Bushong v. Garman Co.

• Decision Date: 07 December 1992
• Docket Number: No. 92-436,92-436
• Citation: 843 S.W.2d 807,311 Ark. 228
• Parties: Raymond BUSHONG and Betty Bushong, Appellants, v. The GARMAN COMPANY and the Clorox Company, Appellees, Continental Casualty Company, Intervenor.
• Court: Arkansas Supreme Court

Page 807

843 S.W.2d 807

311 Ark. 228

Raymond BUSHONG and Betty Bushong, Appellants, v.The GARMAN COMPANY and the Clorox Company, AppelleesContinental Casualty Company, Intervenor.

No. 92-436.

Supreme Court of Arkansas.

Dec. 7, 1992.

Snellgrove, Laser, Langley & Lovett, Jonesboro, for appellants.

Donn Mixon, Jonesboro, for appellees.

CORBIN, Justice.

On May 12, 1988, appellant, Raymond Bushong, was cleaning a bathroom on the premises of Stewart Electric, his employer, in Jonesboro, Arkansas.Appellant was trying to remove grease from the bathroom floor and had used almost an entire gallon of undiluted Clorox without success when a co-employee, Greg Rollins, suggested he try using Vapco Brite' Alum, an air conditioner coil cleaner.Greg Rollins poured approximately one-half ( 1/2) a cup of the Vapco Brite' Alum on the floor directly on top of the Clorox Bleach which was already there.Vapco Brite' Alum is a product sold to refrigeration and air conditioning wholesalers to clean condenser coils and refrigeration and air conditioning units.It is intended for use by professional refrigeration and air conditioning service personnel.Neither appellant nor Greg Rollins are professional refrigeration or air conditioning service personnel, although their employer, Stewart Electric, employed such people.Neither appellant nor Greg Rollins read the labels of either the Clorox Bleach or the Vapco Brite' Alum.Appellant had never read the labels of any of the products he used in cleaning.At the time of the accident, appellant was a warehouseman who also did some cleaning for Stewart Electric and Greg Rollins was an estimator for Stewart Electric.Neither appellant nor Greg Rollins had ever used Vapco Brite' Alum before, but both were aware it was used in cleaning air conditioners.After the Vapco Brite' Alum was poured onto the floor, appellant continued to clean the floor in the bathroom, which was approximately four (4) feet by four (4) feet.Soon after, the mixture started to foam and a white fog vapor was coming up from the floor which appellant inhaled.Appellant claims the inhalation of these vapors caused him personal injury.

Appellant filed a complaint on April 5, 1990, against The Clorox Company, the manufacturer of Clorox Bleach, The Garman Company, the manufacturer of Vapco Brite' Alum, and Greg Rollins.As to The Clorox Company and The Garman Company, appellant alleged they:

negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [the irrespective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by [appellant] causing him great damages and injuries....

... expressly and impliedly warranted that [their respective products] were fit for the purpose for which they were intended....

... are absolutely or strictly liable in that they manufactured and marketed [their respective products] and failed to issue proper and necessary warnings when [they] knew or should have known that the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas.

Appellant alleged Greg Rollins

was negligent in that he failed to use that degree of care exercised by ordinary and prudent persons under the same or similar circumstances and further, he knew or ought to have known by the exercise of ordinary care that the mixing of the aforementioned two chemicals would cause a cloud of fumes which would be harmful to Plaintiff.

Continental Casualty Company, appellant's employer's insurance carrier at the time of the accident, moved to intervene pursuant to Ark.R.Civ.P. 24andArk.Code Ann. § 11-9-410(1987) of the Arkansas Workers' Compensation Act.The order allowing the intervention was filed on July 25, 1990.

