Hunnings v. Texaco, Inc.

• Decision Date: 12 August 1994
• Docket Number: No. 93-2057,93-2057
• Citation: 29 F.3d 1480
• Parties: Prod.Liab.Rep. (CCH) P 13,975 John J. HUNNINGS, and wife, Donna Hunnings, Individually and as Co-Personal Representatives of the Estate of David B. Hunnings, deceased, Plaintiffs-Appellants, Cross-Appellees, v. TEXACO, INC., Kerr-McGee Refining Corp., Union Oil Company of California, Shell Oil Company, Defendants-Appellees, Cross-Appellants, Hunt Refining Co., and Whitaker Oil Company, Defendants-Appellees, Hill Petroleum Company, Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1480

29 F.3d 1480

Prod.Liab.Rep. (CCH) P 13,975

John J. HUNNINGS, and wife, Donna Hunnings, Individually and as Co-Personal Representatives of the Estate of David B. Hunnings, deceased, Plaintiffs-Appellants, Cross-Appellees, v. TEXACO, INC., Kerr-McGee Refining Corp., Union Oil Company

of California, Shell Oil Company,

Defendants-Appellees, Cross-Appellants,

Hunt Refining Co., and Whitaker Oil Company, Defendants-Appellees,

Hill Petroleum Company, Defendants.

No. 93-2057.

United States Court of Appeals, Eleventh Circuit.

Aug. 12, 1994.

Edmond D. Quintana, Panama City, FL, for appellants.

John M. Fite, Panama City, FL, for Hunt Refining Co.

Michael Joel Pugh, Pensacola, FL, W.H.F. Wiltshire, Pensacola, FL, for Kerr-McGee.

Danny L. Kepner, Pensacola, FL, for Whitaker Oil Co.

Don H. Lester, Jacksonville, FL, for Phibro.

Appeal from the United States District Court for the Northern District of Florida.

Before KRAVITCH and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

The plaintiffs in this diversity action, John J. and Donna Hunnings, individually and as personal representatives of the estate of their son, David B. Hunnings, appeal from the judgment of the United States District Court for the Northern District of Florida dismissing their complaint for failure to state a claim upon which relief can be granted. Four of the defendants, various manufacturers and bulk distributors of mineral spirits, filed a cross-appeal from the district court's finding that federal law does not preempt the plaintiffs' Florida law causes of action. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

I. BACKGROUND

This case concerns the tort liability of bulk manufacturers and distributors of mineral spirits, which were packaged illegally at the retail level in used one-half gallon milk containers ¹ and were purchased by Donna Hunnings for use as a paint brush cleaner. The plaintiffs filed this action after their twenty-one-month-old son, David, drank some of the solvent from the container and subsequently died.

All of the defendants, except for Whitaker Oil Co. ("Whitaker"), are manufacturers of mineral spirits, which they sold in bulk to Whitaker by delivering the product to Whitaker's holding tank, where it was mixed with other mineral spirits. Whitaker is a distributor of mineral spirits and as such transferred the commodity in bulk to Miller Agency, Inc., by placing it in that company's holding tank. Miller Agency, Inc. then marketed the solvent in fifty-five gallon drums to Miller Marine, Inc., which in turn, sold the filled drums to Sizemore's Ace Hardware, the store where Donna Hunnings purchased the mineral spirits packaged in a used milk container. ² The plaintiffs brought this action pursuant to a market share theory of liability authorized by Florida law in certain negligence cases where there is an inherent inability to identify the specific manufacturer of the substance that caused the harm. See Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990).

The complaint alleged that the defendants knew or should have known that it is a customary practice to sell mineral spirits at the retail level in used milk containers without adequate warning of their contents, which renders the solvent unreasonably dangerous for its foreseeable use in households with young children. The plaintiffs advanced two theories of liability. Count I asserted that David's death and the plaintiffs' resulting damages were proximately caused by the defendants' negligent marketing of the product, which allowed Sizemore's Ace Hardware to sell the liquid in a milk container which bore no warnings or statements concerning its hazardous nature. Count II set forth a strict liability cause of action based upon the plaintiffs' contention that the product was defective due to the defendants' failure to provide instructions for its packaging by retailers.

Each named defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. They maintained, inter alia, that the plaintiffs' state law causes of action were preempted by the Federal Hazardous Substances Act, 15 U.S.C. Secs. 1261-77 ("FHSA"), and the Poison Prevention Packaging Act of 1970, 15 U.S.C. Secs. 1471-76 ("PPPA"). In addition, they contended that the plaintiffs could not recover, as a matter of Florida law, on their negligence and strict liability causes of action.

