Drayton v. Jiffee Chemical Corporation

• Decision Date: 19 June 1975
• Docket Number: No. C 72-891.,C 72-891.
• Citation: 395 F. Supp. 1081
• Parties: Terri DRAYTON, a Minor, By Her Mother and Next Friend Bernice Drayton, and Bernice Drayton, Plaintiffs, v. The JIFFEE CHEMICAL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Ohio

395 F. Supp. 1081

Terri DRAYTON, a Minor, By Her Mother and Next Friend Bernice Drayton, and Bernice Drayton, Plaintiffs, v. The JIFFEE CHEMICAL CORPORATION, Defendant.

No. C 72-891.

United States District Court, N. D. Ohio, E. D.

June 19, 1975.

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COPYRIGHT MATERIAL OMITTED

Edward M. Swartz, Swartz & Swartz, Boston, Mass., David A. Katz, Cleveland, Ohio, for plaintiffs.

Thomas P. Mulligan, Richard B. Whitney, Kathleen B. Burke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for defendant.

FINDINGS OF FACT AND CONSLUSIONS OF LAW

BATTISTI, Chief Judge.

This action arose out of the severe facial disfigurement incurred by the infant plaintiff, Terri Drayton, as a result of a chemical burn. After a trial to the court, the following facts have been established.

The incident in question occurred on December 21, 1968. At that time both plaintiffs, the infant Terri Drayton and her mother Bernice Drayton, lived in a boarding house in Cleveland, Ohio. The house was occupied by several other tenants including James Henderson, the putative father of Terri Drayton.

At approximately 7:00 p. m. on the night of December 21, 1968 Bernice Drayton and her daughter were on the first floor of the boarding house readying it for Christmas by decorating the Christmas tree and retrieving toys and decorations from the basement. At about that time Henderson returned home¹ and obtained a bottle of "liquid-plumr" from his landlady, Mrs. Sorrell, for the purpose of clearing a clogged drain in the second floor bathroom sink. As he ascended the stairs, Henderson had his daughter, Terri, in one arm and the bottle of liquid-plumr in the other. Henderson testified that as he climbed the stairs he read a portion of the label.

At the top of the stairs, Henderson put Terri on the floor in the hall and entered the bathroom alone. According to the testimony, he then poured half of the bottle of liquid-plumr into the drain and placed the uncapped bottle on the back of the sink adjacent to the left faucet. Henderson then placed a towel over the open drain and stepped back from the sink. At that moment Terri grabbed his leg and screamed. When Henderson looked down at the child, she had been doused with the liquid drain cleaner. Henderson testified that he was unaware of the child's presence in the bathroom until the instant he heard her scream.

Immediately after the accident, Henderson took the child downstairs where both Bernice Drayton and Mrs. Sorrell were present. Recalling that the label said "something about burns" and "something about water" Henderson wet his handkerchief and dabbed at Terri's face. After some confusion, Henderson, Mrs. Drayton, Mrs. Sorrell, and Terri drove to Forest City Hospital so that the child might be treated. Apparently the physicians at Forest City were not equipped to adequately cope with the extensive burns suffered by Terri Drayton. For that reason she was referred to University Hospitals for admission, a transfer that entailed an additional twenty-five minute delay. As a result of the injuries sustained on December 21, 1968, Terri Drayton has been hospitalized on eight separate occasions, undergone eleven operative procedures, and compiled a 190 page hospital record — all at the age of seven.

The product that allegedly caused Terri Drayton's injuries, liquid-plumr, is designed, manufactured, and marketed by defendant Jiffee Chemical Corporation, an Indiana corporation. At the time of the accident the chemical formulation of liquid-plumr was as follows: 26% sodium hydroxide; 1% or less trisodium phosphate; 1% or less orthosilicate; and 68-72% water. The chemical constitutent sodium hydroxide is more commonly known as lye. Liquid-plumr was designed as an all-purpose drain cleaner for use in both the kitchen and bathroom. It is clear, however, that liquid-plumr is more effective on kitchen drain problems because of its chemical design. The product is essentially an organic decomposer that dissolves grease through a process of saponification. The sodium contained in the solution attacks the grease, rapidly turning it into molten soap. Considerable internal heat is created by the chemical reaction which further speeds the process. The newly formed soap then flows freely down the drain.

Bathroom drain stoppages are generally the result of accumulated hair. Because of the protein composition of hair, liquid-plumr utilizes a shrinkage process rather than one of saponification. As a result liquid-plumr is less effective in cleaning bathroom drains.

