Guglielmo v. Klausner Supply Co.

CourtSupreme Court of Connecticut
Citation158 Conn. 308,259 A.2d 608
Decision Date17 June 1969

D. Michael Hurley, Hartford, with whom, on the brief, were Leon RisCassi and William R. Davis, Hartford, for the appellant-appellee (plaintiff).

Thomas J. Groark, Jr., with whom was Daniel W. Moger, Jr., Hartford, for the appellee-appellant (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ. HOUSE, Associate Justice.

This case arose from circumstances which may be briefly summarized. Seligman and Sons, Inc., plumbing and heating contractors, hereinafter referred to as Seligman, purchased from the defendant wholesaler a large can of a product known as Coatatub, which is used in connection with plumbing and heating installations. Sometime thereafter Seligman hired the plaintiff as a plumber. On May 26, 1964, during Seligman's work in the construction of an apartment house in Wallingford, Robert Treat, another employee of Seligman, was furnished the can of Coatatub and for two or three hours applied the contents to a number of bathtubs on the first floor of the building under construction. While Treat was doing this work on the first floor, the plaintiff was assigned by Seligman to work in the basement connecting the water main to bathtubs and toilets. The plaintiff had neither heard of Coatatub nor seen a can of it before this incident, and he knew nothing about the product. After working for about twenty minutes in a basement room underneath a bathtub and into which room pipes from a first-floor bathroom extended, the plaintiff noticed an odor similar to banana oil but did not attach any significance to the existence of the odor. He continued to work for an additional ten to twenty minutes after becoming aware of the odor. He then left the basement and went up a ladder to obtain additional material. As he did so he began to feel shaky and dizzy, and when he reached the top of the ladder he found that he could not walk and had to crawl out on his hands and knees. He was dizzy and could not see and fell against a tree. A fellow employee put him into an automobile and drove him to the office of a doctor. The doctor concluded that the plaintiff had been rendered unconscious from inhaling fumes containing some plastic solvents and had sustained a wrenching injury to his shoulder as a result of his fall.

Coatatub is a combination of vinyl chloride, vinyl acetate copolymer and a mixture of two solvents, toluene and methyl ethyl ketone. The solvents can cause a reaction of anesthesia or narcosis. There were to warnings on the can which contained the product. Centered and at the top of the label directly over the large lettering of the word Coatatub there is the warning 'avoid prolonged breathing vapors', and on the left side of the label is a caution that the contents of the can are flammable.

The manufacturer of Coatatub was not a party to this action. The plaintiff's complaint is in two counts. The first sounds in negligence. It alleges that the product is defective and inherently dangerous to all persons coming into proximity with it, and by way of specific acts of negligence it alleges (a) that the defendant failed to give any warning of the dangerous propensities of the product and (b) that, although it knew or should have known of the dangerous propensities of the product and the uses which were made of it and that workers would be exposed to it, the defendant failed to take any measures to warn persons of the dangerous propensities or to correct them. The second count is phrased in terms of breach of warranty. It alleges that the defendant by means of advertising, sales talk and other means 'impliedly and/or expressly' warranted to Seligman and its employees, including the plaintiff, that the product was safe and fit for its intended use; that, acting in reliance on these representations of the defendant, Seligman purchased the product; that, '(a)cting in reliance thereon (sic), and as a consequence of, the said advertising, sales talk and other means of the defendant corporation, the plaintiff proceeded to work in and about the area where said 'Coatatub' had been used'; that the product was not as warranted and 'said warranties were broken in that the plaintiff was injured when he inhaled said fumes'; and that the unsafe, defective and dangerous condition of the product constituted a breach of warranty to the plaintiff.

By way of special defense the defendant pleaded contributory negligence on the part of the plaintiff in failing to make reasonable and proper use of his senses and faculties at the time of his injury. The plaintiff denied this allegation.

