Tucson Industries, Inc. v. Schwartz, 1
| Decision Date | 19 July 1971 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 15 Ariz.App. 166,487 P.2d 12 |
| Parties | TUCSON INDUSTRIES, INCORPORATED, an Arizona corporation et al., Appellants, v. Helen SCHWARTZ and Jack Schwartz, her husband, Appellees. 1238. |
| Court | Arizona Court of Appeals |
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Richard J. Woods, Phoenix, for Tucson Industries, Ann Chamberlin and William George Bolon.
Snell & Wilmer by Arthur Greenfield, Phoenix, for Entz-White Lumber & Supply, Wilhold Glues, Inc., and Walter N. Boysten Co. of Southern Cal.
Langerman, Begam & Lewis, P.A. by Robert G. Begam, Phoenix, for appellees.
A unique set of facts requires this court to determine the adequacy of a warning placed on a can of contact cement.
Plaintiffs-appellees, Helen Schwartz and her husband, Jack Schwartz, brought an action against the defendants-appellants for injuries suffered by Mrs. Schwartz to her eyes allegedly as a result of coming into contact with fumes from a product known as Wilhold Contax Cement. The matter was tried to a jury which returned a verdict in favor of Mrs. Schwartz in the sum of $75,000.00 and against all the defendants. There have been two separate appeals by the defendants from the judgment entered on the jury's verdict and the denial of post-trial motions.
Plaintiffs utilized two separate theories in seeking to impose liability upon the various defendants. For the purpose of this opinion, the defendants have been divided into two groups, depending upon the separate theories of liability.
Therefore, this opinion shall refer to the defendants-appellants, Wilhold Glues, Inc., Walter N. Boysen Co. of Southern California and Entz-White Lumber and Supply, Inc., as the 'manufacturing-selling defendants', or as 'Wilhold', and defendants-appellants, Tucson Industries, Inc., Ann Chamberlin and William George Bolon as the 'contracting defendants'.
There are certain central facts which will provide the setting of plaintiff's injuries and which are germane to the liability of both groups of defendants.
In April, 1964, plaintiff, Helen Schwartz, was employed as a telephone sales solicitor by Frontier Carpet Company which had offices in the northern portion of a building located on Camelback Road in Phoenix, Arizona. Mrs. Schwartz performed her work in that building in a room approximately 10 10 10 in size. The front or southern portion of this same building was leased by defendant Tucson Industries, Inc., as a wig shop, known as Wig World. Defendant Ann Chamberlin was employed as manager of Wig World by Tucson Industries, Inc., and she employed defendant William George Bolon to do certain remodeling work in the wig shop. This remodeling work, which began in March, 1964, required that certain countertops and shadow boxes in the wig shop be covered with Formica. In one of the try-on rooms, where a portion of the Formica work was being performed, was an air-conditioning return duct which returned air to the central air conditioning unit which circulated cool air to the wig shop and Frontier Carpet Company, and the 10 10 10 room where plaintiff was employed.
The Formica cover was being fastened to the various countertops and shadow boxes by an adhesive known as Wilhold Contax Cement. This cement was purchased at retail from the defendant Entz-White Lumber and Supply Company. The retail outlet had purchased the product from the distributor, Walter N. Boysen Co. of Southern California who in turn had purchased it from the manufacturer, Wilhold Glues, Inc.
