Gardner v. QHS, INC.

• Decision Date: 31 August 1971
• Docket Number: No. 15393.,15393.
• Citation: 448 F.2d 238
• Parties: James C. GARDNER, Appellant, v. Q. H. S., INC., a corporation, and J. M. Fields, Inc., a corporation, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

448 F.2d 238 (1971)

James C. GARDNER, Appellant, v. Q. H. S., INC., a corporation, and J. M. Fields, Inc., a corporation, Appellees.

No. 15393.

United States Court of Appeals, Fourth Circuit.

Argued May 5, 1971.

Decided August 31, 1971.

COPYRIGHT MATERIAL OMITTED

Augustine T. Smythe, Charleston, S. C. (Buist, Moore, Smythe, & McGee and Stoney & Stoney, Charleston, S. C., on brief), for appellant.

Coming Ball Gibbs, Jr., Charleston, S. C. (Gibson, Gibbs & Krawcheck, and Barnwell, Whaley, Stevenson & Patterson, Charleston, S. C., on brief), for appellees.

Before WINTER, BUTZNER and RUSSELL,^* Circuit Judges.

WINTER, Circuit Judge:

In this products liability case, the owner of an apartment building, substantially destroyed by fire when hair rollers used by a tenant ignited and set fire to it, sought to recover his loss from the manufacturer of the hair rollers (Q. H. S., Inc.) on the theories of negligence and breach of implied warranty, and the retailer (J. M. Fields, Inc.), from whom the tenant had purchased them, on the theory of breach of implied warranty. The district judge granted judgment for both defendants at the conclusion of the plaintiff's case. He did so because he concluded that under the proof the hair rollers were not inherently dangerous, and that the tenants' negligence in permitting the hair rollers to ignite was the proximate cause of the fire. Because the hair rollers were not inherently dangerous, he also concluded that the manufacturer was under no obligation to give any greater caution concerning the use of the hair rollers than that actually given.

We disagree. We think that jury issues were presented on both theories of liability and that the district judge unduly restricted the proof as to foreseeability of a potentially dangerous substance. We reverse and remand for a new trial.

I

The fire that destroyed the apartment building began when some plastic hair rollers caught on fire in a pot without water on the stove in the kitchen of an apartment occupied by two young nurses. The fire spread to the wall behind the stove, into the attic, and eventually destroyed the building.

The rollers were cylindrical in shape and consisted of a plastic cover filled with paraffin. The directions instructed that the rollers should be boiled in water for fifteen minutes, after which they were to be removed from the water and hair wrapped around them, secured in place by means of a clip. The paraffin melted by the boiling water retains heat and thus would impart a curl to the rolled hair.

On Sunday morning, July 14, 1968, one of the nurses, Miss Runge, returned to the apartment after working a night-duty private-nursing shift. Her room-mate was asleep in bed. In preparation for attendance at church, Miss Runge at about 7:40 A. M. put the rollers in a pot containing water on an electric stove set at "high" and went to take a bath. She fell asleep in the bath tub; and, while she was asleep, the water boiled out of the pot, the rollers ignited, and the general conflagration followed. Both nurses saw the fire begin and called for help, and some workmen ran up the stairs. They testified that they saw flames erupting from a pot on the kitchen stove and that the flames were swirling into the hood fan above the stove. Their efforts to extinguish the fire were without success.

At trial, evidence was offered to show that paraffin ignites at 525° Fahrenheit, that the temperature of the coil on an electric stove is in the neighborhood of 3000° Fahrenheit when turned on high, and that the probability of the rollers catching on fire if the water should boil out of the pot, with the stove at any temperature materially above 525°, is virtually 100%. Testimony also indicated that when twelve rollers (the number used by Miss Runge) catch on fire, they burn for six or seven minutes with a very intense flame that billows four or five feet above the containing receptacle.

