Little v. PPG Industries, Inc.

• Decision Date: 18 April 1978
• Docket Number: No. 3055-II,3055-II
• Parties: Darlene LITTLE, as Administratrix of the Estate of Robert L. Little, Deceased, Appellant, v. PPG INDUSTRIES, INC., a Pennsylvania Corporation, Respondent.
• Court: Washington Court of Appeals

Page 812

19 Wn.App. 812

579 P.2d 940

Darlene LITTLE, as Administratrix of the Estate of Robert L.

Little, Deceased, Appellant, v. PPG INDUSTRIES, INC., a Pennsylvania Corporation, Respondent.

No. 3055-II.

Court of Appeals of Washington,Division 2.

April 18, 1978.

Robert V. Brown, Lawrence B. Linville, Clinton, Fleck, Glein & Brown, Seattle, for appellant.

Fred T. Smart, Patrick J. Clarke, John F. Biehl, Lee, Smart, Cook, Dunlap & Biehl, Seattle, for respondent.

PEARSON, Chief Judge.

Darlene Little appeals from a jury's defense verdict in her wrongful death action based on her husband's death while allegedly using a chemical product manufactured by PPG Industries, Inc. The major issue is whether the trial court was obligated to instruct the jury on plaintiff's theory of strict liability due to the inadequacy of the warning on the label of PPG's product. We order a new trial.

Mrs. Little's husband, Robert, was a millwright helper at Bethlehem Steel's Seattle plant. His job entailed cleaning, inspecting, and repairing industrial machinery and cleaning up work areas.

January 25, 1970 was Mr. Little's first day on the job after a period of absence due to illness. He was assigned to replace an oil pump on a mill at the plant. Following that during the "lunch" break at 3 a. m., he complained to a fellow workman of feeling sick. He remained at work, however, and was assigned after lunch to clean up an oil spill in the cellar under the mill where he had been working. The oil cellar is a small space about 6 feet below floor level and was poorly ventilated. At some time during the next hour, Klon Turner, the millwright, stopped by the cellar, observed Mr. Little, and handed down to him a bucket of what he assumed to be kerosene, to help in the clean-up task. At about 4:30 he returned to the cellar and found Mr. Little dead, lying face down in about 4 inches of water with his arm across a sump pump, preventing it from pumping the liquid out of the cellar.

Dr. Gale Wilson, in 1970 the chief medical examiner for King County, testified on the basis of an autopsy that the immediate cause of Robert Little's death was essentially drowning, with his collapse and immersion of his face in liquid precipitated by intoxication with a substance known as methyl chloroform or 1,1,1 Trichloroethane. Dr. Wilson testified that the vapors from this chemical, when inhaled in increasing concentration, would produce incoordination, dizziness, and even anesthesia. A forensic pathologist, Dr. Frederick Lovell, testified further that the amount of 1,1,1 Trichloroethane found in the deceased's blood, 2.3 milligrams percent, was enough to have precipitated his death in the manner described by Dr. Wilson.

The chemical in question, 1,1,1 Trichloroethane, had been purchased by Bethlehem Steel from two suppliers over a period of years for use as a cleaning solvent. It is a potentially deadly substance if used in poorly ventilated areas. Dow Chemical supplied its product under the brand name Chlorothene, and PPG's product, in a green barrel with a white stripe around its middle is called Tri-Ethane. Barrels of the PPG brand had the following notice lettered on the middle stripe:

Caution: Vapor may be harmful. Use with adequate ventilation. Avoid prolonged or repeated breathing of vapor.

Both brands were in use at the plant on or about the date of death, and there was evidence although contested from which the jury could have decided that Mr. Little was using Tri-Ethane to aid in his clean-up duties when he died.

Dr. Lovell, who had participated in research into deaths caused by 1,1,1 Trichloroethane intoxication and conducted a safety labeling of chemicals program at a hospital, testified that the PPG label should contain "vapor may be deadly" in red lettering, and that "use with adequate ventilation" should be more prominent on the label, i. e., the same size as other lettering. Dr. Wilson was trained in pharmacology labeling, and in his opinion the PPG label was insufficient to make the casual user aware of how inherently dangerous the solvent can be. He suggested that such substances should be labeled with a skull and crossbones in a conspicuous place, with a yellow background, and that the label contain appropriate words such as "very dangerous," "highly toxic," or "poisonous," and "vapor fumes dangerous if inhaled."

