Macias v. State of California

• Decision Date: 17 July 1995
• Docket Number: No. S039245,S039245
• Citation: 897 P.2d 530,42 Cal.Rptr.2d 592,10 Cal.4th 844
• Court: California Supreme Court
• Parties: , 897 P.2d 530, 64 USLW 2116, 95 Cal. Daily Op. Serv. 5546, 95 Daily Journal D.A.R. 9391 Alfonso MACIAS et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents

Page 592

42 Cal.Rptr.2d 592

10 Cal.4th 844, 897 P.2d 530, 64 USLW 2116,

95 Cal. Daily Op. Serv. 5546,

95 Daily Journal D.A.R. 9391

Alfonso MACIAS et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

No. S039245.

Supreme Court of California

July 17, 1995.

Litt, Marquez & Fajardo, Litt & Marquez, Barrett S. Litt, Anne Richardson, Los Angeles and Ben Margolis, Pacific Palisades, for plaintiffs and appellants.

Patti A. Goldman, Kristen L. Boyles, Seattle, WA, William S. Curtiss, San Francisco, Brian Wolfman, Adele P. Kimmel, Arthur H. Bryant, Washington, DC, Stuart Miller, Vivienne J. Alston, Irvine, Mark Rosenbaum, Los Angeles, Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter and Michael D. Macomber, Ukiah, as amici curiae on behalf of plaintiffs and appellants.

Haight, Brown & Bonesteel, Roy G. Weatherup, Mary Ann Murphy, Santa Monica, Munger, Tolles & Olson, Charles D. Siegal, Allison B. Stein and Mark A. Merva, Los Angeles, for defendants and respondents.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter Wunderlich, Asst. Atty. Gen., Charles W. Getz IV, Deputy Atty. Gen., Harvey M. Grossman, Los Angeles, McKenna & Cuneo, Lawrence S. Ebner, Washington, DC, Crosby, Heafey, Roach & May, James C. Martin, Los Angeles, Preuss, Walker & Shanagher and Alan J. Lazarus, San Francisco, as amici curiae on behalf of defendants and respondents.

ARABIAN, Justice.

This case arises out of the noted efforts of the State of California (State) to eradicate periodic infestations of the Mediterranean fruit fly (Medfly) through wide-scale helicopter spraying of the insecticide malathion. Three times over the last twenty-five years our Governors, acting pursuant to their extraordinary powers under the Emergency Services Act (Gov.Code, § 8550 et seq.) have declared a state of emergency arising from conditions of "extreme peril" to the State's agricultural industry caused by discoveries of Medfly infestations. The instant case concerns a minor who claims that during one of these emergencies he suffered serious and irreparable injuries from exposure to the malathion spray.

The question before us is whether the defendant malathion manufacturers and distributors had a duty to disseminate health warnings to the public, or to take other measures to protect the general welfare, after

[897 P.2d 532] they became aware of certain alleged deficiencies in the State's warnings. We hold that no such duty devolved upon them. As explained more fully in the discussion which follows, to impose a common law duty to intervene in a declared state of emergency would represent an unprecedented intrusion on the State's police power to protect the citizens and economy of California in times of extreme peril. To authorize, indeed to compel, a party to undermine the public health warnings promulgated and published by the State under a specific statutory mandate could severely compromise the government's ability to respond effectively to the emergency. Thus, we conclude that summary judgment was properly entered in favor of defendants. Having so determined, we need not resolve the subsidiary question whether plaintiffs' claims are preempted by federal law regulating the labeling of insecticides.

I. FACTS ¹

Since the mid-1970's, Medfly invasions have posed a serious and recurring threat to the agriculture of California. As noted, at least three times during the last twenty-five years the Governor has declared a state of emergency arising from the "conditions of extreme peril to the agricultural industry and the safety of agricultural properties" within certain counties caused by discoveries of Medfly infestations. The first such emergency was declared in 1980 and resulted in the development of an eradication program that used wide-scale aerial spraying of the insecticide malathion mixed with protein bait. Spraying of the malathion/bait mixture continued periodically thereafter whenever pockets of Medfly infestation were discovered; in 1988, portions of Los Angeles County were sprayed pursuant to an emergency declaration by the Governor.

In August 1989, the Governor declared another state of emergency within Los Angeles County due to Medfly infestation. Pursuant to this declaration, the State obtained malathion manufactured and distributed by defendants American Cyanamid Company, Platte Chemical Company and United Agri Products, and contracted with defendant San Juan Helicopters, Inc., to perform the aerial disbursement of the malathion bait.