Around the 1st of April, 1964, Mrs. Schwartz became aware of various odors which she identified as paint fumes emitting from the wig shop as the result of the remodeling work. On the 13th and 14th of April, Mrs. Schwartz felt 'choked up' from the fumes. On April 15, 1964, Mr. Bolon was working the kitchen area of the wig shop where he attached two countertops using Wilhold Contax Cement. On the same date, Mrs. Schwartz became aware of a 'new' smell coming into her office. On the 15th, Mrs. Schwartz started coughing and her eyes were watering. That evening she complained of feeling lightheaded and groggy. On the following day, the 16th, Mrs. Schwartz returned to work, still feeling groggy and lightheaded. On this latter day Mr. Bolon was working in the try-on room which contained the return-air duct for the air conditioning system. His work, commencing between 11:30 and 12 noon of that day, consisted of attaching Formica to four shadow boxes. Each shadow box had ten panels to be covered with cement, a total of twenty surfaces to be covered with cement for each box. The coated surfaces were left uncovered for approximately fifteen minutes. At approximately 12:30, Mrs. Chamberlin turned on the air conditioning unit. Approximately one hour later there was a sudden saturation of fumes in the small office occupied by Mrs. Schwartz. These fumes were so intense that Mrs. Schwartz and a co-employee were sent home.
The next day Mrs. Schwartz was examined by an ophthalmologist who diagnosed the condition of her eyes as chemical keratitis, an inflammation of the cornea of the eye caused by chemical exposure. The medical evidence was sufficient to allow a jury to determine that the resulting glaucoma, surgery, and cataracts suffered by Mrs. Schwartz were the result of her exposure to fumes in the Frontier Carpet Office.
Wilhold Contax Cement contains chemicals known as toluol, butanone and hexane. This product, on its label, contained the following warning in large letters:
In addition, on the top of the can of the Contax Cement, the following warning appeared:
'DANGER, extremely flammable, read the instructions, be sure to provide adequate ventilation and safety first.'
At the close of all the evidence the court removed from the jury's consideration the question of Mrs. Schwartz's contributory negligence or assumption of risk. The matter went to the jury on the questions of whether the contractor-defendants were negligent in using the Contax Cement, whether the manufacturing-selling defendants were negligent in failing to adequately warn of the dangers inherent in the use of the Wilhold product, and whether these same defendants were strictly liable for defective labeling of the product. The liability of the two groups of defendants shall be discussed separately.
In addition to the facts already stated, evidence was produced by the manufacturing-selling defendants that they had never heard of their product causing eye irritation; that there was no known case of eye damage caused by Wilhold Contax Cement and that Mr. Bolon, who was in closest proximity to the fumes, suffered no ill effects nor did Mrs. Schwartz's co-worker. On the other hand the Merck Index (a compilation of various chemical compounds commonly used by industry which shows toxicity) indicates that Butanone 'may be irritating to the eyes.'
Further evidence was produced which showed that Wilhold's label complied with both federal and California statutes on labeling of dangerous products.
While the question of liability of the manufacturing defendants went to the jury both on a question of strict tort liability and common law negligence, plaintiffs in their briefs before this court contend there was sufficient evidence for the jury to find that defendants negligently violated their common law duty to plaintiff and therefore were liable a fortiori to plaintiffs on a theory of strict liability. 1
This common law concept of liability based upon a duty to warn has been expressed by the Restatement (Second) of Torts, § 388 (1965) as follows:
'One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier could expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
'(a) knows or has reason to know, that the chattel is or likely to be dangerous for the use for which it is supplied; and
'(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
'(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.'
Within this conceptual arena of liability, Wilhold and its entourage contend that the trial court should have granted their motion for directed verdicts based upon two grounds:
(1) That Wilhold could not have reasonably foreseen either plaintiff as a victim of its product or the effect of the product upon plaintiff and therefore it is not liable, and
(2) In the event plaintiff was foreseeable both as a victim and as to the type of harm created, then its label was adequate and no duty it owed to Mrs. Schwartz was breached.
Wilhold's first argument on foreseeability is based upon the well-recognized qualification to the general rule concerning a duty to warn of dangers unknown to the consumer lurking within the product supplied, that is, that the manufacturer is not charged with a duty to warn of possible danger inherent within his product where the risk is rare and the injury results from some unusual use or some personal idiosyncrasy of the consumer. Merrill v. Beaute Vues Corp., 235 F.2d 893 (10th Cir. 1956). In other words, the boundaries of the defendant's duty to warn are drawn by the type of harm the defendant could reasonably foresee that his product would cause. See, Tucker v. Collar, 79...
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