In April, 1969, the Jiffee Chemical Corporation, manufacturer of liquid-plumr, was acquired by the Clorox Company. Mr. Summerfelt, who is the Manager of Specialty Products for Clorox, testified that immediately upon acquisition of Jiffee, Clorox embarked upon an intensive program to reformulate liquid-plumr so as to achieve better performance and greater safety. The new formula contains 5% potassium hydroxide which, by its nature, is less caustic than sodium hydroxide. Paradoxically, the new formula, marked by less causticity, has been more effective on grease deposits while being far safer to handle.²

I. Plaintiffs' theories of liability:

Plaintiffs essentially set forth three separate grounds for recovery: (1) negligence (2) breach of warranty, and (3) strict liability in tort. Negligence is alleged with regard to the design and development of the product iself, its container, the warnings contained on the label, as well as the marketing of an unnecessarily dangerous product. In addition, defendant is charged with breach of express and implied warranties that the product and its container were safe, merchantable, and fit for their intended purposes. Finally, plaintiffs contend that Jiffee marketed a product and container that were dangerous and defective in design, formulation, and labeling making them unreasonably hazardous. Plaintiffs also seek recovery of punitive damages.

II. Defendant's contentions:

Basically, defendant argues that it is free of any negligence in the design, formulation, manufacture, packaging or labeling of liquid-plumr. In addition Jiffee contends that liquid-plumr was not unreasonably dangerous since at the time of the accident there was no known formulation that would have been as effective yet safer for consumer use. It is also asserted by defendant that the proximate cause of Terri Drayton's injuries was the intervening and superseding negligence of James Henderson. Finally, Jiffee denies that it was their product (liquid-plumr) that was being used by Henderson at the time of the accident.

III. Alleged Misidentification of the product:

With regard to this last contention, it is significant to note that the container which Henderson used to clear the bathroom drain was never recovered nor were the circumstances of its disposal ascertained. Given the emotional atmosphere that surrounded the accident and its aftermath it is most likely that the container was disposed of without regard to what role it might play in possible future litigation. Thus the identity of the injury-causing product must be determined from the testimony of those who were present in the boarding house at the time of the accident.

The landlady of the boarding house, Mrs. Sorrell, testified that she bought a bottle of liquid-plumr in 1966, more than a year before the incident that is the subject of the instant action. She was quite definite in her testimony as was Mrs. Drayton who said that she remembered the name "liquid-plumr" because "those words were large."

Defendant argues that the injury-producing product was not "liquid-plumr" but rather "Mister Plumber", a drain cleaner composed of 92-93% sulfuric acid. The basis for such argument is certain behavior by Henderson that is arguably inconsistent with the recommended procedures for employing liquid-plumr. Great emphasis is placed on Henderson's covering of the drain with a towel immediately after pouring in the drain cleaner. At a 1972 deposition Henderson testified:

Q. You said, as I understand it, you poured some liquid-plumr into the sink and then put a towel on top of it?

A. Right.

Q. Why did you do that?

A. As I remember reading the label, it said something about odors, you know, giving off a bad odor or something, so I placed a towel over it.

At trial, Henderson's testimony was substantially identical.

The reason for defendant's reliance on Henderson's covering the drain with a towel emanates from the precise wording of the liquid-plumr and Mister Plumber labels. The liquid-plumr label is virtually devoid of any reference to odors. On the front of the label it says merely "No Odor." The Mister Plumber label, however, specifically directs that the drain be covered with a wet cloth. It also states "have plenty of VENTILATION as unpleasant odors may arise. Covering drain with wet cloth will help." Inasmuch as Henderson testified that he had had no prior experience with drain cleaners such behavior is certainly more consistent with having read the Mister Plumber directions than those contained on the liquid-plumr label. Such an inference, however, is not sufficient to offest the uncontroverted (albeit self-serving) testimony of Henderson, Mrs. Drayton, and Mrs. Sorrell. For such an inference to prevail, this Court would have to find the unequivocal testimony of all three of the above witnesses to be incredible — something which it is not prepared to do.

Similarly, defendant finds great significance in Henderson's dabbing Terri's face with a wet handkerchief rather that flushing it with water. Resort, again, is had to the exact wording of the respective labels. The liquid-plumr label calls for the affected area to be flushed or flooded with large amounts of water. Mister Plumber, on the other hand, directs that the area be wiped gently prior to being flooded with water. This act by Henderson, which was reasonable and prudent under the circumstances, is too fragile an...