The printed material on the box in which the rollers were marketed consisted of instructions for use, together with a "cautionary note," set forth in the middle of the instructions. This warning was printed in the same size type as the rest of the instructions, and read:

Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q. H. S. Setting/Rollers are perfectly safe.¹

The manufacturer's president testified that, before the product was marketed, tests for flammability were conducted. He claimed that the tests showed that when the rollers were boiled in water there was never any problem with the product. He also claimed that even when the water was permitted to boil away, fire would not result on an electric stove, although on a gas stove fire would result if the product were contained in a pan sufficiently shallow to permit open flame to reach the melted paraffin.

Plaintiff sought to prove that the rollers were dangerous under conditions of foreseeable use, that Q. H. S. had notice of such danger and had notice also that its "cautionary note" was insufficient warning to guard against that danger. The proof tendered, almost all of which was excluded, consisted of depositions of approximately twenty-five persons who claimed to have experienced similar casualties with Q. H. S. rollers, letters of complaints received by Q. H. S. from those who had experienced fire, explosions and like occurrences, and the testimony of a professor of chemistry who had conducted a test of flammability of Q. H. S.'s product. Admission of the depositions was denied by the district judge on the ground that they would introduce too many collateral issues. The letters were refused, except those which expressly complained of fire, on the ground that they contained prejudicial self-serving statements and because they, too, would introduce collateral issues. The professor's testimony was limited to demonstrating that the fire could have been caused by the rollers if precisely twelve rollers were used. He was not permitted to describe his experiments using other than twelve rollers, which plaintiff argues would have had probative value in establishing that the rollers were dangerous in a variety of circumstances and that Q. H. S. would have known this if it had conducted proper tests. Finally, Q. H. S.'s president was not permitted to be cross-examined as to whether he had read an article in Consumers Report that the product was causing fires in substantial numbers throughout the country and that the manufacturer's warning was inadequate. Nor was he permitted to be questioned as to whether he had engaged in correspondence with the Federal Trade Commission about the adequacy of the warning in regard to the proper way to extinguish paraffin should it ignite.

II

The district judge seemed overly concerned that the hair rollers were not inherently dangerous. We do not share his concern. Since the land-mark decision of Mac Pherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), the necessity of determining, in a suit for negligence, what products are inherently dangerous and which are not — a doctrine which had been developed to avoid the supposed privity requirement of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (1842) — has been rendered largely academic. See discussion, W. Prosser, Law of Torts, § 96, at pp. 658-61 (3rd Ed. 1964). For the law has now reached the stage of development that a supplier and a manufacturer of a chattel are liable to all whom they should expect will use the chattel or be endangered by its use if (a) they know or have reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, (b) they lack reason to believe that the user will realize the potential danger, and (c) they fail to exercise reasonable care to inform of its dangerous condition or of the facts which make it likely to be dangerous. 2 Restatement of Torts, 2d §§ 388 and 395 (1965 Ed.). The same is true with respect to a cause of action for breach of an implied warranty of merchantability under the Uniform Commercial Code, as that warranty is breached when goods are not "fit for the ordinary purposes for which such goods are used." Code of Laws of S.C., § 10.2-314 (1966). See also Chestnut v. Ford Motor Company, 445 F.2d 967 (4 Cir. 1971). This is the law of South Carolina which we must apply in this diversity action. Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969). See also Spruill v. Boyle-Midway, Incorporated, 308 F.2d 79 (4 Cir. 1962), which, although arising under the law of Virginia, was treated as persuasive of South Carolina law in Mickle, supra.

The essential issue in this case is thus one of foreseeability, both under the proof which was admitted and some of that which was rejected, because, as we said in Spruill:²

"Intended use" is but a convenient adaptation of the basic test of "reasonable foreseeability" framed to more specifically fit the factual situations out of which arise questions of a manufacturer\'s liability for negligence. "Intended use" is not an inflexible formula to be apodictically applied to every case. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use.

However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risks of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured. 308 F.2d at 83-84.

And based upon how the issue of foreseeability is determined, the adequacy of Q. H. S.'s warning must be considered.

By Q. H. S.'s specific instructions, the hair rollers were...