Anderson v. Klix Chemical Co.

• Decision Date: 22 July 1970
• Citation: 472 P.2d 806,256 Or. 199
• Parties: , 53 A.L.R.3d 227 Warnesia ANDERSON, Appellant, v. KLIX CHEMICAL CO., Inc., aka Hel-Mar, Inc., an Oregon corporation, Respondent.
• Court: Oregon Supreme Court

Page 806

472 P.2d 806

256 Or. 199, 53 A.L.R.3d 227

Warnesia ANDERSON, Appellant, v. KLIX CHEMICAL CO., Inc., aka Hel-Mar, Inc., an Oregon

corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted Jan. 5, 1970.

Decided July 22, 1970.

Gerald R. Pullen and Don G. Swink, Portland, argued the cause for appellant. With Gerald R. Pullen on the briefs were Bailey, Swink & Haas, Portland.

Wayne A. Williamson and Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With them on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before PERRY, ^* C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE and HOLMAN, JJ.

DENECKE, Justice.

This is a products liability case. The plaintiff alleges that she suffered a skin disorder which was caused by her use of defendant-manufacturer's cleaning product while she was working as a hotel maid. The trial court set aside the jury's verdict for the plaintiff and entered a judgment for the defendant. Plaintiff appeals, assigning as error only the trial court's setting aside the verdict. The basic question is whether there was sufficient evidence to sustain the verdict.

The product, 'Guard,' is advertised for 'PERFECT BATHROOM SANITATION.' The defendant manufactured it put it in quart and gallon plastic containers, labeled it and sold it through distributors. Plaintiff's employer asked a distributor for a product which would clean the grout between shower tiles. The distributor sold her a gallon container of Guard. The container was delivered with a plastic hand sprayer attached to the container by a three-foot plastic hose.

The plaintiff sprayed the tile and then washed it down with water and a rag. When she washed it down she felt a stinging sensation on her hands. She reported this to her employer and within five days went to a physician. She continued to go to a physician and was hospitalized on several occasions. There was testimony that she has been permanently injured because of this incident.

I

We have adopted § 402A of Restatement (Second) of Torts as the standard for strict liability in tort. Heaton v. Ford Motor Co., 248 Or. 467, 470, 435 P.2d 806 (1967). Under that section, as well as under our cases, the product must be defective before there is liability. 'The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.' Section 402A Comment g., at 351. In this case the plaintiff is not contending that the product was defective in the sense that it contained foreign ingredients or impure ingredients. Plaintiff's position is that the product is 'in a defective condition unreasonably dangerous to the user' (§ 402A) because the defendant failed 'to give adequate warning as to its use.'

The Restatement supports plaintiff's theory. Comment j. to § 402A states: 'In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warnings, on the container, as to its use.'

Courts have viewed this portion of the Restatement as basing liability upon a failure to warn.

'We think it is a fair summarization of the foregoing comments to say that it is the opinion of the Law Institute that a product, although faultlessly made, may nevertheless be deemed 'defective' under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.' Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 53, 46 Cal.Rptr. 55i, 558 (1965). Accord, Crane v. Sears Roebuck & Co., 218 Cal.App.2d 855, 32 Cal.Rptr. 754, 757 (1963).

The defendant does not directly contradict plaintiff's contention as to the law but states: 'Logically, failure to warn (effectively) conceptually resembles negligence, not strict liability.' Conceptually defendant appears to be correct. This aspect of 'strict liability,' failure to warn of the dangers of an otherwise nondefective product, does revert to a negligence basis for liability. The basic questions are whether it was reasonably foreseeable to the manufacturer that the product would be unreasonably dangerous if distributed without a warning on the label and, if so, whether the manufacturer supplied the warning that a reasonably prudent manufacturer would have supplied.

Section 388 of Restatement of Torts and Restatement (Second), which is applicable to all suppliers of chattels, provides:

'One who supplies * * * a chattel for another to use is subject to liability * * * for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

'(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

'(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

'(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.' 2 Restatement (Second), 300--301, Torts § 388.

