Thornton v. E.I. Du Pont De Nemours and Co., Inc.
| Decision Date | 08 June 1994 |
| Docket Number | No. 93-8014,93-8014 |
| Citation | 22 F.3d 284 |
| Parties | Prod.Liab.Rep.(CCH)P. 13,906 Lauren David THORNTON, Plaintiff-Appellant, v. E.I. DU PONT DE NEMOURS AND COMPANY, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Roger J. Dodd, L. Warren Turner, Jr., Valdosta, GA, for appellant.
W. Gus Elliott, Valdosta, GA, Raymond Michael Ripple, E.I. Du Pont De Nemours and Co., Wilmington, DE, for appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before BLACK, Circuit Judge, FAY, Senior Circuit Judge, and GRAHAM *, District Court Judge.
This is a diversity personal injury action. In April, 1991, Plaintiff filed his complaint for damages alleging that Defendant's 3608S Acrylic Lacquer Thinner contained a design defect and inadequate warnings. Plaintiff later filed an Amended Complaint. In August, 1992, Defendant filed its motion for summary judgment to which Plaintiff filed a response. The district court granted Defendant's motion and entered summary judgment in its favor. This appeal followed.
On May 4, 1989, Charles Giddens and his wife, Carolyn Giddens, were remodeling a home in Lakeland, Georgia. Mrs. Giddens intended to remove the existing carpeting and replace it with vinyl tile flooring. After the carpeting was removed and the glue for the tile flooring was applied, Mrs. Giddens changed her mind and decided to remove the glue and reseal the flagstone flooring that was underneath the carpet. Mrs. Giddens contacted the maintenance crew at the Louis Smith Memorial Hospital in Lakeland and was referred by the maintenance supervisor, Aaron Dennis ("Dennis"), to the Plaintiff, Lauren David Thornton ("Thornton").
On May 5, 1989, Thornton and Dennis went to the Giddens' home to discuss the job with Mrs. Giddens. Thornton and Dennis brought with them a stiff brush with a long handle, some lacquer thinner and a putty or scraper knife. Dennis applied the lacquer thinner to some of the dried glue on the floor and decided to use lacquer thinner with an electric buffer that belonged to the hospital to complete the job. Dennis and Thornton needed more lacquer thinner and Mrs. Giddens stated that her husband's dealership, Giddens Chevrolet, had some in stock.
Mrs. Giddens and Thornton went to the Chevrolet dealership and obtained one can of Du Pont 3608S lacquer thinner and one can of Du Pont reducer from the parts department. Mrs. Giddens told the parts manager, Bill Noles, that she needed lacquer thinner to clean a stoneflag floor. Neither Mrs. Giddens nor Thornton are certain as to what product was in the can of reducer. Thornton did not read the label on the cans of lacquer thinner nor did he read the label on the can of reducer. Thornton had used lacquer thinner on two or three prior occasions but never read the label on the containers.
Thornton began to use the thinner and reducer to remove the glue from the floor. While doing this, he kept the windows and doors open in order to allow ventilation. The process involved putting the thinner on the floor and buffing it with the electric buffer. Thornton used most of the lacquer thinner and reducer and accordingly asked a contractor, Ms. Zelna Shaw, to tell Mrs. Giddens that he needed more lacquer thinner. Mrs. Giddens subsequently brought two additional cans of lacquer thinner. After continuing the cleaning buffing process, Thornton saw flames emitting from the buffer. Immediately thereafter, he was engulfed in flames. As a result, he was severely injured, suffering third degree burns over seventy percent (70%) of his body. As a result of his injuries, he was hospitalized for over two (2) months. He has undergone numerous surgeries, is permanently scarred and will have some permanent disability.
