Fiorentino v. A. E. Staley Mfg. Co.

• Decision Date: 24 February 1981
• Citation: 416 N.E.2d 998,11 Mass.App.Ct. 428
• Parties: Antonio FIORENTINO et al. 1 v. A. E. STALEY MANUFACTURING COMPANY.
• Court: Appeals Court of Massachusetts

Page 998

416 N.E.2d 998

11 Mass.App.Ct. 428

Antonio FIORENTINO et al. ¹ v. A. E. STALEY MANUFACTURING COMPANY.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 18, 1980.

Decided Feb. 24, 1981.

John J. C. Herlihy, Boston, for defendant.

Leonard Glazer, Boston (David Lewis Feld, Boston, with him), for plaintiffs.

Before ARMSTRONG, GREANEY and DREBEN, JJ.

GREANEY, Justice.

On April 18, 1969, the plaintiffs, Antonio Fiorentino and Gino DeSimone, were seriously injured in an explosion which occurred while they were working with a product manufactured and sold by the defendant Staley Manufacturing Company (Staley) under the trade name of Bondrite Contact Cement CC-60 (Bondrite CC-60). At the time of the accident, the plaintiffs were using the product to attach formica to a kitchen wall. They sought damages for negligence on the theory that Staley had failed to furnish adequate warnings of certain dangers inherent in the product's use. A jury returned verdicts in the plaintiffs' favor. Staley maintains that its motion for a directed verdict should have been allowed because the warnings on the product's label were adequate and because there was no duty to warn the plaintiffs in circumstances where they knew or should have known of the dangers involved in the product's use. Alternatively, Staley seeks a new trial because of the admission of certain evidence pertaining to its knowledge and ability to warn of certain risks. We affirm the judgments.

In evaluating the judge's denial of the motion for a directed verdict, we adopt the view of the evidence most favorable to the plaintiffs (Everett v. Bucky Warren, Inc., 376 Mass. ---, --- ^a, 380 N.E.2d 653 (1978)) to determine whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978). Uloth v. City Tank Corp., 376 Mass. ---, --- ^b, 384 N.E.2d 1188 (1978).

Bondrite CC-60 is a fast-drying contact adhesive especially noted for its ability to bond decorative laminates such as formica to various surfaces. The product's chemical makeup consists of seventy to seventy-nine percent flammable solvents which evaporate quickly. Since these solvents have a flashpoint of less than twenty degrees Fahrenheit, the product is classified as extremely flammable. Staley knew that application of the cement over a large area, like a kitchen wall, would cause its solvents to vaporize and that the vapors, being heavier than air, would fall to the floor.

Fiorentino, an experienced carpenter, had frequently purchased and used Bondrite CC-60 in his woodworking business. On April 18, 1969, Fiorentino and DeSimone were installing formica in a kitchen using a five-gallon container of the cement. Fiorentino had familiarized himself with the contents of the label on the container which, insofar as pertinent, contained the following information:

"CAUTION: FLAMMABLE MIXTURE. DO NOT USE NEAR FIRE OR FLAME

"CAUTION: WARNING! EXTREMELY FLAMMABLE! TOXIC! CONTAINS: NAPHTHA, ACETONE AND METHYL ETHYL KETONE.

"Although this adhesive is no more hazardous than dry cleaning fluids or gasoline, precautions must be taken. USE WITH ADEQUATE VENTILATION. Keep away from Heat, Sparks and Open Flame. Avoid prolonged contact with skin and breathing of vapor. Keep container tightly closed when not in use."

Because the label called for proper ventilation, Fiorentino opened three kitchen windows and removed the back door. He also opened the storm door and a few storm windows on a porch near the kitchen. No one was permitted to smoke. There was a gas stove located in a recessed area of the kitchen. Fiorentino observed that its burners were off and that there was nothing on the stove's top. He did not observe that the bottom rear of the stove contained a concealed pilot light about three to four inches off the floor which, because of its position with the cover closed, could not be seen. The workers were preparing to attach a four-by-ten foot piece of formica to the Kitchen wall at a point about seven to eight feet away from the stove. They opened the Bondrite CC-60 container and applied the cement to the wall and to the back of the formica piece. About five minutes after the container had been opened, there was a "big noise ... wham ... like (an) explosion." A flame came directly from the grill work at the bottom of the right side of the stove, travelled across the kitchen and ignited the cement on the formica piece. Both plaintiffs were badly burned. The probable cause of the explosion and flash fire was flammable vapors from the cement being drawn into the draft of the oven and ignited by the pilot light. ² Up to the time of the incident, Fiorentino had never turned pilot lights off while using the cement and no one had ever talked to him about turning them off.

