Drayton v. Jiffee Chemical Corp.

• Decision Date: 19 December 1978
• Docket Number: 76-1942,Nos. 76-1941,s. 76-1941
• Citation: 591 F.2d 352
• Parties: 26 UCC Rep.Serv. 865 Terri DRAYTON, a minor, by her mother and next friend Bernice Drayton, and Bernice Drayton, Plaintiffs-Appellees Cross-Appellants, v. JIFFEE CHEMICAL CORPORATION, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 352

591 F.2d 352

26 UCC Rep.Serv. 865

Terri DRAYTON, a minor, by her mother and next friend Bernice Drayton, and Bernice Drayton Plaintiffs-Appellees Cross-Appellants, v. JIFFEE CHEMICAL CORPORATION, Defendant-Appellant Cross-Appellee.

Nos. 76-1941, 76-1942.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1977.

Decided Dec. 19, 1978.

Thomas P. Mulligan, Michael A. Nims, Richard B. Whitney, Kathleen B. Burke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for Jiffee Chemical Corp. Edward M. Swartz, William Schwartz, Swartz & Swartz, Boston, Mass., David A. Katz, Cleveland, Ohio, for plaintiffs-appellees.

Before PHILLIPS, Chief Judge, and ENGEL and KEITH, Circuit Judges.

ENGEL, Circuit Judge.

The circumstances which gave rise to this Ohio diversity suit are set forth in the opinion of the district court:

The incident in question occurred on December 21, 1968. At that time both plaintiffs, the infant Terri Drayton and her mother Bernice Drayton, lived in a boarding house in Cleveland, Ohio. The house was occupied by several other tenants including James Henderson, the putative father of Terri Drayton.

At approximately 7:00 p. m. on the night of December 21, 1968 Bernice Drayton and her daughter were on the first floor of the boarding house readying it for Christmas by decorating the Christmas tree and retrieving toys and decorations from the basement. At about that time Henderson returned home and obtained a bottle of "liquid-plumr" from his landlady, Mrs. Sorrell, for the purpose of clearing a clogged drain in the second floor bathroom sink. As he ascended the stairs, Henderson had his daughter, Terri, in one arm and the bottle of liquid-plumr in the other. Henderson testified that as he climbed the stairs he read a portion of the label.

At the top of the stairs, Henderson put Terri on the floor in the hall and entered the bathroom alone. According to the testimony, he then poured half of the bottle of liquid-plumr into the drain and placed the uncapped bottle on the back of the sink adjacent to the left faucet. Henderson then placed a towel over the open drain and stepped back from the sink. At that moment Terri grabbed his leg and screamed. When Henderson looked down at the child, she had been doused with the liquid drain cleaner. Henderson testified that he was unaware of the child's presence in the bathroom until the instant he heard her scream.

Immediately after the accident, Henderson took the child downstairs where both Bernice Drayton and Mrs. Sorrell were present. Recalling that the label said "something about burns" and "something about water" Henderson wet his handkerchief and dabbed at Terri's face. After some confusion, Henderson, Mrs. Drayton, Mrs. Sorrell, and Terri drove to Forest City Hospital so that the child might be treated. Apparently the physicians at Forest City were not equipped to adequately cope with the extensive burns suffered by Terri Drayton. For that reason she was referred to University Hospitals for admission, a transfer that entailed an additional twenty-five minute delay. As a result of the injuries sustained on December 21, 1968, Terri Drayton has been hospitalized on eight separate occasions, undergone eleven operative procedures, and compiled a 190 page hospital record all at the age of seven.

Drayton v. Jiffee Chemical Corp., 395 F.Supp. 1081, 1084-85 (N.D.Ohio 1975) (footnote omitted). ¹

In a nonjury trial, the district court found the defendant Jiffee Chemical Corporation liable under Ohio law on theories of negligence, breach of express and implied warranties, and strict liability. The final judgment awarded damages of $1,620,000 to the child and her mother.

We uphold the district judge's finding of liability, but on the narrow ground of breach of express warranty. We hold that the damages awarded are excessive and modify the judgment, Petition of United States Steel Corp. (II), 479 F.2d 489 (6th Cir.), Cert. denied, 414 U.S. 859, 94 S.Ct. 71 38 L.Ed.2d 110 (1973), to reflect the amount which we conceive to be the maximum which can be justified by the evidence, construed in the light most favorable to the plaintiffs, but computed with due regard to the admonitions of this court contained in Bach v. Penn Central Transportation Co., 502 F.2d 1117 (6th Cir. 1974), and Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir.), Petition for cert. dismissed, --- U.S. ----, 99 S.Ct. 44, 58 L.Ed.2d 94 (1978).

