Purvis v. PPG Industries, Inc.

• Decision Date: 30 January 1987
• Citation: 502 So.2d 714
• Parties: , Prod.Liab.Rep. (CCH) P 11,396 Barbara H. PURVIS v. PPG INDUSTRIES, INC. 85-483.
• Court: Alabama Supreme Court

Page 714

502 So.2d 714

70 A.L.R.4th 1, Prod.Liab.Rep. (CCH) P 11,396

Barbara H. PURVIS v. PPG INDUSTRIES, INC.

85-483.

Supreme Court of Alabama.

Jan. 30, 1987.

Horace Moon, Jr., and William G. Jones III, Mobile, for appellant.

Edward S. Sledge III and George M. Walker of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.

HOUSTON, Justice.

Plaintiff Barbara H. Purvis appeals from a summary judgment granted in favor of defendant PPG Industries, Inc. We affirm.

Summary judgment was granted to PPG on September 7, 1984. At that time, this was not certified as final under Rule 54(b), Ala.R.Civ.P, and a review of the record fails to disclose that this was requested by Ms. Purvis. At the time the summary judgment was granted, there were other defendants, and there was additional discovery by Ms. Purvis and these other defendants subsequent to the order granting PPG's motion for summary judgment. On July 10, 1985, Ms. Purvis filed a "Motion to Reconsider" PPG's summary judgment based upon certain affidavits and answers to interrogatories which were not before the Court at the time it granted PPG's summary judgment. This motion to reconsider was initially granted. However, upon further consideration, the summary judgment in favor of PPG was "reinstated." Subsequently, this summary judgment was made a final appealable judgment under Rule 54(b), Ala.R.Civ.P.

When ruling on a motion for summary judgment, a trial court may properly consider any material that would be admissible at trial and all evidence of record, as well as material submitted in support of or in opposition to the motion. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); and this Court's review of the trial court's action in granting summary judgment must be based upon the evidence before the trial court at the time it granted summary judgment. Osborn v. Johns, 468 So.2d 103 (Ala.1985).

Ms. Purvis in her brief relies heavily on facts that were not before the Court when PPG's motion for summary judgment was granted. These can not be considered by this Court. In Willis v. Ideal Basic Industries, Inc., 484 So.2d 444 (Ala.1986), the trial court granted summary judgment to both defendants; the record reflected that no counteraffidavits had been submitted by or on behalf of the plaintiff. Later, plaintiff moved to reconsider the order granting the summary judgment, and filed in support of his motion an affidavit in which he apparently factually disputed some matters that were of record at the time the summary judgment order was entered. In discussing the standard of review, this Court wrote:

" '[T]he propriety of granting motions for summary judgment must be tested by reviewing what the trial court had before it when it granted the motion.' Mathis v. Jim Skinner Ford, Inc., 361 So.2d 113, 116 (Ala.1978). On a motion for rehearing, the plaintiff must show circumstances which prevented his presenting evidence to counter that offered in support of the summary judgment. Mathis, supra."

484 So.2d at 445. This Court further wrote that Rules 56(e) and 56(f), Ala.R.Civ.P., direct how counteraffidavits are to be filed, when they should be filed, and what should be done if they are not available. Willis did not file anything to create a material issue of fact prior to entry of the summary judgment, and this Court concluded that his belated effort to remedy the situation was insufficient:

"Only when Willis filed the motion to reconsider did he attempt to develop this issue by offering a supporting affidavit. However, in his motion to reconsider, Willis failed to show any circumstances which prevented his offering this evidence earlier to counter that offered in support of summary judgment. The trial court properly refused to set aside summary judgment on this issue."

484 So.2d at 446. Barnes v. Liberty Mutual Insurance Co., 472 So.2d 1041 (Ala.1985); Stallings v. Angelica Uniform Co., 388 So.2d 942 (Ala.1980); Mathis v. Jim Skinner Ford, Inc., 361 So.2d 113 (Ala.1978); Cooper v. Adams, 295 Ala. 58, 322 So.2d 706 (Ala.1975). See also Moore v. Glover, 501 So.2d 1187 (Ala.1986). This Court, on substantial precedent, holds that the trial court did not err in failing to set aside the summary judgment based on affidavits filed over 10 months after the entry or upon a deposition filed over a year after the entry, because there was no showing why the plaintiff was prevented from offering this evidence to counter that offered in support of the motion. This Court will limit the scope of its review to the evidence which the trial court had before it when it initially granted PPG's motion for summary judgment.

