Jackson v. Coast Paint and Lacquer Company

• Decision Date: 01 July 1974
• Docket Number: No. 72-2078.,72-2078.
• Citation: 499 F.2d 809
• Parties: Sterling JACKSON, Plaintiff-Appellant, v. COAST PAINT AND LACQUER COMPANY, a corporation, and Reliance Universal Incorporated, a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.2d 809 (1974)

Sterling JACKSON, Plaintiff-Appellant, v. COAST PAINT AND LACQUER COMPANY, a corporation, and Reliance Universal Incorporated, a corporation, Defendants-Appellees.

No. 72-2078.

United States Court of Appeals, Ninth Circuit.

July 1, 1974.

John J Cavan, Jr. (argued), Sandall, Moses & Cavan, Billings, Mont., for plaintiff-appellant.

Waymouth D. Symmes, (argued), Anderson, Symmes, Forbes, Peete & Brown, Billings, Mont., for defendants-appellees.

Before MERRILL and ELY, Circuit Judges, and ZIRPOLI,^* District Judge.

OPINION

MERRILL, Circuit Judge:

In this diversity case plaintiff seeks to recover from a manufacturer-seller of paint for personal injuries which he claims resulted from failure of the manufacturer to warn adequately of the product's dangerous characteristics. The case was presented to a jury on a theory of strict liability.¹ The jury returned a general verdict for the defendant. On this appeal plaintiff challenges the correctness of the district court's instructions to the jury on two issues: the nature of the defendant's duty to warn, and the defense of contributory negligence. Concluding that there was indeed error in these instructions, we reverse.

In 1964 plaintiff, a citizen of Utah, was a journeyman painter employed by a Utah painting contractor. His employer entered into a contract with a Montana manufacturing company to paint some railroad tank cars that were to be used for the shipment of bulk quantities of honey. Plaintiff was sent by his employer to Billings, Montana, to do the work.

The paint used to coat the inside of the tank cars, "Copon EA9," was manufactured and sold by defendant Reliance Universal, Inc., a Texas manufacturer of industrial paints and coatings. It is an epoxy paint which is highly flammable. While plaintiff was spray painting the inside of one of the tanks a fire occurred and he was very severely burned. The fuel of the fire consisted of the paint fumes which had accumulated in the tank. The cause of ignition is uncertain and was a disputed issue at trial. There was some evidence that it was caused by breakage of a light bulb used by plaintiff in the tank. This is the theory favored by defendant. There was other evidence, mainly expert testimony including an experiment-demonstration, to the effect that the fire could have been touched off by static electricity, perhaps generated by the friction of the rubber soles of plaintiff's shoes on the tank floor. This is the theory favored by plaintiff.

An officer of Reliance testified that Reliance was aware of the fact that Copon EA9 is hazardous if not properly used under proper conditions. Two hazards are recognized to be associated with use of the paint: breathing the toxic vapors, and fire.

The label on the paint used by plaintiff was introduced into evidence. It contains a warning which first refers to the toxicity of the paint if ingested, and then states:

"Keep away from heat, sparks, and open flame. USE WITH ADEQUATE VENTILATION. Avoid prolonged contact with skin and breathing of spray mist. Close container after each use. KEEP OUT OF REACH OF CHILDREN."

Plaintiff testified that he and other painters of his acquaintance understood the warning regarding adequate ventilation to refer only to the danger of breathing toxic vapors. While painting the tanks he had contrived and used a tube and mask which enabled him to breathe fresh air from outside the tank. Otherwise plaintiff took no precautions in the nature of "ventilation." He testified that he had been unaware of the possibility that flammable vapors permitted to accumulate in a closed, inadequately ventilated area could be touched off by a spark resulting in a fire or explosion. There was, however, other evidence that some persons in plaintiff's company were aware that such a danger existed.

This court has held, "In the absence of controlling decisions of the Montana Supreme Court, the District Court properly looked to and adopted * * * the Restatement of the Law of Torts, 2d, as the law of Montana." Jacobson v. Colorado Fuel & Iron Corp., 409 F.2d 1263, 1270 (9th Cir. 1969); accord, Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 127 (9th Cir. 1968). In most respects the instructions to the jury did comport with the law as set forth in the Restatement (Second) of Torts (1965) and other relevant authorities. However, in two respects they failed to state the law correctly; and they failed in a manner which may have been, on the evidence presented, highly prejudicial to the plaintiff.

1. The duty to warn instruction

In the Restatement under Chapter 14, "Liability of Persons Supplying Chattels for the Use of Others," Topic 5, "Strict Liability," § 402A provides:

"Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

Comment i under this section states in part:

"Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. * * * The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."

It is not essential to strict liability that the product be defective in the sense that it was not properly manufactured. If the product is unreasonably dangerous that is enough. Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968). A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics. Davis v. Wyeth Laboratories, Inc., supra.

Comment j to § 402A states in part:

"Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. * * *

But a seller is not required to warn * * * when the danger, or potentiality of danger, is generally known and recognized."

The district court's instructions to the jury included the following:

"Defendant had a duty to supply plaintiff or his employer with proper and adequate directions for the use of the paint and proper and adequate warnings concerning the dangers inherent in the paint.

* * * * * *

If the defendant had reason to believe that plaintiff or his employer knew or would discover the hazards inherent in the paint, then defendant had no duty to warn plaintiff or his employer of these dangers."

In our judgment this instruction was erroneous in three respects.

First. It suggests that liability is based on negligence rather than strict liability. (It is in fact patterned upon § 388(b) of the Restatement, which sets forth the elements of liability on the part of a supplier of a chattel for negligent failure to warn of dangers known to the supplier.) In strict liability it is of no moment what defendant "had reason to believe." Liability arises from "selling any product in a defective condition unreasonably dangerous to the user or consumer." It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability.

Second. Plaintiff has contended that a more specific warning of the fire hazard ought to have been given, namely, that accumulated fumes or vapors in an inadequately ventilated area may be ignited by a spark resulting in a violent fire or explosion. His position is that the absence of such a specific warning rendered the paint as marketed by the defendant "unreasonably dangerous to the user or consumer"; in other words, that there was a "duty to warn" of the particular hazard. Defendant contends, in this regard, that it had no duty to warn of this particular hazard because, in the words of comment j to § 402A, "the danger, or potentiality of danger, is generally known and recognized."

On the evidence presented, this was an issue for the jury. The challenged instruction, however, presents the wrong issue. It is not the knowledge actually possessed by the plaintiff, individually, that determines whether the absence of warning renders a product unreasonably dangerous. The subjective knowledge of the plaintiff becomes relevant upon the issue of contributory negligence, as we explain below. On the issue of duty to warn, however, the question to be put to the jury is whether "the danger, or potentiality of danger, is generally known and recognized"; whether the product as sold was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement § 402A, comments j, i (emphasis added).

Third. The most serious error in the challenged instruction is the statement that knowledge of the hazard on the part of plaintiff's employer would obviate any duty to warn plaintiff. Besides improperly focusing on the knowledge of an individual rather than general or common knowledge, this erroneously conceives the "community" whose common knowledge the jury is to ascertain. The seller's duty under § 402A is to "the ultimate user or consumer." At least in the case of paint sold in labeled containers, the adequacy of...