Macrie v. SDS Biotech Corp.

• Decision Date: 05 August 1993
• Citation: 267 N.J.Super. 34,630 A.2d 805
• Parties: , Prod.Liab.Rep. (CCH) P 13,744 Peter MACRIE, Sr., Peter Macrie, Jr. and Toni Marie Macrie, Plaintiffs-Appellants, v. SDS BIOTECH CORP., a/k/a Fermenta Plant Protection, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 34

267 N.J.Super. 34

630 A.2d 805, Prod.Liab.Rep. (CCH) P 13,744

Peter MACRIE, Sr., Peter Macrie, Jr. and Toni Marie Macrie, Plaintiffs-Appellants, v. SDS BIOTECH CORP., a/k/a Fermenta Plant Protection,

Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted May 12, 1993.

Argued May 14, 1993.

Decided Aug. 5, 1993.

Lars Hyberg, West Atlantic City, argued for plaintiffs-appellants (McAllister, Westmoreland, Vesper & Schwartz, attorneys; Christine T. Jones, West Atlantic City, on the brief; and Ventnor Professional Campus, attorneys; Stephen C. Rubino, Ventnor City, on the brief).

John J. Murphy, III, Cherry Hill, argued for defendant-respondent (Stradley, Ronan, Stevens & Young, attorneys; Mr. Murphy, on the brief).

Before Judges HAVEY, STERN and BROCHIN.

The opinion of the court was delivered by

BROCHIN, J.A.D.

In this strict-liability, failure-to-warn suit, plaintiffs appeal from an order for summary judgment dismissing their complaint. Because we are "reviewing the dismissal of [plaintiffs'] claims as legally insufficient, we must accept as true all the allegations of the complaint, the affidavits and products of discovery submitted on [their] behalf. We must also draw those reasonable inferences that are most favorable to [their] cause." Littman v. Gimello, 115 N.J. 154, 160, 557 A.2d 314, cert. denied, 493 U.S. 934, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989), quoting from Portee v. Jaffee, 84 N.J. 88, 90, 417 A.2d 521 (1980). The following are the material facts viewed in that light.

Plaintiffs are employees of a produce broker, a family-run corporation which purchases fruits and vegetables from farmers and resells them to other resellers in the distribution chain. Defendant SDS Biotech Corp. manufactures Bravo 500, a fungicide which it sells to farmers to be applied to their crops in the field. Either directly or through a distributor, defendant sold Bravo 500 to Albert Iulianetti, a farmer.

When the fungicide was sold to Mr. Iulianetti, it was accompanied by a detailed, six-page brochure whose contents are prescribed by regulations promulgated by the Federal Environmental Protection Agency pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. These warnings and precautions include the following:

Causes eye irritation. May be a potential skin sensitizer.

Do not get in eyes. Wear goggles or eye shield when handling this product. In case of contact with eyes, flush with plenty of water immediately for 15 minutes. Seek medical attention for eyes immediately.

Avoid contact with skin or clothing....

Do not take internally.

Avoid breathing spray mist.

Do not apply this product in such a manner as to directly or through drift expose workers or other persons. The area being treated must be vacated by unprotected persons.

....

It is a violation of Federal law to use this product in a manner inconsistent with its labeling.

Do not enter treated area to perform hand labor within 24 hours of application unless protective clothing is worn.

....

Written or oral warnings must be given to workers who are expected to be in a treated area or in an area about to be treated with this product.... "Warning. Area treated with Bravo 500 on (date of application) Do not enter without appropriate protective clothing until the sprays have dried. In case of accidental exposure, wash exposed area with plenty of water and get medical attention. For further information, see 'Precautionary Statements' on the label."

Contrary to the manufacturer's directions, Mr. Iulianetti sprayed the Bravo 500 on his butternut squash after harvesting, while they were stored in bins. One of the plaintiffs testified in depositions that he learned afterwards that the squash had been "drenched" with the fungicide. This use of the fungicide in a manner "inconsistent with its labeling" is a violation of federal law. 7 U.S.C.A. § 136j(a)(2)(G).

Plaintiffs' employer purchased the squash from Mr. Iulianetti. Ordinarily, the fruits and vegetables that plaintiffs received arrived packed in cardboard cartons and plaintiffs did not touch the produce. However, on the occasion pertinent to this law suit, they accepted the squash from Mr. Iulanetti in pallet bins and repacked them into cartons. In the course of repacking the squash, they rubbed off the dried residue of Bravo 500, causing particles of the fungicide to become airborne and to permeate the entire building. Bravo 500 settled on plaintiffs' skin and entered their lungs, and they were seriously injured.

