Moreno v. Leslie's Pool Mart

• Decision Date: 12 September 1980
• Citation: 110 Cal.App.3d 179,167 Cal.Rptr. 747
• Court: California Court of Appeals Court of Appeals
• Parties: , 9 A.L.R.4th 869 Henry MORENO, Jr., Plaintiff and Appellant, v. LESLIE'S POOL MART, Defendant and Respondent. Civ. 56870.

Page 747

167 Cal.Rptr. 747

110 Cal.App.3d 179, 9 A.L.R.4th 869

Henry MORENO, Jr., Plaintiff and Appellant, v. LESLIE'S POOL MART, Defendant and Respondent.

Civ. 56870.

Court of Appeal, Second District, Division 4, California.

Sept. 12, 1980.

Solomon & McKibbin, Richard A. Solomon and Michael K. McKibbin, Santa Ana, for plaintiff and appellant.

Lewis D'Amato, Brisbois & Bisgaard and Jules G. Radcliff, Jr., Los Angeles, for defendant and respondent.

KINGSLEY, Associate Justice.

Plaintiff appeals from a summary judgment in favor of defendant in an action based on strict liability. We reverse the judgment.

Defendant Leslie's Pool Mart is engaged in the business of selling, at retail, various products used in the maintenance of swimming pools. Among the products so sold are muriatic acid and chlorine. A division of Leslie's, doing business under the trade name of Olsen Chemical Company, is engaged in the manufacture and packaging of those two chemicals for distribution and sale by Leslie's, and by other retail distributors. Plaintiff was employed by Leslie's, in its store operation, as a part-time stock boy. Plastic cases (each containing four bottles), some containing muriatic acid and some containing chlorine, were found to contain leaking bottles. The cases and bottles were not labeled so as to indicate their contents. Plaintiff, in his capacity as stock boy, was told to dispose of the contents of the leaking bottles by dumping those contents on a sand pile. In performing that assigned task, plaintiff elected to empty a partly empty bottle of acid into a partly empty bottle of chlorine. The result of that mixing was to create fumes which caused serious injury to plaintiff.

The summary judgment in this case was granted on the sole ground that, since plaintiff was, at the time of his injury, an employee of Leslie's, his sole remedy was recovery under the Worker's Compensation Act. The theory of the plaintiff is that, under the facts shown by the record, he was entitled to sue his employer, at law, under the so-called "dual capacity" doctrine. We conclude that plaintiff is correct.

The dual capacity doctrine, in California, stems from the case of Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8. That case, however, differs in one respect from the case now before us. In Duprey, plaintiff, an employee of a chiropractor, was injured, in the course and scope of her employment, while assisting in the treatment of a patient. Instead of sending her to another doctor for treatment, the employer elected to treat her himself. The treatment he gave was negligent and, instead of curing it, aggravated the original injury. The Supreme Court held that, in electing to treat the injury himself, the doctor had assumed a capacity different from that of employer and had become liable in law, for his malpractice. Duprey had been followed in cases on similar facts. Here, there is not the same factual situation, and Duprey, although helpful in some of its language, is not directly controlling.

The case which we regard as controlling here is that of Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103, 137 Cal.Rptr. 797. ¹ In that case the employer, engaged primarily in manufacturing and selling wine, had elected to manufacture, both for its own use and for sale to the public, scaffolding. A scaffold on which plaintiff was working fell, injuring him. The court applied the dual capacity doctrine and allowed a suit at law for defective design against Gallo as manufacturer. With one exception, the facts in Gallo parallel those here before us. In both cases, an employee, engaged in the work for which he was hired, was injured by a device manufactured by the employer for sale to the general public. Defendant attempts to distinguish Gallo on the ground that, in that case, the employee was using the defective device as a tool in his employment, whereas here, it is argued, plaintiff was not using the bottles of chemicals as a tool but was "merely" moving the defective and unlabeled bottles. We regard that suggested difference as immaterial. It was obvious to the manufacturer that the crates and bottles would be moved from place to place in the ordinary course of Leslie's retail business. Moving them was a "use" to be expected and was, for the...