Briggs v. Zotos International, Inc., Civ. A. No. 232-71-R.
| Decision Date | 10 April 1973 |
| Docket Number | Civ. A. No. 232-71-R. |
| Citation | 357 F. Supp. 89 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Sarah P. BRIGGS v. ZOTOS INTERNATIONAL, INC. |
Emanuel Emroch, Richmond, Va., Harold L. Townsend, Emporia, Va., for plaintiff.
G. Kenneth Miller, May, Garrett & Miller, Richmond, Va., Joseph E. Soffey, Mineola, N. Y., for defendant.
Sarah Briggs has moved the Court to set aside a jury verdict against her and to grant her a new trial. Jurisdiction over this products-liability action was initially attained by virtue of diversity jurisdiction, 28 U.S.C. § 1332. Respective counsel have extensively briefed the issues raised by plaintiff's motion, and it is upon same, and the record before it, that the Court deems this matter ripe for disposition.
For purposes of this motion, the facts are as follows:
Miss Briggs alleged that on July 29, 1969, a licensed beautician, Mrs. Ruby Southall, allowed some Zotos Formula 1 Lanolin Bath lanolized waving lotion (hereinafter "waving lotion") manufactured by the defendant, to enter her right eye while she was being given a permanent wave at Mrs. Southall's beauty shop. Mrs. Southall bathed the eye thereafter with a wet towel and Miss Briggs, although in pain, made no further complaint for the duration of the two hour process. The pain continued and, medical diagnosis shortly proved, the cause of same was a glaucoma that had developed. Miss Briggs was later operated upon for relief of the glaucoma, but since that time a cataract developed further impairing her vision.
Miss Briggs alleged that the waving lotion caused the glaucoma. She in essence claimed liability of the defendant therefor by reason of its alleged failure to adequately warn users that the formula could and would cause serious injury to the eyes and to warn what to do if the lotion did enter the eyes.1
This action came to trial before a jury on October 11, 1972, and resulted in a verdict for the defendant. Plaintiff's present motion is grounded upon several alleged errors of the Court with respect to evidentiary matters and contents of the jury charge. The issues raised will be dealt with in turn.
Miss Briggs complains that the Court erred in instructing the jury that contributory negligence on her part would prevent her recovery. The specific language in question reads as follows:
The Court tells you that if you believe from a preponderance of the evidence that the defendant was negligent and that such negligence was a proximate cause of the accident, and if you further believe from the evidence that the plaintiff was also negligent and, that is, that she failed to act as a reasonably prudent person would have acted under similar circumstances, and that any such negligence on the part of the plaintiff proximately contributed to cause the accident, then your verdict would be in favor of the defendant. For the law does not undertake to apportion or balance the negligence of the parties where both are at fault in order to ascertain which one is most at fault, but the plaintiff is barred from recovering if she were guilty of any negligence which proximately contributed to cause the accident.
Plaintiff objects that reference to contributory negligence is improper as "the gravamen of the plaintiff's case is the failure of the defendant to warn of the hazards inherent in the use of its product and what should be done in the event the lotion gets in the eye."
The general rule that contributory negligence is not in issue in failure to warn cases is based on the sound reasoning that a plaintiff cannot be held partly responsible for injuries suffered when there was no reason to suspect—by virtue of the lack of warning—the possibility of injury until too late. See Note, 41 Va.L.Rev. 145 (1955).
The facts in this action, however, are suggestive of more. Despite extreme pain, the plaintiff remained in the beauty salon for two more hours. She said nothing further nor demanded medical aid. On that basis, the Court concluded that the jury should be asked to determine if Miss Briggs' silence contributed to her injury, it being a question of fact whether the pain itself might reasonably be treated as a timely warning to seek medical aid.2 The nature of Mrs. Southall's treatment of plaintiff's pain, the relationship of that treatment to the alleged lack of directions by the defendant with respect to same, and the plaintiff's silence, are proper jury matters. In essence, these are questions of proximate cause, concerning which the Court instructed:
In short the plaintiff must establish affirmatively as one of the elements of a case proof that the failure of the operator, the failure to warn the operator, resulted in a failure on the part of the operator to wash out the solution and to do those things which the evidence indicates would be a proper warning. And further that her failure was because she didn't have these warnings was the proximate cause of the plaintiff's injuries. Unless you are satisfied of that by a preponderance of the evidence then the plaintiff would not be entitled to recovery. In addition of course you must find that had the warning been given that Mrs. Southall would have exercised whatever the warning told her. And I believe all the evidence here is that if there was a warning it would have or should have been to the effect to wash out the eyes copiously and if there was still complaint to take the patron to the doctor.
The Court concludes that it was proper for the jury to consider whether Miss Briggs' silence was an intervening cause in the injury. Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 87 (4th Cir. 1962). Accordingly, plaintiff's first claim is without merit.
The plaintiff argues that the Court erred in refusing to give a charge tendered by her on implied warranty.3 Miss Briggs here asserts that "Liability-Implied Warranty has been held to exist in failure to warn cases . . . the failure to warn is equated with a defect in the product."
As the defendant correctly states, this theory of liability, as well as several others plaintiff tendered (based on "inherently dangerous" products, "potentially dangerous" products and "secret formula" products) require in effect the same elements of proof, to-wit: the product was dangerous, the instructions were inadequate, the inadequacy of same was the proximate cause of the injuries. These elements were fully discussed at length by the Court in the portion of the charge beginning at page 12. The Court in its discretion determined that the respective charges tendered by plaintiff would be both confusing and prejudicial and here reaffirms its belief in the correctness of the exercise of that discretion.
Plaintiff also tendered an instruction with regard to strict liability which the Court refused to give. The Virginia Supreme Court has not yet, as plaintiff concedes, adopted the strict liability doctrine. It would have been inappropriate for this Court to set forth that doctrine to the jury, especially under the facts here presented.
Plaintiff has taken issue with several other portions of the jury charge, particularly...
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