Edwards v. California Chemical Co., 69-695

• Citation: 245 So.2d 259
• Decision Date: 19 February 1971
• Docket Number: No. 69-695,69-695
• Parties: Ivy EDWARDS, Appellant, v. CALIFORNIA CHEMICAL COMPANY, a Delaware corporation, and Hector Supply Co., a Florida corporation, Appellees.
• Court: Court of Appeal of Florida (US)

Page 259

245 So.2d 259

Ivy EDWARDS, Appellant, v. CALIFORNIA CHEMICAL COMPANY, a Delaware corporation, and Hector Supply Co., a Florida corporation, Appellees.

No. 69-695.

District Court of Appeal of Florida, Fourth District.

Feb. 19, 1971.

Rehearing Denied March 25, 1971.

Maurice Fixel of Meyer, Leben, Fixel & Gaines, Hollywood, for appellant.

Michael D. Sikes of Sherouse, Corlett, Merritt, Killian & Okell, Miami, for appellee-California Chemical.

Thomas J. Schulte and David L. Willing of Dean, Adams, George & Wood, Miami, for appellee-Hector Supply Co.

WALDEN, Judge.

This negligence case was terminated in the trial court by entry of summary judgment against the plaintiff. He appeals. We reverse because of the existence of genuine issues of material fact that preclude summary disposition. ¹

A summary judgment review of the record ² reveals that plaintiff, an illiterate, labored at the Boca Raton Hotel and Country Club taking care of the golf course grounds. He become ill from arsenic poisoning following use of Ortho Standard Lead Arsenate. This product was manufactured by the defendant, California Chemical Co., and was sold and distributed by the defendant, Hector Supply Co.

Lead arsenate is highly toxic. It can be absorbed into the body by inhalation, contact with unbroken skin and digestion. To safely use the product the user must wear protective clothing and employ a respirator.

The gravamen of plaintiff's complaint and the crux of this appeal centers upon the defendant's failure to warn the plaintiff of the necessity for a user to employ a respirator and protective rubber or neoprene clothing. More particularly, we must decide if the warning contained upon the product's label was a sufficient warning as a matter of law so as to entitle defendants to summary judgment.

On one side of the bag containing the lead arsenate were printed lengthy and

specific instructions for use as an insecticide as concerns its application to various agricultural crops including that of lawns and golf greens, as follows:

ORTHOR STANDARD LEAD ARSENATE

READ ENTIRE LABEL.USE STRICTLY IN ACCORDANCE WITH CAUTIONS, WARNINGS AND DIRECTIONS, AND WITH APPLICABLE STATE AND FEDERAL REGULATIONS.USES,TIMINGS AND DOSAGE MAY VARY AS A CONSEQUENCE OF LOCAL WEATHER OR CONDITIONS;WE RECOMMEND REFERENCE TO LOCAL AGRICULTURAL AUTHORITIES CONCERNING SPECIFIC USEAGE.

DIRECTIONS

Official recommendations for the use and dosage of Lead Arsenate vary in different sections. Use ORTHO Standard Lead Arsenate according to the standard practices in your locality for the control of those insects against which Lead Arsenate is effective. The following general direction are suggested as a guide for the use of this material.

APPLES, PEARS, QUINCES: Codling Moth, Leafrollers, Plum Curculio, Tent Caterpillars--Use 3 lbs. to 100 gals. water for Calyx and cover sprays. For Apple Maggot-Use 2 lbs. per 100 gals. Consult your ORTHO Fieldman or your local Agricultural Authority in regard to the number and dates of applications. California Oak Moth, Red Humped Caterpillar and Tent Caterpillar-Use 3 to 4 lbs. to 100 gals. water when insects first attack foliage.

CHERRIES (Eastern States): Cherry Maggot--2 1/2 lbs. to 100 gals. water. Apply according to local recommendations.

GRAPES: Achemon Sphinx Moth, Grape Root Worm, Grape Leaf Folder-- Use 3 to 4 lbs. to 100 gals. water. (400 gals. diluted spray per acre) when insects first attack foliage. Do not apply after edible parts start to form.

WALNUTS: Codling Moth (California)--2 to 3 lbs. in 100 gals. water. (1500 gals. diluted spray per acre). Combine with 1/2 lb. safener, DELMO-Z Spray or ORTHO Spray Lime and 1/3 gal. ORTHOL-K Light Medium Flowable Emulsion plus 1/2 lb. ORTHO DDT 50 Wettable for first bloom spray usually early May. Under severe conditions a second application may be needed during late June. Do not apply to walnuts after the husks open.

