Payne v. Soft Sheen Products, Inc.
| Decision Date | 16 January 1985 |
| Docket Number | No. 83-1218.,83-1218. |
| Citation | 486 A.2d 712 |
| Parties | Joyce L. PAYNE, Appellant, v. SOFT SHEEN PRODUCTS, INC., Appellee. |
| Court | D.C. Court of Appeals |
Harris S. Ammerman, Washington, D.C., for appellant.
Edward J. Walinsky, Washington, D.C., with whom William J. Carter, Washington, D.C., was on brief, for appellee. Aaron M. Levine, Washington, D.C., also entered an appearance for appellee.
Before MACK, TERRY and ROGERS, Associate Judges.
Joyce L. Payne, the plaintiff below, appeals from a judgment entered upon a ruling of the trial court granting the motion of defendant, Soft Sheen Products Inc. (Soft Sheen), for a directed verdict.
Joyce Payne originally brought this action against Soft Sheen and Delavell Thrower to recover damages for second-degree burns sustained as a result of the application by Mrs. Thrower, a beautician, of a permanent wave product manufactured by Soft Sheen to Miss Payne's hair. The complaint alleged that the failure of the manufacturer and the beautician to warn of the product's dangers constituted breach of warranty and negligence, and in addition that Thrower had negligently applied the permanent wave solution to Payne's hair. On the first day of trial, the claims against Thrower were voluntarily dismissed, although a third-party claim by Soft Sheen against Thrower remained in the suit. The case was tried to a jury. At the close of the plaintiff's evidence, a directed verdict was granted in favor of the remaining defendant, Soft Sheen. Soft Sheen then dismissed the cross-claim against Thrower. On appeal Payne contends that the evidence adduced at trial was sufficient to warrant submission of the case to the jury, and that the trial court erred in directing a verdict. We conclude that the grant of a directed verdict was improper, and we therefore reverse the judgment of the trial court.
Viewing the evidence in the light most favorable to appellant, see Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 103, 143 F.2d 142, 143 (1944), the facts of this case are as follows. On August 1, 1980, Joyce Payne purchased a permanent wave kit, "Jeri-Curl," at a drugstore, and then entered a local beauty shop, where Delavell Thrower, a licensed beautician, rented a booth. She asked Thrower to apply the "Jeri-Curl" to her hair, but Thrower said she was not familiar with that product and recommended instead a permanent wave manufactured by Soft Sheen called "Care Free Curl." At that time, Care Free was distributed only through licensed beauticians. Payne agreed to the use of Care Free, and then signed a release purporting to absolve Thrower of liability for any harm to Payne that might result from use of the product.
Thrower, called at trial as plaintiff's witness, testified that she conducted a strand test as recommended by the manufacturer of the permanent wave; in other words, she applied the wave product to a small portion of Payne's hair and found the results to be normal. After securing a towel and cape around Payne's neck, she applied the "rearranger," the first step in the Care Free Curl process, to plaintiff's hair. The rearranger consists of an ammonia-based chemical, ammonium thioglycolate, which penetrates the hair shaft and proceeds to soften and break down the hair's chemical bonds. A warning in small print at the end of the instruction manual provided to the operator states:
This product contains ammonium thioglycolate. You must follow directions carefully to avoid skin and scalp burns, hair loss, and eye injury.
At the page in the manual actually giving directions for application of the rearranger, however, no similar warning is given. "Step 3" of the manual states only that the beautician should The only other intimation in the main text of the instruction booklet that this chemical may cause injuries is a direction to the beautician to use gloves in applying it.
The rearranger remained on Payne's hair for the period of time prescribed in the directions, and then was rinsed off. Under "Step 4" of the manual, which sets forth the rinsing directions, there is again no warning to remind the beautician that care should be taken while rinsing the rearranger to prevent the product from running down the patron's back. Payne testified that she first felt a burning sensation following application of the rearranger, although her testimony on this score changed several times during the trial.
A second compound, the "neutralizer," was then applied to stop the action of the rearranger and stabilize the curl. The neutralizer contains two ingredients, bromate and urea, and is classified as a "mild irritant." In contrast with the limited safety instructions accompanying the directions for applying the rearranger, the neutralizer instructions are very explicit:
For the safety of you and your patron, do not spray on neutralizer. . . . Cover patron's entire hairline with a band of cotton and put on cape to catch neutralizer run-off. If cotton becomes saturated, change it. Do not let neutralizer drip onto skin. If some gets on face, neck or some other part of patron, rinse area well and shampoo. The patron's safety is your responsibility.
At the end of the instruction manual, in small print under the heading "WARNING," the manual states: Thrower testified that she read the instruction manual, and that she had been given more detailed instructions on use of the product in two seminars held by Soft Sheen.
Following two applications of the neutralizer, Payne's hair was rinsed again. Payne stated that she continued to feel a burning sensation during the application of the neutralizer,1 and that she informed Thrower of the problem. Thrower, however, seemed unsure about what action to take; and when the permanent process was completed, Payne ran home and soaked her back. Thrower testified that she heard no complaints from Payne until the next day, at which time Payne called her and said that she had developed a "rash." On August 2, 1980, Payne entered the emergency room of a local hospital, where she was diagnosed as having sustained a second-degree burn to her back. She was referred to a burn specialist, Dr. Marion Jordan.
