Willmar Poultry Co. v. Carus Chemical Co., C4-85-716
| Decision Date | 17 December 1985 |
| Docket Number | No. C4-85-716,C4-85-716 |
| Citation | 378 N.W.2d 830 |
| Parties | Prod.Liab.Rep. (CCH) P 10,903 WILLMAR POULTRY COMPANY, Respondent, v. CARUS CHEMICAL COMPANY, Appellant, Hawkins Chemical, Inc., et al., Defendants. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Respondent's recovery against appellant was not precluded on the basis that no one at the respondent company read the warnings on the potassium permanganate drums.
2. Respondent's recovery against appellant was not precluded on the basis that respondent was aware of the risks involved in fumigating its facility.
3. The trial court did not err in refusing to submit to the jury the issue of the distributors' negligence.
4. The trial court did not err in its jury instructions.
James L. Fetterly, Minneapolis, for respondent.
Eric J. Magnuson, Minneapolis, for appellant.
Heard, considered, and decided by HUSPENI, P.J., and FOLEY and FORSBERG, JJ.
Respondent Willmar Poultry Company (Willmar Poultry) brought this products liability action against appellant Carus Chemical Company (Carus), Reichhold Chemicals, Inc. (Reichhold), Hawkins Chemical, Inc. (Hawkins) and Thompson-Hayward Chemical Company (Thompson-Hayward), seeking to recover damages arising from a fire which occurred at Willmar Poultry's facility. Reichhold, Hawkins, and Thompson-Hayward settled with Willmar Poultry prior to trial. Following a lengthy trial, the jury allocated responsibility for the fire 20% to Willmar Poultry, 80% to Carus, and 0% to Reichhold. The trial court denied Carus' motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Carus appeals. We affirm.
Willmar Poultry operates a turkey hatchery in Willmar, Minnesota. It periodically fumigates its hatchery buildings and incubators in order to disinfect them. For a number of years, Willmar Poultry fumigated its buildings and incubators by combining potassium permanganate and a 37% formaldehyde solution.
Carus is the sole manufacturer of potassium permanganate in the United States, and sells the product under the trade name "Cairox." Carus recommends that potassium permanganate be used in combination with formaldehyde for fumigating poultry hatcheries.
Reichhold manufactures a formaldehyde solution and sells its product under the trade name "Formalin." Willmar Poultry purchased the potassium permanganate involved in this case from Hawkins and it purchased the formaldehyde solution from Thompson-Hayward.
On November 17, 1978, as the final stage of a major cleaning of its facility, Willmar Poultry planned to do a large-scale fumigation. It had never done such an extensive fumigation before. Its normal procedure was to pour a measured amount of potassium permanganate into a three pound coffee can which contained a small amount of the formaldehyde solution.
The employees of Willmar Poultry did a few tests during the week prior to the fumigation to determine the size of containers they should use and a method for mixing the large quantities of chemicals. They decided to use stock tanks to fumigate the smaller rooms in the hatchery and garbage dumpsters to fumigate the larger areas of the facility. They also decided to modify their usual procedure to accommodate the larger amounts of chemicals that were required.
Ray Norling, the vice president of Willmar Poultry, testified that he decided to do an experiment prior to the fumigation in order to test two gas masks and also to determine whether any unexpected reactions would occur when he poured the formaldehyde solution on the potassium permanganate. He used a stock tank for his experiment. Within twenty to thirty seconds after he poured the formaldehyde solution on the potassium permanganate, he observed a flame that was blue at the base and, above a couple of inches of blue flame, the flame was red. At times, the flame reached a height of twelve inches. The flame was as thick as a pointer. After three to four minutes, the flame subsided and Norling saw the flame go out. The flame was not unexpected because Norling had observed soot in other containers that were previously used for fumigation.
Norling then implemented a plan which he considered would control the flow of the formaldehyde solution and prevent a fast release of fumes. The employees placed approximately 180 pounds of potassium permanganate in the bottom of a dumpster and approximately 45 gallons of the formaldehyde solution in a 55-gallon drum which was set on a stand above the dumpster. Attached to the drum was a spigot and a hose. The employees planned that, when they opened the spigot, the formaldehyde solution would run from the drum into the dumpster and mix with the potassium permanganate. They considered that the spigot would allow them to control the rate at which the formaldehyde solution would pour into the potassium permanganate, and therefore, they would be able to control the rate and speed of the chemical reaction.
