Manning v. Ashland Oil Co.

• Decision Date: 09 November 1983
• Docket Number: No. 82-3101,82-3101
• Citation: 721 F.2d 192
• Parties: Rosemarie MANNING, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 192

721 F.2d 192

Rosemarie MANNING, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, Defendant-Appellee.

No. 82-3101.

United States Court of Appeals Seventh Circuit.

Argued Sept. 16, 1983.

Decided Nov. 9, 1983.

Barry M. Woldman, Chicago, Ill., for plaintiff-appellant.

Lawrence P. Bemis, Kirkland & Ellis, Chicago, Ill., for defendant-appellee.

Before BAUER and WOOD, Circuit Judges, and NEAHER, Senior District Judge. ^*

NEAHER, Senior District Judge.

Rosemarie Manning (plaintiff) appeals the district court's entry of a directed verdict pursuant to Fed.R.Civ.P. 50 in favor of defendant Ashland Oil Company (Ashland), which dismissed her claim that Ashland be held responsible for injuries she sustained while using a can of lacquer thinner she had purchased from others.

The following facts are not in dispute. In this case Ashland was a bulk supplier of lacquer thinner. At the request of Century Industries, Inc. (Century), Ashland duplicated a sample blend of lacquer thinner. Century repackaged the thinner into retail size containers and sold it to Yenkin Majestic Paint Company (Yenkin), which copied a Century label and attached it to the containers. The label read:

MAJESTIC LACQUER THINNER

A Specially Formulated Thinner for Reducing Lacquers, Removing Old Lacquer Coats, Road Tar and Stains or for Cleaning Brushes and Spray Guns.

DANGER. FLAMMABLE MIXTURE

* * *

* * *

Do not take internally. If swallowed, do not induce vomiting. CALL PHYSICIAN IMMEDIATELY. Keep away from heat, sparks, and open flame. Avoid prolonged contact with skin and breathing of vapor or spray mist. In case of contact with skin or eyes, flush repeatedly with cold water. Close container after each use. Do not transfer contents to bottles or other unlabeled containers. Use with adequate ventilation.

KEEP OUT OF THE REACH OF CHILDREN.

Distributed by YENKIN MAJESTIC Paint Corporation manufacturers. Columbus, Ohio 43219.

Yenkin sold the lacquer thinner to Woolco, a retailer, where, in 1975, plaintiff went to purchase a product to remove tar stains from her kitchen floor. Woolco's employee recommended the lacquer thinner.

Plaintiff used the thinner to remove the tar stains and, pleased with the result, applied the product to her entire kitchen floor. Lacquer thinner is a flammable substance; the mixture in question had a flashpoint of 28 ?. It ignited and subsequently injured the plaintiff. The source of the ignition could have been static electricity, the turning on of an electric motor, the type of which would be found on a kitchen appliance such as a refrigerator or any generation of a small spark.

Plaintiff presents two issues on appeal:

1. Whether the trial court erred in not allowing the jury to determine if Ashland had satisfied its common law duty to warn and instruct an ultimate user of the lacquer thinner; and

2. Whether the trial court erred in not allowing the jury to determine whether Ashland had satisfied its statutory duty to examine the label adopted by subsequent vendors of the lacquer thinner.

I.

The parties agree that the law of Illinois has not established the extent of the duty of a manufacturer or supplier to warn the ultimate user of the dangers associated with a product. Plaintiff relies upon decisions from other jurisdictions which have imposed a duty upon the manufacturer to warn ultimate consumers, or at least to ascertain that a middleman is knowledgeable enough about the product so as to warn the ultimate consumer. She does not, however, address the issue at hand, which is what effect the Illinois courts would give these decisions in light of her evidence and existing Illinois law.

In Shell Oil Co. v. Gutierrez, 119 Ariz.App. 426, 581 P.2d 271 (1978), which plaintiff cites, the court applied comment n to section 388 of the Second Restatement of Torts to reject a claim by Shell Oil Company that it should not be expected to warn remote users beyond its immediate vendee. Shell had sold xylene to a packager who placed it in metal drums and sold it to a retailer. The metal drums were very dangerous because they were never completely emptied of the xylene, which, when vaporized, tended to explode. Consequently, the drums should have been returned immediately after they were used. Shell did not pass this information to any of the middlemen. As a result, the court found that there was adequate evidence that Shell had not adequately warned the middlemen so as to sustain the verdict.

