Moran v. Faberge, Inc.

• Court: Maryland Supreme Court
• Writing for the Court: Argued before MURPHY; DIGGES; O'DONNELL
• Citation: Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (Md. 1975)
• Decision Date: 03 February 1975
• Docket Number: No. 23,23
• Parties: Nancy MORAN, etc., et al. v. FABERGE, INC., et al.

Page 538

273 Md. 538

332 A.2d 11

Nancy MORAN, etc., et al. v. FABERGE, INC., et al.

No. 23.

Court of Appeals of Maryland.

Feb. 3, 1975.

Martin H. Freeman, Bethesda (Bulman, Goldstein, Feld & Dunie, Bethesda, on the brief), for appellants.

James P. Salmon, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

In this case, which is here on certiorari addressed to the Court of Special Appeals, the petitioner, Nancy Moran, ¹ takes issue with the affirmance by that court of the judgment n. o. v., entered in the Circuit Court for Prince George's County (Couch, J.), which nullified the jury's decision that Faberge , Inc., the respondent, was accountable in damages for Nancy's injuries caused when its cologne with no flammability warning on its container, ignited. ² We believe that there was sufficient evidence presented to authorize the jury's decision and, therefore, we will reinstate the verdict and direct that judgment be entered on it.

As we explain our reasons for this conclusion, it must be borne in mind that since this case is before us on the propriety of the granting of a motion for judgment n. o. v., we are required to review the evidence presented in the light most favorable to the petitioner. Lusby v. First Nat'l Bank, 263 Md. 492, 499, 283 A.2d 570 (1971); I. O. A. Leasing v. Merle Thomas Corp., 260 Md. 243, 248-49, 272 A.2d 1 (1971); Smith v. Bernfeld, 226 Md. 400, 405, 175 A.2d 53 (1961). When so considered we learn that on the fateful night of June 8, 1969, Nancy Moran, then 17 years old, visited the home of Mr. and Mrs. Louis P. Grigsby in Hillcrest Heights, Maryland, to meet with a number of friends, including Randy Williams, a young lady of 15 years, who was residing with the Grigsbys at the time. The group congregated in the basement which was being maintained partly as a family clubroom and partly as a laundry room. After listening to music for some time on that warm summer night (estimated to be 72-73 F.), everyone left the basement, except Nancy and Randy. Apparently these two girls were at a loss for entertainment as eventually they centered their attention on a lit Christmas-tree-shaped candle which was positioned on a shelf behind the couch in the clubroom. Possibly because 'the idle mind knows not what it is it wants' ³ the girls began to discuss whether the candle was scented. After agreeing that it was not, Randy, while remarking 'Well, let's make it scented,' impulsively grabbed a 'drip bottle' of Faberge 's Tigress cologne, which had been placed by Mrs. Grigsby in the basement for use as a laundry deodorant, and began to pour its contents onto the lower portion of the candle somewhat below the flame. Instantaneously, a burst of fire sprang out and burned Nancy's neck and breasts as she stood nearby watching but not fully aware of what her friend was doing.

During the trial the petitioner introduced evidence, which was not disputed, tending to show that, though no warning of the fact was attached to the bottle or otherwise given, Faberge 's Tigress cologne was highly flammable and, therefore, inherently dangerous. ⁴ To demonstrate this the petitioner produced scientific experimental evidence revealing that this cologne, composed of, by volume, 82.06% alcohol, 5.1% perfume and oils, and 12.84% water, is a dangerously combustible product with a flash point of 73 Fahrenheit, approximately room temperature. ⁵

Additionally, the petitioner evoked testimony from two Faberge officials, Carl Mann, its Vice President and Chief Perfumer, and Stephen Shernov, a company aerosol chemist, which indicated that not only was the manufacturer aware of this hazardous quality but also Faberge foresaw that its product might well be dangerous when placed near flame.