Ms. Purvis was a part owner and an employee of Budget Dry Cleaning and Coin Laundry ("Budget"). She was poisoned by perchloroethylene, a dry cleaning solvent used in commercial dry cleaning establishments. The evidence showed perchloroethylene results from a chemically controlled reaction of ethylene and chlorine. It is manufactured by a number of companies, including PPG. It cannot be manufactured to possess the chemical and physical properties that make it an effective dry cleaning solvent without its being a potentially hazardous substance under conditions of overexposure or improper use. PPG never made a direct sale to Ms. Purvis or to Budget. Also named as defendants in this suit were Mobile Solvent and Supply, Inc. ("Mobile Solvent"); Coin Laundry and Equipment Company, Inc.; Speed Queen Corporation; Field Industries, Inc.; Ashland Chemical Company; and Dow Chemical Company. In Ms. Purvis's brief she recites that she "reached a pro tanto settlement with the remaining defendants."

PPG manufactures perchloroethylene ("perc") at its plant in Lake Charles, Louisiana, and ships the product in bulk in tank trucks to distributors such as Field Industries and Mobile Solvent. The first delivery of PPG perc was made to Budget by Mobile Solvent on May 11, 1981. This product was sold in bulk by PPG to Field Industries and was later sold by Field Industries to Mobile Solvent. Field Industries distributed the perc as its own product in its own drums, and its customer was given a choice of whether the drums were labeled or unlabeled. Field Industries delivered perc in unlabeled drums only to customers that it knew were knowledgeable about the chemical properties of perc and could be relied upon to convey safety and warning information to the ultimate users. When PPG delivered in bulk to Field Industries the perc that Field later delivered to Mobile Solvent, PPG had no way of knowing who the ultimate user would be and no way of directly providing product information or warnings to such ultimate user.

Other deliveries of PPG perc were made to Budget by Mobile Solvent on March 10, April 22, and June 25, 1982. These deliveries were of a product that had been sold in bulk by PPG directly to Mobile Solvent. On November 9, 1981, before any of these deliveries were made by Mobile Solvent to Budget, PPG, by letter with attachments, provided Mobile Solvent with all relevant product information and warning labels. ¹ The following appeared in this letter: "PPG urges you, and it is your duty to pass along any hazard and safe handling information contained therein to your employees, customers, handlers or users of the above mentioned product."

PPG had no way of ascertaining the identity of the ultimate customers to whom the perc would be sold after being separated into barrels; and, therefore, PPG had no way to convey product information or warnings to the ultimate user except through its distribution. There was no issue raised as to the reliability, reputation, or competence of either Mobile Solvent or Field Industries as distributors of the PPG perc.

The warning labels which PPG provided to Mobile Solvent contained the following warnings: "Vapor Harmful," "Avoid Prolonged Or Repeated Breathing Of Vapors," "Use Only With Adequate Ventilation," "Avoid Contact With Eyes," "Avoid Prolonged Or Repeated Contact With Skin," "Do Not Take Internally," and "Do Not Eat, Drink, Or Smoke In Work Area." First aid instructions were also given.

When viewed most favorably to Ms. Purvis, the only evidence which she presented in opposition to the motion for summary judgment was that she did not receive any warnings and that the warnings given by PPG to its distributors were inadequate because she did not receive them.

Ms. Purvis's first cause of action was brought under Alabama's Extended Manufacturer's Liability Doctrine; she alleged that PPG sold perc in a defective condition unreasonably dangerous to Ms. Purvis as user or consumer of the product, which reached Ms. Purvis without substantial change in the condition in which it was sold. The second cause of action was for breach of a duty to warn Ms. Purvis of the dangerous nature of perc and of the possibility that she would be injured by exposure to it. The third cause of action was for breach of implied warranty (specifically, that the perc was defective, was not properly packaged, and was not safe when put to its intended use).

PPG admits that perc is a potentially hazardous substance under conditions of over exposure or improper use. The only evidence before the court when summary judgment was granted was that perc could not be manufactured to possess the chemical and physical properties that make it an effective dry cleaning solvent without also possessing chemical and physical properties that make it a potentially hazardous substance. There was nothing before the trial court to indicate that PPG's perc was defective in terms of not being of commercial quality or of not being fit for its intended use.

"In order to establish liability under the Extended Manufacturers' Liability Doctrine, a plaintiff must show:

"(1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if

"(a) the seller is...