Johnson v. Husky Industries, Inc.

• Decision Date: 13 September 1976
• Docket Number: No. 75-2219,75-2219
• Citation: 536 F.2d 645
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Mrs. J. D. JOHNSON et al., Plaintiffs-Appellees, v. HUSKY INDUSTRIES, INC., Defendant-Appellant.

Page 645

536 F.2d 645

Mrs. J. D. JOHNSON et al., Plaintiffs-Appellees, v. HUSKY INDUSTRIES, INC., Defendant-Appellant.

No. 75-2219.

United States Court of Appeals, Sixth Circuit.

Argued June 7, 1976.

Decided Sept. 13, 1976.

N. R. Coleman, Jr., Milligan, Coleman, Fletcher & Gaby, Greeneville, Tenn., Jerry J. Phillips, Univ. of Tenn., College of Law, Knoxville, Tenn., for defendant-appellant.

Charles R. Terry, Morristown, Tenn., Edward M. Swartz, Boston, Mass., for plaintiffs-appellees.

Before WEICK and EDWARDS, Circuit Judges, and GREEN,* Senior District Judge.

BEN C. GREEN, Senior District Judge.

On November 8, 1972 the four members of the Clyne Robinson family, being Mr. Robinson (age 32), his wife, Edna Faye (age 28), and their two children, Robin (age 10) and Terry (age 8), died from carbon monoxide asphyxiation as a consequence of burning ten pounds of charcoal briquets for heating purposes inside a closed house. Two empty five-pound bags of charcoal manufactured by defendant-appellant, Husky Industries, Inc., were found in the Robinson residence. The charcoal which Mr. Robinson purchased shortly before the date in question was packaged by appellant on May 30, 1971. The bags in which the charcoal was packaged had been manufactured to appellant's specifications pursuant to an order placed by appellant on April 13, 1971.

Plaintiffs-appellees, the parents of Mr. and Mrs. Robinson and the grandparents of the children, brought this wrongful death action seeking to recover compensatory and punitive damages from appellant. No issue is raised on this appeal as to appellees' standing under Tennessee law to maintain such an action. The plaintiffs' theory of the case was that the defendant was strictly liable in tort for failure to provide an adequate warning of the danger of asphyxiation from use of the charcoal indoors. Each of the bags carried the legend 'CAUTION--FOR INDOOR USE--COOK ONLY IN PROPERLY VENTILATED AREAS'.

The matter was tried to a jury, and the trial court submitted the action under instructions as to both compensatory and punitive damages. The jury returned verdicts in appellees' favor awarding both compensatory and punitive damages in equal amounts for each of the decedents. For the death of Mr. Robinson the jury awarded $75,000.00 compensatory and $75,000.00 punitive damages. The award as to Mrs. Robinson was $37,500.00 for each element of damage. For the deaths of the two children the verdicts were $50,000.00 compensatory and $50,000.00 punitive damages each. Consequently, the total recovery was $425,000.00, one-half of which was for punitive damages.

Appellant asserts that error was committed by the district court in several regards. It is urged that the issue of liability should not have been submitted to the jury for the reasons that the plaintiffs' proof failed to make out a prima facie case of inadequacy of warning, that defendant's evidence of compliance with industry standards was so overwhelming it should have been given conclusive weight that the risk of asphyxiation is so commonly known that no warning was required, that the use of the charcoal indoors for heating constituted a misuse for which defendant could not be held responsible, and that plaintiffs failed to prove that any of the decedents read the warning (adequate or inadequate) so that the warning could be deemed a causal link to their deaths. Appellant also complains of the trial court's refusal to give the jury proffered instructions on the issues of industry standards, the necessity of proof that the decedents actually read the warnings and that any awards made would not be taxable income under the federal laws. It is further contended that the trial court erred in permitting the plaintiffs' expert witness, a chemical engineer, to express his opinion on the adequacy of the warning. The sufficiency of the evidence to support the verdicts is challenged on the basis of the competency of the expert testimony offered as to compensatory damages and the lack of evidence to warrant submitting the issue of punitive damages to the jury.