Thornton contends that Du Pont 3608S Acrylic Lacquer Thinner ("Du Pont 3608S") caused the fire and his injuries. Du Pont 3608S is a specialized automotive paint product designed for use in automotive painting. It is available only through authorized distributors of Du Pont automotive paint products. Du Pont 3608S was designed for use by professionals in the automotive refinish industry and is marketed for use as an automotive refinish product. Du Pont literature recommends the product only for automotive refinish application. Du Pont 3608S is distributed pursuant to a distributorship agreement which requires the distributors to sell automotive refinish products to professional automotive refinishers only. The agreement prohibits the distributor from recommending use of the product for purposes or processes not recommended in Du Pont's literature or approved in advance by Du Pont. Purchasers of Du Pont 3608S are provided a Material Safety Data Sheet ("MSDS") which provides detailed information on the health hazards of lacquer thinners and cleaning solvents. Du Pont 3608S is not available at local hardware stores. The product which Mrs. Giddens obtained was purchased by Giddens Chevrolet from one or two businesses that sell automotive parts and automotive paint.
Du Pont 3608S is highly flammable. Its vapors can be ignited by merely turning on a light switch. A one gallon can of Du Pont 3608S was being used by Thornton at the time of the accident. The can contained a child proof cap and was colored brown and white. 1 The top front of the label states that the product is and identifies the product as follows:
AN AUTOMOTIVE PAINT PRODUCT
3608S
ACRYLIC
LACQUER THINNER
SPOT/PANEL REPAIR--60--70 F
LACQUER OR ACRYLIC
UNDERCOATS--
MODERATE TEMPERATURES
Below the product description is the product use:
A quality thinner for use in lacquer and acrylic undercoats
in moderate temperatures. Ideal for use in Lucite
for spot and panel repairs in
cool weather.
Below the description is a warning as follows:
DANGER!
FLASH FIRE. HARMFUL OR FATAL IF SWALLOWED. VAPORS AND
ABSORBED THROUGH THE SKIN.
Follow cautions on side panel.
The side panel contains the product identification and the following warning:
Do not breathe vapors or spray mist. Do not get in eyes or on skin.
WEAR A PROPERLY FITTED VAPOR/PARTICULATE RESPIRATOR approved by NIOSH/MISHA for use with paints (TC-23C), eye protection, gloves and protective clothing during application and until all vapors and spray mist are exhausted. In confined spaces, or in situations where continuous spray operations are typical, or if proper respirator fit is not possible, wear a positive-pressure, supplier-air respirator (NIOSH/MSHA TC-19C). In all cases, follow respirator manufacturer's directions for respirator use. Do not permit anyone without protection in the painting area.
Keep away from heat, sparks and flame. VAPORS MAY IGNITE EXPLOSIVELY. Vapors may spread long distances. Prevent build up of vapors. Extinguish all pilot lights and turn off heaters, non-explosion proof electrical equipment and other sources of ignition during and after use and until all vapors are gone. Do not transfer contents to bottles or other unlabeled containers. Close container after each use. Use only with adequate ventilation.
FIRST AID: If affected by inhalation of vapor or spray mist, remove to fresh air. In case of eye contact, flush immediately with plenty of water for at least 15 minutes and call a physician; for skin, wash thoroughly with soap and water. If swallowed, CALL A PHYSICIAN IMMEDIATELY.
DO NOT induce vomiting.
KEEP OUT OF REACH OF CHILDREN.
The product label complied with the requirements of the National Paint and Coatings Association ("NPCA"), the Chemical Manufacturer's Association ("CMA"), the American National Standards Institute ("ANSI") and the Occupational Health and Safety Act ("OSHA").
The Court's review of a grant of summary judgment is de novo. Vernon v. F.D.I.C., 981 F.2d 1230, 1232 (11th Cir.1993). The Court applies the same legal standards as those that controlled the district court. Industrial Partners, Ltd. v. CSX Transp., Inc., 974 F.2d 153, 155 (11th Cir.1992) (citing Martin v. Baer, 928 F.2d 1067, 1070 (11th Cir.1991)). Summary judgment is appropriate only if it appears through pleadings, depositions, admissions and affidavits that there is no "genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Real Estate Financing v. Resolution Trust Corporation, 950 F.2d 1540, 1542 (11th Cir.1992); McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1493 (11th Cir.1988). Materiality is determined by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 249, 106 S.Ct. at 2511.
Product misuse is defined as use of a product in a manner that could not reasonably be foreseen by the defendant. Ellsworth v. Sherne Lingerie,...
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