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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-30512
(Summary Calendar)

RICKY BROWN; ET AL,
Plaintiffs
versus
OLIN CHEMICAL CORP, also known as Olin Chemical Co; ET AL,
Defendants
HORSESHOE ENTERTAINMENT,
Intervenor Plaintiff-Appellant
versus
OLIN CORP,
Defendant-Intervenor Defendant-Appellee
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
___________________________________________________
November 6, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
In this Louisiana tort case, in federal court on the basis of
diversity of citizenship, Intervenor Plaintiff-Appellant Horseshoe
Entertainment ("Horseshoe") appeals the district court's grant of
Defendant-Appellee Olin Corp's ("Olin") motion for summary

judgment. Horseshoe alleges that completion of the construction of
its new riverboat casino vessel was delayed when dangerous
chemicals were emitted from Olin's nearby plant, drifting onto the
still-unfinished boat and causing many of the workers to fall ill.
Horseshoe argues that summary judgment should not have been granted
because Olin was responsible for the emissions and thus should be
liable for the damages incurred by Horseshoe because of the
construction delay.
I.
Facts and Proceedings
Horseshoe operates a gaming business in Bossier City,
Louisiana, which involves the use of a riverboat casino. To
further those activities, it procured an unfinished vessel, THE
KING OF THE RED ("the riverboat"), which was scheduled to replace
Horseshoe's old casino after the new vessel was properly fitted and
furnished. As a location for performing the work required for the
final fitting and furnishing of the riverboat, Horseshoe subleased
property fronting the Red River and moved the boat to that site.
A number of contractors and subcontractors were hired to perform
the necessary work.
In the summer of 1997, during the course of the finishing work
on the riverboat, quite a few of the construction workers fell ill.
This forced Horseshoe to shut down the finishing project until the
workers could recover and monitoring and safety systems could be
put in place. The workers' illnesses were apparently caused by
2

exposure to chemicals, alleged by Horseshoe and the workers to be
sulphur dioxide and sulfuric acid. Their exposures to chemicals
purportedly occurred on several occasions in 1997. Workers'
affidavits filed by Horseshoe aver that the chemical exposure on
these instances initially led to their gagging and falling to their
knees.
Olin's plant is located roughly 500 yards from the site of the
finishing work on the riverboat. This site is also near and
occasionally downwind from other industrial sites, including the
Red River Terminal plant. Olin has a permit to manufacture
commercial grade sulfuric acid at the subject plant and to emit
sulfur dioxide and other chemicals in the course of that process.
Olin admits that it has done so but only within the regulatory
limits set by the Louisiana Department of Environmental Quality
("LDEQ"). None dispute that Olin, at all times, "complied with all
of its air quality regulatory limits."
Horseshoe and the other plaintiffs allege that emissions from
Olin's plant were the cause of their chemical exposure.
Specifically, they offer a number of affidavits asserting that
yellow clouds were seen coming toward the riverboat from Olin's
nearby chemical plant, soon after which they noticed a strong
sulfur odor, and a number of workers fell ill.
From time to time, chemical plants such as Olin's experience
events called "upsets," typically caused by interruptions in the
plant's power supply, which cause clouds of chemicals to be
3

released into the air but not in quantities that exceed regulated
limits. Olin contends that no "upset" occurred during the period
in question, specifically not on August 18, 1997, as Horseshoe
alleges.
After Plaintiff Ricky Brown and other workers filed suit in
state court against Olin, seeking damages for alleged exposure to
chemicals released by its plant, Olin removed the case to federal
court. Similar suits were filed by other workers, and their cases
were consolidated with those of Brown and others in federal court.
Horseshoe moved to intervene in the proceedings as a plaintiff, and
the district court granted that motion. Horseshoe seeks
compensatory damages for (1) the increase in the cost of the
construction of the riverboat caused by the delays that resulted
from the chemical exposure and (2) lost profits for the time that
placing the riverboat into service as a casino was delayed. Prior
to trial, Olin filed a motion for summary judgement which the
district court granted. Horseshoe filed a motion for new trial
which the district court denied. Horseshoe then appealed the grant
of summary judgment.
II.
Analysis
A.
Standard of Review
"We review a district court's grant of summary judgment de
novo. In doing so, we employ the same criteria as the district
court, and construe all facts and inferences in the light most
4

favorable to the non-moving party."1
B.
Alleged Liability of Olin
1.
Tort Liability Standard
Olin concedes that its plant emits sulfur dioxide and sulfuric
acid but insists that it does so only within accepted regulatory
limits. The evidence does not show that Olin exceeded acceptable
emissions limits at any of the times at issue, nor was any evidence
adduced showing that Olin exercised anything less than reasonable
care in the operation of its plant. Horseshoe argues, however,
that such proof is not necessary, contending that the applicable
standard is strict liability pursuant to article 669 of the
Louisiana Civil Code.2
Horseshoe asserts that its claim under Article 669 does not
require a showing of negligence, insisting that this article
provides for liability without fault. We disagree. In 1996, the
Louisiana Legislature amended Article 667 to require a showing of
negligence in any claim for damages other than those caused by
"pile driving" or "blasting with explosives."3 Prior to this
amendment, strict liability applied to all ultra-hazardous
activities, which specifically included such endeavors as "pile
driving, storage of toxic gas, blasting with explosives, and crop
1 Doddy v. Oxy U.S.A., Inc., 101 F.3d 448, 460 (1996) (citing
New York Life Ins. Co. v. The Travelers Ins. Co., 92 F.3d 336, 338
(5th Cir.1996)).
2 La. Civ. Code Ann. art. 669 (West 2000).
3 See La. Civ. Code Ann. art. 667 (West 2000).
5

