Hansen v. Sunnyside Products, Inc.

• Decision Date: 26 June 1997
• Docket Number: No. C022430,C022430
• Citation: 65 Cal.Rptr.2d 266,55 Cal.App.4th 1497
• Parties: , Prod.Liab.Rep. (CCH) P 15,013, 97 Cal. Daily Op. Serv. 5127, 97 Daily Journal D.A.R. 8289 Carole HANSEN et al., Plaintiffs and Respondents, v. SUNNYSIDE PRODUCTS, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 266

65 Cal.Rptr.2d 266

55 Cal.App.4th 1497, Prod.Liab.Rep. (CCH) P 15,013,

97 Cal. Daily Op. Serv. 5127,

97 Daily Journal D.A.R. 8289

Carole HANSEN et al., Plaintiffs and Respondents, v. SUNNYSIDE PRODUCTS, INC., Defendant and Appellant.

No. C022430.

Court of Appeal, Third District, California.

June 26, 1997.

Certified for Partial Publication. ^*

As Modified July 18, 1997.

Review Denied Sept. 17, 1997.

Longyear, O'Dea & Lavra, Van Longyear, MacKenroth Ryan Jacobson Fong, Richard M. Jacobson, Christopher J. Witte and John H. McCardle, Sacramento, for Defendant and Appellant.

Mart & deVries and Douglas K. deVries, Sacramento, for Plaintiffs and Respondents.

SIMS, Associate Justice.

In this products liability action involving a household cleanser, we hold that product label warnings are relevant in determining whether a product has a design defect under the risk/benefit test.

A jury returned a defense verdict finding no liability on the part of defendant Sunnyside Products, Inc. The trial court granted plaintiffs Carole and Norman Hansen a partial judgment notwithstanding the verdict (JNOV) (on the issues of liability and comparative fault) and ordered a new trial limited to the issue of damages. The court alternatively granted plaintiffs' motion for a new trial.

On appeal, defendant contends among other things that JNOV was erroneous due to the existence of conflicting evidence. In the published portion of this opinion, we explain why we agree and shall reverse the trial court's orders granting JNOV and a limited new trial on the issue of damages. With respect to the trial court's alternative grant of a new trial, in an unpublished portion of the opinion, we shall affirm. We shall therefore remand the case for a new trial on all issues.

FACTS AND PROCEDURAL BACKGROUND

Although defendant's appeal relates mainly to the products liability theory of "design defect" under a "risk/benefit test" (where a risk of danger inherent in the design outweighs the benefits of the design), plaintiffs' case presented to the jury three theories of products liability under California law--(1) design defect under the "consumer expectations" test (that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner), (2) design defect under the risk/benefit test, and (3) failure to give adequate warning of a known or knowable substantial danger.

On August 24, 1991, plaintiff Carole Hansen was cleaning the bathrooms in her home with Sunny Brite water stain remover, which she had purchased in a supermarket. Defendant is the supplier of Sunny Brite.

At the time in question, Sunny Brite contained a six percent solution of hydrofluoric acid. The label on the Sunny Brite bottle stated in part, in capital letters:

"DANGER. MAY BE FATAL OR CAUSE PERMANENT DAMAGE, VAPOR

HARMFUL, CAUSES SEVERE BURNS WHICH MAY NOT BE IMMEDIATELY PAINFUL OR VISIBLE. READ CAREFULLY ALL CAUTIONS ON BACK PANEL. KEEP OUT OF REACH OF CHILDREN."

The back panel included the following cautions: "Danger. Contains hydrofluoric acid. Use only with rubber gloves, avoid contact with skin. Do not taste, swallow or breathe. Rinse empty container thoroughly with water before discarding." The label also contained a "first aid" section, which warned that if the liquid came into contact with skin: "Immediately remove contaminated clothing. Flush skin with water for 15 minutes. Be very careful to clean under fingernails." The label continued: "Eyes--Rinse immediately with water. Remove contact lenses, if any, then flush eyes with water for another 10 to 15 minutes." The label continued: "Swallowed--Rinse mouth. Drink a glass of water or milk. Do not cause vomiting." The label then directed: "Get immediate medical care. Call your Poison Center, emergency department or a physician. Specific antidotal treatment may be needed."

