Gutowski v. M & R Plastics & Coating, Inc.

• Citation: 60 Mich.App. 499,231 N.W.2d 456
• Decision Date: 24 April 1975
• Docket Number: No. 1,Docket No. 18971,1
• Parties: Ronald GUTOWSKI, Plaintiff-Appellant, v. M & R PLASTICS & COATING, INC., Defendant-Appellee
• Court: Court of Appeal of Michigan (US)

Page 456

231 N.W.2d 456

60 Mich.App. 499

Ronald GUTOWSKI, Plaintiff-Appellant, v. M & R PLASTICS & COATING, INC., Defendant-Appellee.

Docket No. 18971.

Court of Appeals of Michigan, Division No. 1.

April 24, 1975.

Released for Publication July 24, 1975.

Ripple & Chambers by Sanford L. Steiner, Detroit, for plaintiff-appellant.

Sanford N. Lakin, Detroit, for defendant-appellee.

Before ALLEN, P.J., and McGREGOR and CAVANAGH, JJ.

ALLEN, Presiding Judge.

This is a products liability case charging that a chemical product manufactured and sold by defendant was defective by reason of inadequate warnings on the label and inadequate instructions on how to use the product in a safe manner. Trial was before a jury which, on November 20, 1973, returned a verdict for defendant. Judgment was entered in accordance therewith, and plaintiff appeals as of right.

Succinctly stated, the facts are as follows: Defendant company, located in St. Louis, Missouri, manufactured a chemical binder called Mistabond which it sold to plaintiff's employer, Polybond Corporation of Detroit, which used the product in the manufacture of foam rubber mattresses. Mistabond is a urethane chemical containing isocyanates, one of which is tolylenedeisocyanate (hereinafter referred to as TDI). It was the presence of TDI which caused Mistabond to be dangerous. Apparently, even after being combined with other products to produce Mistabond, a percentage of TDI vapors would still be given off from the compound. The product was shipped by defendant in 55-gallon drums containing warning labels, one of which, exhibit #1, appeared on the top of the drum and another September 4, 1968, plaintiff answered an ad in a newspaper advertising employment in a newly established foam rubber factory. At the time, Polybond was in the preliminary stages of setting up their manufacturing process to produce foam rubber mattresses, the basic manufacturing process being the combining of foam rubber particles with the urethane chemical binder Mistabond to produce bonded foam rubber. September 5, 1968, plaintiff commenced work as a general laborer. In his job, he would take a five-gallon bucket, fill it with Mistabond from the 55-gallon drum, carry the bucket up a flight of stairs to a platform, pour the chemical into a vat to be combined with foam rubber particles, return downstairs and open a chute leading from the vat. The compound would flow down the chute into a form which would then be pressed into a mattress under steam pressure. In this process he was bothered by fumes, and experienced dizziness and headache. He complained to Paul Hansen, his employer and president of Polybond, who told him not to worry but to go outside the plant and walk around after each mattress was made. Plaintiff read the exhibit #1 label warnings on the top of the drums and on six occasions called this to the attention of Hansen, and on two occasions requested a face mask which was not given to him. He admitted that from what he read he knew the fumes were dangerous and should not be inhaled but did not know the meaning of the word 'isocyanates'. On September 12, 1968, plaintiff went home not feeling well, lost consciousness and was rushed to the hospital where his condition was diagnosed as 'acute bronchial asthma secondary to inhalation of tolylenede-isocyanate'.

either exhibit #2 or #3 (but not both), appeared on the side of the drum. ¹

Paul Hansen testified that he had designed and installed the Polybond production system which included a ventilating fan, that the fan was not in operation during plaintiff's period of employment, that when plaintiff was employed, Polybond had been using Mistabond for about three weeks, that he was aware that the use of isocyanates required ventilation, and that plaintiff was hired in the breaking-in stage of production when the ventilating fan was not functioning. He admitted that when plaintiff complained, he informed him not to worry but to go outside from time to time for fresh air. There was also evidence that plaintiff was a heavy drinker and smoker and had chronic bronchitis and pulmonary emphysema prior to employment by Polybond.