As a result of this setup, the chemicals were mixed at a much slower rate than was normal. Norling testified that he thought the slower the rate of mixture, the less fumes would be created, the personnel would have a longer time to leave the building without being harmed by the fumes, and any problems would be avoided. Norling expected some fire in the bottom of the dumpster, but he testified that he would "anticipate the same kind of flame that I saw in the stock tank."
All of Willmar Poultry's precautions backfired. When employees of Willmar Poultry opened the spigot on the drum, the formaldehyde solution poured on to the potassium permanganate and there was an instantaneous violent chemical reaction. Within seconds, fire leapt to the ceiling of the hatchery and the uncontrollable fire destroyed the building. No one was injured.
Dr. Kent Voorhees, one of Willmar Poultry's experts, testified at trial that Willmar Poultry's method of mixing the potassium permanganate and the formaldehyde solution created a serious risk of fire. Voorhees conducted a number of experiments with potassium permanganate and the formaldehyde solution. Most of the experiments were videotaped and the videotape was shown to the jury. He used a number of different containers--coffee cans, barrels, stock tanks and dumpsters. Voorhees opined, based on his experiments, that the reaction of the two chemicals is unpredictable.
Voorhees described five factors that influence the chemical reaction: (1) in order to have a controlled chemical reaction, the chemicals need to be mixed completely and thoroughly; (2) the faster the chemicals are mixed together, the safer the reaction is; (3) it is safer to add the potassium permanganate to the formaldehyde solution, rather than vice versa; (4) containers with high sides tend to create a column of formaldehyde gas and thus create a higher risk of flames; (5) there is a maximum limit to the amount of chemicals that can be safely used.
Voorhees concluded that potassium permanganate and formaldehyde cannot be used safely to fumigate a large building. He further testified that the slow addition of small amounts of the formaldehyde solution to large quantities of potassium permanganate is the most hazardous way to mix the two chemicals.
Each drum of potassium permanganate had three labels on it. One label stated:
DANGER: STRONG OXIDIZER
CONTACT WITH OTHER MATERIALS MAY CAUSE FIRE. KEEP FROM CONTACT WITH CLOTHING AND OTHER COMBUSTIBLE MATERIALS. REMOVE AND WASH CLOTHING PROMPTLY. STORE IN TIGHTLY CLOSED CONTAINERS. DO NOT
STORE NEAR COMBUSTIBLE MATERIALS.
Another label stated, among other things, that "contact with combustible material may cause fire or explosion." The third label contained a yellow flame symbol with the word "OXIDIZER" printed underneath the symbol.
Willmar Poultry's other expert witness, Dr. Kenneth Cohen, testified that the warnings on the potassium permanganate were inadequate. First, he testified that the warning labels specifically contradict the long-standing and recommended practice in the poultry industry of combining a combustible material (the formaldehyde solution) with a strong oxidizer (potassium permanganate). Second, Cohen testified that the labels did not set an upper limit on the quantities of chemicals that could be safely mixed. Cohen suggested that the labels should use stronger language to communicate to the user the possibility of an explosion and they should specifically state that additional information is required before a user can safely proceed with "any unique processes that are contrary to the instructions on the label."
Carus' expert, Charles O'Connor, testified that the labels were adequate. He testified that the labels on the potassium permanganate drums satisfied the standards of the American National Standard Institute. Further, he opined that the language of the labels is easily understood by someone with a sixth grade education. He did not believe there was any inconsistency between the language on the labels and the use of potassium permanganate for fumigation. In his opinion, the label on the potassium permanganate adequately warned users of the hazards of mixing the two chemicals together.
The jury determined that the potassium permanganate was in a defective condition which was unreasonably dangerous, because Carus failed to provide adequate warnings and/or instructions for the safe use of the product (in combination with the formaldehyde solution) as a fumigant for buildings. The jury also determined that Carus' failure to provide adequate warnings directly caused Willmar Poultry's loss. The jury found no fault on the part of Reichhold. The trial court did not submit the issue of Hawkins' and Thompson-Hayward's negligence to the jury. The parties stipulated to damages of 1.8 million dollars.
1. Was Willmar Poultry's recovery against Carus precluded on the basis that no one at Willmar Poultry read the...
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