Mrs. Hansen wore latex gloves and a face mask while using Sunny Brite. She noticed her hand was becoming wet but assumed it was from perspiration and did not check to see if there was a hole in the glove. When she took off a glove to make a telephone call, she noticed one of her fingers was gray and shriveled. She felt no pain or discomfort at the time and believed the color change was a circulation problem. Mrs. Hansen continued using the product and subsequently began to feel pain in her hand. She placed her hand in water and complained to her husband. Mr. Hansen discovered a hole in the glove Mrs. Hansen had been using, read the Sunny Brite label, called the poison control center, and took Mrs. Hansen to the emergency room. Mrs. Hansen allegedly suffered a serious and disabling injury (a point disputed by defendant and not reached by the jury in its special verdict).

In August 1992, plaintiffs filed this lawsuit alleging products liability and loss of consortium.

At trial, plaintiffs presented various theories of product liability--(1) design defect under the consumer expectation test, (2) design defect under the risk/benefit test, and (3) failure to warn.

Plaintiffs' expert chemist, Dr. Wilk, testified hydrofluoric acid is dangerous. Though his work generally involved laboratory settings with 50 percent solutions of the acid, he believed it is too dangerous to use in any amount in any consumer product, regardless of whether warnings were placed on the label, and in any event adequate warnings would not fit on the bottle. He testified Sunny Brite contained a 6.7 percent solution which was hazardous and "extremely insidious" because the person who is exposed to it may not realize he or she has been exposed until several hours after the exposure. In dilute solutions such as this, the acid can migrate through the skin without causing any sensation and cause damage to the underlying tissue. ¹

The defense presented testimony that various household products are sold on the consumer market which contain hydrofluoric acid, such as wire wheel cleaners, ceramic Evidence adduced at trial showed that in 1993, defendant changed the formula of Sunny Brite, removing the hydrofluoric acid and substituting ammonium bifluoride. The change was made at the urging of a new employee who told defendant the new formula would be safer and cheaper to make and transport. The employee also told defendant the Environmental Protection Agency was trying to get rid of acids in consumer products.

                tile cleaner, rust removers, etc. 2  The jury also learned the Consumer Products Safety Commission has a labeling guide for consumer [55 Cal.App.4th 1504] products containing hydrofluoric acid, and defendant's label was consistent with this guide. 3
                

The new product (marketed under an "Improved" label) is now cheaper to make and has less safety concerns regarding transportation and storage. It still removes water stains but takes twice as long to work on a surface (30 seconds instead of 15 seconds).

Evidence was also adduced at trial that in the 30 years that the product with hydrofluoric acid was on the market, defendant received only one other claim of injury in addition to plaintiffs'.

In closing argument, defense counsel argued to the jurors that in determining whether there was a design defect under the risk/benefit test (inquiring whether the risk of harm outweighed the benefits of the product), they could consider the warning label as part of the product. ⁴ Thus, counsel argued: "You can't separate the product from the warning. The labeling--the warnings on the product--on this product, on any product, are an integral part of the design of the product. And we're talking in this case about design defect. And the plaintiffs in this case would have you believe that you can separate the warning and ... Dr. Wilk, in fact ... has testified that you can separate the warning from the product. And you can't." Later in his argument, defense counsel said Dr. Wilk's view would remove from the shelves a number of consumer products containing hydrofluoric acid and: "[Dr. Wilk's] up here, in the halls of academia, in the laboratories, hypothetically talking about, Oh, this is ... dangerous. It is. But the question is, Is it defectively dangerous? And that incorporates, again, getting back to the warning. If used pursuant to the instructions, ... do the advantages of the product ... outweigh the risks?"

Plaintiffs did not object that defense counsel was misstating the law, nor did they request that counsel's comments be stricken or that further jury instructions be given. Instead, plaintiffs' counsel in his final closing argument merely said: "Now, I want to go through just directly here these ... fallacies that were raised. Somehow the--our evidence suggests that you can or we're asking you to separate the product from the warning. On the contrary, not at all. Not at all. [p] The law separates the warning out as a separate issue of the three different ways products can be found defective. But the fact is, as Dr. Wilk testified, the warning can't replace the dangers and the safety necessary to handle this product and there's been--there was plenty of evidence of that."

The jury was then instructed on three theories of products liability: (1) design defect under the consumer expectation test (that the product failed to perform as safely As pertinent, the jury was instructed as follows:

as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner); (2) design defect under the risk/benefit test (that there was a risk of danger inherent in the design which outweighed the benefits of the design); and (3) failure to give adequate warning of a substantial danger.

"Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:

"1. Defendant's status as a supplier of the product;

"2. That defendant's product was defective, in that:

"a) the product failed to perform as safely as an ordinary consumer would expect, or

"b)...