Dougherty v. Hooker Chemical Corp.

• Decision Date: 08 September 1976
• Docket Number: No. 75-2270,75-2270
• Citation: 540 F.2d 174
• Parties: Nancy May DOUGHERTY, Administratrix of the Estate of Wayne Dougherty, Deceased, Appellant, v. HOOKER CHEMICAL CORPORATION (Subsidiary of Occidental Petroleum Corporation) et al., Third-Party Plaintiffs, v. BOEING VERTOL COMPANY, Third-Party Defendant.
• Court: U.S. Court of Appeals — Third Circuit

Page 174

540 F.2d 174

Nancy May DOUGHERTY, Administratrix of the Estate of Wayne

Dougherty, Deceased, Appellant, v. HOOKER CHEMICAL CORPORATION (Subsidiary of Occidental

Petroleum Corporation) et al., Third-Party Plaintiffs, v. BOEING VERTOL COMPANY, Third-Party Defendant.

No. 75-2270.

United States Court of Appeals Third Circuit.

Submitted May 4, 1976.

Decided July 30, 1976.

As Amended Sept. 8, 1976.

Herbert Monheit, Tod I. Mammuth, Philadelphia, Pa., for appellant.

Donald J. P. Sweeney, Thomas E. Thomas, McWilliams & Sweeney, Philadelphia, Pa., for appellee.

Curtis Wright, Timoney, Knox, Avrigian & Hasson, Ambler, Pa., for Boeing Vertol Co., third party defendant.

Before ALDISERT, GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Plaintiff, as administratrix, brought this diversity action against Hooker Chemical Corporation, a manufacturer of trichloroethylene (hereinafter called "TRI"). She alleged among other things, that Hooker failed to give adequate warnings of the dangers and fatal properties of TRI, and as a result, her husband by working with TRI sustained injuries which eventually led to his death. At the close of the plaintiff's case, which had been limited solely to the adequacy of the warnings given by Hooker, the district court granted Hooker's motion for a directed verdict. We reverse.

I.

Wayne Dougherty, the plaintiff's decedent, was employed by Boeing Vertol Company in Pennsylvania as a helicopter transmission rebuilder. His primary duty was to disassemble, clean and then reassemble military helicopter transmissions. Dougherty's work was performed in two buildings in which were located degreasing tanks each containing 200 gallons of TRI heated to a temperature in excess of 190o F. The disassembled helicopter parts were cleaned by submerging them into the TRI.

The TRI used in the degreasing operation was supplied to Boeing by Hooker. The TRI was packaged, shipped and stored in 55 gallon drums. Affixed to the drum was the following warning:

Hooker had also prepared and submitted to Boeing a "Data Sheet for Toxicological and Safe Handling Information" which listed the following health hazards from inhalation of TRI vapor:

Victim may experience nausea and vomiting, drowsiness, acquire an attitude of irresponsibility and behave in a manner resembling any stage of alcoholic intoxication.

As to precautions for normal use, the data sheet recommended "good housekeeping and normal operating procedures."

In addition to the warnings submitted by Hooker, Boeing had in its possession Chemical Safety Data Sheet SD-14 prepared by the Manufacturing Chemists Association (MCA) which discussed the safe handling and use of TRI. The fifteen page MCA data sheet listed several health hazards including the possibility of death from acute and subacute TRI poisoning.

Dougherty who had been employed by Boeing for several years prior to his death in January, 1971, died of cardiac arrest, the cause of which a consulting physician believed to be TRI poisoning. The complaint, filed in the Eastern District of Pennsylvania, asserts among other claims that Hooker failed to adequately warn of the dangerous nature of TRI. ¹

The pretrial order directed the "warnings" issue be tried first and apart from the other issues of liability and damages. At the conclusion of the plaintiff's case on warnings, Hooker moved for a directed verdict on the ground that the warnings were sufficient as a matter of law. The district court in an oral opinion granted Hooker's motion, holding that the warnings given were adequate and that, in any event, Boeing was independently aware of the possible fatal consequences of TRI inhalation. ² This appeal followed the entry of judgment for Hooker.

II.

