Burch v. Amsterdam Corporation, 9774.

Citation366 A.2d 1079
Case DateDecember 01, 1976
CourtCourt of Appeals of Columbia District

Page 1079

366 A.2d 1079
George W. BURCH, Individually and as father and next friend of Elena Burch, a minor, and William Burch, a minor, and Susan Burch, Appellants,
AMSTERDAM CORPORATION, a Foreign Corporation, and The Syracuse Adhesives Company, a Foreign Corporation, Appellees.
No. 9774.
District of Columbia Court of Appeals.
Argued March 10, 1976.
Decided December 1, 1976.

Page 1080

Irwin H. Liptz, Washington, D. C., with whom Armand 1. Robinson, Washington, D. C., was on the brief, for appellants.

Curtis E. von Kann, Washington, D. C., with whom A. Roy DeCaro, F. Wainwright Barnes and Philip F. Herrick, Washington, D. C., were on the brief, for appellees.

Before FICKLING and MACK, Associate Judges, and REILLY, Chief Judge, Retired.

MACK, Associate Judge:

Appellants George and Susan Burch brought this action to recover damages for personal injuries sustained by Mr. Burch in an explosion and flash fire that occurred while he was applying a floor tile adhesive sold to Mrs. Burch by appellee Amsterdam Corporation. A third-party complaint was filed against appellee Syracuse Adhesives Company, the manufacturer of the product. Appellants primarily alleged that Amsterdam negligently failed to provide adequate warnings on the label affixed to the can of adhesive and failed to comply with the labeling requirements of the Federal Hazardous Substances Act, 15

Page 1081

U.S.C. § 1261 et seq. (1970). The trial court, after determining that the label satisfied applicable federal standards, granted Amsterdam's motion for summary judgment. We reverse.


Viewed in the light most favorable to appellants,1 the record reveals the following facts. On March 11, 1972, Mrs. Burch visited Amsterdam's retail store in the District of Columbia to purchase materials for the installation of a tile floor. She informed a salesman at the store that her husband planned to install floor tiles in the kitchen of their home and that she needed all the materials and equipment required for the project. The salesman selected a number of items, which she purchased. Among these was a large can of VICO-102, a floor tile adhesive.

On the next day, Sunday, March 12, 1972, George Burch began the planned project. He had assisted in laying floor tiles only once before. Therefore, before using the VICO-102 adhesive, he carefully read the instructions on the label of the can, which stated that the mixture was flammable, should not be used "near fire or flame," and required "adequate ventilation." In order to provide more ventilation, he opened windows in the kitchen-dining room area and turned on ductal fans and a large air conditioner. Although he checked the area to make sure there were no flames, he did not think of extinguishing the pilot light in the gas stove.

Mr. Burch followed the instructions on the label and began applying a first coat of adhesive to the kitchen floor. Approximately fifteen to twenty minutes later, he had just covered the edge of the floor by the stove when he heard, subliminally, a noise — a "whoosh." He had a sense of time being elongated, felt searing heat and saw the skin peeling from his body. Mrs. Burch, hearing her husband scream, ran into the kitchen to find the room on fire. Mr. Burch suffered serious burns which necessitated immediate trauma treatment, and extended hospitalization and convalescence (to the detriment of his minor children and wife). The explosion generated such pressure as to break a window in the nearby children's room and the heat was so intense as to melt pewter.

The product being used by Mr. Burch is an extremely flammable mastic adhesive with a flash point at or below twenty degrees Fahrenheit. It is a putty-like substance and it also emits a vapor which readily ignites. It was manufactured by Syracuse and sold to Amsterdam pursuant to a "private label account." Under this arrangement, Amsterdam provided the label and distributed the product tinder the name of VICO-102. The actual labels were printed and sent by Amsterdam to the Syracuse factory where they were affixed to the cans of adhesive.

