Kaempfe v. Lehn & Fink Products Corp.

• Decision Date: 21 May 1964
• Citation: 249 N.Y.S.2d 840,21 A.D.2d 197
• Parties: Inga KAEMPFE, Plaintiff-Respondent, v. LEHN & FINK PRODUCTS CORP., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 840

249 N.Y.S.2d 840

21 A.D.2d 197

Inga KAEMPFE, Plaintiff-Respondent, v. LEHN & FINK PRODUCTS CORP., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 21, 1964.

Lillian E. Cuff, Kew Gardens, of counsel, George J. Conway, New York City, attorney, for defendant-appellant.

Herman B. Glaser, New York City, attorney for plaintiff-respondent.

Before BOTEIN, P. J., and VALENTE, STEVENS, EAGER and STALEY, JJ.

EAGER, Justice.

The plaintiff, in a suit against the manufacturer of the spray deodorant 'Etiquet', has recovered judgment for a severe case of dermatitis resulting from an allergic reaction in the use of the product. The action was tried and submitted to the jury on the theory that the defendant-manufacturer was negligent in its alleged failure to give adequate warning to the very few persons who might possibly suffer some allergic reaction in the use of the product.

The plaintiff, a 19 year old woman, had purchased at a local drug store two containers of the product labeled 'Etiquet Spray-On Deodorant', which was prepared, sold and used for the purpose of preventing body perspiration and odor. The label on the container read as follows: 'Easy to use A quick squeeze--it sprays Stops underarm odor Checks perspiration Safe for normal skin Harmless to clothes.' The container also was marked with the statement, 'Contains Aluminum Sulphate'.

Aluminum sulphate, the essential ingredient in the preparation, when applied to the skin, has the effect of closing the pores, stopping perspiration and eliminating odor. According to the testimony, practically all of the deodorants on the market contain aluminum sulphate.

After her purchase of the product, the plaintiff, following the directions thereon, applied the spray in the area of both armpits. Thereafter, during that day, she detected an itching sensation and observed an inflammation where the spray had been applied. Subsequently, a rash or dermatitis developed which spread to adjacent parts of her body. It was accompanied by burning, blistering and itching. Although permanent injury was not claimed, the sequelae persisted for sometime until it was fully healed. This was plaintiff's first allergic reaction to this or any other product .

The plaintiff's medical expert testified that the aluminum sulphate in the product was the cause of plaintiff's dermatitis. By his testimony, it was established that a few persons may be sensitive to products containing this particular ingredient. The doctor stated, however, that the chemical agent aluminum sulphate, which is used in almost all deodorants, is not normally harmful to skin; that it is in fact safe for 'normal skin' as claimed.

This is the typical case where a peculiar reaction to a product in common use was due solely to an allergy possessed by the user. Plaintiff's medical expert testified that her rash was due to an allergy, and, in this connection, he described an allergy as 'the reaction of the skin to a substance which, as a rule, does not bother normal people but which in people who are susceptible, sensitized, makes them react differently from normal people.' The plaintiff is apparently one in a multitude of persons who has an allergy to the ingredient aluminum sulphate. Here, as measured by defendant's sales figures for this product for the year 1956 (the year in which plaintiff used this preparation) and the number of complaints it received therefrom, it appears that some sensitivity was experienced in the ratio of about one to 150,000 customers.

There is no claim or proof that the defendant was negligent in the concoction of the contents of the particular containers purchased and used by plaintiff. Furthermore, it appears that the product is one universally used without deleterious effect and, therefore, the defendant may not be cast in liability on the theory that it was negligent in manufacturing for sale and selling an inherently dangerous or poisonous product. (See Karr v. Inecto, Inc ., 247 N.Y. 360, 160 N.E. 398; Sanders v. Clairol, Inc., 2 A.D.2d 857, 155 N.Y.S.2d 945.) 'It is a matter of common knowledge that many persons are allergic to conditions which do not affect the normal individual. Cases so holding are legion with reference to wearing apparel, cathartics, face powders and sedatives. In this state it has been held that 'A preparation is not 'deleterious' to human health, in the ordinary acceptation of that term, simply because one person in a multitude of those using it happens to meet with ill effects from taking it.' Wilson v. Faxon, Williams & Faxon, 138 App.Div. 359, 364, 122 N.Y.S. 778, 781.' (Cleary v. Maris Co. (Steinbrink, J.), 173 Misc. 954, 956, 19 N.Y.S.2d 38, 42.) So, generally speaking, 'If the injuries were suffered by reason of the patron's allergy to the product or to its ingredients, no right of action exists in favor of the patron on any theory of negligence in manufacture, distribution or use.' (Ravo v. Lido, 17 A.D.2d 476, 482, 236 N.Y.S.2d 135, 141, citing cases; see, also, Sanders v. Clairol, Inc., supra; Cleary v. Maris Co., supra; Singer v. Oken, 193 Misc. 1058, 87 N.Y.S.2d 686; Kinkead v. Lysol, Inc., 250 App.Div . 832, 296 N.Y.S. 461.)

