Uptain v. Huntington Lab, Inc.

• Decision Date: 25 August 1986
• Docket Number: No. 84SC136,84SC136
• Citation: 723 P.2d 1322
• Parties: , 55 USLW 2168, Prod.Liab.Rep. (CCH) P 11,170 Tonya UPTAIN, Petitioner, v. HUNTINGTON LAB, INC., Respondent.
• Court: Colorado Supreme Court

Page 1322

723 P.2d 1322

58 A.L.R.4th 49, 55 USLW 2168,

Prod.Liab.Rep. (CCH) P 11,170

Tonya UPTAIN, Petitioner, v. HUNTINGTON LAB, INC., Respondent.

No. 84SC136.

Supreme Court of Colorado,

En Banc.

Aug. 25, 1986.

Alan E. Johnson, Durango, for petitioner.

Hamilton, Shand & McLachlan, P.C., Michael E. McLachlan, Durango, for respondent.

KIRSHBAUM, Justice.

We granted certiorari to review the Court of Appeals' decision in Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo.App.1984), which decision affirmed a jury verdict in favor of the defendant, Huntington Lab, Inc. (Huntington), in a products liability case filed by the plaintiff, Tonya Uptain. We affirm the judgment of the Court of Appeals, but in so doing we affirm the trial court on grounds that differ from those relied upon by the Court of Appeals.

On September 5, 1979, the plaintiff began a new job as an employee in the housekeeping department of Southwest Memorial Hospital in Cortez, Colorado. On that day, her supervisor demonstrated the use of various cleaning compounds available for cleaning bathroom fixtures, including Sani-Tate, a twenty-three percent hydrochloric acid solution manufactured by Huntington. At that time, Sani-Tate containers had labels warning users to avoid contact with the product because of potential chemical burns and to wash the skin area well if such contact occurred.

The tasks to be performed by the plaintiff required use of a swab to apply Sani-Tate and periodic rinsing of the swab. At trial, the plaintiff testified that her supervisor neither wore gloves nor instructed the plaintiff to use gloves when using Sani-Tate. The supervisor testified at trial that she instructed the plaintiff to wear rubber gloves and that the plaintiff refused to do so.

After the demonstration, the plaintiff began cleaning bathrooms on her own. Although she initially followed the supervisor's instructions, by September 7, 1979, the plaintiff had become so annoyed at the fact that water dripped continuously from the cleaning swab that she began to wring the swab out by hand after each rinse. The plaintiff's hand became red and blistered, however, and after washing it with soap and water the plaintiff reported to her supervisor. The supervisor told her to put on a rubber glove and continue to work. The plaintiff complied, but when her hand continued to hurt she removed the glove. Her hand appeared severely burned, and the plaintiff sought medical attention at once. The plaintiff subsequently had numerous skin graft operations, and her hand is permanently scarred.

The plaintiff filed a products liability action against Huntington, alleging that inadequate warnings on the Sani-Tate bottle rendered it a defective product. Huntington answered, claiming that the warning was adequate, that the plaintiff's failure to read and heed the printed warnings constituted a misuse of the product, and that the plaintiff assumed the risk. A jury returned a verdict in favor of Huntington, and the Court of Appeals affirmed. We accepted certiorari on the following issues: (1) whether the Court of Appeals' definition of "misuse" is correct; (2) whether section 13-21-404, 6 C.R.S. (1985 Supp.), applies to new labeling not based on scientific advancement; and (3) whether a contemporaneous objection to proffered evidence is necessary to preserve the issue of the admissibility of the evidence when the precise issue had been previously determined by the trial court in a ruling on a motion in limine.

I

The plaintiff first argues that the definition of "misuse" adopted by the Court of Appeals in affirming the trial court's instruction to the jury defining Huntington's misuse defense is too broad. We agree, but conclude that the instruction itself was not erroneous.

The plaintiff argued to the Court of Appeals that the trial court erred in instructing the jury on Huntington's defense of misuse because the plaintiff had used Sani-Tate for its intended purpose--cleaning toilet bowls. In rejecting this argument, the Court of Appeals defined "misuse" in the following manner:

Misuse is all possible types of product use, or conduct affecting product use, by the plaintiff or a third party which is improper in light of the qualities and characteristics of the product itself.

