Getting the Sand out of the Eyes of the Law: The Need for a Clear Rule for Sand Suppliers in Texas after Humble Sand & (and) Gravel, Inc. v. Gomez.

Authors

Victor E. Schwartz
Mark A. BehrensFollow
Andrew W. CrouseFollow

Abstract

Health risks associated with the inhalation of silica dust have been known for a very long time. In the United States, the American Foundrymen’s Society has distributed literature addressing silica exposure hazards to its members for over 100 years. For years, litigation against industrial sand manufacturers concerning silica exposure was stable, though recently there has been a marked increase in the number lawsuits. While the number of suits continues to climb, the government reports silica-related deaths have declined dramatically. It appears plaintiffs’ attorneys are manufacturing silica claims using the same lawsuit-generating devices developed during the asbestos context. Tort law recognizes several potential defenses which may obviate or discharge a sand supplier’s duty to warn about the well-known risks of silica exposure. Each defense has slightly different features and there is considerable overlap between them: sophisticated users, bulk supplier, substantial change in condition. But all are consistent with one of the cornerstone principles of products liability laws, placing the incentive for loss prevention on the party or parties who are best able to accomplish the goal. Permitting lawsuits to proceed against silica suppliers will ratchet up the costs of litigation on suppliers and might force some companies into bankruptcy. There is no justifiable reason to impose such unnecessary costs on the industry. Employers have known of the risks for decades and are in a superior position to warn their employees. Courts should follow classic tort law principles and hold that sand suppliers do not have a duty to warn their customers’ employees about the risks of silica. Harm resulting from employer carelessness should be borne by those employers and compensated through the workers’ compensation system.

Publisher

St. Mary's University School of Law

Recommended Citation

Victor E. Schwartz, Mark A. Behrens & Andrew W. Crouse, Getting the Sand out of the Eyes of the Law: The Need for a Clear Rule for Sand Suppliers in Texas after Humble Sand & (and) Gravel, Inc. v. Gomez., 37 St. Mary's L.J. (2006).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol37/iss2/1