Whitehead v. Dycho Co., Inc.
| Decision Date | 31 July 1989 |
| Citation | 775 S.W.2d 593 |
| Parties | Jo Ann WHITEHEAD and husband, Johnny R. Whitehead, Plaintiffs-Appellees, v. The DYCHO COMPANY, INC.; Buss Coatings, Division of Buss Automation, Inc.; Union Chemicals Division, Division of Union Oil Company of California; and Exxon Corporation, Defendants-Appellees 775 S.W.2d 593, Prod.Liab.Rep.(CCH)P. 12,215 |
| Court | Tennessee Supreme Court |
Brian H. Trammell, Kennerly Montgomery & Finley, Knoxville, for defendant-appellant Dycho.
Jay Arthur Garrison, Taylor & Groover, Knoxville, for defendant-appellant Buss.
Steven Lipsey, Stone & Hinds, Knoxville, for defendant-appellant Union.
Louis C. Woolf, John A. McReynolds, Jr., W. Kyle Carpenter, Baker, Worthington, Crossley, Stansberry & Woolf, Knoxville, for defendant-appellant Exxon.
James C. Wright, Butler, Vines, Babb & Threadgill, Knoxville, for plaintiffs-appellees.
The Plaintiffs, Jo Ann Whitehead and her husband, Johnny R. Whitehead, brought this products liability action against multiple Defendants, seeking damages for Mrs. Whitehead's personal injuries resulting from an explosion caused by a chemical known as "naphtha." 1 She alleges in her complaint that Defendants were manufacturers or distributors of "naphtha" to which she had access at work. The complaint alleges that Defendants were liable to Plaintiffs on theories of strict liability in tort, breach of warranty, and negligent failure to warn. The Trial Court granted the defendant's motion for summary judgment and dismissed plaintiff's suit. The Court of Appeals reversed and remanded for a trial on the merits.
Mrs. Whitehead's employer, North America Phillips Consumer Electronics Corporation (hereinafter "Magnavox") purchased naphtha from two distributors, the Defendants, The Dycho Company, Inc. (hereinafter "Dycho"), and Buss Coatings, Division of Buss Automation, Inc. (hereinafter "Buss"). Dycho purchased naphtha in bulk from Union Chemicals Division, Division of Union Oil Company of California (hereafter "Union") and Buss purchased chemicals from both Union and Exxon Corporation (hereinafter "Exxon").
In her complaint, Mrs. Whitehead alleges that on September 4, 1982, she was using a product manufactured or distributed by Defendants to clean a work garment when said product violently exploded resulting in serious injuries. She alleges that the products sold by Defendants were defective and unreasonably dangerous, were placed in the stream of commerce by Defendants, were used in an intended manner, and that each Defendant is strictly liable. Plaintiff also avers that Defendants sold their products under circumstances that an implied warranty of merchantability and fitness for a particular purpose attached and due to the defective and dangerous nature of the products, this warranty was breached. Alternatively, Plaintiff avers that Defendants were negligent in failing to properly warn of the dangerous propensities of their product and were negligent in failing to warn those ultimate consumers of the dangerous propensities of the product. Further, Defendants sold their products with warnings inadequate to give notice to persons such as the Plaintiff as to the conditions under which the product might be used safely. Plaintiff also filed a separate action against her employer, Magnavox, seeking workers' compensation benefits and, in the alternative, asserting a common law tort claim. The trial court ordered a bifurcated hearing with reference to the workers' compensation portion of the action on the issue of whether or not the Plaintiff was acting within the scope of her employment at the time she was injured. The trial court heard Plaintiff's workers' compensation claim and found it to be compensable and awarded Plaintiff maximum benefits against her employer, Magnavox. Plaintiff could thus no longer pursue her common law tort action against Magnavox.
The Defendants jointly filed a motion for summary judgment alleging that Plaintiff's use of the naphtha constituted an unforeseeable misuse of the product, therefore barring any recovery, that Plaintiff's act of taking the naphtha from her place of employment constituted an intervening and superseding intentional act which bars recovery; that the warnings given by Defendants were adequate under the Tennessee Products Liability Act in that they complied with all applicable state and federal regulations regarding labeling of the product; and that the Defendants' warnings were adequate as a matter of law because Plaintiff's employer, Magnavox, was a sophisticated, bulk purchaser of naphtha, and Defendants were entitled to rely upon the purchaser's expertise to warn the ultimate users of the product; that Defendants are shielded from any duty to Plaintiffs by the sale to Magnavox, a sophisticated purchaser.
