory negligence." The opinion emphasized that it was not an unreasonable duty of the instructor to supervise and instruct students regarding the selection, mingling, and utilization of ingredients with which dangerous explosives are made, rather thsn merely distributing a textbook containing general i n s t ~ ~ t i o n s . Although a student may have previously used a dangerous chemical, an instructor's supervision of the student's use is still required." A student may be frtmiliar with the chemical hut unfamiliar with the potential dangers of misuse, and it is the duty of the instructor to exercise that degree of supervision commensurate with the inherent danger of the chemical in use.'S Warnings against the use of wrong chemical mixtures must he included in the instructions given while preparing for a specific experiment." Thus, students are not expected to remember general wamin@ given in previous experiments or general warnings received in previous lecture courses." Learning institutions are not intended to he insurers of s student's safety; however, they are susceptible to tort liability far negligence, i.e., the failure to
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rxereisc ro;*wnxhle ewe." Evidenre of ximilar s!qettlvisio!~ and safety practires \ltilised in ~ i m i l ~Ive ~ l v i n g iu&ntions may he intndoced and nmridelad i n determi~tirngwhet,her due and reasonahlr care hm heen exercised in providing mltlic:ient supervisior~,hut a general practice or custom wodd nut excuse the inst,itntion's eusl.nm unless il, was ronsirtent with due cwe.:'* Puhlic: schools and rmive~.sitiesshould lake when in heiog complscenl in thp ~ ~ u r i 1of . y x grwel.nment,al immunity def e n ~ e . " ~Sove1.d s h t e legislatures have abrvgatrd the imrnwity of alate schools. and the doolri~te of goveumwntal immunity in tort.; is vapidly hecoming an h i s t ~ r i c d& n a c h m n i ~ m . ~ l A s l l ~ I e n tgenemlly acquires t.he s t a t w of at1 itwilee, and no cont,raetnal basis rxiata 1 0 sustain an assrunption-of-risk del e n ~ o . ' ~That pl~pilsw e not learned i n :dl phase,*of c h ~ m i , s t ~ isyinherent in their S ~ H I I I S as s l u d e n l * . ' ~ h n s ,students genwally do not poaress the knowledge of *peeifie polential dat~gers or appreciate I he risk wsumed. '' A student rnhy eo~~t,libute toward xn :u:cident hy his own error. However, the w o r mav not he im.ennonable condwt, :md, (.hemfore, not eontributmy neglipet~ce."' In these eircumstanres the ploximate cause of the injury may be attribut~edt o an instt.uctor'(i lack of supervision.'* A conl.rihnt,ory negligence defense may be sustained, however, when a student performaunauthorizedexperiments wil houl, permissior and without aupervision, or when n ..itudent's horseplay proximately cswres the accident." SchooL-' MIar. L. It. (3) 329 (Sept., 1966). " J J v. ~ Walla Walla College, supva, n. 17, a t p. 484. 43 Ibid.; Brigham Young Univ. v. Lillywhile, supra, 11. 8. " Prnsser, op. cit. supra, n. 9, a t p. 4.52. " Reaghv. S m Frsneisco Unified School I>istrict,, supra, n. 21; .Mastrangelo Westside l.Tuion High School, supra, n. 6.
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(Continued on page A658) Volume 44, Number
8 , August 1967
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School, supra, n. 6; G ~ e g w yv. Board uf Education of City of Kool~sler,mpru, 11. 14. Mastrangelo v. West~ideUniun Iligh School, supm, n. 6. s 6 M ~ t r a n g e l ov. Westside ITniou High School, supra, n. 6; Brigham Young Univ. v. Lillywhite, supra, n. 8. National Safety Council, Safety i n the Chemical Laboratory, 1)ata Sheet No. 59 (revi~ed1863). Simmonds and Grimddi, Snfe1.y \ l a w agement 11 (1963). "~Msrrufacturing Chemists A880~iaIiw (M. C. A.), Case Histwies of Accidenln i n t,he Chemical Indust,ry, Vol. 1 (1962) m d Vol. 2 (1966). A total of 11197 case histories are leported whielr describe awidents occmring in the chemical i n d ~ w l ~ y . Hendrickam v. Contiuent.al Fib Co., 33 1)el. 304, 136 A. 376 (lV'6): Plaugher v. Ameriaan Viswse Corp., I>l Pa. Super. 401, 30 A. 2d 376 (1943). N. Y. Workmen's Cump. L., One, SBC. 3, Gr. 14, in Vol. IlA, Cunrrd. Laws Sen. (N. Y.) (Lawyers Coop.). Aunolali,w cite many case8 such as chemical poir;.39. Co., 86 N. 11. 436, I70 A. 76!l (I!l:14). S w caw XGI.664.
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"'1. C. A., op. cit. supru, n. Sl. 8rr case Xo. 60.5 a t p. 9, c s e No. 639 ;%I p. 5.
and cam No. 1048 a t p. 221. 78 I'russer, op. cit. supra, I,. 9, wl 11. 24i. h l . C. A,, op. eit. mpm, n. 51, a t p. 4ti. Cwe No. 681 requires the laboratory supervisur tu he responsible for nlniutaim ing labnratnry equipment in g r r d wwkiug condition. 76 Tiayes v. Joseph K Seagram and Co., 2x2 Jnd. 130. 52 N. E. 2d 356 (1944).
20.5, No. 10'25 a t 209, No. 11134 st 214, aud No. 1072 at. 231. bliddlebrook v. ALlxnla lletallir Casket, supra, n. 78. Simpscm, op. "it. supra, n. 61. Buf .see, Oleek, Negligenc~ Forms of Plmdiw, See. 53 (I!45i revision) as lo third-part,y Tixbility. Proxw., op. rit. supra, 11. 9, at p. 348. b1. C. A,, up. tit. supra, n. 51, a1 p. 188. See case No. 910 st, p. I6:l and caxe Yo. 1031 a t p. 212. 8% 1,ouisville h N. R. Co. v. Gillidand, 220 Ky. 431, 295 S. W. 42'2 (1Y27): 3liddlebrook v. Ablmta Metallic Casket.
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Casket, nrrpra, n. 78: lead poisoning. hlartin v. Torbiae-Chat,illort Ccrp., szqwa, n. 65: surfuric acid poisoning. Roady, Prc,fessimal Xegligence 300 (1960). Prosser, r p . cit. supra, n. 9, nt p. 574. The ~.iskassumed is generally in pn,pwtirru to his knowledge. Jlart,in v. I%&-Picher Lead Co., 21 F. Supp. 142 (W. D.bfo. 1937). 87.\IrLin v. Tubise-Chatilluu Corn.., supra, n. 65; >,Iiddlehrook v. Atlr~ntzt Metallie Casket,, sfqira, n. 78. PI.OSS~G op. it. mpm, 11. 0, at p. 462. Ibid. *O Simpsm, op. cit, mpre, n. 61. M. C. A., op. eit. aupm, n. .5I, at, p. 46. See case No. 681. Idahoratory s~~yrervisor 1.0 he responsible ior elimirintiog lxbwatrry Iiaenrds. M. C. A., op. cit. w p m , n. 51, a t p. 64. Prosse,; op. oit. supm, n. 9, st 549. q ? R,stel. and Keeton, Liability Without
Fault in Oklahoma, 3 Okla. L. K. 172, nl 215 (1950). "Negligence will oorltinue I,