This is not cross-referenced to § 402A; however, the connection seems apparent.

The authors of the leading article, Product Liability: Directions for Use and the Duty to Warn, 41 Va.L.Rev. 145, 152 (1955), wrote: 'The duty to warn against unusual hazards has long been recognized as a source of tort liability at common law.'

We quoted with approval from Bitts v. General Accident Fire & Life Assur. Corp., 282 F.2d 542, 544 (9th Cir. 1960): 'Further, we note that, historically, failure to warn is one of the bases for holding a vendor or (of) products liable for negligence * * * and currently seems to occupy a place of considerable importance in the law of products liability.' Blohm v. Glens Falls Ins. Co., 231 Or. 410, 419--420, 373 P.2d 412 (1962).

The defendant was not harmed because the label of 'strict liability' was placed on the plaintiff's cause. The plaintiffs alleged lack of adequate warning as the basis for liability, the court instructed that the defendant was liable if it did not give reasonable warning, and the defendant requested instructions basing the defendant's liability upon whether or not it gave reasonable warning.

The difficult aspect of this portion of the case is the question of whether the warning given was reasonable as a matter of law. The information was printed upon the container itself or upon a label pasted on the container. The printed material stated:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendant contends the label adequately warns because it states 'POISON FOR INDUSTRIAL USE ONLY' and lists 'Hydrogen chloride . . . 9.5%' and the evidence is that plaintiff knew this was hydrochloric acid. Moreover, under 'ANTIDOTES' the label states: 'EXTERNAL--Wipe off acid gently, * * *,' which defendant contends clearly indicates that the solution is harmful when in contact with the human body. The use of 'acid' is a warning signal itself.

Plaintiff points out that if the directions were followed precisely, the user could reasonably believe that the solution would come into contact with hands and arms. The directions for cleaning tiled showers states to dip mop or brush in solution and apply. Plaintiff asserts that it is common knowledge that a liquid so applied is likely to drip upon one's hands and arms. Also, the directions for removing the water line in a toilet seem to contemplate dipping a steel-wool pad held by the user into the solution and rubbing it on. This process plaintiff contends would normally cause the solution to come in contact with the hands.

What constitutes an adequate warning is stated in Spruill v. Boyle-Midway, Incorporated, 308 F.2d 79, 85 (4th Cir. 1962):

'* * * To be of such character the warning must embody two characteristics: first, it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; secondly, the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person.'

Crane v. Sears Roebuck & Co., supra, 218 Cal.App.2d at 860, 32 Cal.Rptr. at 757, approved the following instruction stating the nature of the warning that should be given:

"* * * The warning should be such that if followed would make the product safe for users. To comply with this duty the manufacturer or supplier must appropriately label the product, giving due consideration to the likelihood of accident and the seriousness of consequences from failure to so label it as to warn of any dangers that are inherent in it and its use or that may arise from the improper handling or use of the product."

As observed, this question,--was the warning reasonable?--is the kind of question that is usually answered by a jury. Spruill v. Boyle-Midway, Incorporated, supra, 308 F.2d at 85--86; Crane v. Sears Roebuck & Co., supra, 218 Cal.App.2d at 860, 32 Cal.Rptr. 754; 41 Va.L.Rev., supra, at 169. We conclude that the adequacy of the warning was a jury question in this case. There was sufficient evidence to support the jury's conclusion that the warning was not adequate.

II

Another ground advanced for the defendant's motion for judgment n.o.v. was that the plaintiff misused the product. If a plaintiff's injury is caused by plaintiff's use of the product contrary to directions or warnings, recovery is barred. Levin v. Walter Kidde & Company, 251 Md. 560, 248 A.2d 151 (1968). Defendant's claim of misuse is based upon the plaintiff's failing to dilute the solution in the container to half-strength, applying the product with a sprayer instead of a mop or brush and wiping the tile with a rag...