Simonetti v. Rinshed-Mason Co., RINSHED-MASON

• Decision Date: 26 June 1972
• Docket Number: RINSHED-MASON,Docket No. 11220,No. 3,3
• Citation: 41 Mich.App. 446,200 N.W.2d 354
• Parties: Louis SIMONETTI and Virginia Simonetti, Plaintiffs-Appellees, v.COMPANY, a Michigan corporation, a/k/a R. H. Liguidating, a Michigan corporation, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 354

200 N.W.2d 354

41 Mich.App. 446

Louis SIMONETTI and Virginia Simonetti, Plaintiffs-Appellees, v. RINSHED-MASON COMPANY, a Michigan corporation, a/k/a R. H Liguidating, a Michigan corporation, Defendant-Appellant.

Docket No. 11220.

Court of Appeals of Michigan, Division No. 3.

June 26 ,1972.

Released for Publication Sept. 15, 1972.

Leave to Appeal Denied Oct. 2, 1972.

William E. Jungerheld, Davidson, Chaklos, Jungerheld & Hoffman, Saginaw, for defendant-appellant.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiffs-appellees.

Before R. B. BURNS, P.J., and HOLBROOK and O'HARA, ^* JJ.

HOLBROOK, Judge.

This is a products liability-negligence action heard by a jury.

On September 4, 1963, plaintiff Louis Simonetti was an employee of the Baker Perkins plant in Saginaw, Michigan. He was assisting a co-employee in welding an inspection plate on a piece of machinery. The machine had been previously cleaned by the use of defendant's product, Synthetic Thinner, ER--59. When the welder arced his machine to start welding, the residue and vapors of ER--59 ignited and exploded. Plaintiff Louis Simonetti was severely and permanently injured. Plaintiffs claimed that ER--59 had a dangerously low flash point, was exceedingly flammable, and that the defendant in selling the product to Baker Perkins knew, or should have known, that it was being used for washing and cleaning machinery. The negligence claimed herein consisted of defendant's failure to adequately label the product and warn of the dangerous explosive properties of ER--59. Virginia Simonetti's action was for loss of consortium.

Defendant denied liability contending there was no carelessness, negligence or violation of duty in the manufacture and sale of its product.

The jury returned a verdict of $415,000 for Louis Simonetti, and $60,000 for his wife virginia. Defendant has appealed.

Defendant's first claim of error is grounded upon the court's refusal to grant summary judgment or directed verdict.

Defendant asserts that reasonable minds could not differ in finding there was no proof whatsoever to conclude that defendant should have anticipated or foreseen welding and product use under such circumstances. There is no evidence that the paint thinner had any defect that would make it unsafe for use in the usual way. Plaintiff and his co-workers knew of the flammable nature of the product because it was stored in a separate building with other flammable materials, there was a red cautionary label on the big drums, it was dispensed in one-gallon safety cans, used in a ventilated area where fire extinguishers and no-smoking signs were posted. Prior to the explosion, plaintiff was present at a discussion regarding the advisability of welding and was worried about the safety of welding in the presence of strong vapors, although he did nothing about his worries. In such surroundings and under such circumstances, to subject the paint thinner to a 2000 welding arc transcends ordinary or reasonable use of the product. It was foolhardy and careless and every reasonable intelligent adult would know better than to take such a chance. The trial court should have found that defendant was not negligent as a matter of law. The motions for directed verdict or summary judgment were in order and should have been granted.

Plaintiffs reply by asserting that a trial judge is almost never justified in taking a negligence case from the jury and deciding the case as a matter of law. The large 55-gallon drums in the separate building contained a small red label or shipping tag which said:

'Keep AWAY from FIRE, HEAT and OPEN-flame LIGHTS

'CAUTION

'LEAKING Packages Must Be Removed to a Safe Place

'DO NOT DROP

'This is to certify that the contents of this package are properly described by name and are packed and marked and are in proper condition for transportation according to the Regulations prescribed by the Interstate Commerce Commission

'INMONT CORP, 5935 Milford Ave, Detroit, Mich. 48210'

The label did not give any indication that the product was highly volatile or explosive. While it could be inferred that the product might be flammable under certain conditions, there was no warning that the product vapors or fumes could ignite and cause a tremendous explosion hours after the substance had been used.

