UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Alan Jones, MICHAELS, JONES, MARTIN, PARRIS & 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 & HENDERSON, 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Unpublished opinions are not binding precedent in this circuit.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 construction 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 Corporation, a subcontractor hired by BE&K. Price brought a premises liability 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 district court temporarily denied Federal Paper's motion, however, pending 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 discussing 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 Procedure. By order dated June 5, 1997, the district court granted Federal

Paper's motion to strike and its motion for summary judgment, concluding that Price had failed to forecast evidence sufficient to demonstrate 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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