Jarrell v. Monsanto Co.

• Decision Date: 07 October 1988
• Docket Number: No. 29A02-8610-CV-00354,29A02-8610-CV-00354
• Citation: 528 N.E.2d 1158
• Parties: Prod.Liab.Rep. (CCH) P 11,938 Arthur E. JARRELL, Juliann Jarrell, Appellants (Plaintiffs Below), v. MONSANTO COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1158

528 N.E.2d 1158

Prod.Liab.Rep. (CCH) P 11,938

Arthur E. JARRELL, Juliann Jarrell, Appellants (Plaintiffs Below), v. MONSANTO COMPANY, Appellee (Defendant Below).

No. 29A02-8610-CV-00354.

Court of Appeals of Indiana Second District.

Oct. 7, 1988.

Rehearing Denied Nov. 4, 1988.

John Richard Walsh, II, Anderson, for appellants.

Phillip R. Scaletta, Anthony P. Gillman, Ice Miller Donadio & Ryan, Indianapolis, for appellee.

SULLIVAN, Judge.

Arthur Jarrell and his wife, Juliann, appeal the summary judgment granted to Monsanto Company in a products liability suit instituted to recover for injuries Arthur suffered in an industrial mishap.

We reverse.

Arthur is an employee of Firestone Industrial Products in Noblesville, Indiana. On October 19, 1981, he was working in the Compound Department, filling bins with pigments used in the process of manufacturing rubber products. The pigment bins constituted a relatively new storage system at the Noblesville plant, and the day of the accident was only Arthur's third working with them. After Arthur poured two fifty-pound bags of sulphur through the upper hatch of a bin which extended from the second floor upward above the third floor, he slid the door closed and heard it bump as it went back into place. The next thing Arthur knew, the door had blown back up and his shirt and gloves were aflame with molten sulphur. No specific cause for the explosion was established, but the sulphur product in question is easily ignited when dispersed in the air. Arthur and his wife brought this action to recover damages for Arthur's injuries against Monsanto (the supplier of the sulphur) and sundry other parties.

After extensive discovery and pretrial proceedings, only Monsanto remained as a party, defending against claims of negligent failure to warn and of strict liability for selling an inherently dangerous product. Monsanto denied the allegations, asserted several defenses and then moved for summary judgment. The Jarrells opposed the motion and filed an affidavit by Arthur with a supplement and an affidavit of Dr. Melvin H. Rudov, a forensic psychologist who stated that the sulphur product was defective for failure to provide appropriate warnings. Absent its introductory and decretal portions, the following is the order issued by the court granting Monsanto's motion and denying relief to the Jarrells:

"1. Plaintiff Arthur Jarrell, while in the course of his employment, emptied two fifty pound bags of 'Insoluble Sulphur 60' into storage bins located in the plant of his employer, Firestone, on October 19, 1981.

2. The storage bins were one-story high, with an opening on the third floor and the bottom on the second floor (with another opening) of the Firestone Plant.

3. Upon emptying the second bag, the sulphur ignited and the Plaintiff, Arthur Jarrell, was extensively burned.

4. The sulphur was sold to Firestone by Defendant Monsanto.

5. Defendant Monsanto placed warnings on the bags of its sulphur, including the following: 'WARNING!,' and 'SULPHUR DUST SUSPENDED IN AIR IGNITES EASILY!' and 'Avoid creating dust in handling.'

6. Defendant Monsanto mailed 'material safety data' to Firestone, Plaintiff Jarrell's employer, approximately ten months before this accident, such data containing the same and additional warnings.

7. Plaintiff Jarrell did not read the warning label on the bags prior to use of the sulphur.

8. Plaintiff Jarrell was aware of warning labels on the bags of various products used by him in the scope of his employment.

9. Firestone had a standard operating procedure in filling the storage bin in question, namely filling same from the bottom before filling from the top.

10. Plaintiff Jarrell violated his employer's standard operating procedure in filling the bin.

11. The sulphur itself was not defective.

12. The action of Plaintiff Juliann Jarrell against Defendant Monsanto is the result of Plaintiff Arthur Jarrell's injuries.

Thus, the buyer of the product was warned, the user of the product was warned, the user failed to heed the warnings, and misused the product. Plaintiff's statement, or an expert opinion, that if the warning had been configured differently or that a different design had been used, the Plaintiff would have seen and would have heeded same, is speculation." Record at 549-50 (emphasis in original).

The Jarrells appeal this ruling, asserting that the trial court erred by granting Monsanto's Motion for Summary Judgment.

