Moss v. Parks Corp.

• Decision Date: 03 March 1993
• Docket Number: Nos. 92-1354,92-1475,s. 92-1354
• Citation: 985 F.2d 736
• Parties: 23 Envtl. L. Rep. 20,903, Prod.Liab.Rep. (CCH) P 13,397 Melvin MOSS, Plaintiff-Appellant, v. PARKS CORPORATION, Defendant-Appellee. (Two Cases)
• Court: U.S. Court of Appeals — Fourth Circuit

Page 736

985 F.2d 736

23 Envtl. L. Rep. 20,903, Prod.Liab.Rep. (CCH) P 13,397

Melvin MOSS, Plaintiff-Appellant, v. PARKS CORPORATION, Defendant-Appellee. (Two Cases)

Nos. 92-1354, 92-1475.

United States Court of Appeals Fourth Circuit.

Argued Nov. 30, 1992.

Decided Jan. 28, 1993.

As Amended March 3, 1993.

Ralph Ogden, Wilcox & Ogden, P.C., Denver, CO, argued (Joseph A. Mooneyham, Harris & Graves, P.A., Greenville, SC, on the brief), for plaintiff-appellant.

Gray Thomas Culbreath, Yolanda Coker Courie, Collins & Lacy, Columbia, SC, argued, for defendant-appellee.

Before RUSSELL and WILKINSON, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

MORGAN, District Judge:

The Plaintiff in this case, Mr. Melvin Moss, suffered severe burns when fumes from paint thinner he was using erupted into flames. The Plaintiff brought suit against defendant Parks Corporation ("Parks"), the paint thinner's manufacturer, alleging five causes of action based upon a failure to warn pursuant to the Federal Hazardous Substances Act's ("FHSA") labeling requirements found at 15 U.S.C.A. § 1261(p)(1)(F) (West Supp.1992). Parks moved for summary judgment on the basis that the Plaintiff's counts of failure to warn were preempted by the FHSA and its regulations promulgated at 16 C.F.R. § 1500 et seq. (1991). The district court granted Parks' motion, finding the paint thinner had been properly labeled in compliance with federal law. This Court agrees that the paint thinner was properly labeled in accordance with the applicable federal standards and thus affirms the judgment of the district court.

I.

The Plaintiff, a resident of South Carolina, purchased 100% mineral spirits paint thinner manufactured by the defendant Parks. On March 16, 1989, the Plaintiff alleges he was injured while using the paint thinner to clean paint spills in a bedroom he was refinishing in his house. The Plaintiff testified that he read the front and back of the can prior to using the product. (Supp.J.A. 100). The label contained the following warnings: "DANGER," "COMBUSTIBLE," and "Keep away from heat and open flame." (J.A. 1). The Plaintiff poured two pints of the paint thinner on the floor. There was a kerosene heater in another room across the hall, but the Plaintiff testified that he believed the heater was off while he was painting and cleaning. The Plaintiff's expert witnesses testified that the paint thinner created a "mist" that wafted across the hall to the room where the kerosene heater was located. According to the Plaintiff's experts, the "mist" was ignited by the kerosene heater's pilot lighter and exploded into flames. The resulting flash fire burned a substantial portion of the Plaintiff's body.

The Plaintiff brought this diversity action against Parks on December 7, 1990 and filed an amended complaint on January 21, 1992. The Plaintiff alleged five causes of action, three of which are based upon a failure to warn pursuant to the FHSA's labeling requirements located at 15 U.S.C. § 1261(p)(1)(F). Specifically, count I alleged Parks misbranded its paint thinner in violation of 15 U.S.C. § 1261 et seq.; counts II and III alleged that Parks' noncompliance with federal law constituted negligence per se under both federal and state law; count IV alleged Parks was strictly liable under state law; and count V realleged his products liability count based entirely on South Carolina law. The Plaintiff admits count V is preempted by § 1261, and the Court finds that count IV is similarly preempted.

The Plaintiff maintained that the paint thinner was sold in a defective condition and was unreasonably dangerous because the label did not adequately warn against the hazards from fire and explosion. The Plaintiff argues that Parks violated the FHSA as its paint thinner's label failed to "state[ ] conspicuously ... precautionary measures describing the action to be followed or avoided...." 15 U.S.C. § 1261(p)(1)(F). That is, the Plaintiff contends that the presence of the warnings "DANGER," "COMBUSTIBLE," and "Keep away from heat and open flame" were insufficient to alert a layperson to the possibility of a flash fire from the thinner's "mist" coming in contact with the pilot light of a kerosene heater in another room.