Insecticides such as malathion are regulated by the Environmental Protection Agency (EPA) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. §§ 136-136y). EPA-approved labeling for malathion did not include use of the insecticide against the Medfly. Accordingly, in November 1989 the State obtained a "special local needs registration" from the EPA to permit an "off label" use of malathion (7 U.S.C. § 136v(c)(1)) and an emergency exception, pursuant to the provisions of FIFRA (7 U.S.C. § 136p), authorizing an unregistered use of the chemical to meet the Medfly emergency.

The special local needs registration provided, in pertinent part, as follows: "The public shall be given prior notification via appropriate news media and departmental literature handouts of the treatment area schedules. Such information shall include the date treatment is to be made, material to be used, and the precautions listed on the product label. " The warning protocol formulated by the State required written notification in the form of a "flyer" hand-delivered to each residential unit in the treatment area; the flyers were to include the disbursement schedule, the pesticide to be applied, any health, safety or other precautions to be taken by residents of the eradication area, and telephone numbers to call for additional information.

Plaintiffs Alfonso and Sophia Macias and their 14-year-old son Juan resided in one of the treatment areas. Plaintiffs assert that the health warnings actually given by the State were grossly inadequate, and differed markedly from the product labeling approved by the EPA. That labeling, attached as an exhibit to plaintiffs' complaint, included the following warnings: "CAUTION [p] "IF SWALLOWED: Drink 1 or 2 glasses of water and induce vomiting.... Call a physician. [p] IF ON SKIN: Wash with plenty of water. Call a physician. [p] IF IN EYES: Flush with plenty of water. Call a physician if irritation persists. [p] CAUTION: Harmful by swallowing, inhalation or skin contact. Avoid breathing spray mist. Avoid contact with skin. Wash thoroughly after handling. Change contaminated clothing."

The flyers distributed by the State throughout the Medfly treatment area did not contain the health warnings set forth in the EPA-approved label. The State's flyer, attached as an exhibit to plaintiffs' complaint, stated as follows: "NO HEALTH HAZARD: [p] Malathion is considered one of the safest insecticides in use today. For more than 35 years, it has been widely used by home gardeners. It is used in many U.S. cities to control mosquitoes, and in Europe, it is used by physicians to treat head lice in children. Health authorities agree that, at an extremely low dose, pregnant women have no cause for concern."

Thus, in contradistinction to the warnings set forth in the EPA-approved label, the State's flyers represented that malathion posed no health risks and failed to alert persons exposed to the spray to wash immediately and consult a physician. The State's flyers did warn, however, that the spray could cause "discoloration to the finishes of some cars" and advised residents to place their cars "in the garage, or cover" them to avoid exposure.

Plaintiffs alleged that an aerial disbursement of the malathion/bait mixture took place on the evening of March 28, 1990, in their residential area. As the helicopters approached, the minor Juan Macias, relying on the State's representations, left his house and went outside without taking any protective measures against personal contact with the spray, to tell his father to cover the family car. The helicopter passed low overhead and deposited large amounts of the malathion/bait mixture on Juan's head, face, and other exposed parts of his body. Shortly after his exposure to the spray, Juan's eyes reddened and became painful and his vision began to deteriorate. Unaware of any connection between these symptoms and the malathion spray, however, plaintiffs took no remedial action and sought no immediate medical assistance. Eventually plaintiffs consulted a physician after Juan's eyesight continued to deteriorate, but it was too late to prevent serious injury; Juan's exposure to the spray eventually resulted in legal blindness. Plaintiffs alleged that, had they been properly warned of the health risks of malathion, Juan would not have ventured outside during the aerial disbursement, or, had he done so, they would have washed his face and eyes with water and sought immediate medical attention, thereby preventing the deterioration of his eyesight. ²

II. PROCEDURAL HISTORY

Plaintiffs filed the instant lawsuit against the manufacturers and distributors of the malathion utilized by the State (American Cyanamid Company, United Agri Products, and Platte Chemical Company), the helicopter company which contracted with the State to dispense the malathion (Joaquin Helicopters, Inc.) and various governmental entities and officers including the State, the California Department of Health Services, and its Director, Kenneth Kizer. ³ In Plaintiffs' claims against the defendant chemical manufacturers and distributors (hereafter defendants) were also based upon a failure to warn. Specifically, plaintiffs alleged that defendants were aware of the State's intended use of the malathion, knew that the public had not been warned of the health risks enumerated in the...