The district court found that neither the FHSA nor the PPPA preempted the state law claims because those statutes, which regulate the packaging of commodities in a form suitable for household use, did not extend to the bulk transfer of the mineral spirits at issue here. It, consequently, denied the motion to dismiss predicated upon preemption.

Next, the court considered whether the complaint stated a viable cause of action for negligence in accordance with Florida law. In doing so the court recognized that, in appropriate circumstances, a bulk seller may discharge its duty to warn of unreasonable dangers involved in the foreseeable use of a product by passing the requisite information down the chain of distribution through its immediate bulk purchaser. See, e.g., Shell Oil Co. v. Harrison, 425 So.2d 67 (Fla.Dist.Ct.App.), review denied, 436 So.2d 98 (Fla.1983). It held, however, that the bulk manufacturers and distributors in the present case had no such duty to warn against the hazards of ingesting mineral spirits because the danger attendant to doing so is common knowledge. See Knox v. Delta Int'l Mach. Corp., 554 So.2d 6, 7 (Fla.Dist.Ct.App.1989) (manufacturers have no duty to warn consumers of obvious dangers); Clark v. Boeing Co., 395 So.2d 1226, 1228-29 (Fla.Dist.Ct.App.1981) (same). The court stated that because the danger is well known to all, the sellers at each level of distribution were equally capable of taking appropriate precautions with regard to their immediate purchasers. The court observed that it is similarly well known that without proper supervision, small children are likely to open containers which hold harmful substances and that the plaintiffs, who were also aware of the harm that could come to their son through ingesting the solvent, were in a position to guard against this eventuality. The court held further that bulk distributors of hazardous substances are entitled to presume that the retail sellers of their products will comply with the labeling and packaging requirements imposed by law for distribution at that level. In the court's view, to hold otherwise would unduly burden manufacturers and bulk sellers with the responsibility of enforcing the laws and regulations governing retail sales.

The court concluded that (1) because the law imposed no duty upon the defendants to warn downstream distributors of the apparent dangers of ingesting mineral spirits; and (2) because the defendants could presume that the product was being sold at the retail level in a legal manner, the plaintiffs could not state a claim against the defendants grounded upon negligence. It found that the absence of negligence on the part of the defendants was fatal to plaintiffs' strict liability count as well. The court, therefore, entered an order dismissing the complaint with prejudice for failure to state a claim.

II. DISCUSSION

In ruling on a motion to dismiss for failure to state a claim, the district court must accept the allegations of the complaint as true and must construe the facts alleged in the light most favorable to the plaintiff. Fortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir.1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Patuala Elec. Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 302, 121 L.Ed.2d 225 (1992). Our review of a dismissal for failure to state a claim is de novo. Id.; Fortner, 983 F.2d at 1027. Because the district court's jurisdiction of this action was based upon diversity of citizenship, 28 U.S.C. Sec. 1332, we are guided by Florida law in determining whether the complaint stated a claim for relief. See Broyles v. Bayless, 878 F.2d 1400, 1402 (11th Cir.1989).

A. Negligence

We begin our analysis by recognizing, as did the district court, that mineral spirits is an "inherently dangerous commodity; that is, a commodity burdened with a latent danger which derives from the very nature of the article itself." ³ Tampa Drug Co. v. Wait, 103 So.2d 603, 608 (Fla.1958); see also Advance Chem. Co. v. Harter, 478 So.2d 444, 447 (Fla.Dist.Ct.App.1985), review denied, 488 So.2d 829 (Fla.1986). ⁴ Mineral spirits is similar in nature to the chemical, carbon tetrachloride, the inhalation of which led to the death of the plaintiff's decedent in Tampa Drug Co., supra. The court described that product as a clear liquid with a sharp odor similar to that of chloroform, which has many useful purposes when properly employed. However, exposure to the chemical, through internal ingestion, inhalation or prolonged contact with the skin can be fatal. Tampa Drug Co., 103 So.2d at 608. See Bean v. Carey's Rental Agency, Inc., 532 So.2d 685, 686 (Fla.Dist.Ct.App.1988) (plaintiff's eighteen-month-old child died after spilling mineral spirits on himself and inhaling the noxious fumes). The court observed that "although the product appears harmless in and of itself, it has lurking in its innocent appearance death-dealing potentialities." Tampa Drug Co., 103 So.2d at 608. With respect to this type of product, the court held "that the law imposes upon the distributor a duty to the using public. This duty simply is to take reasonable precautions to supply users with an adequate warning notice that would place them on their guard against the harmful consequences that might result from use of the commodity." Id.; see also ...