Howard v. Avon Products, Inc.

• Court: Colorado Supreme Court
• Writing for the Court: William R. Young, Theodore; PRINGLE; MOORE
• Citation: Howard v. Avon Products, Inc., 395 P.2d 1007, 155 Colo. 444 (Colo. 1964)
• Decision Date: 14 September 1964
• Docket Number: No. 20246,20246
• Parties: Angle W. HOWARD, Plaintiff in Error, v. AVON PRODUCTS, INC., a corporation, Defendant in Error.

Page 1007

395 P.2d 1007

155 Colo. 444

Angle W. HOWARD, Plaintiff in Error, v. AVON PRODUCTS, INC., a corporation, Defendant in Error.

No. 20246.

Supreme Court of Colorado, En Banc.

Sept. 14, 1964.

Rehearing Denied Oct. 26, 1964.

William R. Young, Theodore, J. Kuhlman, Denver, for plaintiff in error.

Wormwood, O'Dell & Wolvington, Denver, for defendant in error.

PRINGLE, Justice.

We will refer to the parties as they appeared in the trial court, where plaintiff in error was plaintiff and defendant in error was defendant.

This is a products liability case. In January of 1958, the plaintiff purchased a jar of 'Strawberry Cooler,' a product manufactured by the defendant and sold by one of its representatives. In one of defendant's publications the function of 'Strawberry Cooler' is described as follows:

'This is a light, gentle, thorough-acting mask, delicately tinted and scented with a hint of fresh spring strawberries. It minimizes pore openings, improves texture and gives your skin the benefit of deep stimulation. You can see all results within 10 minutes.'

On April 1, 1958, the plaintiff applied the 'Strawberry Cooler' to her face and neck, following the instructions contained on the box. The plaintiff immediately experienced a burning sensation and immediately removed the product from her face by means of a wash cloth.

Shortly afterward the plaintiff consulted her personal physician and was treated for a three week period by him for contact dermatitis. She was thereafter referred to a Dr. Frumess, a specialist in dermatology. The immediate result of the plaintiff's use of 'Strawberry Cooler' was a blistered face and neck and the permanent result is a series of small white marks on these portions of her anatomy.

In November, 1960, the plaintiff filed her complaint against the defendant, alleging that the defendant was negligent in manufacturing and placing 'Strawberry Cooler' on the market; that in selling the product the defendant violated the Colorado Food and Drug Act, particularly CRS '53, 66-22-3 (1960 Perm.Supp.); and that the defendant breached an implied warranty of fitness as provided by the Uniform Sales Act, CRS '53, 121-1-15. Trial was to the court and after both sides had rested the court entered judgment for the defendant. From this judgment the plaintiff brings error.

In her opening brief, the plaintiff contends that the trial court erred as a matter of law in failing to find the defendant negligent and in failing to find that the defendant had breached an implied warranty of fitness. No argument is presented with respect to the defendant's alleged violation of the Colorado Food and Drug Act. For its part, the defendant makes no issue of privity, reliance on the seller's skill, or purchasing by trade name. For reasons which hereinafter appear the judgment of the trial court must be affirmed.

The basic facts in this case are undisputed. The record discloses and the trial court found that the plaintiff's dermatitis was traceable to her use of the defendant's 'Strawberry Cooler,' the plaintiff in no wise deviating from the instructions for such use supplied by the defendant. At the time of trial the plaintiff was thirty-five years of age and she testified that she had used cosmetics since she had been seventeen years of age and that she had never suffered any ill effects from cosmetics prior to the unfortunate application of the 'Strawberry Cooler.' The plaintiff had no medical history of allergies. No warning was given by the defendant as to the possible effect of any of the ingredients contained in 'Strawberry Cooler' on potential users.

The chemical composition of 'Strawberry Cooler,' by percentage of weight, is as follows:

Bentonite ......................  9.3%  wt
                Water .......................... 84.0%  wt
                Methyl Para Hydroxy Benzoate
                   (Methyl Paraben) ............  0.2%  wt
                Propylene Glycol ...............  1.5%  wt
                Loramine Wax ...................  0.3%  wt
                Titanium Dioxide ...............  4.0%  wt.
                Magnesium Oxide ................  0.1%  wt.
                Color .........................  0.15%  wt.
                Mentho ........................  0.03%  wt.
                Alcohol S.C. 40 ...............  0.30%  wt.
                Perfume .......................  0.30%  wt.
                

The purported villain in the case at bar is the third ingredient listed above, namely, methyl para hydroxy benzoate, otherwise known and hereinafter referred to as methyl paraben. The medical testimony is conclusive that the plaintiff's dermatitis was caused by an allergic reaction to methyl paraben.

