Ellsworth v. Sherne Lingerie, Inc.

• Court: Maryland Court of Appeals
• Writing for the Court: Argued before MOYLAN and LISS, JJ., and JAMES C. MORTON, Jr.; LISS
• Citation: Ellsworth v. Sherne Lingerie, Inc., 481 A.2d 250, 60 Md.App. 104 (Md. App. 1983)
• Decision Date: 01 September 1983
• Docket Number: No. 1603,1603
• Parties: Elizabeth Horton ELLSWORTH v. SHERNE LINGERIE, INC., et al. ,

Page 104

60 Md.App. 104

481 A.2d 250

Elizabeth Horton ELLSWORTH v. SHERNE LINGERIE, INC., et al.

No. 1603, Sept. Term, 1983.

Court of Special Appeals of Maryland.

Sept. 10, 1984.

John A. King, Rockville, for appellant.

Matthew D. Osnos, Upper Marlboro, with whom were Kevin J. McCarthy and O'Malley, Miles, McCarthy, Harrell & Levin, Upper Marlboro, for appellee, Sherne Lingerie, Inc. William M. Nickerson, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on brief for appellee, Cone Mills Corp.

Argued before MOYLAN and LISS, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

LISS, Judge.

In February of 1981, Elizabeth Horton Ellsworth, ¹ appellant, filed a declaration in the Circuit Court for Montgomery County, in which she sued Sherne Lingerie, Inc., appellee (hereafter Sherne). The declaration alleged damages sustained by the appellant by reason of the defendant's negligence and strict liability. Subsequently, an amended declaration was filed in which Sherne was charged with a breach of implied warranty. Another defendant, Cone Mills Corporation, also an appellee herein (hereafter Cone Mills), was added as a co-defendant and the allegations as to negligence and strict liability were added to appellant's complaint against Cone. No breach of implied warranty was charged against Cone. Compensatory and punitive damages were sought against both defendants.

In her amended declaration the appellant alleged that she was seriously burned while wearing a flannelette nightgown which was unreasonably dangerous because of the high flammability of the fabric from which the nightgown had been made and because of an absence of any warnings of the danger inherent in the use of the nightgown.

Jury trial began on September 19, 1983. A directed verdict on the punitive damages count was entered in behalf of both defendants at the close of appellant's case-in-chief. The jury returned a general verdict in favor of both defendants on the remaining issues in the case. It is from these judgments that appellant has filed this appeal, raising the following issues:

I. Whether the trial court's refusal to instruct the jury that contributory negligence is not a defense to strict liability, and the trial court's actual instruction on product misuse constituted reversible error?

II. Whether there was prejudicial, reversible error in the trial court's evidentiary rulings as to:

The Statistical Data,

The British Sleepwear Law,

The "Burning Dress" Film,

The "Newspaper" Test, and

The Chart Illustrating Sherne Lingerie's Market Position?

STATEMENT OF FACTS

Appellant, Elizabeth Horton, was injured when her nightgown caught fire while she was in her kitchen making coffee. She was wearing the nightgown inside out so that two pockets at hip level were protruding.

Appellant placed a kettle over the small electric burner located on the front of the range. Most of the burner was covered by the kettle, with less than an inch of the burner exposed. As appellant reached over the range to a cabinet above it, in order to obtain a coffee filter, some part of her nightgown either touched or came close to the exposed portion of the burner. Although appellant was wearing the nightgown inside out, whether a protruding pocket was the actual ignition point was never resolved. One pocket was undamaged, the other partially burned. The burner height was approximately hip level where the pockets were protruding. Ms. Horton smelled something burning but did not discover that her gown was on fire until she felt the heat moving up her back. Damages were not seriously challenged by the defendants and are not an issue on appeal.

The nightgown was made from 87 1/2% cotton and 12 1/2% polyester fabric, manufactured and sold by Cone Mills Corporation; the nightgown was designed, manufactured and placed in the stream of commerce by Sherne Lingerie, Inc. It was an ordinary pullover type gown which has been a popular item of ladies' sleepwear for many years. In 1977, when this gown was manufactured, approximately thirteen million dozen items of cotton adult sleepwear were produced. This particular nightgown was the business mainstay of Sherne, and is still manufactured by Sherne today.