The roles of the various Defendants in the chain of distribution will be instructive. There were two manufacturers, Exxon and Union, and two distributors, Dycho and Buss. Magnavox purchased the naphtha from Dycho and Buss. Neither Union nor Exxon sold any naphtha products directly to Magnavox.
Exxon sold a chemical, Varsol 18 to Buss. Varsol 18 is an Exxon trade name for mineral spirits. This product was sold and delivered in bulk to Buss. "Flammable" or "Combustible" placards accompanied and were attached to the bulk shipments pursuant to the regulations of the U.S. Department of Transportation. Exxon provided Buss with Material Safety Data Sheets which state that Varsol 18 is a combustible liquid, not to be handled or stored near heat, sparks, flame, or strong oxidants. Exxon did not sell any other product or chemical which was used by Buss to produce its naphtha product. Exxon had no knowledge of the use made of its mineral spirits by Buss.
Union sold Lactol Spirits to Buss which Buss blended with the Varsol 18 purchased from Exxon to formulate naphtha. The naphtha was then sold by Buss to Magnavox. Union sold naphtha to Dycho, which then sold it to Magnavox. The sales from Union to Buss and Dycho were either in bulk by transport trucks or in 55 gallon drums. If the chemical was delivered by transport truck, such truck was placarded as either "Flammable" or "Combustible" in accordance with the regulations of the Department of Transportation. If the chemical was transported in 55 gallon drums, a warning label was attached to each drum. The warning labels reflected that the chemicals were combustible and/or flammable, and stated that the chemicals should be kept away from heat, sparks and flame. The labels further stated that the chemicals are "for industrial use only." Union also delivered Material Safety Data Sheets for the products to Buss and Dycho. Additionally, each shipment of naphtha was accompanied with a bill of lading which described the product as either "flammable" or "combustible." Union was not aware of the use made by Magnavox of naphtha.
Buss, one of the two distributors of naphtha to Magnavox, would blend ten gallons of Exxon's Varsol 18 with 45 gallons of Lactol Spirits purchased from Union to produce naphtha which it sold to Magnavox. This blending and mixing process was a process developed entirely by Buss. The specifications for the naphtha products purchased by Magnavox were written by Magnavox employees. These employees were aware that the naphtha products were highly flammable and should not be used or exposed to heat, flame, fire or sparks due to the possibility of explosion and fire.
Dycho purchased naphtha in bulk from Union and transferred it into 55 gallon metal drums and then resold it to Magnavox. The product name was stenciled on the top and sides of the drums along with a hazardous flammable label. All shipping papers stated that naphtha is a flammable liquid. Dycho did not do any blending, only repackaging the naphtha it purchased exclusively from Union.
The 55 gallon drums containing the naphtha were stored by Magnavox in an outside location separate and apart from its production buildings. The naphtha was from time to time transferred into smaller containers by line supervisors or group leaders, who in turn took the naphtha to the production line where it was supplied to the assembly-line workers in small, pump-type containers with no label or warnings thereon of any type. The use of naphtha was strictly regulated by Magnavox.
Magnavox, Plaintiff's employer, manufactures and assembles various types of electrical products, such as television sets and stereo sound systems in its plant in Jefferson County. Plaintiff was employed by Magnavox as an assembly-line worker. Her job involved the operation of a mastic glue machine used to apply glue to component parts of television and stereo cabinets in preparation for further assembly. In order to remove the excess glue from the cabinets being assembled, Magnavox supplied Plaintiff and other assembly-line workers with the solvent naphtha. The employees were instructed to place some naphtha from a small container furnished to them by Magnavox on a rag and wipe off any excess glue. From time to time, the employees at Magnavox would get glue on their hands, clothes and work aprons. Because of the difficulty in removing the glue, employees used naphtha at the workplace to remove it.
It had been the policy of Magnavox to provide clean aprons weekly. However, sometime before the accident involving Plaintiff, this policy was discontinued, and the line employees were given the privilege of taking the aprons home to wash. There was testimony in the record to the effect that prior to the accident, Plaintiff had tried to clean the glue off her apron with a type of thinner but it did not work, and that naphtha was the only effective product known to her for removing the glue. One of Plaintiff's co-workers testified that a line supervisor told the Plaintiff to take her apron home and wash it. This same fellow employee also testified that they had not been informed by Magnavox that...
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