The plaintiff expressly requested the court to charge the jury on the principles of strict tort liability as detailed in § 402A of volume 2 of the Restatement (Second) of Torts and applicable to one who sells a product in a defective condition when (1) the seller is engaged in the business of selling such a product, (2) it is expected to and does reach the user or consumer without substantial change, and (3) it causes physical harm to the user. The court charged as requested. The court also instructed the jury that the evidence did not support a finding of express warranty and that they should ignore the plaintiff's allegations that there was a breach of an express warranty by the defendant. The plaintiff has not claimed that the latter instruction was erroneous.

The jury returned a general verdict for the plaintiff, assessing damages at $3000. The defendant moved to set aside the verdict and that judgment be rendered for the defendant in accordance with its earlier motion for a directed verdict. See Practice Book § 255. The court granted the motion to set aside the verdict and rendered judgment for the defendant on the second count of the complaint and ordered a new trial on the first count. The court's memorandum of decision explained the reasons for its action. As to both counts the court noted that it had failed to instruct the jury on the doctrine of intervening cause although the defendant had properly requested such instructions. It was also of the opinion that it had erroneously failed to explain the doctrine enunciated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598, relative to absent witnesses. As to the second count, it noted that for the plaintiff to recover he must have alleged and proved that the product Coatatub was expected to and did reach the user or consumer without substantial change in the condition in which it was sold, citing Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 227 A.2d 418. The complaint contained no such allegation, and the court found that the plaintiff had offered no proof whatever on this essential element for a good cause of action based on strict tort product liability. It also observed that the plaintiff had failed to prove that Coatatub as chemically compounded was dangerous to an appreciable number of people, citing Corneliuson v. Arthur Drug Stores, Inc., 153 Conn. 134, 137, 214 A.2d 676. Since the jury rendered a general verdict, the court could not determine, with any certainty, on which count the verdict had been rendered. The court felt that a verdict should be directed for the defendant on the second count, which it did, and that under the circumstances the verdict for the plaintiff on the first count should be set aside, which it did. Of course, separate verdicts should have been taken on each count, but neither party requested that such action be taken.

From this judgment the plaintiff appealed. The defendant appealed from the denial of its motions for a directed verdict and for judgment notwithstanding the verdict on the first count. See Practice Book §§ 600, 643. It also filed a bill of exceptions claiming errors in the court's charge. Practice Book § 653.

In the view which we take of the appeals, it is unnecessary to consider all of the assignments of error claimed by each of the parties. Of course, those which have not been briefed are considered as abandoned. Wood v. Wilton, 156 Conn. 304, 305, 240 A.2d 904.

As to both counts the court correctly set aside the verdict since it had failed to instruct the jury on the doctrine of intervening causation despite the defendant's proper request for such instructions. The charge in tested by the claims of proof in the finding. Allard v. Hartford, 151 Conn. 284, 291, 197 A.2d 69. The defendant offered evidence to prove and claimed to have proved that the negligence of Seligman's foreman in failing to mention the warning on the Coatatub container to Treat, the user of the product, or to the plaintiff, whom he directed to work in the basement beneath the room where the product was being applied, was an intervening or superseding cause of the injuries to the plaintiff. The defendant was entitled to have the jury charged in accordance with its request. Virelli v. Benhattie, Inc.,146 Conn. 203, 209, 14, A.2d 760; Ferino v. Palmer, 133 Conn. 463, 467, 52 A.2d 433; Corey v. Phillips, 126 Conn. 246, 254, 10 A.2d 370. In the exercise of its inherent power the trial court properly set aside the general verdict because of this harmful omission in the charge. Trainor v. Frank Mercede & Sons, Inc., 152 Conn. 364, 366, 367, 207 A.2d 54. Since this ruling was proper for one of the two reasons given by the court, it is unnecessary to consider whether its interpretation of the rule in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598, additionally supported the setting aside of the verdict.

As we have noted, the second count was phrased in the language of warranty, pleading that the defendant 'impliedly and/or expressly warranted' to Seligman and to the plaintiff that the product was safe and fit for its intended use and that the plaintiff in reliance on the defendant's representations proceeded to work about the area where the product was being used. Construed...

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