Freund v. Cellofilm Properties, Inc.

Citation87 N.J. 229,432 A.2d 925
PartiesElmer FREUND and Carol Freund, his wife, Plaintiffs-Appellants, v. CELLOFILM PROPERTIES, INC., a body corporate; "U" Vault Company, Inc., a body corporate; Vining Broom Company, a body corporate; Hanover Insurance Company; State of New Jersey, a body municipal; and Borough of Wood-Ridge, a body municipal, Defendants. and Hercules, Inc., a body corporate, Defendant-Respondent.
Decision Date30 July 1981
CourtUnited States State Supreme Court (New Jersey)

Mark D. Larner, Newark, for plaintiffs-appellants (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, attorneys).

Thomas L. Morrissey, Newark, for defendant-respondent (Carpenter, Bennett & Morrissey, Newark, attorneys; Rosemary J. Bruno and John P. Dwyer, Newark, on the brief).

The opinion of the Court was delivered by


Plaintiff, Elmer Freund, suffered extensive second and third degree burns in an industrial accident at his employer's paint manufacturing plant. At the time of the accident, Freund was assisting two fellow employees in preparing a large paint mixer for cleaning. As one of the workers swept a commercial chemical dust, nitrocellulose, from the area of the mixer, the chemicals suddenly ignited.

Plaintiff and his wife, Carol, brought this action claiming compensatory and punitive damages against several individuals and corporations, including Hercules, Inc., the manufacturer of the chemical that caused the fire, Cellofilm Properties, Inc., the owner of the industrial property which was the site of the accident, and Cellofilm Corp., the plaintiff's employer. As a result of trial motions, the only defendant left in the case was the manufacturer, Hercules, Inc.

Plaintiffs charged that Hercules, Inc. (Hercules) acted negligently in failing to give adequate warning of the dangers of its product, nitrocellulose. In addition, they sought recovery on strict liability and breach of warranty grounds, alleging that Hercules placed an inherently dangerous product into the stream of commerce without proper warnings. The case was ultimately presented to the jury on the theory of negligence. The specific issues presented in this appeal are (1) whether there is a meaningful distinction between a cause of action based on negligence and one based on strict liability in a products design defect case involving a failure to warn of the product's dangers; (2) whether, under the circumstances of this case, it was reversible error for the trial court to have presented the liability question to the jury on the grounds of negligence rather than strict liability; and (3) whether the jury should have been charged on concurrent negligence as to the employer, who was no longer involved in the trial, and the defendant manufacturer.


Plaintiff was employed at Cellofilm Corporation's plant from March 25, 1974 until the date of his accident on July 11, 1974. His work mainly consisted of maintenance and unloading drums of nitrocellulose, an extremely flammable liquid chemical used in the mixing of paints and lacquers.

On July 9, 1974 a chemical mixture was made in a slow-speed mixer at the plant. The mixing process consists of pumping chemicals from outside storage areas into the large mixing machine and then mechanically dumping liquid nitrocellulose into the mixer. When nitrocellulose is added to a mixer an aluminum shield is placed around the mixer's hatch to prevent spillage of the chemical. However, a small amount of nitrocellulose dust is inevitably spilled outside the mixer during the dumping process. Nitrocellulose is extremely flammable even in liquid form, but when allowed to dry the chemical dust becomes even more dangerous.

On July 11, 1974 Freund and two other workers were assigned to prepare the chute on the mixer for cleaning. They opened the hatch to the mixer and one of the plaintiff's co-workers, Krowska, began sweeping nitrocellulose dust from around the mixer. The entire area suddenly erupted into flames, resulting in severe burns to both plaintiff and Krowska, who ultimately died from his injuries.

The major disputed issues in the case were the exact cause of the fire and the adequacy of the warning provided by the manufacturer of the nitrocellulose, Hercules. One of plaintiffs' experts, Braidech, testified that electrostatic effects in the atmosphere ignited the nitrocellulose dust cloud that had formed while Krowska was sweeping. Another expert, Dunning, concluded however, that the sudden eruption of a "big ball of fire" was the result of vapor ignition from the just-opened hatch. Dunning believed that the cause of the fire was a combination of the failure to wet down the area before sweeping and the failure to render the mixing vessel inert by filling it with water or blowing it out.