Dr. Jordan testified that he treated Payne on August 4, 1980, at the Washington Hospital Center Burn Clinic. Jordan, who was qualified as a burn expert at trial, stated that Payne had suffered a second-degree burn, and explained that this meant that the "outermost area of the skin was certainly burned, there was a blister between that and the next layer, and there was apparently some damage to the dermis itself." The burn was "consistent with a burn from a chemical;" specifically, with an "ammonia type agent" (like the "rearranger" in the permanent wave product, which contains ammonium thioglycolate). This ammonia agent, he stated, "would certainly be a causative chemical that could cause this kind of a skin burn." He further hypothesized that the chemical had run down into Payne's blouse, and had saturated the blouse material as it lay against her skin during the permanent process. He surmised that her back became burned in this way while her scalp remained free from injury due to the fact that the ammonia's ability to cause injury depends in large part upon the amount of oil in the skin. While the high density of oil glands in the scalp protects it against injury, the back is relatively unprotected.
Plaintiff's case consisted only of the above-related testimony by Payne, Thrower and Jordan.
At the close of plaintiff's evidence, the trial court held:
Based on . . . the testimony of Mrs. Thrower that she had no problem understanding these warnings, and based on the warnings which have been read into the record several times including what should be done if [the] chemical got on the skin and we talked about rinsing and the shampooing. Under all of these circumstances, gentlemen, and weighing everything that has been presented to me, I am going to grant the motion for directed verdict as far as Soft Sheen is concerned.
In this jurisdiction, a directed verdict may be granted a defendant only if the trial court, after considering all of the evidence in a light most favorable to the plaintiff, finds that reasonable minds could not differ on the single conclusion mandated by the evidence, Johnson v. Weinberg, 434 A.2d 404, 407 (D.C.1981). The plaintiff must be afforded every rational inference from the evidence presented, Gaither v. District of Columbia, 333 A.2d 57, 59 (D.C. 1975). The court may take the case from the jury only if no reasonable juror could reach a verdict in favor of the plaintiff. Sims v. East Washington Railway Co., 222 A.2d 641, 642 (D.C.1966); Courtney v. Giant Food, Inc., 221 A.2d 92, 93 (D.C. 1966). In making this decision, the court may neither determine issues of fact nor weigh the testimony presented. Felder v. Pinckney, 244 A.2d 481, 483 (D.C.1968).
Keeping these standards in mind, we hold that to the extent that the trial court's ruling was based on its determination that the warnings contained in the product's instruction manual were adequate as a matter of law, the court impermissibly encroached upon the province of the jury. To the extent that the court found as a matter of law that the actions of the beautician, Thrower, constituted an independent intervening and superseding cause of Payne's injury that relieved the manufacturer of liability, that ruling was erroneous....
To continue reading
Request your trial
-
Rowson v. Kawasaki Heavy Industries, Ltd.
...1124. The court did not consider the plaintiff's failure to read the warning fatal, however, because in the case of Payne v. Soft-Sheen Products, 486 A.2d 712 (D.C.1985), the court had adopted a "rebuttable presumption that the user would have read an adequate warning, and in the absence of......
-
Kubicki ex rel. Kubicki v. Medtronic, Inc.
...claim that can be brought against manufacturers that fail to warn consumers of known product defects. See, e.g. , Payne v. Soft Sheen Prods. , 486 A.2d 712, 721–22 (D.C. 1985) ; Russell v. G. A. F. Corp. , 422 A.2d 989, 991 (D.C. 1980). Therefore, this Court is persuaded that the Kubickis' ......
-
In re Accutane Litig., A-26/27 September Term 2017
...§ 52-572q ); Delaware (Lacy v. G.D. Searle & Co., 567 A.2d 398, 400 (Del. 1989) ); the District of Columbia (Payne v. Soft Sheen Prods., Inc., 486 A.2d 712, 723 (D.C. 1985) ); Florida (Thomas v. Bombardier Recreational Prods., Inc., 682 F.Supp.2d 1297, 1300 (M.D. Fla. 2010) ); Georgia (Weil......
-
Coffman v. Keene Corp.
...heeding presumption thus serves to lighten a plaintiff's burden of proof concerning proximate causation. See, e.g., Payne v. Soft Sheen Products, 486 A.2d 712, 725 (D.C.1985). The Appellate Division also observed that a jury determination of whether, if a warning had been provided, it would......
-
Burley v. Kytec Innovative Sports Equipment, Inc.: expert testimony in strict products liability cases in South Dakota.
...at 6-7 (Aspen Publishers 2004). (143.) Id [section] 1.2.3 at 10. (144.) Id [section] 1.1 at 3. (145.) Payne v. Soft Sheen Prods., Inc., 486 A.2d 712, 727 n.17 (D.C. 1985) (citing Salem v. U.S. Lines Co., 370 U.S. 31, 35 (146.) Dancy v. Hyster Co., 127 F.3d 649, 653-54 (8th Cir. 1997). The c......