Bonowski v. Revlon, Inc., 49816

• Decision Date: 15 December 1959
• Docket Number: No. 49816,49816
• Citation: 251 Iowa 141,100 N.W.2d 5
• Parties: Juanita BONOWSKI, Appellant, v. REVLON, INCORPORATED, Naomi A. Teter and Karleen N. McBride, d/b/a Warrior Beauty Salon, Appellees.
• Court: Iowa Supreme Court

Page 5

100 N.W.2d 5

251 Iowa 141

Juanita BONOWSKI, Appellant, v. REVLON, INCORPORATED, Naomi A. Teter and Karleen N. McBride, d/b/a Warrior Beauty Salon, Appellees.

No. 49816.

Supreme Court of Iowa.

Dec. 15, 1959.

Whicher & Davis, Sioux City, for appellant.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellees.

PETERSON, Justice.

Plaintiff, age 57, returned from a vacation trip in California, in July 1957. During that vacation she had acquired a very decided sun tan. Shortly after her return she went to Warrior Beauty Salon in Sioux City to have them take care of her hair. Her sun tan was noticed by defendants and the beauty operator. The subject was raised as to her purchasing a Revlon sun tan, to preserve the tan. The question was under discussion as to whether she should purchase the bottle marked 'Sun Bath, the Tanning Lotion, for Normal Skin' or the bottle marked 'Sun Bath, the Tanning Lotion, for Sensitive Skin.' Plaintiff stated she thought her skin was normal and purchased the bottle for normal skin.

On Saturday and Sunday, after the purchase, she applied the lotion on her face, arms. chest and legs. She was in her yard in the sunshine almost all afternoon Saturday in 'halter and shorts.' She made a second application on Sunday and was in the sun for about two hours.

On Monday she did not feel well, but went to work. During the day her face became filled with blotches, and they also appeared on her arms and waist. By Tuesday her skin condition was so bad and her pain was so severe she consulted a doctor. He was a specialist in dermatology. He immediately sent her to the hospital. She was in the hospital two weeks, at which time she was greatly improved. She was still confined to her home for another three weeks before she was able to work.

According to her petition her actual expenses in doctor, hospital, drug bills and loss of time amounted to $835. In her suit she claimed $2,000 for pain and suffering.

The petition is in two counts. In the first count she sued the owners of the beauty salon and Revlon, Incorporated, on the basis of implied warranty as to the product manufactured and sold. The second count was against Revlon, Incorporated, alone, and was based on alleged negligence in connection with the manufacture of a lotion which was detrimental to a user.

The only testimony offered by plaintiff in addition to her testimony, was that of Dr. Leiter, her dermatologist. The defense of all defendants was that her damage was not the result of the lotion, but was caused because her skin was super sensitive and she was allergic to the combination of the application of the lotion and sunshine.

Dr. Leiter testified under cross-examination:

'Q. Doctor, do you remember * * * telling me it was your opinion that plaintiff, Mrs. Bonowski, was allergic to a combination of the Revlon lotion and exposure to the rays of the sun? A. My opinion is that the condition Mrs. Bonowski showed when I examined her was a combination of sunlight and the application of the particular preparation, yes.

'Q. * * * Doctor, it is true isn't it, and isn't it your opinion when this Revlon lotion is applied to the skin of a normal person it then has the effect of screening out some of the rays of the sun? A. Yes.'

'It is my opinion that this lady, when the Revlon lotion was applied to her skin, it did not have the usual expected reaction of filtering out the rays of the sun that would have been the normal reaction which you would expect on the usual skin of a normal person. But when it was applied to her skin, it is my opinion she had a distinctly different reaction, in fact the opposite reaction to the one intended.'

'Q. She had a skin which was unusually susceptible to a combination of the Revlon lotion followed by exposure to the sun? A. Yes.

'Q. This would be a rare and unusual situation wouldn't it? A. It is an unusual situation. * * * It isn't a usual occurrence. But I have never even heard of this occurring with the Revlon product.

'Q. It would be fair to say, wouldn't it Doctor, taking the over-all use of all of the exposures to sun that take place which are certainly many, many millions, that it would be a very unusual or rare occurrence, isn't that a fair statement? A. It is an unusual and rare occurrence, yes, I subscribe to that.' 'Some of the rays of the sun themselves are an irritant. In this case it was the rays of the sun coming down on Mrs. Bonowski which caused this rash or sunburn.'