dusting with airplanes."4 We are convinced that the 1996 amendment
to Article 667 applies to Articles 668 and 669 as well, so that
stating a claim under one or more of these articles now requires a
showing of negligence. The Louisiana Supreme Court has
consistently treated these three code articles (which together
govern Louisiana's nuisance law) as a cohesive unit, uniformly
interpreting them in pari materia.5 As such, the 1996 amendment
engrafted a standard of negligence on all three code articles and
thus on nuisance law in Louisiana, leaving exceptions only for
"pile driving" and "blasting with explosives" (neither of which
were being undertaken by Olin's plant at the relevant times).6
2.
Res Ipsa Loquitur
Assuming arguendo that negligence is the proper standard of
liability, Horseshoe argues in the alternative that the doctrine of
res ipsa loquitur ("res ipsa") applies here, relieving Horseshoe of
the need to prove Olin's negligence. Again, we disagree. "The
4 Bartlett v. Browning-Ferris Industries, Chemical Services,
Inc., 683 So.2d 1319, 1321 (La. App. 3 Cir. 1996).
5 See O'Neal v. Southern Carbon Co., 43 So.2d 230 (La. 1949)
(treating Articles 667-669 as a unit in deciding a case involving
emissions from a manufacturing facility); Dean v. Hercules, Inc.,
328 So.2d 69 (La. 1976); McCastle v. Rollins Environmental Services
of Louisiana, Inc., 456 So.2d 612 (La. 1984); Rodrigue v. Copeland,
475 So.2d 1071 (La. 1985); Inabnet v. Exxon Corporation, 642 So.2d
1243 (La. 1994); Ford v. Murphy Oil U.S.A., Inc., 703 So.2d 542
(La. 1997) (declining to certify a class action against several
petrochemical facilities and oil refineries for alleged emissions
of airborne chemicals and assuming that the nuisance action arose
under Articles 667-669 as a unit).
6 See La. Civ. Code Ann. art. 667 (West 2000).
6

principle of res ipsa loquitur is a rule of circumstantial evidence
that infers negligence on the part of defendants because the facts
of the case indicate that the negligence of the defendant is the
probable cause of the accident, in the absence of other equally
probable explanations offered by credible witnesses."7 The
defendant's negligence under res ipsa
may be proved by circumstantial evidence alone when that
evidence establishes, more probably than not, that the
injury was of a kind which ordinarily does not occur in
the absence of negligence, that the conduct of the
plaintiff or of a third person was sufficiently
eliminated by the evidence as a more probable cause of
the injury, and that the indicated negligence was within
the scope of the defendant's duty to the plaintiff.8
Of these three requirements, Horseshoe has failed to establish the
first two. It has demonstrated only that Olin had a duty to show
it had used reasonable care in operating its plant sufficient to
keep from harming its neighbors.
Horseshoe has not shown that the damage caused here is of "the
type which does not ordinarily occur in the absence of
negligence."9 Res ipsa is employed (typically in the medical
malpractice context) when the cause of the harm is obvious, such as
"fracturing a leg during an examination; amputating the wrong arm;
carelessly dropping a knife, scalpel, or acid on a patient; or
7 Cangelosi v. Our Lady of the Lake Regional Medical Center,
564 So.2d 654, 660 (La. 1990).
8 Id. at 665.
9 Id. at 666.
7

leaving a sponge in a patient's body."10 The instant facts,
specifically Horseshoe's workers' falling ill on the job apparently
because of exposure to airborne chemicals, clearly do not fit this
category. Horseshoe has not shown that the workers fell ill as a
result of chemical exposure or that they could not have fallen ill
from chemical exposure when the nearby chemical plants (including
Olin's) are being operated with the exercise of reasonable care.
Although these may be reasonable assumptions, we cannot make them
in the absence of corroborating scientific evidence. When, as
here, the source of the harm is not apparent on the face of the
facts alleged, the plaintiff must put forth expert testimony to
show that the harm could only have been caused by the negligence of
the defendant.11 Horseshoe has offered no such evidence.
Horseshoe has also failed to negate the possibility that the
chemical exposure to workers on the riverboat's construction site
could have been caused by another source.12 There are several other
chemical plants in the vicinity of that site, and, even assuming
that the illnesses of the workers were caused by chemical exposure,
any one of these plants could conceivably have been the source of
their exposure. For instance, the LDEQ found that the nearby Red
10 Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 719
(La. 1986) (citations omitted).
11 See White v. McCool, 395 So.2d 774, 777 (La. 1981); see also
Reliance Insurance Co. v. Louisiana Land and Exploration Co., 110
F.3d 253, 258 (5th Cir. 1997).
12 See Cangelosi, 564 So.2d at 666.
8

River Terminal emitted hydrogen sulfide, in violation of its LDEQ
permit, between June 6, 1997 and August 18, 1997 ---- the approximate
period during which Horseshoe's workers fell ill. Horseshoe has
thus failed to show that its workers' maladies resulted from the
failure of Olin to operate its plant with reasonable care.
III.
Conclusion
Horseshoe has failed to submit summary judgment evidence
sufficient to show that Olin is responsible for the illnesses to
its workers or for the resulting construction delays to its
riverboat. The proper standard of liability is negligence and
Horseshoe is unable to meet the elements of that standard, either
through direct offerings of proof or by circumstantial evidence
under the doctrine of res ipsa loquitur. We thus affirm the
district court's grant of summary judgment.
AFFIRMED
9