Plaintiff's theory of the case was that his injuries came from exposure to TDI, an ingredient of Mistabond, which exposure was brought about by defendant's negligence in failing to adequately warn and In this appeal, five claims of error are raised, two of which are De minimus and disposed of as noted below. ² The remaining claims of error are (1) the exclusion of testimony concerning defendant's knowledge of proper and safe handling procedures, (2) the exclusion of testimony regarding Polybond's experience in handling products such as Mistabond, (3) the exclusion of testimony of plaintiff's expert concerning the danger and health hazards of Mistabond. Basically, plaintiff contends that the exclusion of proofs on the three points deprived the jury of information it needed to conclude that the product was so highly dangerous that something more was required by way of warning and instructions than the information on the labels.

inform plaintiff and his employer, Polybond, of the dangers involved in the use of the [60 Mich.App. 505] product. Specifically, plaintiff claimed defendant should have advised Polybond that inhaling fumes from the product would cause bronchial asthma, bronchitis, and similar respiratory problems and should have advised both Polybond and plaintiff that to avoid the problem, the product should be used in an entirely closed air system or, alternately, if that were not feasible, respiratory equipment such as face masks should be provided. Defendant raised multiple defenses claiming that the warnings on the drums were fair and sufficient to warn of the potential danger, that the proximate cause of the injury was the employer's intervening negligence in failing to provide an adequate ventilating system or to supply face masks, that plaintiff was contributorily negligent in that having seen one of the warnings, he continued to work in an improperly ventilated area using chemicals which he knew were dangerous, and that plaintiff's medical problems were essentially caused by his smoking and drinking rather than by the brief exposure to fumes from defendant's product. The respective theories of the case were submitted to the jury under what we assume were proper instructions, no exception being raised thereto on appeal, whereupon the jury returned a verdict in favor of defendant.

Before ruling on the merits of plaintiff's claims of error it will be helpful to recite the principles of law established in similar cases alleging insufficiency in the warning of dangers or insufficiency in the accompanying handling instructions of a manufacturer's product. Hill v. Husky Briquetting, Inc., 54 Mich.App. 17, 220 N.W.2d 137 (1974), Aff'd, 393 Mich. 136, 223 N.W.2d 290 (1974), Simonetti v. Rinshed-Mason Co., 41 Mich.App. 446, 200 N.W.2d 354 (1972), Thomas v. International Harvester Co., 57 Mich.App. 79, 225 N.W.2d 175 (1974), Ebers v. General Chemical Co., 310 Mich. 261, 17 N.W.2d 176 (1945). ³ In Hill, this Court held 1. The deposition of Robert Heitland, a founder of defendant corporation, was read into evidence until mention was made of the manufacturing process used at defendant's plant to produce Mistabond. At that point, defense counsel objected stating We agree with the ruling of the trial judge. The question and balance of the deposition related to the process of manufacturing involving high quantities of the toxic ingredient TDI, whereas the issue before the jury was the degree of danger in a product containing substantially smaller quantities of TDI. Later in the testimony plaintiff's witness, Dr. Glinski, did state that the hazards from pure TDI and Mistabond would be the same because both give off toxic fumes, but then modified his statement to say that Mistabond gave off a lesser amount of fumes. It would logically follow that a less comprehensive ventilation system would be required in the manufacturing process in which Mistabond was used than in the process of making the product.

that a manufacturer[60 Mich.App. 507] who distributes his product for purchase by the public, must give Adequate directions for use and adequate warnings of potential danger. The adequacy of the warning is usually a question for the jury. Thomas, supra, 57 Mich.App. at 82, 225 N.W.2d 175. The standard by which a jury determines adequacy is [60 Mich.App. 508] the general negligence standard that liability is created by 'conduct which falls below the standard established by law for the protection of others against unreasonably great risks of harm'. Prosser on Torts, 4th Ed., § 31, p. 145. Defendant also introduced the defense of intervening negligence on the part of the employer. Under these circumstances the test to be applied is set forth in Comstock v. General Motors Corp., 358 Mich. 163, 178--179, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959). In that case the Court held that an intervening negligent act of a third person does not become a superseding proximate cause if the original actor should have realized that a third person might so act or that a reasonable man, knowing the situation existing when the act of the third party was done, would not regard it as highly extraordinary that the third party so acted. This question, too, is usually one for jury determination. Price v. Manistique Area Public Schools, 54 Mich.App. 127, 133--135, 220 N.W.2d 325 (1974), Lv. den., 393 Mich. 753 (1974) that the process involved raw TDI materials which were very dangerous but the final product contained only some 15% TDI. The objection was sustained, it being noted that the balance of the deposition contained only about three pages, all dealing with how defendant handled the product in the manufacturing process. ⁴

2. Plaintiff called Paul Hansen as a witness who testified as to his prior experience in the foam rubber industry...