Kelly v. M. Trigg Enterprises, Inc.

• Decision Date: 31 July 1992
• Parties: , Prod.Liab.Rep. (CCH) P 13,286, 50 A.L.R.5th 825 Michael J. KELLY, et al. v. M. TRIGG ENTERPRISES, INC., et al. 1901932.
• Court: Alabama Supreme Court

Page 1185

605 So.2d 1185

61 USLW 2160, Prod.Liab.Rep. (CCH) P 13,286, 50 A.L.R.5th 825

Michael J. KELLY, et al. v. M. TRIGG ENTERPRISES, INC., et al.

1901932.

Supreme Court of Alabama.

July 31, 1992.

Rehearing Denied Oct. 9, 1992.

David H. Marsh of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, for appellants.

R. Ben Hogan III and Richard D. Stratton of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellee M. Trigg Enterprises, Inc.

A. Joe Peddy and Michael B. Walls of Smith, Spires & Peddy, Birmingham, for appellee Tooties-Kwik Stop, Inc.

PER CURIAM.

The plaintiffs, Michael J. Kelly, Lillian V. Kelly, and Patrick D. Kelly, appeal from a summary judgment entered in favor of the defendants, M. Trigg Enterprises, Inc. ("Trigg"), and Tootie's Kwik Stop, Inc. ("Tootie's"). We reverse and remand.

The Kellys were all severely injured when the automobile in which they were traveling was struck by the automobile driven by Karen L. Nix on July 27, 1990, in Birmingham, Alabama. Nix was 16 years old on the date of the accident. Angel Dawson and Melanie Quinn, 18 and 17 years old respectively, were passengers in Nix's car at the time of the accident. Although the deposition testimony of Nix, Dawson, and Quinn differed in various respects, the following aspects of their experience are undisputed. After a period of traveling in various parts of the Birmingham area, the three girls stopped at Concert Concepts with the intention of purchasing Ethyl Gaz, a pure ethyl chloride product marketed as an air freshener. There is evidence that this product, recognized by the slang term "poppers," has gained popularity as an inhalant. The salesperson at Concert Concepts refused to sell Nix the Ethyl Gaz because Nix was unable to produce proof that she was not a minor. The girls then drove to Tootie's, and a young man, over the age of majority, purchased Ethyl Gaz for them. The girls then parked in a nearby parking lot. Although the girls' deposition testimony is in dispute with regard to their use of the Ethyl Gaz as an inhalant, it is undisputed that Nix, the driver of the automobile, repeatedly sprayed the Ethyl Gaz on her sleeve and inhaled the substance by placing her mouth over the area sprayed. Nix, who stated that she had not used the product previously, said she felt dizzy and numb after inhaling the Ethyl Gaz.

Nix stated that the girls then decided to leave the parking lot and that, as they were traveling down a highway, the automobile's floor mat became caught on the accelerator. According to Nix, she lost control of the automobile when she leaned down to adjust the mat. The automobile crossed a median and struck the Kellys' automobile. Nix stated that she was under the influence of the Ethyl Gaz at the time of the accident and that she believed that it played a role in causing the accident. Dawson and Quinn each stated that after Nix inhaled the Ethyl Gaz she rapidly accelerated the automobile out of the parking lot and over the median in the highway and then turned into the oncoming traffic that included the Kellys' automobile.

The Kellys sued, along with other defendants, Trigg, the distributor of Ethyl Gaz; and Tootie's, the retailer from which Nix, Dawson, and Quinn acquired the Ethyl Gaz. The Kellys alleged that Tootie's distributed an unreasonably dangerous product to Nix and that the distribution was negligent and wanton. The Kellys further alleged that Tootie's had reason to know or should have known that the Ethyl Gaz was likely to be used by a minor as an inhalant. The Kellys alleged that Trigg distributed an unreasonably dangerous product that was used by Nix in a foreseeable manner and that such conduct was a proximate cause of the plaintiffs' injuries and created liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). They further alleged that Trigg's distribution of Ethyl Gaz was negligent and wanton. Finally, the Kellys claimed that Trigg negligently and wantonly failed to adequately warn of the dangers associated with the use of Ethyl Gaz.

Trigg and Tootie's each claimed that Nix's misuse of the Ethyl Gaz was unforeseeable and, therefore, was a superseding or intervening cause of the Kellys' injuries. The trial court's order entering a summary judgment in favor of Tootie's and Trigg states, in pertinent part:

"Although there are serious conflicts in the testimony of [the] three girls as [to] their activities, there are several points that are undisputed:

"FIRST; The three girls did not make a purchase of Ethyl Gaz from any business establishment that evening. It is suggested that a man made a purchase at TOOTIE'S; however, this is open to serious question. After leaving CONCERT CONCEPTS the three girls never got out of their vehicle until after the wreck occurred.

"SECOND; If Ethyl Gaz was purchased the evening of the wreck and the same came into the possession of the three girls, the purchase had to have been made by an adult male between the ages of twenty (20) and twenty-five (25).

"THIRD; each of the three girls denied ever having used Ethyl [Gaz] before the evening of the wreck, and two of them denied having used it that evening.

"FOURTH; none of the girls ever read the labels on the can of Ethyl Gaz the evening of the wreck, and none had ever read the labels at any time before.

"....

"The court finds that any purported sale by any of the defendants in this action of the product known as ETHYL GAZ on July 27, 1990, was a legal sale and was not in violation of any city, county, or state law. Counsel have not furnished the court with any citation to such a law of Alabama.

"The court finds that any purported sale by any of the defendants in this action of the product known as Ethyl Gaz on July 27, 1990, was to an adult. Further, that said sale was not to a person under a disability including non-age or minority.

"The court finds that the product known as Ethyl Gaz was delivered to NIX, QUINN, and DAWSON by an adult and not by the defendants.

"The court finds that the issue of warning is not before the court in that the warnings of whatever type or kind that appeared on the labels of the Ethyl Gaz can were not read or considered by the defendant NIX or any person in the NIX vehicle.

"....

"The court finds that the actions of the defendant NIX and the manner in which the Ethyl Gaz was used on July 27, 1990, were not reasonably foreseeable by the defendants."

The Kellys claim that the trial court erred in entering a summary judgment in favor of Trigg and Tootie's, and they base their claim on the following contentions: (1) the defendants supplied a product that was unreasonably dangerous to Nix, entitling a jury to find both defendants liable for the Kellys' injuries; (2) there was no intervening cause that broke the causal relationship between the misconduct of the defendants and the Kellys' injuries; and (3) the warnings provided by Trigg were inadequate as a matter of law, considering the fact that Ethyl Gaz was marketed as an air freshener.

Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. The rule requires the trial court, in order to enter a summary judgment, to determine (1) that there is no genuine issue of material fact and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court:

" 'The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So.2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).' "

Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So.2d 1094, 1096-97 (Ala.1985)).

The standard of review applicable to a summary judgment is the same as the standard for granting the motion; that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the Kellys meet their burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).

In entering the summary judgment in favor of Trigg and Tootie's, the trial court held that the manner in which Nix used the Ethyl Gaz, as an inhalant, was "not reasonably foreseeable by the defendants." Our review of the record reveals the following: Michael Trygstad, the owner and president of Trigg, maintained that the product Ethyl Gaz is marketed solely as an air freshener and is a competitor of common household air fresheners. Ethyl Gaz is the only air freshener that is composed of pure ethyl chloride....