On October 9, 1991, appelleeClorox Company moved for summary judgment.On October 22, 1991, appellant filed an amended complaint re-alleging the same causes of action, but expanding the absolute or strict liability claim to allege:

[t]he defendants, Garman and Clorox, are absolutely or strictly liable in that they manufactured and marketed the products herein and failed to issue proper and necessary warnings when the said Defendants knew or should have known that the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas.The Defendants are also strictly liable in tort inasmuch as both produced a defective product.The Clorox product was defective in the fact that it contained sodium hypochlorite the brite alum was defective in that it contained hydrofluoric acid.Either chemical in combination with other chemicals could release a poisonous gas and were dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics.Both products would fail to perform as safely as an ordinary consumer would expect them to perform when used in an intended or reasonably foreseeable manner.Further the benefits of the products do not outweigh the risks of danger inherent in their design.

On November 12, 1991, appelleeGarman Company also moved for summary judgment.

On November 19, 1991, the trial court found "the warnings on the labels for Clorox and Brite' Alum, the respective products of Clorox Company and Garman Company, are adequate under the facts of this case and that Raymond Bushong and Greg Rollins failed to read the labels" and for that reason granted partial summary judgment in favor of Clorox Company and Garman Company on all allegations of failure to warn and improper labeling.Summary judgment was also granted on the breach of warranty issues upon appellant's admission that they did not have a case for breach of express or implied warranties.On December 3, 1991, Clorox Company filed a supplemental motion for summary judgment on the product defect and negligent manufacture issues.On January 8, 1992, the trial court granted the supplemental motion for summary judgment and found "all claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice."Appellant's and intervenor's, Continental Casualty Company's, claim against Greg Rollins was dismissed without prejudice pursuant to plaintiff's oral motion in open court for a voluntary nonsuit against Greg Rollins.This appeal followed.Since this case presents questions in the law of torts, our jurisdiction is proper pursuant to Ark.Sup.Ct.R. 29(1)(o).

On appeal, appellant cites four points of error in the trial court's granting of summary judgment to appelleesThe Clorox Company and The Garman Company.They are (1) the warning on the labels for Clorox and Brite' Alum are not adequate as a matter of law; (2) the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings; (3) there are material issues of fact to be determined in this cause; and (4)the trial court erred in refusing to require separate appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite' Alum, before ruling on the motion for summary judgment.

I.ADEQUACY OF THE WARNINGS

For his first point of error, appellant alleges the trial court erred in finding the warnings on the labels for Clorox and Brite' Alum were adequate as a matter of law under the facts of this case.We need not reach this issue since we uphold the trial court's granting of summary judgment on the failure to warn and improper labeling issues based on appellant's failure to read the labels.We do note, however, that adequacy of a warning is generally a question of fact for the jury.SeeFirst Nat'l Bk., Albuquerque v. Nor-Am Agric. Prod., Inc., 88 N.M. 74, 537 P.2d 682(Ct.App.1975)(and cases cited therein), cert. denied;Uptain v. Huntington Lab, Inc., 685 P.2d 218(Colo.Ct.App.1984), aff'd en banc723 P.2d 1322(Colo.1986).

II.FAILURE TO READ WARNINGS

For his second point of error, appellant alleges the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings and it was error for the trial court to grant summary judgment on this basis.We have not previously addressed this issue.

The parties have cited cases from various jurisdictions which hold both that failure to read the label precludes a claim of inadequate warning and that it does not.We think the better rule is that failure to read a label does not automatically preclude a claim for inadequate warning.We find the rule applied in Safeco Ins. Co. v. Baker, 515 So.2d 655(La.Ct.App.1987) particularly persuasive and we adopt the reasoning therein.Safeco holds the plaintiff originally has the burden of proving the warnings or instructions provided were inadequate.Once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded adequate warnings or instructions.This presumption may be rebutted by evidence "which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances."Safeco Ins. Co., 515 So.2d 655, 657(La.Ct.App.1987);See alsoJohnson v. Niagara Mach. & Tool Works, 666 F.2d 1223(8th Cir.1981).In this case, appellant himself admitted that he had never read a label on a cleaning product during the three years he worked at Stewart Electric.Given this, we cannot say the trial court erred in finding appellant's failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.

III.NEGLIGENCE...