Defendants had no duty to warn about pigeon feces, judge rules

By John O'Brien | Dec 6, 2012

HUNTINGTON – A Mason County man is appealing a federal court decision that said a power company and his employer had no duty to warn him about a health risk associated with pigeon feces.

U.S. District Judge Robert Chambers granted the defendants’ motions for summary judgment on Nov. 30 in Roger Hoschar’s lawsuit against Appalachian Power Company and Industrial Contractors.

In 2009, Hoschar had a four-centimeter mass from his lung removed. Though it wasn’t cancerous, a biopsy revealed it was benign histoplasmosis – a disease caused by inhaling the spores of a certain fungus that can be carried on birds and live in their droppings.

Hoschar, a boilermaker employed by Industrial Contractors, worked at the Philip Sporn power facility, which was owned and operated by APC, from March 2006 to April 2007. During that time, he had to clear bird droppings from the Unit 5 precipitator to prepare the area for welding.

“Here, the relevant question is: Did APC have actual or constructive knowledge that the bird manure on the Unit 5 precipitator presented a risk of histoplasmosis?” Chambers wrote.

“Plaintiff relies exclusively on a publication of the National Institute for Occupational Health and Safety to argue that APC had knowledge of a danger of histoplasmosis, which gave rise to a duty owed to Plaintiff.”

The NIOSH material was published in 1997 and revised in 2004. It was called “Histoplasmosis: Protecting Workers at Risk” and was available on the website of the Occupational Safety and Health Administration.

“Plaintiff argues that the contents of this publication, which discusses the disease, its cause and protective measures for those at risk, gave rise to a duty by APC towards its contractors,” Chambers wrote.

“The Court concludes that Plaintiff has not satisfied his burden of demonstrating that APC breached a duty owed to Plaintiff.”

Chambers said the Hoschar offered no evidence that APC or its employees has actual knowledge of the NIOSH publication or that accumulations of bird manure could lead to histoplasmosis.

APC had implemented several measures to keep the birds away from the facility, including a chemical that irritated birds’ feet when they landed on the beams, an animated owl decoy and playing recordings of bird distress calls.

Hoschar’s attorneys quickly appealed Chambers’ decision to the U.S. Court of Appeals for the Fourth Circuit. The notice of appeal was filed Dec. 3.

Hoschar’s wife Judy is also a plaintiff in the suit. She is making a claim for loss of consortium.

They are represented by Alexander McLaughlin and John Skaggs of The Calwell Practice in Charleston.

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