Hercules' experts, Doyle and Williams, testified that the sweeping was probably done in the presence of highly flammable vapors escaping from the recently opened mixer. Doyle testified that the least readily ignitable of the vapors was still ten to twenty times more flammable than dry nitrocellulose dust. In Williams' opinion, the vapors from the mixer ignited first, setting off the fire.

The drums of nitrocellulose contained a warning, viz :

Fire may result if container is punctured or severely damaged Handle carefully Do not drop or slide Hazard increases if material is allowed to dry Keep container tightly closed when not in use In case of spill or fire soak with water For further information refer to MCA Chemical Safety Data Sheet DS-96.

Below this warning, in large letters, appeared the words


Plaintiff testified that he was aware of the "warning" on the drums but had never bothered to read it. Plaintiffs' expert, Braidech, stated that while the warnings contained on the nitrocellulose drums were adequate to warn of the dangers involved in transporting nitrocellulose, they were not sufficient warnings for the job. On cross-examination, however, he admitted that no fire would have occurred had the warnings contained on the drums of nitrocellulose been heeded.

Cellofilm's plant superintendent testified that the company had a long-standing cleanup procedure for dealing with nitrocellulose spills. Employees were instructed to clean up the spills as soon as possible after they occurred and to soak all spills with water before picking them up. A poster provided by the manufacturer, Hercules, and displayed in the employee locker room warned of the dangers of dry nitrocellulose and instructed that in case of a spill, the chemical should be wet with water before cleanup.

Plaintiffs submitted requests for jury charges on the law of negligence and strict liability, as well as the issue of concurrent negligence. Despite plaintiffs' objections, the trial court refused to instruct the jury on strict liability or concurrent negligence. The essence of the strict liability request to charge was that a manufacturer of a product is strictly liable if the product is defective by virtue of inadequate warnings and the "defect" proximately causes injury to a reasonably foreseeable consumer or user. Additionally, the request stated that "(p)roof of the manufacturer's negligence in the making or handling of the article is not required." Addressing plaintiffs' objections to the charge as made, the trial court ruled that a strict liability charge was inappropriate as a matter of law since any "defect" in the adequacy of the warning would necessarily result from negligence by the defendant.

On the question of the relevance of concurrent negligence, the trial judge chose not to follow the proposed charge. He simply informed the jury that it was to determine if Hercules was negligent and, if so, whether that negligence was a proximate cause of Elmer Freund's injuries. The proposed charge, if given, would have expressly permitted the jury to find defendant, Hercules, negligent even if it concluded that Cellofilm Corp. was also negligent in failing to provide adequate warnings to its employees on the dangers of nitrocellulose. Plaintiffs did not raise a further objection upon the trial court's failure to submit the concurrent negligence charge to the jury. The alleged error, however, was raised at the motion for a new trial and on appeal.

The jury unanimously concluded that Hercules was not negligent and judgment was subsequently entered in its favor. Plaintiffs brought a motion for a new trial, which was denied. On appeal, the Appellate Division affirmed the trial court's decision without opinion and plaintiffs petitioned this Court for certification, which was granted. 85 N.J. 453, 427 A.2d 555 (1980).


As noted, this personal injury case involves a manufactured product claimed to be defective because of a failure to provide an adequate warning as to its dangers. The primary issue is whether the trial judge committed error in presenting the case to the jury on the theory of negligence rather than principles of strict liability.

The trial court's perception of this case as one involving negligence is not uncommon. The problem stems in large measure from the terminology that historically has been used to define a defective product for strict liability purposes. In instructing juries as to what constitutes a defective product, judges routinely borrow terminology from the law of warranty and negligence. See Suter v. San Angelo Foundry & Machine Company, 81 N.J. 150, 168-171, 406 A.2d 140 (1979); Wade, "On the Nature of Strict Tort Liability for Products," 44 Miss.L.J. 825, 834-835 (1973). In the case of design and, in particular, improper warning defects, the use of negligence terminology is virtually unavoidable since the adequacy of a design or warning necessarily depends upon its "reasonableness." Wade, supra, at 836-837. Hence the use of this terminology has led to confusion over what precise differences, if any, exist between the negligence and strict liability theories of recovery in defective product ...

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