Sizemore v. Georgia-Pacific Corp

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEPHEN SIZEMORE; PAULA SIZEMORE;
PAULA SIZEMORE, as Guardian ad
Litem for Kamuel Sizemore, a
minor,
Plaintiffs-Appellants,
and
MATSUSHITA ELECTRIC CORPORATION
OF AMERICA,
No. 96-1587
Plaintiff,
v.
HARDWOOD PLYWOOD AND VENEER
ASSOCIATION,
Defendant-Appellee,
and
GEORGIA-PACIFIC CORPORATION,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-94-2894-6-3, CA-94-2895-6-3, CA-94-2896-6-3)
Argued: April 10, 1997
Decided: June 4, 1997
Before MURNAGHAN and WILLIAMS, Circuit Judges,
and CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Robert Paul Foster, FOSTER & FOSTER, L.L.P., Green-
ville, South Carolina; Robert Daniel Moseley, Jr., LEATHERWOOD,
WALKER, TODD & MANN, P.C., Greenville, South Carolina, for
Appellants. Brock R. Landry, JENNER & BLOCK, Washington,
D.C., for Appellee. ON BRIEF: D. Scott Barash, JENNER &
BLOCK, Washington, D.C.; William M. Grant, GRANT, LEATHER-
WOOD & STERN, P.A., Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The Plaintiffs, Stephen, Paula and Kamuel Sizemore, were injured
on December 1, 1991 when their house located in Greenville County,
South Carolina caught on fire. They sued the Hardwood Plywood and
Veneer Association ("HPVA"), a non-profit association of plywood
manufacturers, arguing that HPVA negligently concealed reports
from the late 1960s which would have indicated that plywood was an
unacceptable fire risk. They also allege a civil conspiracy between the
association and plywood manufacturers.
The district court granted HPVA's motion for summary judgment
finding that 1) HPVA owed no duty to Plaintiffs; 2) actions by HPVA
were not the proximate cause of Plaintiffs' injuries; and 3) HPVA did
not conspire with manufacturers to injure the Plaintiffs. Plaintiffs
have appealed.
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FACTS
The Plaintiffs seek to recover damages from HPVA 1 for personal
injuries resulting from the fire. They allege that hardwood plywood
paneling manufactured by Georgia-Pacific and installed in their home
when it was constructed in 1970 was defective and unreasonably dan-
gerous because it was highly flammable and susceptible to rapid
flamespread.
HPVA promotes the use of plywood, monitors and comments on
legislative and regulatory issues affecting the industry, and engages
in testing and research of industry products. Plaintiffs contend that
HPVA misrepresented and concealed information which indicated
that plywood was unreasonably dangerous and flammable. They fur-
ther contend that but for HPVA's actions, the plywood would not
have been installed in their house and the fire would have been less
severe.
Since 1978, the building code for Greenville, South Carolina has
required that all interior finish materials, including interior plywood,
in single family dwellings must achieve a Class"C" flamespread rat-
ing. Prior to 1978, South Carolina had no requirements regarding the
flamespread rating of interior finish materials. At all times, the ply-
wood in Plaintiffs' home has complied with the flamespread require-
ments of all model building codes including all the building codes in
South Carolina.
Plaintiffs contend that HPVA's continued advocacy of the Class
"C" requirement caused their injuries. As specific evidence of
HPVA's alleged wrongdoing, Plaintiffs point to HPVA's activities in
the late 1960's in response to proposals to amend various building
codes, including the Uniform Building Code, a model building code
promulgated by the International Conference of Building Officials
and used in many Western states. The specific proposal in question
would have required hardwood plywood paneling to be solidly
backed with non-combustible material such as gypsum board.
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1 The district court added Matsushita Electric Corporation of America
("MECA") as a party plaintiff. MECA manufactured a microwave oven
allegedly involved in the fire.
3
HPVA commissioned the Southwest Research Institute ("SwRI") to
conduct a study to evaluate the performance of several different types
of interior wall finishes. SwRI built a full-size three room house and
conducted three fire tests of the following interior wall finish materi-
als: (1) gypsum board; (2) hardwood plywood paneling solidly
backed with gypsum board; and (3) hardwood plywood paneling
nailed directly to wall studs. A fourth test, on hardwood plywood pan-
eling that had been treated with a flame retardant coating, was con-
ducted later in 1968. SwRI prepared detailed reports on those tests for
HPVA.
The testing revealed no major difference between hardwood ply-
wood backed with gypsum board and hardwood paneling nailed
directly to wall studs. This was the comparison directly related to the
building code proposal. However, the testing also indicated that gyp-
sum board performed significantly better than plywood in all fire
tests.
The findings regarding plywood and plywood backed with gypsum
board were published in the March 1969 issue of the Fire Journal, a
publication of the National Fire Protection Association. HPVA
approved the publication of the article. The article did not discuss the
gypsum test or the test conducted on fire-retardant treated plywood.
HPVA circulated the Fire Journal article in the late 1960's and
early 1970's to various interested parties in the fire protection com-
munity. Internal HPVA documents from this time express a desire to
keep various aspects of the SwRI testing confidential and the HPVA
board of directors required board consideration of any request for the
reports. The record is not clear for how long and to what extent
HPVA concealed the findings in the SwRI tests. However, in 1974,
HPVA submitted copies of all the SwRI test reports to the National
Bureau of Standards which was conducting tests concerning interior
finish materials in mobile homes. In 1977, HPVA went back to SwRI
and asked it to print 500 additional copies of all the test reports so that
HPVA could more widely disseminate them.