POTATOES, TOMATOES: Colorado Potato Beetle, Armyworms, Tomato Fruitworm, Sphinx Moth--Use 4 to 6 lbs. either alone or with about 3 lbs. or ORTHO Spray Lime in 100 gals. water. Use no more than 200 gals. diluted spray per acre. For Small Quantity Dosage-Use 2 level teaspoonfuls to 1 qt. water (8 level teaspoonfuls (3 1/3 tablespoonfuls) to 1 gal. water). Tomato Furitworm-Treat up to harvesting. For dusting Potatoes for above pests: Use this material as it comes form the package at the rate of 5 to 7 lbs. per acre, or mixed with from 3 to 5 times as much ORTHO Spray Lime.

LAWNS AND GOLF GREENS: Sod Webworm, Lawn Moth, Cutworms, White Grubs, Earthworms (Night Crawlers)-Use in accordance with the recommendations of local Agricultural Authorities. 5 lbs. per 1000 sq. ft. of turf is the usual rate of application. Japanese Beetle Larvae (Eastern States)--Use 10 lbs. per 1000 sq. ft. Keep children and pets off treated ares until this material has beene washed into the soil.

TO MIX: Put water in spray tank slightly above agitator. Start the agitator. Slowly shake the required quantity of ORTHO Standard Lead Arsenate into the water, agitate until a uniform mixture is made, then fill tank with water. Keep the solution constantly agitated while spraying. When combining with ORTHO oil sprays, follow mixing directions on labels.

NOTE: When using on plants having tender foliage, always add from 8 to 10 lbs. ORTHO Spray Lime to each 100 gals. diluted spray. When used alone on plants with hardy, or reasonably hardy, foliage, the addition of Chemically Hydrated Lime in this way is a good practice also.

NOTICE ON CONDITIONS OF SALE:1. Chevron Chemical Company (manufacturer) warrants that this material conforms to the chemical description on the label and is reasonably fit for use as directed hereon. Manufacturer neither makes, nor authorizes any agent or representative to make, any other warranty, guarantee or representation, express or implied, concerning this material.

2. Because critical, unforseeable factors beyond the manufacturer's control prevent it from eliminating all risks in connection with the use of chemicals even though reasonably fit for such use, buyer and user acknowledge and assume all risks and liability (except those assumed by the manufacturer under 1 above) resulting from handling, storage, and use of this material. These risks include, but are not limited to, damage to plants, crops and animals to which the material is applied, failure to control pests, damage caused by drift to other plants or crops, and personal injury. Buyer and user accept and use this material on these conditions, whether or not such use is in accordance with directions. FORM 6158-D' (A3841)

The product was labeled on the other side, as concerns its warning of danger, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

                                       COLORED
                               SOLD AS AN INSECTICIDE
                Active Ingredient                              By Wt
                  Standard Lead Arsenate (PbHAsO sub4             95%
                Inert Ingredients                                  5%
                  Lead expressed as Metallic            56.7%
                  Arsenic expressed as Metallic         20.5%
                  Water soluble Arsenic expressed
                  as Metallic, not more than             0.5%
                

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

ANTIDOTE: For Arsenic--Give a tablespoonful of salt in a glass of warm water and repeat until vomit fluid is clear. Then give two tablespoonfuls of Epsom Salt or Milk of Magnesia in water and plenty of milk and water. Have victim lie down and keep quiet. CALL A PHYSICIAN IMMEDIATELY.

DANGER:

KEEP OUT OF REACH OF CHILDREN

DO NOT INHALE

DO NOT GET ON SKIN

DO NOT TAKE INTERNALLY

WARNING:Poisonous if swallowed. Avoid breathing dust or spray mist. Avoid contact with skin, eyes, or clothing. Wash thoroughly after using. Do not apply to fruits and vegetables except Tomatoes within 30 days of harvest unless otherwise specified. Wash sprayed fruit and vegetables at harvest. Avoid contamination of forage crops and pasture. Do not apply under conditions involving possible drift to food, forage or other plantings that might be damaged or the crops thereof rendered unfit for sale,use or consumption.

DIRECTIONS ON BACK

NET WEIGHT Completely empty Bag and dispose of

4 POUNDS waste pesticide by burying. Burn bag

immediately and stay out of smoke.

Residue and ashes from burned bags

must also be buried.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As can be seen--this without dispute--there was no warning or indication upon the label that a respirator and protective clothing were required for safe use.

It is clear that manufacturers and sellers of inherently dangerous products have a duty to give users a fair and adequate warning of its dangerous potentialities. ³ And clearly plaintiff was within a class who would foreseeably use the product and be harmed in the absence of adequate warning.

Turning to the warning...