Plaintiff pleaded both negligence and strict products liability as theories of recovery. However, at the time the parties took exception to the instructions, the position of plaintiff's counsel on which theories should go to the jury was somewhat ambiguous. Plaintiff pressed for an instruction in accordance with the strict products liability theory of section 402A, Restatement (Second) of Torts (1965), ¹ which instruction the trial court refused to give. Plaintiff also urged the trial court to withdraw a contributory negligence instruction on the grounds such defense was not available in a case involving strict products liability.

However, plaintiff did not specifically move to abandon the negligence theory. Instead, counsel made this statement while taking exception to the applicability of contributory negligence.

We except to the court's instruction No. 7, which sets forth the definition of contributory negligence, and instructs the jury with respect to the manner in which they should apply the doctrine of contributory negligence.

In addition thereto, we respectfully except to the court including therein a definition of negligence since we feel negligence is not an issue in this case, the evidence being governed by strict liability (in) tort.

(Italics ours.) Plaintiff also excepted to the verdict forms which, in essence, caused the jury to make their determination of liability solely on the negligence theory. Despite some ambiguity in plaintiff's position, we think the quoted exception adequately confirmed plaintiff's desire to abandon a negligence theory and rely solely upon strict liability.

Plaintiff's position on appeal is also ambiguous, since she urges, on the one hand, the inconsistencies between negligence and strict liability in a "duty to warn" case, while on the other hand urging that it would have been proper for the trial court to instruct the jury on both theories. Plaintiff's appeal does clearly urge error in the court's failure to allow the jury to consider the strict liability theory, and we think this contention is well taken.

The pivotal issue is whether the facts warranted submission of a strict liability theory to the jury, where the only possible defect in the product was a failure to warn adequately of the potential lethal characteristics of the product.

We frame this as the issue because, while the court did give two instructions which arguably fit the strict liability mold, ² the verdict forms effectively deprived plaintiff of any theory except negligence. Also, none of the court's instructions differentiated between a manufacturer's duty to warn under traditional negligence concepts, and the manufacturer's duty to furnish a product which is not rendered unreasonably dangerous because of inadequate warnings. (Restatement (Second) of Torts § 402A. A related issue is whether the jury should be instructed on both negligence and strict liability under the facts of this case.

For the reasons stated below, we are of the opinion that the evidence, construed in a light most favorable to the plaintiff, was sufficient to warrant instructions consistent with Restatement (Second) of Torts § 402A; as plaintiff was deprived of this theory she should be granted a new trial. We are further persuaded that on retrial plaintiff will receive no benefit from a negligence theory of recovery and that instructing on such theory under the facts of this case would serve only to confuse the jury.

In Haugen v. Minnesota Mining & Mfg. Co., 15 Wash.App. 379, 550 P.2d 71 (1976), we considered the applicability of strict liability in a case involving the manufacturer's failure to warn adequately of the hazards involved in the use of its product. We concluded at page 387, 550 P.2d at page 76, that a manufacturer's liability may be established by

showing a product is defective, though faultlessly manufactured, if it is unreasonably dangerous when placed in the hands of the ultimate user by a manufacturer without giving adequate warnings concerning the manner in which to safely use it.

Accord, Haysom v. Coleman Lantern Co., 89 Wash.2d 474, 573 P.2d 785 (1978).

In the case at bench, plaintiff put on sufficient expert opinion and circumstantial evidence, despite defense testimony to the contrary, that the PPG solvent was the proximate cause of Robert Little's death, that it is the kind of product which is inherently dangerous to the user unless adequate warnings are given, and that the warnings given were inadequate. Therefore, plaintiff was entitled to have the jury consider the strict liability theory espoused by her proposed instructions, and to have the jury decide whether PPG's alleged failure to warn adequately rendered the product unreasonably dangerous without regard to the adequacy of the warning as judged by negligence standards of reasonableness. Hamilton v. Hardy, 549 P.2d 1099 (Colo.App.1976). See Restatement (Second) of Torts § 402A.

In this regard, plaintiff proposed one instruction which paraphrased Restatement (Second) of Torts § 402A and another which states the plaintiff's burden to prove that the manufacturer failed in its duty to warn of the dangers inherent in its product, thereby rendering the product inherently dangerous. ³ These instructions were correct statements of the law and should have been given. A party is entitled to have the court instruct the jury on his theory of the case if there is substantial evidence to sustain it. Langan v. Valicopters, Inc., 88 Wash.2d 855, 567 P.2d 218 (1977).

We now consider the appropriateness of instructing the jury on both negligence and strict...