Uptain, 685 P.2d at 221 (citing Weinberger, Product Misuse in New York State, 53 N.Y.Bar J. 363 (1981)). The plaintiff contends that this definition of misuse introduces the concept of contributory negligence into this products liability case.

Because strict liability claims focus on the product itself rather than on any conduct of the manufacturer, contributory negligence is generally not recognized as a defense to such claims. See Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983); Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). However, comment h to section 402A of the Restatement (Second) of Torts (1965) recognizes an exception to this general rule when unforeseeable abnormal handling of an otherwise safe product causes injuries. Comment h provides in pertinent part:

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger ... and a product sold without such warning is in a defective condition.

In Jackson, 673 P.2d 363, we recognized this concept of misuse as a defense to a products liability case:

Misuse by an injured party which cannot reasonably be anticipated by the manufacturer can be utilized as a defense in a products liability case by showing that the conduct of the user, and not the alleged defect in a product, actually caused the accident.... Section 402A recognizes a defense for the manufacturer where the user mishandles or misuses a product and thereby creates a dangerous condition.... The usual situation in which the defense may be asserted is where the product is being used in a way other than that which was intended and which could not reasonably have been anticipated by the manufacturer.

Id. at 367 (citations omitted).

In this case, the trial court instructed the jury as follows concerning Huntington's misuse defense:

A manufacturer of a product is not legally responsible for injuries caused by a product if: (1) the product is used in a manner or for a purpose other than that which was intended and which could not reasonably have been expected; and (2) such use rather than a defect, if any, in the product caused the plaintiff's claimed injuries.

This instruction parallels Colo. CJI-Civ. 14:22 and is based upon Jackson. Contrary to the broad test stated by the Court of Appeals, the defense of misuse in Colorado is a particularized defense requiring that the plaintiff's use of the product be unforeseeable and unintended as well as the cause of injuries. Such limitation on the availability of the defense strikes an appropriate balance between the policy that in strict liability cases the product, not the manufacturer, is on trial and the recognition that abuse of a product should not be encouraged.

Although the Court of Appeals' characterization of the defense of misuse unduly broadens that defense, instruction No. 15, as given to the jury, correctly stated the law of misuse in Colorado. ¹ Furthermore, there was sufficient evidence introduced at trial to establish a factual basis for tendering the defense of misuse to the jury. Thus, the conclusion of the Court of Appeals that instruction No. 15 was not erroneous is correct.

Misuse, as the jury was instructed, is a question of causation. Regardless of the defective condition, if any, of a manufacturer's product, a manufacturer will not be liable if an unforeseeable misuse of the product caused the injuries. See Union Supply Co., 196 Colo. 162, 583 P.2d 276; Keeton, Products Liability and Defenses: Intervening Misconduct, 15 Forum 109 (1979). The plaintiff argues that Huntington was not entitled to any instruction on the defense of misuse because Sani-Tate was being used for its intended purpose. However, the concept of misuse includes use of a product in a manner other than that which was intended as well as use for an unintended purpose. The plaintiff's failure to read and heed the warnings printed on the product's label and her act of wringing out the swab with her hand were arguably unforeseeable uses of Sani-Tate in a manner other than that intended.

The plaintiff argues that her failure to read the warnings printed on the label is foreseeable as a matter of law. The rule is to the contrary. Comment j to section 402A provides that "[w]here warning is given, the seller may reasonably assume that it will be read and heeded." Adoption of the plaintiff's proposed rule would in effect reverse the policies supporting the requirement that manufacturers must provide adequate warnings of known hazards accompanying use of particular products. We reject the plaintiff's position and adopt comment j as the applicable rule in this jurisdiction. The question of whether it was foreseeable that a user of Sani-Tate would wring out a cloth with her bare hands was properly reserved for jury determination in this case. See Schwartz v. American Honda Motor Co., 710 F.2d 378 (7th Cir.1983); Brownlee v. Louisville Varnish Co., 641 F.2d 397 (5th Cir.1981); Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (Ct.App.1983); Self v. General Motors Corp., 42 Cal.App.3d 1, 116 Cal.Rptr. 575 (1974); Falkenbury v. Elder Cadillac, Inc., 109 Ill.App.3d 11, 64 Ill.Dec. 628, 440 N.E.2d...