Section 388 provides:

"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous."

Comment n is intended to explain clause c of the section. For section 388 to apply at all, however, the plaintiff must demonstrate that the supplier satisfies all three clauses of the section.

In the case at bar, the evidence discloses that Ashland did not know and had no reason to know that the lacquer thinner was likely to be dangerous for the use for which it was supplied. Century had requested "a good general purpose lacquer thinner" and had furnished a sample can of a lacquer thinner it was buying from another company. Its representative stated that he wanted "something like we have." Ashland complied by duplicating the blend, which was safe and was subsequently properly labeled for its intended use as lacquer thinner. From the circumstances, Ashland had no reason to expect or foresee that Century would advise a consumer to use the lacquer thinner for removing tar stains or that a consumer would use it to clean an entire kitchen floor. Thus, plaintiff did not submit sufficient evidence upon the requirement of clause a, and the case would not have gone to the jury under this theory despite any duty to warn which we might add to the law of Illinois.

Plaintiff also relies upon Bryant v. Technical Research Co., 654 F.2d 1337, 1346-48 (9th Cir.1981) (Idaho law), where the court concluded that "the adequacy of a bulk manufacturer's warning to those other than its immediate vendee is usually held to be a jury question." Id. at 1346. The court's statement is not absolute because a defendant might be able to present evidence entitling it to a judgment as a matter of law upon this issue. The facts of the instant case, however, do not involve a failure to warn. The parties do not dispute that the warnings contained on the label were adequate for a lacquer thinner; thus, the only issue remaining is whether Ashland had a duty to inspect the middleman's label or packaging to determine if the warning was adequate for the lacquer vis-a-vis its unintended use as a cleaning agent to remove tar stains. ¹

Perhaps anticipating our conclusions with respect to Bryant and Shell Oil, plaintiff also relies upon cases which require the supplier to ascertain that the middleman is knowledgeable enough about the product as to be able to provide adequate instructions and warnings to the consumer about its use. E.g., Burton v. L.O. Smith Foundry Products Co., 529 F.2d 108, 111 (7th Cir.1976) (Indiana law) (per curiam ); Jones v. Hittle, 219 Kan. 627, 549 P.2d 1383, 1393-94 (1976). These cases do not mandate that the supplier must always inspect the middleman's packaging and labeling in order to satisfy this obligation. Defendant notes that many jurisdictions have refused to attach a duty to warn remote users because the supplier cannot control or monitor the middleman's packaging and labeling. Shell Oil Co. v. Harrison, 425 So.2d 67, 70 (Fla.App.1982); Hill v. Wilmington Chemical Corp., 279 Minn. 336, 156 N.W.2d 898, 902 (1968); cf. E.I. duPont de Nemours & Co. v. McCain 414 F.2d 369 (5th Cir.1969) (Tex. law). Based upon the evidence, we need not consider whether the Illinois courts would impose this lesser duty, much less a duty to inspect, upon a supplier. The evidence reveals that Ashland satisfied this obligation.

Century, in business since 1938, is a manufacturer of sealants, paint and paint-related products. It also repackages solvents, one of which is lacquer thinner, and had been repackaging lacquer thinner for 15 to 20 years at the time of plaintiff's injuries. Further, it represented itself as being "as knowledgeable as other manufacturers" concerning the propensities of the solvents, including lacquer thinner, that it repackaged. The company's representatives, with whom Ashland had dealt, were aware that lacquer thinner has a low flash point and is flammable. ² They testified that they never intended that the product be used as a cleaning agent in the home.

The courts which impose a duty to learn a middleman's knowledge of a product allow the supplier to rely upon the middleman, using his knowledge or expertise, to pass on any warnings or instructions for the safe use of the product. Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969) (manufacturer may rely upon employer to communicate its instructions about usage, contained on the labels of chemicals, to employee-users); Reed v. Pennwalt Corp., 22 Wash.App. 718, 591 P.2d 478 (1979), appeal dismissed, 93 Wash.2d 5, 604 P.2d 164 (1979) (same) (per curiam ); Terhune v. A.H. Robins Co., 90 Wash.2d 9, 577 P.2d 975, 979 (1978) (manufacturer entitled to rely upon physician to communicate a warning to patient-consumer). The label on the lacquer thinner demonstrates that Ashland did not unreasonably rely upon...