UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REED PRICE; BARBARA PRICE,
Plaintiffs-Appellants,

and

CAROLINA CRANE CORPORATION,
Plaintiff,
                                                                 No. 97-1893
v.

FEDERAL PAPER BOARD COMPANY,
INCORPORATED; BE&K,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-96-25)

Argued: April 8, 1998

Decided: May 7, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit
Judge, and G. Ross ANDERSON, Jr., United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Alan Jones, MICHAELS, JONES, MARTIN, PAR-
RIS & TESSNER LAW OFFICE, P.A., Raleigh, North Carolina, for
Appellants. Bruce Danforth Morton, HEDRICK & BLACKWELL,
L.L.P., Wilmington, North Carolina, for Appellee Federal Paper
Board; Walter Edgar Brock, Jr., YOUNG, MOORE & HENDER-
SON, P.A., Raleigh, North Carolina, for Appellee BE&K. ON
BRIEF: Monique Peebles, MICHAELS, JONES, MARTIN, PARRIS
& TESSNER LAW OFFICE, P.A., Raleigh, North Carolina, for
Appellants. Jay P. Tobin, YOUNG, MOORE & HENDERSON, P.A.,
Raleigh, North Carolina, for Appellee BE&K.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Reed Price, a crane operator, sustained serious physical injuries
when he inhaled toxic chlorine dioxide fumes while doing construc-
tion work at a paper mill owned by Federal Paper Board Company in
Riegelwood, North Carolina. Federal Paper had contracted with
BE&K, Inc. to renovate and maintain the Riegelwood plant. At the
time of the accident, Price was employed by Carolina Crane Corpora-
tion, a subcontractor hired by BE&K. Price brought a premises liabil-
ity suit against both Federal Paper and BE&K in which he alleged that
defendants had failed to maintain the premises in a reasonably safe
condition and to warn Price of hidden dangers and unsafe conditions
that defendants knew or should have known to exist. Price's wife also
brought a derivative loss of consortium claim.

Both defendants moved for summary judgment. By order dated
April 3, 1996, the district court granted BE&K's motion, concluding
"that the gas leak was a fortuitous event of unprecedented magnitude
which BE&K could not reasonably foresee." (J.A. at 431.) The dis-
trict court temporarily denied Federal Paper's motion, however, pend-
ing the receipt of additional briefing defining the scope of Federal
Paper's duty to Price and whether the resolution of that issue was a

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question of law or a question of fact. The district court directed that
the supplemental memoranda be submitted on or before May 23,
1997. On May 23, Price submitted, along with his legal memoranda,
an affidavit by Dr. Jessica Herzstein and a 1991 periodical article dis-
cussing the dangers of chlorine gas exposure to pulp mill workers.
Federal Paper moved to strike both the affidavit and accompanying
article pursuant to Rules 6 and 56 of the Federal Rules of Civil Proce-
dure. By order dated June 5, 1997, the district court granted Federal
Paper's motion to strike and its motion for summary judgment, con-
cluding that Price had failed to forecast evidence sufficient to demon-
strate that Federal Paper knew or reasonably should have known of
the potential danger of exposure to chlorine dioxide gas to persons
working in Price's location. Price appeals both orders.

We have reviewed the record and briefs in this case and have had
the benefit of oral argument. After careful consideration, we affirm
the grant of summary judgment to both Federal Paper and BE&K and
the striking of the additional evidence for the reasons set forth in the
district court's orders. See Price v. Federal Paper Bd. Co., No.
7:96-CV-25-F1 (E.D.N.C. Apr. 3, 1997); Price v. Federal Paper Bd.
Co., No. 7:96-CV-25-F1 (E.D.N.C. June 5, 1997).

AFFIRMED

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