A motion for summary judgment is governed by Ind. Rules of Procedure, Trial Rule 56, which states that our focus upon review is to examine the appropriate materials before us to determine if there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." T.R. 56(C). The movant bears the burden of showing that there are no genuine issues of material fact while, throughout the process, the nonmovant is given the benefit of reasonable doubt as to their existence. Wingett v. Teledyne Industries, Inc. (1985) Ind., 479 N.E.2d 51. A factual issue is material if it is decisive to the action or to a relevant secondary issue and is genuine if the trier of fact must resolve the opposing parties' differing versions of the underlying facts. Thiele v. Faygo Beverage, Inc. (1986) 4th Dist.Ind.App., 489 N.E.2d 562, trans. denied. As stated in Johnson v. Wabash County (1979) 4th Dist., 181 Ind.App. 281, 288, 391 N.E.2d 1139, 1144: "The judge may not use summary judgment procedure to weigh the evidence to determine where the preponderance lies in advance of its being presented." In the case before us, it is apparent that the trial court weighed disputed evidence pertinent to material issues and thus erred when it granted summary judgment. ¹

The Jarrells' claim for negligence rests upon Monsanto's failure to warn Arthur of the dangers inherent in the bulk sulphur. In order to succeed upon this claim, the Jarrells must establish each of the following elements:

1) That Monsanto supplied to Firestone, for use by Arthur, a product with a concealed danger;

2) That Monsanto knew or had reason to know of the danger;

3) That Monsanto failed to adequately warn Arthur of that danger; and 4) That failure to warn was a proximate cause of Arthur's injury.

See American Optical Co. v. Weidenhamer (1983) Ind., 457 N.E.2d 181; Ortho Pharmaceutical Corp. v. Chapman (1979) 1st Dist., 180 Ind.App. 33, 388 N.E.2d 541, trans. denied. In its motion for summary judgment, Monsanto's task was to show the uncontroverted nonexistence of at least one of these elements. Monsanto failed in this task.

It is undisputed that Monsanto supplied Firestone with the bags of sulphur and that the sulphur was dangerous. The first issue is therefore reduced to whether the danger was concealed. There was evidence that Arthur had worked with this product before and recognized that there was a certain danger in handling the material, particularly that it was combustible. He had also experienced small shocks when the metal scoops used with the product created static electricity. However, such past experience would not necessarily alert a user to all dangers associated with a product. See Butler v. PPG Industries, Inc. (1985) 201 N.J.Super. 558, 493 A.2d 619; Fiorentino v. A.E. Staley Manufacturing Co. (1981) 11 Mass.App. 428, 416 N.E.2d 998. Arthur stated that at no time was he aware of the "possibility of spontaneous combustion." Record at 509. The evidence does not give rise to any permissible inference as to the cause in fact of the explosion. However, Arthur on two occasions claimed that "the sulphur was ignited by a spark created by the closing of the sheet metal sliding door of the bin ..." (Record at 3 and 149), although he later stated that he thought it was caused by "auto ignition" because there was no known source of ignition. ² The facts present permissible contrary inferences not amenable to summary judgment. See Bridgewater v. Economy Engineering Co. (1985) Ind., 486 N.E.2d 484. A reasonable trier of fact might find either way with respect to whether Arthur should have perceived the danger which caused his injury or whether as to him, the danger was concealed. See Outboard Marine Corp. v. Schupbach (1977) 93 Nev. 158, 561 P.2d 450. Therefore, summary judgment is not appropriate upon this issue.

As to the second element, there is no dispute that Monsanto knew of the dangers of dust explosions by outside spark and by auto ignition. Combining the first two elements, it is clear that the Jarrells presented sufficient evidence to create a question of fact as to whether Monsanto had a duty to warn of danger. See Sills v. Massey-Ferguson, Inc. (1969) N.D.Ind., 296 F.Supp. 776 (applying Indiana law).

The third element is whether Monsanto fulfilled its duty, if such duty existed, by adequately warning Arthur of the danger. Implied in this question is whether Monsanto's duty to warn extended to Arthur. Indiana negligence law clearly states that a manufacturer or supplier has a duty to warn all who may reasonably be foreseen as coming in contact with the product. Dudley Sports Co. v. Schmitt (1972) 2d Dist., 151 Ind.App. 217, 279 N.E.2d 266, trans. denied. See also Restatement (Second) of Torts Sec. 388 comment n (1965). Without question Arthur was a person who could be foreseen as coming in contact with the product. Thus, all that remains of this element is whether the warning given was adequate.

The adequacy of warnings is classically a question of fact reserved to the trier of fact and, therefore, usually an inappropriate matter for summary judgment. Sills v. Massey-Ferguson, Inc., supra, 296 F.Supp. 776. As set forth in American Cyanamid Co. v. Roy (1984) Fla.App., 466 So.2d 1079, 1082, modified on other grounds (1986) Fla., 498 So.2d 859: "[T]he product label must make apparent the potential harmful consequences. The warning should be of such intensity as to cause a reasonable man to exercise for...