The manager of Staley's adhesive laboratory testified that Bondrite CC-60 was expected to be used in formica installations in kitchens, that special precautions, which would not be known to the average person, were followed in an industrial environment to guard against accidental ignition of the vapors, ³ and that his company had known prior to the incident that pilot lights could ignite the vapors and cause explosions and flash fires. This witness described the product as "inherently dangerous," particularly when its solvents evaporated. An internal company memorandum dated February 14, 1969, was introduced which stated "(D)ue to the inherent danger involved with the sale and use of this cement ... (Staley) should be in compliance with (certain Federal labelling) standards, or better, if possible." ⁴

There was expert testimony from which the jury could have found that the conditions prevailing at the time of the incident made ignition "almost 100 percent ... probabl(e)" and that a worker would not have known by experience alone to extinguish a pilot light unless he understood the cement's chemical properties.

There was further evidence that the label used on the product in 1969 did not comply with voluntary standards for labelling hazardous solvents published in 1951 by the National Fire Protection Association, ⁵ or with similar standards set in 1961 by the Manufacturing Chemists Association, ⁶ and evidence that the label did not conform to an internal directive of Staley dated November 7, 1966, which required a statement that "Vapors May Explode." It was also shown that Staley had known prior to the incident that the Federal Food and Drug Administration (FDA) felt that the product should "possibly be banned as a hazardous substance" and that the FDA had furnished for Staley's voluntary consideration a more explicit warning which would advise users that all pilot lights be extinguished. ⁷

There was evidence that the cement was marketed in certain geographical areas under the trade names of "Carey Contact Cement" and "Wilson Art contact Cement." Containers of the product distributed under these trade names bore more explicit warnings, including the warning to "extinguish all flames and pilot lights." Finally, it was shown that subsequent to this accident Staley changed the contents of the Bondrite label to read:

"DANGER! Extremely Flammable Vapors May Cause Flash Fires Read Carefully Cautions Below

"DANGER! Vapors May Ignite Explosively Prevent buildup of vapors open all windows and doors use only with cross ventilation. Keep away from heat, sparks and open flame. Do not smoke, extinguish all flames, and pilot lights, and turn off electrically operated appliances and other sources of ignition during use and until all vapors are gone. Avoid prolonged contact with skin or repeated breathing of vapors. Close container tightly after each use. Store in a cool, well-ventilated area. CONTAINS: Naphtha, Acetone and Methyl Ethyl Ketone."

1. A manufacturer has the duty to caution purchasers of its product by way of adequate warnings of foreseeable latent dangers involved in the product's normal and intended use. Farley v. Edward E. Tower Co., 271 Mass. 230, 233-234, 171 N.E. 639 (1930). Mealey v. Super Curline Hair Wave Corp., 342 Mass. 303, 305, 173 N.E.2d 84 (1961). Schaeffer v. General Motors Corp., 372 Mass. 171, 173-174, 360 N.E.2d 1062 (1977). Fegan v. Lynn Ladder Co., 3 Mass.App. 60, 63, 322 N.E.2d 783 (1975). Wolfe v. Ford Motor Co., 6 Mass.App. ---, --- ^c, 376 N.E.2d 143 (1978). See Prosser, Torts § 96, at 646-647 (4th ed. 1971); Restatement (Second) of Torts § 388 (1965); Swartz & Swartz, Products Liability in Massachusetts, 60 Mass.L.Q. 169, 174-177 (1975). "A duty to warn depends on (the manufacturer's) superior knowledge and is said to exist when one may reasonably foresee danger of injury or damage to one less knowledgeable unless adequate warning of danger is given." Lakatosh v. Diamond Alkali Co., 208 N.W.2d 910, 913 (Iowa 1973). See also Uloth v. City Tank Corp., supra, 376 Mass. at --- ^d, 384 N.E.2d 1188; Wolfe v. Ford Motor Co., supra 6 Mass.App. at --- ^e, 376 N.E.2d 143, and cases cited; Sterner v. U. S. Plywood-Champion Paper, Inc., 519 F.2d 1352, 1353-1354 (8th Cir. 1975). Furnishing instructions designed to make the product's use more efficient will not necessarily discharge the duty to warn; the manufacturer still must call attention to the dangers to be avoided. Williams v. Brown Mfg. Co., 93 Ill.App.2d 334, 361-362, 236 N.E.2d 125 (1968), rev'd on other grounds, 45 Ill.2d 418 (1970). Bituminous Cas. Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868, 873 (Tex.Civ.App.1974). Restatement (Second) Torts, supra § 388(c). 1 Frumer & Friedman, Products Liability § 8.05(1) (1980). "Further, the forcefulness of the warning must be commensurate with the dangers involved" (Wolfe v. Ford Motor Co., supra 6 Mass.App. at --- ^f, 376 N.E.2d 143) the greater the foreseeable risk...