Having produced evidence as to this inherently dangerous characteristic of Tigress cologne, which was known to the company though not to the public generally, as well as the fact that the manufacturer knew it might come in contact with fire and be hazardous in that circumstance, the petitioner contends that a jury question was presented as to whether Faberge was negligent for failing to warn against its product's latent flammability characteristic. Consequently, the petitioner asserts that when Judge Couch granted the motion for judgment n. o. v., saying, 'there wasn't sufficient evidence in this case to indicate to the court, and I don't think reasonable minds should differ on this issue, that when this product was used in its intended fashion with ordinary care, that it was inherently dangerous,' he improperly invaded the province of the jury.

Faberge , on the other hand, argues that the trial judge acted properly when he granted the n. o. v. motion because, in respondent's words, 'the plaintiff did not present legally sufficient proof of negligence on the part of Faberge , Inc.' In support of this position, Faberge urges that the Court of Special Appeals was correct when, in considering this matter, it opined:

'There was a total absence of any evidence in this case which would tend to show or would support a rational inference that Faberge foresaw or should have foreseen that its cologne would be used in the manner which caused the injuries to Nancy Moran. Since Faberge did not foresee the use, it had no duty to warn against it.' Moran v. Williams, 19 Md.App. 546, 561-562, 313 A.2d 527, 536 (1974).

Before analyzing the specific issues these conflicting contentions breed, we observe that this type of negligence action, frequently categorized as 'products liability,' but which just as appropriately may be referred to as 'consumer protection,' Noel, Products Liability: Bystanders, Contributory Fault and Unusual Uses, 50 F.R.D. 321 (1970), has grown tremendously in number in recent years due at least in part to the fact that the manufacturer's responsibility has been viewed less narrowly by courts all across the country. The various opinions in this proliferation of case have struggled to establish standards by which the manufacturer's duty can be assessed, whether it be in contract for breach of warranty or in tort for negligence. Often the cases which have been brought in tort have confounded the principles of negligence law with those of contract law. However, as a result of a number of comparatively recent cases spawned by MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), contract concepts have gradually been weeded out of tort actions against manufacturers, permitting such consumer suits as those for defective design, negligent production, and failure to warn (or adequately warn) of latent dangers, which are based purely on negligence concepts. It is the negligent failure to warn of concealed dangers, recognized in Maryland by our decision in Twombley v. Fuller Brush Co., 221 Md. 476, 158 A.2d 110 (1960), which is the basis for this case, and therefore we now turn our attention specifically to it.

To begin with we note that a manufacturer's duty to produce a safe product, with appropriate warnings and instructions when necessary, is no different from the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others. 2 Harper & James, The Law of Torts, § 28.3 (1956); Prosser, The Law of Torts, § 31 (4th ed. 1971). Whether any such unreasonable risk exists in a given situation depends on balancing the probability and seriousness of harm, if care is not exercised, against the costs of taking appropriate precautions. 2 Harper & James, supra, §§ 16.9, 28.4; Restatement, Second, Torts §§ 291-93, 298 (1965). However, we observe that in cases such as this the cost of giving an adequate warning is usually so minimal, amounting only to the expense of adding some more printing to a label, that this balancing process will almost always weigh in favor of an obligation to warn of latent dangers, if the manufacturer is otherwise required to do so.

Since the cost factor here undisputedly would be of minimal consequence, the question then needing to be answered is, when does the responsibility to warn arise? A somewhat helpful starting point in this inquisition may be Restatement, Second, Torts § 388 (1965) which specifies:

'Chattel Known to be Dangerous for Intended Use

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 the facts which make it likely to be dangerous.'

This section has been cited as a general principle in the duty to warn area by previous Maryland cases, e. g., Twombley v. Fuller Brush Co., supra; Katz v. Arundel, etc., Corp., 220 Md. 200, 151 A.2d 731 (1959). As it pertains to this case the key language of Section 388 is that which instructs that a manufacturer is liable for harm 'caused by the use of the chattel in the manner for which . . . it is supplied.' Strictly speaking these words would lead one to believe that the manufacturer's responsibility extends only to those intended uses for which the product was supplied. However, this is misleading since such is not the case. As most courts and legal authors agree, the duty of the manufacturer to warn of latent dangers inherent in its product goes beyond the precise use contemplated by the producer and extends to...