I. LIABILITY

A. PRODUCT IDENTITY

The most impelling factual defense, although one not fully developed until the trial, was the claim of the defendant that Terri Drayton was injured not by Jiffee's product, Liquid-plumr, but by some other drain cleaner, by inference a product known by the very similar name of Mister Plumber.

The actual container which James Henderson, Terri's natural father, used to clear the bathroom drain was never recovered. While Liquid-plumr was shown at the time to have contained a solution of approximately 26% Sodium hydroxide, commonly known as lye, Mister Plumber was shown to have been composed of 92-93% Sulfuric acid. Defendant placed great emphasis on the trial testimony of its expert that Terri's injuries more closely approximated those caused by sulfuric acid than those which would have been caused by exposure to the lye. It also pointed to Henderson's testimony that he had read the label on the bottle and that his conduct both in applying the drain cleaner to the clogged drain in the bathroom sink and in later patting Terri's face with a damp towel rather than flushing it with water was more consistent with the instructions placed upon the bottle of the Mister Plumber product rather than those instructions on the bottle of Liquid-plumr.

Against this evidence, however, was the express testimony of Terri's mother, Bernice Drayton, of Henderson himself, and of their landlady, Mrs. Sorrell, who had originally purchased the cleaner and made it available to Henderson for the purpose. All three identified the product as Liquid-plumr. The testimony of the plaintiffs' experts established that Terri's facial injuries were consistent with those caused to human skin by contact with sodium hydroxide. There was also some contemporary corroboration in the history taken at the hospital for purposes of treatment indicative that the product spilled was Liquid-plumr. Under these circumstances, giving "due regard . . . to the opportunity of the trial court to judge of the credibility of the witnesses," Rule 52(a), Fed.R.Civ.P., we are unable to hold that the trial judge's finding of fact that the product involved was Liquid-plumr, manufactured by defendant Jiffee Chemical Corporation, was clearly erroneous.

Defendant urges that the trial court abused its discretion in failing to permit an in-court demonstration comparing the effects of both Mister Plumber and Liquid-plumr upon clothing. Defendant insists that the test would have demonstrated the different properties of lye and sulfuric acid and thus might have convinced the trial judge as finder of fact that the injury stemmed from a sulfuric acid solution and not from its product. ² It is true that defendant had entered a general denial that its product was involved. Nevertheless, in spite of extensive pretrial discovery over a period of several years, the particular claim of product misidentification was made for the first time in the middle of the trial. Under such circumstances, we cannot hold that the trial judge abused his discretion in refusing to permit the test. The case must, therefore, proceed upon the premise that the product which caused minor plaintiff's injuries was, in fact, Liquid-plumr and that it consisted of a 26% Solution of sodium hydroxide, or lye.

B. NEGLIGENCE, STRICT LIABILITY AND IMPLIED WARRANTY

The proofs showed that Mrs. Sorrell purchased the Liquid-plumr from a local grocery store sometime in 1966, before Terri's birth, putting it aside for future use when needed.

The evidence was sparse concerning industry standards or the state of the art of manufacture and sale of drain cleaners for domestic consumption. What evidence there was tended to show that, if anything, Liquid-plumr was safer than any other liquid drain cleaner sold at the time, although not as safe as a composition later manufactured and sold by Jiffee's corporate successor. ³ The court did not expressly address the question of whether a manufacturer such as Jiffee could in 1966 reasonably have been expected to produce a safer product. And as the trial judge was careful to point out, "There was no evidence adduced at trial that liquid-plumr was negligently manufactured in that it was produced in any way other than that intended. Thus it becomes necessary to ascertain whether Jiffee was negligent in its design and formulation of the drain cleaner marketed as liquid-plumr." 395 F.Supp. at 1088.

While the trial court found that the Liquid-plumr was an "inherently dangerous" product, Id. at 1088, this conclusion was based not upon its use as intended, but upon its misuse, much as one might find any product dangerous whose very nature and purpose depends upon its being or having at least some dangerous properties, such as a knife, a baseball bat, diving apparatus, and the like. See Englehardt v. Phillips, 136 Ohio St. 73, 23 N.E.2d 829, 833 (1939). It is this circumstance and our own court's ruling in Gossett v. Chrysler Corp., 359 F.2d 84 (6th Cir. 1966), which give us serious concern whether, at the time of its manufacture, Jiffee could fairly be held liable under theories of strict liability or negligence in the design of its product or in breach of the implied warranty of fitness for the use intended. ⁴ In Gossett our court defined what it conceived to be the rule in Ohio:

It is the duty of a manufacturer to use reasonable care under the circumstances to so design his product as to make it not accident or foolproof, but safe for the use for which it is intended. This...