385 F.2d 841 (5th Cir. 1967), 22567, Helene Curtis Industries, Inc. v. Pruitt

Docket Nº:22567.
Citation:385 F.2d 841
Party Name:HELENE CURTIS INDUSTRIES, INC. and Cosmair, Inc., Appellants, v. Edd PRUITT and Marjorie Ann Pruitt, Appellees.
Case Date:October 20, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 841

385 F.2d 841 (5th Cir. 1967)

HELENE CURTIS INDUSTRIES, INC. and Cosmair, Inc., Appellants,

v.

Edd PRUITT and Marjorie Ann Pruitt, Appellees.

No. 22567.

United States Court of Appeals, Fifth Circuit.

October 20, 1967

Rehearing Denied Jan. 2, 1968.

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Elmer H. Parish, Wichita Falls, Tex., W. Page Keeton, Austin, Tex., H. Dustin Fillmore, Fillmore & Fillmore, Wichita Falls, Tex., for appellants.

Jimmy Castledine, Wichita Falls, Tex., for appellees.

Before RIVES, THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

This appeal is from a judgment of the United States District Court for the Northern District of Texas in favor of Appellee for personal injuries sustained while using a mixture of Appellants' cosmetics. Appellee, Marjorie Ann Pruitt, sustained third-degree chemical burns on her scalp and right ear resulting from the application to her hair of a mixture of two products designed for bleaching purposes-- 'Helene Curtis New Blue Bleach,' manufactured by Appellant Helene Curtis, and 'L'Oreal Creme Developer,' manufactured by Cosmair. The products were purchased from a beauty parlor in Terrell, Oklahoma, by a friend, Mrs. Hendren who applied them to Mrs. Pruitt's hair at Mrs. Hendren's home in Terrell.

In response to special issues, the jury found that the Blue Bleach and Cosmair mixture 'contained ingredients that were not suitable and reasonably fit for the purpose for which said products were used when used in combination with the other,' and that such ingredients were a proximate cause of the injury. Both products were found to have contained 'corrosive substances' (defined as 'any substance which in contact with living tissue will cause destruction of tissue with chemical action') which were a proximate cause of the injury. Mrs. Pruitt was found to have followed the directions which accompanied the products and was found not to have been negligent in mixing or applying them. A verdict was returned in favor of Appellee in the amount of $64,500.00.

Appellants allege several grounds or error: (1) That the trial judge erred in not granting the motion for a directed verdict or motion for judgment notwithstanding the verdict since the evidence was insufficient as a matter of law to establish a defect in the mixture; (2) that the trial judge erred in not granting a directed verdict or judgment notwithstanding the verdict since as a matter of law Mrs. Pruitt was without the class of persons who could invoke the doctrine of strict liability against Appellants; (3) that the trial judge erred in submitting the special issues on corrosiveness; and (4) that the verdict was excessive. We agree with Appellants that as a matter of law the jury could not have rationally inferred that

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the mixture was defective for its intended use. Alternatively, we hold that Appellee was without the scope of the duty which the doctrine of strict liability has imposed on Appellants. Only these two points will be discussed. 1

I. The Applicable Law

The mandate of Erie R.R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, once again plunges this Court into the vexing and revolutionary filed of products liability. The multi-state nature of the transaction necessitates a choice-of-law analysis. It is well settled that a federal court uses the substantive law of the state in which it sits and that under Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, substantive law includes the conflict-of-law rules. Although most courts in tort problems are moving away from the vested rights and territorial approach, Texas still follows the traditional lex loci delictus rule. Marmon v. Mustang Aviation, Inc., 416 S.W.2d 58 (Tex.Civ.App.--Austin 1967, no writ). Here no injustice results from the application of this rule because there is no real conflict. George v. Douglas Aircraft, 2d Cir. 1964, 332 F.2d 73, 76; Comment, 78 Harv.L.Rev. 1452 (1965). Both Texas and Oklahoma recently extended the scope of strict liability to encompass all products that are unreasonably dangerous. The Texas Supreme Court, relying on the Restatement of Torts § 402A, adopted the tort theory of strict liability. Shamrock Fuel & Oil Sales Company, Inc. v. Tunks, 416 S.W.2d 779 (Tex.1967); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), noted in 45 Texas L.Rev. 790 (1967). The basis for the Oklahoma decision, Marathon Battery Co. v. Kilpatrick, 418 P.2d 900 (Okl.1966), is not clear, but the decisions relied on justify the conclusion that Oklahoma will also adopt the theory of strict liability in tort.