'I said allergy would be an abnormal reaction to exposure to certain things. It is true that this lady was exposed to the Revlon lotion. It is true that she did have a different reaction to it than you would normally expect in a normal person, so that she would have an abnormal reaction. * * * That indicates to me that in the constitution of her skin, the make-up of her skin itself, there was something unusual or abnormal which caused her to have this reaction.'

The testimony of Dr. Frank, who was called as a witness by defendants, and whose specialty also was dermatology, was in substance the same as that of Dr. Leiter.

When plaintiff rested, all defendants filed motion for directed verdict. The court sustained the motion as to Count I which included all defendants and was based on implied warranty. The court at that time did not sustain the motion as to Count II, pertaining to Revlon, Incorporated, only, and to the question of negligence.

Defendant Revlon, Incorporated, then presented its testimony. In addition to the doctor, they called as witness Mr. Soroko of New York who is a Vice President of Revlon, Incorporated, and who had under his direction the responsibility for all products during formulation, testing, marketing, packaging, and labeling prior to marketing. He testified as to the extensive tests made as to 'Sun Bath, the Tanning Lotion, for Normal Skin' starting in 1953 and extending through 1955 when it was placed on the market.

From the time it was placed on the market until the time of trial in January, 1959, the company sold 5,304,272 bottles of the 'Sun Bath, for Normal Skin'. Mr. Soroko testified that from 1955 when it was placed on the market until the time of trial, the only complaint they had ever received was that of plaintiff.

At the close of all testimony motion was made for directed verdict on Count II as to defendant Revlon, Incorporated, which motion was sustained by the trial court. Plaintiff has appealed.

The question in the case is whether a dealer or manufacturer is liable for damages caused to the user of a product, either on implied warranty or through negligence, when the injury is caused by an isolated user being allergic to the product.

In the case at bar there is no conflict in the evidence. Plaintiff had such a super sensitive skin that she was allergic to the combination of the use of Revlon 'Sun Bath, the Tanning Lotion, for Normal Skin' and sunshine.

I. The specific question involved has not been previously considered by this court. Appellant cites three Iowa cases. They are not analogous to the case at bar.

In Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382, 17 A.L.R. 649, the question involved was the condition of canned pork and beans eaten by some members of the Davis family. Some of the members of the family did not eat any of the canned beans and did not become sick. The members of the family who ate the pork and beans all became sick. One member died, and the cause of his death was diagnosed as ptomaine poisoning. The court held plaintiff established a prima-facie case which should be submitted to the jury. The case has no similarity to the instant case. No question of allergy is involved.

Brandenberg v. Samuel Stores, Inc., 211 Iowa 1321, 235 N.W. 741, 77 A.L.R. 1161, was a case where plaintiff purchased a fur coat. Shortly after the purchase the fur started to shed, leaving large bare spots. The court held that under common law implied warranty the contract of purchase should be cancelled and the money paid by plaintiff returned to him. No question even remotely similar to the case at bar was involved.

The case of Anderson v. Tyler, 223 Iowa 1033, 274 N.W. 48, involved the drinking of a bottle of coca-cola in which a mouse was found in the bottle. Plaintiff became seriously ill. The case was submitted to the jury on the basis of negligence, which was affirmed. No element in the case sustains appellant's contention.

II. The overwhelming majority opinion as established in many states, and in the Federal Court, is that under the above circumstances neither the dealer nor the manufacturer is liable. Zager v. F. W. Woolworth Co., 30 Cal.App.2d 324, 86 P.2d 389; Graham v. Jordan Marsh Co., 319 Mass. 690, 67 N.E.2d 404; Worley v. P & G Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532; Merrill v. Beaute Vues Corp., 10 Cir., 235 F.2d 893; Barrett v. S. S. Kresge Co., 144 Pa.Super. 516, 19 A.2d 502; Ross v. Porteous, Mitchell & Braun Co., 136 Me. 118, 3 A.2d 650; Stanton v. Sears Roebuck & Co., 312 Ill.App. 496, 38 N.E.2d 801; Bennett v. Pilot Products Co., 120 Utah 474, 235 P.2d 525, 26 A.L.R.2d 958; Briggs v. National Industries, 92 Cal.App.2d 542, 207 P.2d 110; Walstrom Optical Co. v. Miller, Tex.Civ.App., 59 S.W.2d 895; 26 A.L.R.2d 964-973; 46 Am.Jur., Sales, § 808, p. 932; Prosser on Torts, p. 679.

As a summary of the decisions in various jurisdictions, 26 A.L.R.2d at page 966, states: 'Although there are decisions to the contrary, generally it has been held that in an action by the buyer of a product against the...