Defendant should have been aware that the paint thinner was being used as a cleaner. Witness Caulton Ray, who qualified as an expert in chemistry and generally as to the manufacture of chemical products around the nation and the uses to which these products were put, clearly indicated that it was a well-known fact among chemical manufacturers that paint thinners were frequently used as a 'wash'. Further, Mr. Ray testified as to the sufficiency of the warning label on the subject 55-gallon drum as follows:

'Q. Now, back in 1963, Mr. Ray, and before, was there a basic minimum standard of conduct that chemical manufacturers, or formulators, or corporations which market chemicals, customarily followed? Was there a standard, or custom, or practice, that they customarily followed in the labeling of fluids that you have mentioned, solvents, including solvents like Rinshed-Mason ER--59, with its characteristics that you found on the test?

'A. Yes, there were.

'Q. There were. All right, and were you familiar with those standards and those customs back then in 1963?

'A. Yes.

'Q. And can--did manufacturers of these materials generally, most of them generally follow that custom?

'A. Well, my experience has shown that.

'Q. Was that standard of labeling products like this, Mr. Ray, was that standard good labeling practice, insofar as the minimum was concerned, in your opinion?

'A. I would say it could be acceptable. Good is a rather strong term in this sense, being a chemist.

'Q. But what the industry generally did was acceptable?

'A. Right.

'Q. So that you were then acquainted with the custom in that regard, upon the manufacturers of reducers or thinners, as to what warning labels were supposed to be put on their products, supposed to warn the users; is that correct?

'A. Yes.

'Q. Now, what was that labeling standard that manufacturers customarily followed in labeling of their prouducts? What was it designed to do?

'A. It was designed to warn and/or caution the user as to how the material should be used, or how it should not be used.

'Q. All right, now that would be an instruction as to its use. Would there be any standards as to warning the consumer about the dangers of the product?

'A. Yes.

'Q. All right. Now, with respect to this kind of material, this kind of solvent with this kind of a flashpoint, Mr. Ray, were there, back in 1963, were there key phrases that were applied to materials like this that had flashpoints at four or ten degrees? Were there key phrases that were part of that custom?

'A. Yes.

'Q. All right. And were these key phrases, or key words applied depending upon how volatile or how nonvolatile the material was?

'A. Yes.

'Q. Can you tell us now, Mr. Ray, what was that custom that was followed back in 1963 by the chemical industry and trades labeling these materials to the user?

'A. Well, the custom at the time was that the recommendations were based on the flashpoint of the material. If the material had a flashpoint of twenty degrees or lower, it was labeled danger, caution, extremely flammable, or vapors explosive, use in well-ventilated area, keep away from fire, flame, anything of this nature, and there was also, following that, a health hazard warning, and the next category would be if it was between twenty and eighty degrees Fahrenheit, it would say caution, flammable mixture, use in well-ventilated area, keep away from flame, and the same health hazard and warning, and then when the temperature exceeded eighty degrees, that's eighty to one-fifty, or some temperature above that, it would say combustible, and to use in well-ventilated area, and the health warning.

'Q. All right. Of those three categories that you have described, where did Rinshed-Mason's fluid fall into place?

'A. Well, our tests showed that it fell into the area of below twenty degrees, which is the--where it says extremely flammable, explosive, vapors explosive, use in well-ventilated area.

'Q. And insofar as a warning that was customarily given back in 1963, what is it about this Rinshed-Mason fluid, what is the dangerous aspects of this fluid that would give you the single word danger to a person? What is it about this mixture?

'A. Well, the flashpoint, the volatility, that it would vaporize rapidly at room temperature.

'Q. It's the vapors then?

'A. Right, it's the vapors.

'Q. The warning then was customarily made at that time to tell somebody about the dangers of the vapors?

'A. That is correct.

'Q. Now, I want you to assume, Mr. Ray, that back in 1963, the Rinshed-Mason Company sold and shipped fifty-five gallon drums, such as you saw in that shed back on September 5, 1963, with markings on the drums, such as you read to us here this morning in court, I want you to asusme that they did that back in 1963, markings Reducer S30 ER59 S302018 B180856 414--62--362, assume that their drum was marked in that fashion back in 1963, and that attached to the top of that drum was a single, red label, similar in color, and exactly in wording as plaintiffs' exhibit number '3', which I hand you, assuming the markings that I have indicated and that paper label on top of the drum, and nothing else by way of paper labels, writings or warnings of any kind, or letters or pamphlets, or instructions that came with that material that covered it in any way, or did that drum refer to any other material in any way, assuming those facts to be true, do you have an opinion, Mr. Ray, based up-on reasonable scientific certainty, as to whether this label and plaintiffs' exhibit '3', and those markings that you read off that barrel when you took your sample from there, whether that was...