In early 1977, Cone Mills sold the fabric from which the nightgown was manufactured to Sherne, and at the direction of Cone's president, the shipping document included the following warning:

This fabric is not intended for use in children's sleepwear or robes in sizes 14 and under. Flammable. Does not meet standards for flammability in children's sleepwear, FF5-74 and U.S. Department of Commerce Standard DOC FF3-71. Should not be worn near source of fire.

The language was understood by Sherne to be a warning, but Sherne did not pass on this warning to consumers of its products. Sherne offered testimony that no manufacturer of ladies' nightwear places flammability warnings on cotton nightgowns.

Cone Mills marketed the fabric at issue for the adult sleepwear market. It was aware that ladies' nightwear has been the subject of particular investigation with respect to the adoption of new flammability standards by the federal government; that ladies' nightwear has been identified as a higher risk category than other apparel which has been investigated, and that ladies' adult sleepwear and kitchen ranges in combination has been identified as a significant hazard category by the federal government. A representative of Cone Mills testified that the nightgown worn by appellant should not have been worn while making coffee, because, among other reasons, of its loose and flowing design, although both defendants conceded that wearing this nightgown in close proximity to an electric range was foreseeable.

Defense experts, however, contended that the fabric was perfectly safe for use in an adult nightgown.

It was established that the fabric, and hence the garment, complied with the Federal Flammable Fabrics Act, the only federal standard applicable to general apparel.

The Federal Flammable Fabrics Act is contained in Title 15, Commerce and Trade, of the United States Code Annotated, §§ 1191-1204. Additionally, Title 16--Commercial Practices--of the Code of Federal Regulations, incorporates the Federal Flammable Fabrics Act and a complete description of the test method which it mandates. The Act renders unlawful the manufacture, sale, importing or introducing of fabric which, under the standard of flammability described in the Act, is so highly flammable as to be dangerous when worn by individuals. The standard provides for three separate classes of flammability as determined by a test method which measures both ease of ignition and the speed of flame spread.

The test method for the standard adopts Commercial Standard 191-53, developed in 1953, and provides for a testing apparatus which basically delineates as "normal" a flannelette textile which, after ignition, requires more than seven seconds for the flame to spread a measured distance in a controlled attitude and atmosphere. When the time of the flame spread is measured between four and seven seconds in the test apparatus, the textile passes the standard but is classified as "intermediate flammability." Textiles which test the flame spread in the apparatus at less than four seconds are termed "rapid and intense burning" and do not pass the standard. This standard measures the rate of burn of a 5-inch specimen of oven dried fabric mounted at a forty-five degree (45? ) angle. After ignition, the time that it takes for the flame to burn a cotton stop cord, which is placed at the top of the fabric, is measured. Raised fabric, such as cotton flannelette, fails if the time is less than four seconds. The burning time of the fabric at issue, according to that test method, is 9.8 seconds. See Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727 (Minn., 1980) for a case involving identical burning time.

The significance and validity of the federal standard as a measure of flammability hazard or safety was the subject of considerable disagreement among the experts at trial. The flammability characteristics of the fabric at issue were also strenuously disputed by the expert witnesses. Additionally, the experts disputed the feasibility of warning labels and methods of chemical flame retardancy.

Evidence which was excluded by the trial court included: oral evidence and federal publications offered to show the nature and magnitude of the risks posed by fabric and garments which comply with the federal flammability standard; oral and written evidence to show the magnitude of the hazard associated with ladies' sleepwear; a film which was offered to show the flammability and extinguishment characteristics of the fabric; evidence that ordinary newsprint passes the federal standard by a wide margin; and evidence that under longstanding British flammability standards the garment would be banned from commerce unless it were flame retarded or carried a flammability warning label.

I.

Appellant complains initially that the trial judge, over appellant's objection, erroneously instructed the jury that misuse of the product was a valid defense to the strict liability count of the declaration, and that such error was compounded by the refusal of the trial court to instruct the jury that contributory negligence was not a defense to that count. Appellant argues that these errors set the stage for defense counsel to argue, improperly, in their closing arguments, erroneous statements of the applicable law which equated accidental or careless conduct by the appellant with product misuse. That issue, however, has not been preserved for appeal. No objection was made to the argument by counsel. Maryland Rule 1085.

Appellant did make appropriate objection to the trial court's instruction that product misuse is a defense to strict liability and also to the trial court's refusal...