In light of the foregoing, the plaintiff attempted to make out a case against the defendant on the theory that the defendant was negligent in failing to give due warning of an alleged danger in the use of the product. It is true that, where a particular product, though not poisonous or inherently dangerous, may become unreasonably dangerous in its use, a seller or manufacturer may be required to give directions or warning on the container as to the proper use thereof. In the case of the non-poisonous and reasonably safe product in general use, the duty to warn depends upon whether or not it was reasonably foreseeable by the supplier that a substantial number of the population may be so allergic to the product as to sustain an injury of consequences from its use. (See Tentative Draft No. 7, Restatement of the Law of Torts, Second (April 16, 1963), § 402A, subd. (j), p. 5.) 'If the danger of such an allergy is known or should be known to the maker, and if the consequences of the idiosyncrasy are serious enough, reasonable care may well require the taking of some precaution such as warning and instructions for making tests.' (Harper and James, The Law of Torts, § 28.8, p. 1551.)

The fundamental test of negligence--reasonable foreseeability of harm and reasonable care to guard against same--is applicable in these cases. The manufacturer or seller may be held liable where he knows or with reasonable diligence should anticipate that the normal use of his product may result in substantial harm and where he fails to exercise reasonable care to warn of such danger. On the other hand, it is clear that manufacturer or seller should not be held bound to anticipate and warn against a remote possibility of injury in an isolated and unusual case. The law requires a person to exercise reasonable care to guard against probabilities, not mere remote possibilities. A supplier of a product in daily use ought not to be placed in the position of an insurer. We have not yet reached the point where the manufacturer is under the absolute duty of making a product, useful to many, free from all possible harm to each and every individual; nor the point where the manufacturer is to be held under an absolute duty of giving special warning against a remote possibility of harm due to an unusual allergic reaction from use by a miniscule percentage of the potential customers. 'Every substance, including food which is daily consumed by the public, occasionally becomes anathema to him peculiarly allergic to it. To require insurability against such an unforeseeable happenstance would weaken the structure of common sense, as well as present an unreasonable burden on the channels of trade.' (Bennett v. Pilot Products Co., 120 Utah 474, 478, 235 P.2d 525, 527, 26 A.L.R.2d 958, 961; Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48.)

So, according to the prevailing authority, the existence of a duty on the part of a manufacturer to warn depends upon whether or not, to his actual or constructive knowledge, the product contains an ingredient 'to which a substantial number of the population are allergic' (see Tentative Draft No. 7, Restatement of the Law, Torts, Second, supra), or an ingredient potentially dangerous to an identifiable class of an appreciable number of prospective customers . (See Merrill v. Beaute Vues Corporation, 235 F.2d 893 (Murrah, J., concurring at 898). See, also, Note, 46 Cornell L.Q. 465 (1961) .) 'If the allergy is one common to any substantial number of possible users, the seller may be required at least to give warning of the danger.' (Prosser Torts (2d ed.), § 84, p. 503). On the other hand, 'in the ordinary case, the maker may also assume a normal user; and he is not liable where the injury is due to some allergy or other personal idiosyncrasy of the consumer, found only in an insignificant percentage of the population.' (Prosser, idem.)

Knowledge or constructive notice of an unreasonable danger to users of a particular product may impose upon the manufacturer a duty of warning. But, in the case of a useful and reasonably safe product, in general use, the supplier owes no special duty of warning to the unknown few who constitute a mere microscopic fraction of potential users who may suffer some allergic reaction not common to the ordinary or normal person. (See, further, Bish v. Employers Liability Insurance Co., 5 Cir., 236 F.2d 62; Merrill v. Beaute Vues Corporation, supra; Bennett v. Pilot Products Co., supra; Casagrande v. F. W. Woolworth Co., 340 Mass. 552, 556, 165 N.E.2d 109, 112; Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 162 A.2d 513, 516; Levi v. Colgate-Palmolive Proprietary Ltd., 41 New So W St 48, 58 New So W W N 63.)

In light of the foregoing, the plaintiff,...