In January 1974, appellants filed a complaint alleging that Amsterdam was negligent in labeling the adhesive. Specifically, the complaint stated that Amsterdam negligently "failed through proper labeling to warn the plaintiffs of the hazards to be incurred in the use of such product"; failed to comply with the labeling requirements of the Federal Hazardous Substances Act; and willfully attempted to mislead appellants through use of a withdrawn commercial standard.2 Amsterdam, in turn, filed

Page 1082

a third-party complaint alleging that since Syracuse manufactured and labeled the product, it was liable for "any negligence, breach of warranty, and/or violation of Federal regulations." In January 1975, Amsterdam filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law because the label met the requirements of the Federal Hazardous Substances Act and because a federal regulation with more stringent requirements was inapplicable. Appellants responded to the motion in two ways: they filed an opposition, primarily arguing that the applicability of the federal regulation turned on questions of fact; and they also filed a motion to amend the complaint by adding Syracuse as a party defendant and by including causes of action based upon strict liability and breach of warranty.

It was undisputed that VICO-102 is a mastic adhesive and is "extremely flammable" and a "hazardous substance" within the meaning of the Federal Hazardous Substances Act,3 which prescribes precautionary labeling requirements for certain products used in the household.4 The label on the can purchased by appellants provided the following warnings:

See Cautions elsewhere on label.


Appellants apparently conceded that the warnings satisfied the minimum standards of the Act. They argued instead that the label was insufficient under a regulation establishing special requirements for "contact adhesive and similar liquid or semi-liquid articles." 16 C.F.R. § 1500.133 (1970). Among other things, the regulation required a specific warning to extinguish all pilot lights.5

Page 1083

Both parties, in their arguments before the trial court, concentrated on the issue of whether mastic adhesive was "semi-liquid" and "similar" to contact adhesive. Thus, the trial court determined that the only issue present in the case involved the interpretation of the federal regulation, which was a question of law. It ruled that the regulation was not intended to cover mastic adhesives and that since Amsterdam had complied with the requirements of the Federal Hazardous Substances Act, it was entitled to judgment as a matter of law. Appellants' motion to amend the complaint was denied in view of the summary judgment.


Appellants present a number of arguments on appeal, one of which is that the adequacy of the warning on the VICO-102 label is a genuine issue of material fact which precluded entry of summary judgment. Specifically, they contend that the Federal Hazardous Substances Act establishes only the minimum standards required of a seller or a manufacturer of a product; and that even if the VICO-102 label satisfied all applicable federal requirements, the warning was not adequate as a matter of law.

Before discussing the merits of this argument, we must first address appellees' contention that entry of summary judgment was proper because the trial court correctly ruled on the issues framed by the summary judgment papers. The complaint clearly stated a cause of action for negligence based on (1) failure to provide adequate warnings on the VICO-102 label and (2) failure to comply with the labeling requirements of the Federal Hazardous Substances Act. In its motion for summary judgment, Amsterdam addressed only the latter point, apparently assuming that compliance with the federal requirements precluded a finding of negligence.6 Appellants did not clearly articulate their disagreement with this assumption in their opposition to the motion,7 although at the hearing their counsel frequently referred to the federal regulations as "minimum standards." The trial court, after expressly recognizing that this is a negligence action, stated, "It may be that the standards set forth under the Federal Hazardous Substances Act are not adequate to protect the public in the use of flammable or dangerous commodities. It is not the function of the Court to set such standards but merely to interpret such standards as set forth by the experts."

In reviewing the propriety of a summary judgment, we must determine whether there was any issue of fact pertinent to the ruling and also whether the substantive law was correctly applied.8 A summary judgment is properly granted only where the pleadings and other materials on file demonstrate that no genuine is

Page 1084

sue of fact remains for trial and that the moving party is entitled to judgment as a matter of law.9 Furthermore, it is the movant's burden to demonstrate the absence of any factual issue10 and also to show its entitlement to a favorable determination under applicable principles of substantive law.11 If the movant does not meet its initial burden, summary judgment must be denied even where the opponent comes forth with nothing.12 Thus, in the case at hand, it was Amsterdam's obligation to show that summary judgment in its favor was warranted under applicable legal principles. If the substantive law was incorrectly applied and there remains an issue of fact to be tried, the summary judgment must be reversed.

Under common law, a seller has a duty to give adequate warnings of the hazards involved in the use of a product...

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