At this point, comment is necessary on the nature of methyl paraben. The first witness called to the stand by the plaintiff to testify in this regard was one Emmet Powers, who was qualified as an expert in chemistry without objection by the defendant. On direct examination, Powers testified that in his opinion methyl paraben could be considered an 'irritating compound' depending upon the thickness of an individual's skin, the proportions used and the nature of the solution in which the methyl paraben was placed. On cross-examination, Powers testified that in his view aspirin could also be classified as an 'irritant' depending upon the quantity used. He stated that he had no idea whatever of the amount o methyl paraben it would take to 'irritate' the skin of a human being. He further testified that tests he had conducted in preparation for this suit with a compound he had produced by following the defendant's formula for 'Strawberry Cooler' produced no irritation of any kind on the subjects tested.

Plaintiff's expert witness, Dr. Frumess, testified that until 1959 he had no indication that methyl paraben could cause allergic reactions but that since that time he had formed the opinion that it could cause dermatitis in some people. He further testified that the first indication appearing in medical literature of which he was aware that methyl paraben might cause harm to some skins was an article in the 'Year Book of Dermatology 1960-1961,' published in 1961. Dr. Frumess testified that since 1959, when he had first become suspicious, he had treated some twelve to fifteen identifiable cases of an allergic reaction to methyl paraben. These cases were identified by Frumess by administering methyl paraben patch tests but the record fails to disclose whether the methyl paraben was in solution and, if so, the nature of that solution and the proportion of methyl paraben to the other ingredients, if any.

The deposition of Dr. Robert Saute was introduced into evidence on behalf of the defendant. Saute is a research chemist employed by the defendant. He testified that none of the ingredients in the proportion used in 'Strawberry Cooler' could be classified as an 'irritant' or 'sensitizer' and that when applied to the skin of a normal person such individual would suffer no ill effects from same. He further testified that the ingredients themselves could only be termed 'innocuous.'

Other evidence introduced on behalf of the defendant established that 'Strawberry Cooler' was first placed on the market in the summer of 1956 and that prior to this marketing the defendant had conducted tests on its employees and the wives of its executives, all with negative results. The defendant had sold 1,652,000 jars of 'Strawberry Cooler' up to January, 1958 and had received only one complaint up to April, 1958. Not much is disclosed concerning this complaint other than that it was apparently of a minor nature and that that complainant did not pursue any remedy against the defendant. The record does not disclose whether this complaint had its origin in a reaction to methyl paraben. With respect to the significance of one complaint out of 1,652,000 jars sold, the following occurred on Dr. Frumess' re-cross examination:

'Q. Doctor, if you placed Strawberry Cooler on 1,652,000 people and got one minor reaction, would you say that was a product that was prone to cause allergies?

'A. No, I would not.'

There is no evidence that the jar of 'Strawberry Cooler' purchased and applied by the plaintiff contained any foreign substance. Evidence produced by the defendant established that the jar purchased by the plaintiff conformed identically to the formula for 'Strawberry Cooler,' such testing having been made possible since the plaintiff furnished the defendant with a sample from the jar prior to trial.

The problem of the allergic or unusually susceptible consumer has been termed one of the most interesting--and most difficult--questions which arises in the field of products liability. 2 Hursh, American Law of Product Liability, Sec. 8:1, p. 41. Generally speaking, the allergic plaintiff has found the road to financial recovery a difficult one and this is true both in negligence and in warranty. See 2 Hursh, op. cit., Secs. 8:2 and 8:3, pp. 43 and 45; Freedman, Allergy and Products Liability, chapters 7 and 8, pp. 107 and 137; Horowitz, Allergy of the Plaintiff as a Defense in Actions Based upon Breach of Implied Warranty of Quality, 24 So.Cal.L.Rev. 221; Noel, The Duty to Warn Allergic Users of Products, 12 Vand.L.Rev. 331; Note, 46 Cornell L.Q. 465. Prosser states the rule as follows: (Prosser, The Assault upon the Citadel, 69 Yale L.J. 1099, 1144):

'* * * the seller may expect, within some reasonable limits, that the product will be used by normal persons, and that he will not be held responsible when some idiosyncracy peculiar to the plaintiff makes him abnormally sensitive to a product quite harmless to ordinary people. This must be qualified to the extent that he is required to take into account allergies common to a substantial portion of the population. This in turn must be qualified by his reasonable right to assume that those who have a common allergy--for example, to strawberries--will be aware of the fact, and will take measures to protect themselves, so that a warning on the label may be all that is required of him.'

We shall first consider the plaintiff's claim that the...