The mere adoption of strict liability for all products, however, does little to facilitate a solution to the issues posed by this appeal. These issues are the nature and quantum of proof necessary to establish liability; a proper understanding of the concept of a defective product; and the scope of the maker's duty to the consumer. Thus, as in Putnam v. Erie City Manufacturing Company, 5th Cir. 1964, 338 F.2d 911, 917, we must consider 'all the available data,' including the restatements of law, treatises, law review commentary, and the majority rule. 2 Hopefully, our 'Erie prediction' will be indicative of what Oklahoma will do in the future and will not be easily erased. Ford Motor Company v. Mathis, 5th Cir. 1964, 322 F.2d 267, 3 A.L.R.3d 1002.

II. Policy Considerations

Initially, we review the policy considerations behind strict liability. With the technological revolution and modern marketing practices of this Century, Americans now enjoy the conveniences of many modern and beneficial products. These benefits to the many, however, have come at a high cost to a few. To combat the serious injuries

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visited on this minority, the law has reexamined its traditional reasons for imposing liability. This 'rethinking' has caused many courts to abandon the traditional negligence analysis and impose liability without fault on the maker who puts the product into the stream of commerce. 3 The justification for rejecting privity is based on the realization that our technological society, with its proliferation of products and mass advertising, demands judicial protection of the consumer who has neither the capacity nor opportunity to discover latent dangers in products. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966). Several reasons have been advanced to justify this judicial pioneering: The maker impliedly represents that his product is fit for its intended use; consumer expectations are frustrated by harmful products; strict liability will make manufacturers more careful; and manufacturers are superior risk-bearers because they have the capacity to distribute the losses of the few to the many by the price mechanism. Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5 (1965). Thus the risk of personal injury had become a cost of doing business. The more recent decisions have adopted a tort rather than a warranty approach, reasoning that recovery should not depend on the complex law of sales. E.g., Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). These decisions find the tort theory more appropriate because liability is imposed by law and because the maker should not be permitted to define the scope of its responsibility for defective products. Comment, Products Liability--Proceeding Apace, 33 Tenn.L.Rev. 341 (1966).

The particular market involved in this case is the cosmetics industry. In no other way can one glean a better conception of our 'consumer perspective' than by considering the advertisements which constantly encourage women to beautify themselves. See 3 Frumer & Friedman, Products Liability § 2901 (1965); Cahn, Law in the Consumer Perspective, 112 U.Pa.L.Rev. 1 (1963). It is therefore understandable that courts have imposed strict liability on the cosmetics manufacturer who has bombarded the consumer with his impersonal merchandising techniques. Cowan, Some Policy Basis of Products Liability, 17 Stan.L.Rev. 1077 (1965). The mere imposition of strict liability on cosmetics makers does not, however, as the trial court's charge assumed, mean that the maker is liable for any harm to anybody under any circumstances. In fact, the ambit of responsibility is more circumscribed. The maker is not an absolute insurer who is responsible for all physical hurts occurring in the course of using the product. Traynor, The Ways and Meaning of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363 (1965); Freedman, 'Defect' in the Product: The Necessary Basis for Products Liability, in Tort and in Warranty, 33 Tenn.L.Rev. 323 (1966). The question facing courts today is what doctrine will replace fault as a means of delimiting liability. The chief limitation (which was accepted by the Oklahoma Supreme Court in Marathon) is the requirement that the product be defective for its intended use. The Restatement of Torts § 402A provides a lucid definition: 'one who sells any product in a defective condition unreasonably dangerous to the user or consumer * * * is subject to liability

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for physical harm thereby caused to the ultimate user or consumer.'

Demanding that the defect render the product unreasonably dangerous reflects a realization that many products, such as cosmetics, have both utility and danger. James, Products Liability, Texas L.Rev....

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