Parks moved for summary judgment on the basis that the Plaintiff's claims of failure to warn were preempted by the FHSA and its regulations found at 16 C.F.R. § 1500 et seq. ¹ On March 3, 1992, the district judge entered summary judgment in favor of Parks and dismissed the Plaintiff's suit in its entirety. The district court found the paint thinner had been appropriately labeled and therefore complied with federal regulations. (J.A. 85-87). The Plaintiff now appeals from the district court's order.

II.

Orders granting summary judgment are reviewed under a de novo standard. Perini Corp. v. Perini Const., Inc., 915 F.2d 121 (4th Cir.1990). "Summary judgment is proper only when there is no genuine issue of material fact. F.R.Civ.P. 56(c). In other words, to grant summary judgment the Court must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

The district court ruled that Parks

has complied with the requirements of the regulations as they apply in this case, inasmuch as we are dealing with the mineral spirits requirements of the regulations.

The court finds that the requirements are controlling ... as far as the requirements are concerned in this case, and that there is no issue of fact as to the defendant having complied with the regulations.

(J.A. 86). The district judge added that "the labeling requirements preempt any other causes of action and are controlling...." Id. On appeal, Parks argues that in enacting the FHSA, Congress completely preempted all common law tort actions. If this is so, then the Plaintiff's cause of action fails, whether or not Parks complied with the FHSA's regulations. Accordingly, the Court will first address the preemption issue before considering whether Parks' label satisfies the applicable federal standards.

A.

The doctrine of preemption, the resolving of conflicts between federal and state law, flows from the Supremacy Clause of the Constitution. See U.S. Const. Art. VI, cl. 2. In Worm v. American Cyanamid Company, this Court held that

Preemption may occur on two bases, the first of which turns on discovering the intent of Congress. Congress may expressly provide that federal law supplants state authority in a particular field or its intent to do so may be inferred from its regulating so pervasively in the field as not to leave sufficient vacancy within which any state can act. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). But even absent an express or implied congressional intent to preempt state authority in a field, state law is nevertheless preempted by operation of law to the extent that it actually conflicts with federal law. See Wisconsin Public Intervenor v. Mortier, --- U.S. ----, ----, 111 S.Ct. 2476, 2482, 115 L.Ed.2d 532 (1991).

970 F.2d 1301, 1305 (4th Cir.1992) (citations omitted). The issue before the Court in this case is whether Congress intended to preempt the regulations of hazardous substances to such a degree as to preclude claimants from suing private parties for money damages for alleged violations of the FHSA under either the statute itself or through a state law tort action.

The FHSA was enacted in 1960. The purpose of the law was to "provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use." House Comm. On Interstate and Foreign Commerce, Federal Hazardous Substances Labeling Act, H.R.Rep. No. 1861, 86th Cong., 2d Sess. 2 (1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833. As enacted, the FHSA did not contain a preemption section. However, when the Act was amended in 1966, the legislative history discussed the impracticality of having the states produce potentially fifty different labels for a particular hazardous substance. Congress recommended "a limited preemption amendment which would encourage and permit states to adopt requirements identical with the federal requirements for substances subject to the Federal Act, and to enforce them to complement Federal enforcement...." House Comm. On Interstate and Foreign Commerce, Child Protection Act of 1966, H.R.Rep. No. 2166, 89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S.C.C.A.N., 4095, 4096. The 1966 amendments added the following limited preemption provision which provides

if a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) [15 U.S.C. §§ 1261(p) or 1262(p) ] designed to prevent against a risk of illness or injury associated with the substance, no State ... may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under 2(p) or 3(b).

15 U.S.C. § 1261 note (b)(1)(A) (emphasis added).

Thus, while it is clear that Congress intended to preempt state laws proposing labeling requirements not identical to the FHSA's regulations, the question remains whether that is sufficient to completely preempt state law tort actions for non-compliance with the federally mandated labels. This issue is a matter of first impression in this Circuit. However, this Court recently addressed the same issue under a similar federal statute. Worm v. American Cyanamid Co., 970 F.2d 1301 (4th Cir.1992). In Worm, this Court considered whether the Federal...