May v. Allied Chlorine & Chemical Products, Inc.

• Decision Date: 10 November 1964
• Docket Number: No. 64-177,64-177
• Citation: May v. Allied Chlorine & Chemical Products, Inc., 168 So.2d 784 (Fla. App. 1964)
• Parties: Carl W. MAY, Appellant, v. ALLIED CHLORINE & CHEMICAL PRODUCTS, INC., a Florida corporation, and Atlantic Chemicals, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 784

168 So.2d 784

Carl W. MAY, Appellant, v.ALLIED CHLORINE & CHEMICAL PRODUCTS, INC., a Florida corporation, and Atlantic Chemicals, Inc., a Florida corporation, Appellees.

No. 64-177.

District Court of Appeal of Florida, Third District.

Nov. 10, 1964.

Rehearing Denied Dec. 8, 1964.

Highsmith & Ezzo, Miami, for appellant.

Sherouse & Corlett, Richard M. Gale, Blackwell, Walker & Gray and James E. Tribble, Miami, for appellees.

Before BARKDULL, C. J., and CARROLL and TILLMAN PEARSON, JJ.

TILLMAN PEARSON, Judge.

The plaintiff was injured when he knowingly entered a room into which chlorine gas was escaping.He sued the manufacturer of the gas and the distributor who supplied to his employer the pressized cylinders of chlorine.The trial judge entered a summary final judgment for both defendants and the plaintiff appealed.

There was no contention that either of these defendants was responsible for the escape of the gas, but it is argued that there was a genuine issue of material fact upon a question of negligence.Plaintiff's injury occurred when the gas mask provided by his employer, which he wore into the gas filled room, proved inadequate to protect him from the toxic effect of the chlorine gas.It thus affirmatively appears that the plaintiff recognized that chlorine gas was dangerous because, as previously mentioned, his injury resulted upon his voluntary return to the area with inadequate protection.Appellant contends that under the circumstances of this case, a jury could find there was a duty on each of the defendants to warn the plaintiff, as a handler of their product, that only a particular type of gas mask would be effective in a heavy concentration of chlorine gas.

It appears without conflict that the industrial chemical supplied to plaintiff's employer was regularly used in the employer's business and that it was known by...