For the most part, appellant's assignments of error on issues relating to liability pertain to matters which were submitted to the jury under instructions reflecting appellant's theory of the case. The trial court's charge included instructions consistent with appellant's arguments as advanced herein. Leading into more detailed instructions on the matters of defense the trial court advised the jury:

The defendant Husky claims that its packages adequately warned of the danger of using charcoal indoors in an unventilated area; that its charcoal was not unreasonably dangerous when used for ordinary purposes; that the use to which the decedents put the charcoal was not reasonably foreseeable by the defendant; that the decedents were putting the product to an unintended use, using it for heating rather than cooking purposes, which was an intervening cause of the deaths of Robin Josea and Terry Paul Robinson; that the plaintiffs' decedents Mr. and Mrs. Robinson voluntarily assumed the risk of injury or death, by thus using such product in disregard of the warning printed on the package; that any inadequate warning by the defendant was not a proximate cause of the decedents' deaths; and that Husky was not grossly negligent in any manner.

We have considered the more expansive instructions given by the trial court, and find that they properly covered the subjects mentioned in the prefatory paragraph. More particularly, taking the instructions as a whole, we find no error in the trial court's refusal to give appellant's proffered instruction that it was incumbent upon plaintiffs to prove that the decedents actually read the warnings on the bags in order to establish proximate causation, a proposition which would have been virtually impossible to establish.

Consequently, only if it can be said that as a matter of law that appellant was entitled to judgment in its favor, or that prejudicial error was committed in the course of the trial, can the finding of liability be set aside based on the reasons advanced herein.

From the record in this action we cannot hold that appellees failed to make out a prima facie case as to the adequacy of the warnings. Appellees presented evidence as to the sbstantial hazards of burning charcoal briquets in a closed environment. At that point we believe that an issue of fact was raised as to whether the warning on the bag, which warning presupposed an indoor use, was adequate to advise an average person as to the nature and extent of the risk inherent in indoor use. While we believe that the matters of misuse (encompassing proximate cause and intervening cause) and assumption of risk are close questions, which if we were triers of fact might have been resolved differently, they were issues of fact for the jury and were resolved adversely to appellant. The jury's decision must stand.

Appellant's contentions regarding the court's alleged errors as to the effect of industry standards involve, to a significant degree, a New York statute. It is represented that in 1971 New York was the only state having regulatory legislation as to labeling of charcoal bags, which required precisely the warning that appellant's bags carried.

The jury was advised by the court that the parties had stipulated that the legend which appellant's bag carried represented 'the standard of the industry at that time'. There was, however, testimony from which the jury could have concluded that the adoption by the industry of the warning which the New York statute mandated was a matter of expediency so that a uniform bag could be utilized in all states.

The New York statute was read in full text to the jury after testimony regarding adoption by the industry of the warning required therein had been received. In the course of such testimony it was reiterated that the warning on appellant's bags conformed to 'the standards, practices and customs and usages of the charcoal industry as a whole'. After the statute was read to the jury the court advised the jury '[T]hat is the law of New York. It is not the law in Tennessee and was not at the pertinent time'. We find no merit in appellant's exception to that cautionary instruction. The statute in question was solely a New York enactment. Whether appellant's conformance therewith under industry standards was sufficient to avoid liability under Tennessee law was a separate question.

This leads to appellant's argument that a directed verdict should have been granted based upon the proof of compliance with industry standards. We find no basis in this record deviating from the generally accepted rule that industry standards may be proven as some evidence of care but are not conclusive on the matter. Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 481 (6th Cir., 1973). Consequently, we do not find that the trial court erred in rejecting appellant's proposed jury instruction on industry standards which went beyond this general rule.

The remaining assignment of error bearing on the matter of liability, as opposed to damages, pertains to testimony from appellees' expert as to his opinion concerning the adequacy of the warning. The witness, a consulting engineer with expertise in combustion, testified that he did not believe that appellant's charcoal briquets should be used indoors. In the course of explaining his reasons in support of that belief he testified as follows:

. . . That is one reason the 'Grill Time' charcoal briquets should not be used indoors. I have other reasons.

Q Would you give them?

A For that particular, I have...