Killeen v. Harmon Grain Products, Inc.

• Decision Date: 15 December 1980
• Citation: 11 Mass.App.Ct. 20,413 N.E.2d 767
• Parties: , 30 UCC Rep.Serv. 862 Dorothy KILLEEN v. HARMON GRAIN PRODUCTS, INC. et al. 1
• Court: Appeals Court of Massachusetts

Page 767

413 N.E.2d 767

11 Mass.App.Ct. 20, 30 UCC Rep.Serv. 862

Dorothy KILLEEN v. HARMON GRAIN PRODUCTS, INC. et al. ¹

Appeals Court of Massachusetts, Norfolk.

Argued April 6, 1979.

Decided Dec. 15, 1980.

Mark G. Cerel, Westwood, for plaintiff.

John B. Johnson, Boston, for Oakdale Variety Store, Inc. Louis Barsky, Boston, for Harmon Grain Products, Inc.

Before HALE, C. J., and ARMSTRONG and DREBEN, JJ.

ARMSTRONG, Justice.

In 1972, the plaintiff, then ten years old fell from a jungle gym while she was sucking a cinnamon flavored toothpick manufactured by the defendant Harmon Grain Products, Inc., and sold at retail by the defendant Oakdale Variety Store, Inc. She landed face down. The toothpick broke and punctured her lower lip in a manner that left her with a disfiguring linear scar three fourths of an inch long running horizontally beneath her lower lip. By her father she brought actions against both defendants for negligence and breach of warranty. ² The trial judge directed verdicts in favor of the defendants, and the case comes to us on the plaintiff's appeal from the ensuing judgment.

The testimony most favorable to the plaintiff, supplemented by the manufacturer's answers to interrogatories (which were read into evidence), would have warranted the jury in finding the following facts. The plaintiff was attending fourth grade at the time of the accident. One of her classmates was the daughter of the proprietor of a small, family-run variety store (the defendant Oakdale Variety Store, Inc.) located about a quarter of a mile from the school. Occasionally the daughter would bring candy to the school which had been ordered by her friends; in such instances her father had instructed her to collect the purchase price and turn it over to the store. It was in that fashion that the cinnamon-flavored toothpick had come into the hands of the plaintiff.

The toothpicks were kept for sale in the candy case. They were packaged in glassine envelopes, roughly two by two and one half inches, which were designed with a striped background and a small picture of a toothpick with a face, and which had as their most prominent feature the names of the product ("Hot Cinnamon Fire Pix") and the manufacturer, a message which said, "Stop Air Pollution-Flavor Your Breath-Refreshing," and another message which said, "Twelve Cinnamon Flavored Pix-Imitation Flavors." The toothpicks looked like ordinary, untreated, wooden toothpicks of the common flat variety, narrow and pointed at one end and slightly broader and rounded at the other. The toothpicks were one of approximately five hundred candy items sold in the variety store and sold for a nickel. They were sometimes bought by adults but were bought more often by children. The proprietor bought them (and his entire line of candy items) from a wholesaler in Cambridge. The envelopes in which the toothpicks were packaged contained no warnings of any kind. Neither did the proprietor receive any warnings, oral or written, from the wholesaler. The proprietor had no dealings with the manufacturer.

A breach-of-warranty theory of recovery, alleged to sound under G.L. c. 106, §§ 2-314 (merchantability) or 2-315 (fitness for particular purpose), is of no pertinence to any set of findings permissible on the evidence. A contention is advanced that the particular toothpick which pierced the plaintiff's lip was improperly manufactured, being pointed at both ends, rather than being somewhat rounded at one end, ³ but if that is true there was nothing in the evidence to suggest that that peculiarity in the toothpick played any role in causing the plaintiff's injury. If the evidence can be said to have any tendency in this respect, it is that one of the broken ends pierced the lip. Besides, as the judge observed, toothpicks come in another common shape, with a rounded shaft and sharp points at both ends, and a consumer would presumably regard a toothpick with no pointed ends as defective rather than the other way around. Another contention is advanced that the toothpicks were marketed as candy but were not fit for that purpose because of the pointed ends. Such a theory would be plausible if a foreign object with sharp ends or edges were concealed in something to eat and cut the mouth of the unsuspecting consumer. But the toothpicks here were not marketed as candy, in the sense of something to be consumed in its entirely, but as toothpicks with a cinnamon flavor, made to suck, not to eat; and, as the product was exactly what it was represented to be, neither more nor less, with no hidden dangers or unpredictable propensities, the statutory warranties were not breached. See Back v. Wickes Corp., --- Mass. ---, --- ^a, 378 N.E.2d 964 (1978), for the factors to be considered in determining design defects.