As stated, the plaintiff sought recovery against Hooker based primarily on theories of strict liability and negligence. The intermingling at trial of these theories of liability (Restatement (Second) of Torts §§ 388 and 402A) ³ requires a brief reference to both concepts as they bear upon the instant action. Section 402A strict liability arises from the sale of any product in a defective condition unreasonably dangerous to the user or consumer. Pennsylvania holds that a product which contains inherent dangers is defective when sold if not accompanied by sufficient warning. ⁴ Under such circumstances, the seller is held to strict liability if such a defective product reaches the ultimate consumer "without substantial change in the condition in which it is sold." Section 402A(1)(b).

Under § 388, liability arises when the seller, having reason to know that its product is likely to be dangerous for its intended use, and having no reason to believe that the intended user will realize its dangerous condition, nevertheless fails to exercise reasonable care to inform the user of the dangerous condition. Thus, the differences between the two concepts have been stated as:

In strict liability it is of no moment what defendant 'had reason to believe.' Liability arises from 'sell(ing) any product in a defective condition unreasonably dangerous to the user or consumer.' It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability.

Jackson v. Coast Paint and Lacquer Company, 499 F.2d 809, 812 (9th Cir. 1974).

Here, as we have noted, both theories were pleaded and apparently acknowledged by the parties and the court. The plaintiff, while asserting in its brief on appeal that it had established a prima facie strict liability case under § 402A, nevertheless refers to the various elements of § 388 to support its position that the defendant Hooker did not warn Boeing's employees. The defendant's response is also in terms of "adequate warnings" and implicates the negligence concept of § 388. The district court's opinion which focuses overall on the requirement of warnings apparently addressed itself to both theories when it granted the defendant's motion for directed verdict.

We find it unnecessary to discuss or to decide the applicability of § 402A in this factual context or whether the warning requirements under Pennsylvania law of § 402A ⁵ are the same or more stringent than those of § 388, for we are satisfied that a jury question was presented with respect to Hooker's exercise of reasonable care under § 388. In such a situation, it would be error to grant a directed verdict for the defendant if there is evidence reasonably tending to support the recovery by plaintiff as to any of its theories of liability. Rochester Civic Theatre, Inc. v. Ramsay, 368 F.2d 748 (8th Cir. 1966); Vareltzis v. Luckenbach Steamship Company, 258 F.2d 78 (2d Cir. 1958); Clark v. McNeill, 25 F.2d 247 (5th Cir. 1928).

III.

Therefore, putting aside considerations of strict liability, we turn to those principles of negligence law which are embodied within § 388 to determine whether as a matter of law, Hooker, the manufacturer of TRI, exercised reasonable care to warn Boeing's employees of the dangerous properties of TRI. Thus, for Hooker to be held liable, all the conditions of § 388 (see n.3 supra ) must be met. Suchomajcz v. Hummel Chemical Company, 524 F.2d 19 (3d Cir. 1975). Here, however, the trial court limited the only liability issue to be tried at this stage to the adequacy of the warnings, the third requirement of § 388. For our purposes, therefore, we too restrict our review to the evidence concerning only subsection (c) of § 388 (i. e.); whether Hooker failed "to exercise reasonable care to inform them (the employees of Boeing) . . . of the facts which made it (TRI) likely to be dangerous." Stated otherwise, in the context of this case, were the TRI warnings given by Hooker to Boeing sufficient to the extent that reasonable men could not differ in finding that Boeing was so activated or "triggered" by the Hooker warnings that it would necessarily inform its employees of all TRI's dangerous propensities.

IV.

Comment n to § 388 is concerned with warnings given to third persons. It states in pertinent part:

Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. . . . It is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe. . . .

Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them, and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result . . . .

Thus, while it may be proper to permit a supplier to assume that one through whom he supplies a chattel which is only slightly dangerous will communicate the information given him to those who are to use it unless he knows that the other is careless, it may be improper to permit him to trust the conveyance of the necessary information of the actual character of a highly dangerous article to a third person of whose character he knows nothing. It may well be that he should take the risk that this information may not be communicated . . . (I)f the danger involved in the ignorant use of a particular chattel is...