Ellsworth v. Sherne Lingerie, Inc.

Decision Date01 September 1984
Docket NumberNo. 130,130
Citation495 A.2d 348,303 Md. 581
Parties, 52 A.L.R.4th 247 Elizabeth Horton ELLSWORTH v. SHERNE LINGERIE, INC., et al. * ,
CourtMaryland Court of Appeals

John A. King, Rockville, for appellant.

Samuel J. DeBlasis, II, Upper Marlboro (O'Malley, Miles, McCarthy & Harrell, Upper Marlboro, on the brief), for appellee, Sherne Lingerie, Inc.

William M. Nickerson, Baltimore (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellee, Cone Mills Corp.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired, Specially Assigned).


This products liability case presents two issues for review. The first involves instructions given on the subject of product misuse in a claim of strict liability in tort. The second involves the admissibility of reports offered as public records, or as material customarily relied upon by experts in the field in forming the basis of an opinion.

On February 25, 1980 Elizabeth Horton Ellsworth was severely burned when the flannelette nightgown she was wearing ignited as a result of its proximity to a front burner of her electric stove. By her original and amended declarations the plaintiff sued the seller of the nightgown, Sherne Lingerie, Inc. (Sherne) and the manufacturer of the textile from which the nightgown was made, Cone Mills Corporation (Cone Mills). The plaintiff advanced three principal theories of liability and sought punitive as well as compensatory damages. First, she alleged that Sherne and Cone Mills were negligent in failing to treat the nightgown so as to make it flame-resistant, and in failing to adequately warn consumers of the dangerous and flammable nature of the garment. Next, she alleged under the theory of strict liability in tort that both defendants had placed a defective and unreasonably dangerous garment into the stream of commerce, and that they had failed to give warnings of the risks or hazards associated with the garment. Finally, she sought recovery from Sherne on the ground that it had breached its implied warranty that the nightgown was fit for ordinary purposes.

At trial, the following facts were established. On the morning of February 25, 1980 plaintiff wore a lady's nightgown into the kitchen to make coffee. She admitted that she was wearing the nightgown inside out and as a result the two pockets at the sides were flapping or protruding. The loosely fitting flannelette nightgown was made of a blend of 87 1/2 cotton and 12 1/2 polyester. The fabric had been manufactured and sold by Cone Mills, and the nightgown had been designed, manufactured and placed in the stream of commerce by Sherne.

In the kitchen, the plaintiff placed a tea kettle on the left front small burner of the electric range and turned the burner on "high." The kettle only partially covered the burner and approximately 1/16 to 1/2 inch of the burner's perimeter was exposed. The plaintiff reached above the stove to obtain a coffee filter from one of the cupboards, and as she was reaching her gown came very close to or in contact with the exposed portion of the burner. The evidence permitted but did not compel a finding that the ignition source was the left pocket. As a result of the burns, the plaintiff suffered severe and permanent injuries.

Cone Mills sold the fabric for the nightgown to Sherne in 1977, and included in the shipping invoice 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 BOCFF3-71. Should not be worn near source of fire.

The language in the invoice was understood by Sherne to be a warning but Sherne made no attempt to convey the warning to consumers. Sherne offered testimony that no other American sleepwear manufacturer passed on any warning to the consumer.

Both defendants conceded it was foreseeable that the nightgown would be worn in a kitchen, and a defense expert conceded the likelihood it would be worn in close proximity to an electric range. Defense experts contended, however, that the fabric was safe for use in adult sleepwear, and that the fabric of the nightgown as well as the finished garment complied with the Federal standard for flammability of clothing textiles. 1 1] Plaintiff's expert testified that the flammability characteristics of the nightgown caused it to be defective and unreasonably dangerous, and that the Federal flammability standard was inadequate for the protection of consumers in the light of information available at the time the nightgown was marketed.

At the close of the plaintiff's case the trial judge granted the defendants' motions for directed verdict on the punitive damage counts, and at the conclusion of the case the jury rendered a general verdict in favor of the defendants on the remaining counts. On appeal the Court of Special Appeals affirmed the lower court. Ellsworth v. Sherne Lingerie, Inc., 60 Md.App. 104, 481 A.2d 250 (1984). We granted plaintiff's petition for certiorari to consider the following questions: (1) Whether the trial judge's instructions on misuse of the product and the trial judge's refusal to instruct that contributory negligence is not a defense to strict liability in tort constitute reversible error; and (2) whether annual reports to the President and the Congress required by the Flammable Fabrics Act and prepared by the Secretary of Health, Education and Welfare and the Consumer Product Safety Commission fall within the "public records" exception to the hearsay rule, or are otherwise admissible as reports regularly relied upon by experts in the field.

I Misuse of Product

Appellant claims reversible error because the trial court gave an instruction on misuse of product as a possible defense to the strict liability claim. At trial, Judge Miller gave the following instruction to the jury:

With respect to strict liability, i[n] order for you to find in favor of the plaintiffs, you must find by a preponderance of the evidence that the defendants manufactured a defective product which was unreasonably dangerous to the consumer and that the defect was the proximate cause of plaintiff's injuries. And that the defendant has not shown by a preponderance of the evidence that the plaintiff misused the product. So in the strict liability theory, it is for the plaintiff to show by a preponderance of the evidence that the defendants manufactured a defective product, which was unreasonably dangerous and that the defect was a proximate cause of the plaintiff's injuries.

On the other hand, it would be for the defendant, if they established--if the plaintiff established what I just mentioned, it would be the burden of the defendant to show that the defendant misused the product.

* * *

* * *

On a strict liability theory, you must find by a preponderance of the evidence that the defendant manufactured a defective product, which was unreasonably dangerous to the consumer and that the defect proximately caused the plaintiff's injuries. That is the burden of the plaintiff.

The burden is then upon the defendant to show that the plaintiff misused that product. So if the plaintiff meets her burden of [showing] the strict liability theory, you then look as to whether the defendant might have shown a misuse of the product.

Appellant argues that the "evidence adduced at trial may be consistent with momentary inattention or carelessness on the part of Appellant, but is inconsistent with affirmative misconduct or use of the nightgown for an abnormal purpose." Both defendants contend there was no error in the jury instruction on misuse. Sherne claims that "the trial court and the Court of Special Appeals found evidence in the record that the manner in which [plaintiff] used her nightgown may not have been a manner foreseeable by the manufacturer and therefore the misuse instruction to the jury was warranted." Similarly, Cone Mills argues that misuse of the nightgown by the plaintiff became a jury issue based on evidence of the plaintiff's use of the gown "in effect draping it over a hot burner for an appreciable period of time, [which] cannot seriously be considered a reasonably foreseeable manner of use."

This Court, in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976) first applied the doctrine of strict liability in tort as expressed in the Restatement (Second) of Torts § 402 A. 2 Under § 402 A, the seller will be liable if the product is in a "defective condition", that is in a condition not contemplated by the ultimate consumer, and "unreasonably dangerous", that is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics. Id. at 344, 363 A.2d 955. In Phipps, we noted:

Under § 402 A, various defenses are still available to the seller in an action based on strict liability in tort. These defenses are set forth and explained in the official comments following § 402 A. For example, the seller is not liable where injury results from abnormal handling or use of the product (Comment h), where mishandling or alteration after delivery of the product renders it unsafe (Comment g), or if warnings or instructions supplied with the product are disregarded by the consumer where, if used in accordance with these warnings, the product would be safe (Comment j). Id. at 346, 363 A.2d 955. 3

Comment h to § 402 A provides a basis for the "misuse" defense. It states:

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap; or from abnormal preparation for...

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