We similarly reject any contention that such unreasonable danger inheres in toothpicks-flavored or otherwise-that the manufacturer or distributor is subjected to strict liability. See the discussion of Restatement (Second) of Torts § 402A (1965) in Swartz v. General Motors Corp., 375 Mass. 628, --- - --- ^b, 378 N.E.2d 61 (1978). See also Tibbetts v. Ford Motor Co., 4 Mass.App. 738, 741, 358 N.E.2d 460 (1976). Toothpicks, like pencils, pins, needles, knives, razor blades, nails, tools of most kinds, bottles and other objects made of glass, present obvious dangers to users, but they are not unreasonably dangerous, in part because the very obviousness of the danger puts the user on notice. It is part of normal upbringing that one learns in childhood to cope with the dangers posed by such useful everyday items. It is foreseeable that some will be careless in using such items and will be injured, but the policy of our law in such cases is not to shift the loss from the careless user to a blameless manufacturer or supplier. See Coyne v. John S. Tilley Co., 368 Mass. 230, 234, 331 N.E.2d 541 (1975), and cases cited; Roy v. Star Chopper Co., 584 F.2d 1124, 1129 (1st Cir. 1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979); Venezia v. Miller Brewing Co., 626 F.2d 188, 190-192 (1st Cir. 1980). Rather, liability of the manufacturer or supplier must be grounded in negligence, in a want of the care which a reasonable person should exercise in the circumstances. Smith v. Ariens Co., 375 Mass. 620, --- - --- ^c, 377 N.E.2d 954.

Negligence, in products liability cases, typically consists of a failure in the design, manufacture, or inspection or a failure to warn the user of the dangers which he is apt to encounter in using the product. See Schaeffer v. General Motors Corp., 372 Mass. 171, 173-174, 360 N.E.2d 1062 (1977). None of these, we think, offers a plausible theory of liability in the instant case with respect to either the manufacturer or the retailer. Of the four, only the theory of failure to warn warrants discussion.

A duty to warn is not imposed by law as a mindless ritual. A warning is not required unless "the person on whom (the) duty rests has some reason to suppose a warning is needed." Carney v. Bereault, 348 Mass. 502, 506, 204 N.E.2d 448 (1965). Schaeffer v. General Motors Corp., 372 Mass. at 174, 360 N.E.2d 1062. "The duty to warn extends to concealed, nonobvious dangers." Carlson v. American Safety Equip., 528 F.2d 384, 387 (1st Cir. 1976). The dangers inherent in toothpicks are both reasonable in scope and obvious to nearly all; as to such dangers, if a warning to the consumer is needed, it will almost certainly do no good. The plaintiff, incidentally, admitted that her parents had warned her against playing with sharp objects in her mouth; but whether they had or not, we think that a manufacturer or retailer is justified, as matter of law, in making that assumption.

The plaintiff makes a more plausible contention, however, that candy-flavored toothpicks should not be sold to children, with or without warnings. The suggestion here is that substantial numbers of children can be counted on to use the toothpicks unsafely, even though forewarned. Under Restatement (Second) of Torts § 390 (1965), which, with qualifications, states our own law (Leone v. Doran, 363 Mass. 1, 13 n.3, 292 N.E.2d 19; s.c., 363 Mass. 886, 297 N.E.2d 493 (1973), 369 Mass. 956, 336 N.E.2d 871 (1975)), "(o)ne who supplies ... a chattel for the use of another whom the supplier knows ... to be likely because of his youth ... to use it in a manner involving unreasonable risk of physical harm to himself ... is subject to liability for physical harm resulting to (him)."

From this vantage the case is analogous to dangerous toy cases. As a group those cases are not particularly helpful to the plaintiff; more often than not they result in exoneration of the supplier, provided that the toy functions properly and the dangers are obvious even to children. See e. g., Morris v. The Toy Box, 204 Cal.App.2d 468, 22 Cal.Rptr. 572 (1962) (bow and arrows); Bojorquez v. House of Toys, Inc., 62 Cal.App.3d 930, 133 Cal.Rptr. 483 (1976) (slingshot); Smith v. Nussman, 156 So.2d 680 (Fla.App.1963) (slingshot); Pitts v. Basile, 35 Ill.2d 49, 219 N.E.2d 472 (1966) (darts); Maramba v. Newman, 82 Ill.App.2d 95, 227 N.E.2d 80 (1967) (boomerang); Rader v. Milton Bradley Co., 62 Misc.2d 610, 309 N.Y.S.2d 393 (Cir.Ct.N.Y.1970) (a ball toy called "Time Bomb"); Levis v. Zapolitz, 72 N.J.Super. 168, 178 A.2d 44 (1972) (slingshot); Strahlendorf v. Walgreen Co., 16 Wis.2d 421, 114 N.W.2d 823 (1962) (toy plane with a rubber-band-and-stick catapult). But see Victory Sparkler & Specialty Co. v. Latimer, 53 F.2d 3 (8th Cir. 1931) (poisonous explosive pellet); Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977) (toy slingshot marketed specifically to children). It is equally true, however, that on close reading many of the cases turn out to be unhelpful to the defendants, because they are easily distinguishable on the facts. Morris v. The Toy Box, Maramba v. Newman, and Stahlendorf v. Walgreen Co., all involved sales to...