Plaintiffs contend that HPVA's activities over the last 25 years
constituted tortious behavior. Plaintiffs further allege that HPVA
acted negligently and recklessly by manipulating the SwRI test proto-
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col and concealing results of the SwRI tests that demonstrated the
flammability of hardwood plywood paneling and the increased safety
of alternatives, and by failing to warn local, state and federal regula-
tory bodies and the general public about the alleged flammability of
hardwood plywood paneling. Plaintiffs further contend that HPVA
conspired with Georgia-Pacific and others to commit those torts.
The district court granted HPVA's motion for summary judgment
finding that HPVA owed no duty to the plaintiffs, there was no proxi-
mate cause, and that there were insufficient facts to support a claim
for civil conspiracy. Since we find that HPVA's activities were not
the proximate cause of Plaintiffs' injuries, we affirm the district
court's decision.
DISCUSSION
The district court granted HPVA's motion for summary judgment
on several grounds. The court of appeals reviews the district court's
grant of a summary judgment motion de novo. Roe v. Doe, 28 F.3d
404, 406-7 (4th Cir. 1994). In ruling upon a motion for summary
judgment, the court must view the facts in the light most favorable to
the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). However, unsupported speculation is not sufficient
to defeat a motion for summary judgment. Felty v. Graves-
Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).
The elements for a cause of action for negligence in South Carolina
are duty, breach, proximate cause and injury. Bullard v. Ehrhard, 324
S.E.2d 61, 62 (1984). The district court held that HPVA owed no duty
to the Plaintiffs. Plaintiffs contend that HPVA had a duty 1) to "re-
frain from any act which will cause foreseeable harm to others even
though the nature of that harm and the identity of the harmed person
or harmed interest is unknown at the time of the act," 57A Am. Jur.
2D Negligence §83, 140 (1989); and 2) under the Restatement (Sec-
ond) of Torts § 324A (1965).
Viewing the facts in a light most favorable to the Plaintiffs, we find
that HPVA's actions were not the proximate cause of the Plaintiffs'
injuries. Since it is clear that proximate cause is not present, we
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decline to determine whether HPVA owed a duty of care to the Plain-
tiffs.
In order to prevail, the Plaintiffs must show that HPVA's actions
were the proximate cause of their injuries. Proximate cause is ordinar-
ily a question of fact for the jury. Hill v. York County Sheriff's Dep't,
437 S.E.2d 179, 181 (S.C. Ct. App. 1993). However, the burden of
proof is on the plaintiff. Ryan v. Eli Lilly & Co., 514 F.Supp. 1004,
1018 (D.S.C. 1981). Summary judgment is appropriate if plaintiffs
have shown "no evidence which would tend to prove a causal connec-
tion" between the parties. Fleming v. Borden, Inc., 829 F.Supp. 160,
163 (D.S.C. 1992).
Plaintiffs' claim of causal connection in the instant case is insuffi-
cient. In order for a causal connection to exist between HPVA's
actions and the Plaintiffs, the Court must infer the following situation.
First, the Court must infer that had HPVA not suppressed the report
in 1968, a different model building code would have been approved
which would have prohibited the use of plywood.
Such an assertion is highly questionable. The proposal to amend
the building code was rejected before SwRI finished its tests. Thus,
SwRI's tests, which were presumably suppressed by HPVA, could
have had no impact on the board's original decision to reject amend-
ing the building code.2
However, even if the Court accepts the notion that HPVA's activi-
ties led to the board's decision not to amend the building code, the
Plaintiffs must then argue that had HPVA disseminated the informa-
tion as soon as it became available, the model code would have pro-
hibited the use of the type of plywood employed.
However, this supposition is unlikely. The report was made avail-
able in 1974 and is available now. There is no evidence that any state
(including in particular South Carolina) has changed its building code
due to the release of the full report. Thus, even if HPVA had released
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2 However, the decision was only temporary. Plaintiffs argue that the
issue was going to be reconsidered and the HPVA's actions impacted
reconsideration.
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the report immediately, there is no indication that such a release
would have had any impact on building codes.
The Plaintiffs' causation argument requires even further supposi-
tions. Plaintiffs would also have to contend that, if the building code
changes had been enacted, other states, including South Carolina,
would have enacted them as well.
Yet, South Carolina's present building code allows the use of Class
"C" plywood in home construction. The plywood in the Plaintiffs'
home was Class "C". Therefore, even though the report has long been
available, South Carolina still allows Class "C" plywood. The asser-
tion that had the report been released in 1968, plywood would not be
in the home is unsupportable since the report was released in 1974
and plywood is still allowed in home construction in South Carolina.
The causation scenario proffered by the Plaintiffs is simply too
remote to support proximate cause even at the summary judgment
stage. See Harris v. Rose's Stores, Inc., 433 S.E.2d 905, 907 (S.C.
App. 1993) ("[c]ausation based upon a possibility rather than a proba-
bility is not sufficient for a plaintiff to recover."); Carter v. Anderson
Memorial Hosp., 325 S.E.2d 78,81 (S.C. App. 1985) (speculation and
conjecture are not enough to satisfy causation).
Turning to Plaintiffs' claim of a civil conspiracy, in South Caro-
lina, in order to sustain an action for civil conspiracy, Plaintiffs must
prove that HPVA's actions were the proximate cause of their injury.
Todd v. South Carolina Farm Bureau Mut. Ins., 278 S.E.2d 607, 611
(S.C. 1981). Since we conclude HPVA's actions were not the proxi-
mate cause of Plaintiff's injuries, Plaintiffs' claim for damages due to
civil conspiracy must fail.
On the facts upon which the Plaintiffs rely, causation is simply too
remote to sustain their action. The judgment is accordingly
AFFIRMED.
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