On the record before us, there are only two sources of proof of the severity of the threat which Bravo 500 poses to human health. The first is plaintiffs' claim that they have suffered serious injuries as the result of their exposure to the product. Defendant's motion for summary judgment does not dispute those claims. The second is the insert or brochure prescribed by the Federal Environmental Protection Agency pursuant to FIFRA, supra, 7 U.S.C.A. § 136 et seq., which details the warnings and precautions required and the grave risks entailed in the application of defendant's fungicide to field crops before harvesting. If these facts are proved at trial, a jury would be justified in concluding that defendant's fungicide is ultra-hazardous and that unguarded exposure to it is highly dangerous.

To recover for their injuries, plaintiffs instituted this product liability suit directed only against the manufacturer of the fungicide. They claim that Bravo 500 is defective, but only because SDS Biotech Corp., its manufacturer, failed to warn them of the dangers of contact with the product when it is not properly applied. They do not assert that the product was defective in any other respect. They do not dispute the adequacy of the warnings, approved by the Federal Environmental Protection Agency, which defendant provided to Mr. Iulanetti, but they claim that they should have been warned directly. ¹

Defendant moved for summary judgment. For purposes of its motion, it conceded that Mr. Iulanetti's misuse of Bravo 500 was foreseeable. We construe this concession to mean that contrary to its directions, some unstated percentage of farmers using Bravo 500 will spray it directly on their vegetables after harvesting.

In support of its motion for summary judgment, defendant contended that it was obligated to warn only "users" of its product and, since plaintiffs' only contact with the fungicide was with residue on butternut squash, they were not "users." Alternatively, defendant alleged that there was no practical way for it to provide plaintiffs with a warning. Plaintiffs responded that defendant should have warned them in newspaper advertisements or should have provided the farmers who bought Bravo 500 with leaflets for them to distribute to their vendees with their produce.

The motion judge granted defendant's motion for summary judgment. He ruled that defendant was obligated to warn only reasonably foreseeable users and that that category included only the farmers who applied Bravo 500 to their crops. Requiring manufacturers of fungicides and similar products to warn everyone else who might foreseeably be exposed to the product, either by newspaper advertising or by the distribution of brochures, would, the court held, be unreasonably onerous.

Plaintiffs have appealed to us. They allege that both grounds for the motion judge's ruling were erroneous. During the argument before us, we asked for, and subsequently received, supplemental briefs on the question whether plaintiffs' State law tort claim was preempted by FIFRA, supra, 7 U.S.C.A. § 136. We have therefore also considered that issue.

Middlemen of various types participate in the transmission of fruits and vegetables from the farms where they are grown to our tables. If farmers misapply Bravo 500 so as to leave their produce coated with a dangerous residue, it is foreseeable that employees of a distributor that is the first link in the distribution chain after the produce leaves the farm risk exposure to the fungicide. Their exposure could be materially reduced if they receive appropriate warnings and precautionary instructions. On the basis of these facts, a jury could find that defendant's fungicide is defective if adequate warnings are not communicated to persons who risk serious ill effects from unprotected contact with it. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 205, 485 A.2d 305 (1984); Feldman v. Lederle Laboratories, 97 N.J. 429, 449, 479 A.2d 374 (1984); Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 242-43, 432 A.2d 925 (1981).

We reject defendant's contention that as a matter of law it had no obligation to warn plaintiffs because they were not "users" of its product. If farmers can be expected to leave a residue of Bravo 500 on their squash, that residue is analogous to the component of a finished product. In Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 451 A.2d 179 (1982), the Court viewed the defendant, an independent contractor that had rebuilt part of a machine according to the owner's specifications, as a component manufacturer. The opinion declared a "general rule ... that the manufacturer of a component part of a product may be held strictly liable for injuries caused by a defect in that part if the particular part did not undergo substantial change after leaving the manufacturer's hands." Id. at 399, 451 A.2d 179. The Court held specifically that a party that "undertakes to rebuild part of a machine in accordance with the specifications of the owner can be held strictly liable for breach of its legal duty to make the machine safe or to warn of the dangers inherent in its use." Id. at 403, 451 A.2d 179. (Emphasis added.)

One respect in which the present case differs from Michalko is that plaintiffs in this case are employees of a remote vendee. However, as New Jersey law has recognized, under some circumstances...