Smith v. U.S. Gypsum Co.
| Decision Date | 26 February 1980 |
| Docket Number | No. 51439,51439 |
| Citation | 7 A.L.R. 4th 147,612 P.2d 251 |
| Parties | , 1980 OK 33 James H. SMITH, Appellee, v. UNITED STATES GYPSUM COMPANY, a Delaware Corporation, and Chicago Mastic Company, an Illinois Corporation, Appellants. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Pittsburg County; Robert A. Layden, Trial Judge.
In an action based on manufacturers' products liability, defendants appeal from a jury verdict in favor of plaintiff, injured in a fire and explosion from vapors emitting from the adhesive he was using to panel his bathroom.
AFFIRMED.
Warren Gotcher, Gotcher & Gotcher, McAlester, for appellee.
Best, Sharp, Thomas & Glass by Joseph A. Sharp, Jack M. Thomas, William F. Smith, Tulsa, for United States Gypsum Co.
Rogers, Rogers & Jones, by Dan A. Rogers, W. Michael Hill, Tulsa, for Chicago Mastic Co., appellants.
This is an appeal from a plaintiff's verdict in a manufacturers' products liability action. Defendants, appellants herein, are the manufacturers and distributors of Wal-lite, a solvent based adhesive used to install paneling.
Plaintiff and his wife, intending to panel their bathroom, purchased two gallon cans of Wal-lite. The paneling was to be placed over the bathroom window, consequently it was closed and sealed. The directions on the can were as follows:
Back label carried following admonitions:
Pursuant to his reading of the instructions, plaintiff turned off the hot water heater and the pilot light on his kitchen stove and opened the front and back doors. He then opened the can and started the application. Several minutes later his wife turned on a fan across the hall from the bathroom. As she reentered the bathroom she testified she saw a blue flame erupt under plaintiff's trowel and the explosion occurred. Plaintiff was seriously injured.
Plaintiff filed the present suit based on manufacturers' products liability. Plaintiff claimed Wall-lite as sold in gallon cans was defective when it left the manufacturer's hands in such a way as to make it unreasonably dangerous to the ordinary consumer. He alleged warnings on the can were inadequate in that even if they were followed, the product was still unreasonably dangerous. The claimed defect was the rapid release of highly inflammable hexane vapors. Plaintiff sought actual damages and also punitive damages contending defendants' marketing the product with full knowledge of its dangers was wanton and reckless conduct.
Trial was held to a jury who returned a verdict of actual damages in the amount of $600,000.00. It did not award punitive damages. Defendants did not file a motion for new trial but timely perfected this appeal.
Defendants claim the trial court erred in overruling their demurrers to the evidence and motions for directed verdict, arguing there was insufficient evidence to submit the case to the jury.
In Kirkland v. General Motors Corporation, 521 P.2d 1353, 1363 (Okl.1974) this court set out the elements of a cause of action in manufacturers' products liability.
"First of all Plaintiff must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough.
Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the manufacturer, at the time the product left the manufacturer's possession and control. (Citation omitted). If the action is against the retailer or supplier of the article, then the Plaintiff must prove that the article was defective at the time of sale for public use or consumption or at the time it left the retailer's possession and control.
Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property as the term 'unreasonably dangerous' is above defined."
Unreasonably dangerous is defined as "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics". 1 Defendants claim proof of the third element of the cause of action was missing.
There is no question the Wal-lite exploded, probably due to ignition of the vapors by the electric fan. But was the proximate cause an unreasonably dangerous product due to defective design and inadequate warnings, or was it plaintiff's ignoring the warnings on the can?
If a product is potentially dangerous to consumers, a manufacturer is required to give directions or warnings on the container as to its use. 2 If these warnings cover all foreseeable use and if the product is not unreasonably dangerous if the warnings and directions are followed, the product is not defective in this respect. If warnings are unclear or inadequate to apprise the consumer of the inherent or latent danger, the product may be defective; particularly where a manufacturer has reason to anticipate danger may result from the use of his product and the product fails to contain adequate warning of such danger, the product is sold in a defective condition. 3
Foreseeability as applied to manufacturer's products liability is a narrow issue. A manufacturer must anticipate all foreseeable uses of his product. In order to escape being unreasonably dangerous, a potentially dangerous product must contain or reflect warnings covering all foreseeable uses. These warnings must be readily understandable and make the product safe. Foreseeability as used here is not to be confused with foreseeability involved in the concept of proximate cause under a negligence theory; see Cooley v. Quick-Supply Company, 221 N.W.2d 763 (Iowa 1974).
A recent decision, Parks v. Allis Chalmers Corporation, 398 N.W.2d 456 (Minn.1979), held that even though the manufacturer of a harvester placed warnings against manual unclogging on its machine, it could be held liable to an injured farmer for failing to make the warnings more explicit or to incorporate an economically feasible safety interlock system. The Minnesota Supreme Court stated there was sufficient evidence for jury to conclude the manufacturer knew, or should have known "that some users would leave the power connected while unclogging . . ."
Similarly, defendants in the present case should have known that some users would install paneling in a room without a window. If the jury found Wal-lite was designed in such a way that the vapors ignited easily, and that warnings and directions did not adequately warn of the dangerous conditions created, it was justified in finding a defect in the product.
If jury found this defect made the product unreasonably dangerous to the consumer, Kirkland's third element is satisfied.
Expert testimony at trial indicated the hexane vapors contained in the adhesive were released at a rapid rate if applied as directed on the can. The label instructed the consumer to apply the adhesive with a saw-tooth trowel. The expert opined such use compounded the dangers as this type of application doubled the evaporative rate by making grooves in the mixture. He concluded the release of the vapors into an enclosed space was too rapid to be overcome or guarded against. Plaintiff and his wife both testified the instructions and warnings were read and followed to the best of their ability. They attempted to satisfy the "cross ventilation" instruction by opening the doors and using the fan.
Defendants claim the evidence shows plaintiff deliberately disregarded the instructions and warnings on the can, resting their case on the fact the bathroom contained no open window. This, they submit, caused the accident, not any defect in the Wal-lite. There is no evidence of such deliberate disregard of the instructions. To the contrary, testimony indicates every attempt was made to heed the warning.
We hold there was sufficient evidence the warnings on the Wal-lite did not prevent the product from being unreasonably dangerous. Proof of the third element was sufficient to send the case to the jury.
Defendants ask us to hold as a matter of law that plaintiff misused the product and voluntarily assumed the risk of a known defect, defenses to a manufacturers' products liability action under Kirkland v. General Motors, supra. Use of Wal-lite as an adhesive, its sole purpose, cannot be misuse of the product even if plaintiff used it carelessly as alleged. 4 Evidence does not support defense that plaintiff knew the warnings were inadequate or that its application with a trowel would make the product more dangerous. The existence of the defenses is a jury question. Trial court properly overruled defendants' demurrers to the evidence and motions for directed verdict. 5
Defendants next suggest the issue of punitive damages should not have been submitted to...
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