Fiorentino v. A. E. Staley Manufacturing Co.
Fiorentino v. A. E. Staley Manufacturing Co.
Opinion of the Court
On April 18, 1969, the plaintiffs, Antonio Fiorentino and Gino DeSimone, were seriously injured in an explosion which occurred while they were working with a product manufactured and sold by the defendant A.E. Staley Manufacturing Company (Staley) under the trade name of Bondrite Contact Cement CC-60 (Bondrite CC-60) . At the time of the accident, the plaintiffs were using the product to attach formica to a kitchen wall. They sought damages for negligence on the theory that Staley had failed to furnish adequate warnings of certain dangers inherent in the product’s use. A jury returned verdicts in the plaintiffs’ favor. Staley maintains that its motion for a directed verdict should have been allowed because the warnings on the product’s label were adequate and because there was no duty to warn the plaintiffs in circumstances where they knew or should have known of the dangers involved in the product’s use. Alternatively, Staley seeks a new trial because of the admission of certain evidence pertaining to its knowledge and ability to warn of certain risks. We affirm the judgments.
In evaluating the judge’s denial of the motion for a directed verdict, we adopt the view of the evidence most favorable to the plaintiffs (Everett v. Bucky Warren, Inc., 376 Mass. 280, 282 [1978]) to determine whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Poirier v. Plymouth, 374 Mass. 206, 212 (1978). Uloth v. City Tank Corp., 376 Mass. 874, 876 (1978).
Bondrite CC-60 is a fast-drying contact adhesive especially noted for its ability to bond decorative laminates such as formica to various surfaces. The product’s chemical makeup consists of seventy to seventy-nine percent flammable solvents which evaporate quickly. Since these solvents have a flashpoint of less than twenty degrees Fahrenheit, the
Florentino, an experienced carpenter, had frequently purchased and used Bondrite CC-60 in his woodworking' business. On April 18, 1969, Florentino and DeSimone were installing formica in a kitchen using a five-gallon container of the cement. Florentino had familiarized himself with the contents of the label on the container which, insofar as pertinent, contained the following information:
“CAUTION: FLAMMABLE MIXTURE. DO NOT
USE NEAR FIRE OR FLAME
". . . .
“CAUTION: WARNING! EXTREMELY FLAMMABLE! TOXIC! CONTAINS: NAPHTHA, ACETONE AND METHYL ETHYL KETONE.
“Although this adhesive is no more hazardous than dry cleaning fluids or gasoline, precautions must be taken. USE WITH ADEQUATE VENTILATION. Keep away from Heat, Sparks and Open Flame. Avoid prolonged contact with skin and breathing of vapor. Keep container tightly closed when not in use.”
Because the label called for proper ventilation, Florentino opened three kitchen windows and removed the back door. He also opened the storm door and a few storm windows on a porch near the kitchen. No one was permitted to smoke. There was a gas stove located in a recessed area of the kitchen. Florentino observed that its burners were off and that there was nothing on the stove’s top. He did not observe that the bottom rear of the stove contained a concealed pilot light about three to four inches off the floor which, because of its position with the cover closed, could not be seen. The workers were preparing to attach a four-by-ten foot piece of formica to the kitchen wall at a point
The manager of Staley’s adhesive laboratory testified that Bondrite CC-60 was expected to be used in formica installations in kitchens, that special precautions, which would not be known to the average person, were followed in an industrial environment to guard against accidental ignition of the vapors,
There was further evidence that the label used on the product in 1969 did not comply with voluntary standards for labelling hazardous solvents published in 1951 by the National Fire Protection Association,
There was evidence that the cement was marketed in certain geographical areas under the trade names of “Carey Contact Cement” and “Wilson Art Contact Cement.” Containers of the product distributed under these trade names bore more explicit warnings, including the warning to “extinguish all flames and pilot lights.” Finally, it was shown that subsequent to this accident Staley changed the contents of the Bondrite label to read:
*433 “DANGER! Extremely Flammable Vapors May Cause Flash Fires Read Carefully Cautions Below
". . . .
“DANGER! Vapors May Ignite Explosively Prevent buildup of vapors &emdash; open all windows and doors &emdash; use only with cross ventilation. Keep away from heat, sparks and open flame. Do not smoke, extinguish all flames, and pilot lights, and turn off electrically operated appliances and other sources of ignition during use and until all vapors are gone. Avoid prolonged contact with skin or repeated breathing of vapors. Close container tightly after each use. Store in a cool, well-ventilated area. CONTAINS: Naphtha, Acetone and Methyl Ethyl Ketone.”
1. A manufacturer has the duty to caution purchasers of its product by way of adequate warnings of foreseeable latent dangers involved in the product’s normal and intended use. Farley v. Edward E. Tower Co., 271 Mass. 230, 233-234 (1930). Mealey v. Super Curline Hair Wave Corp., 342 Mass. 303, 305 (1961). Schaeffer v. General Motors Corp., 372 Mass. 171, 173-174 (1977). Fegan v. Lynn Ladder Co., 3 Mass. App. Ct. 60, 63 (1975). Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 349 (1978). See Prosser, Torts § 96, at 646-647 (4th ed. 1971); Restatement (Second) of Torts § 388 (1965); Swartz & Swartz, Products Liability in Massachusetts, 60 Mass. L. Q. 169, 174-177 (1975). “A duty to warn depends on [the manufacturer’s] superior knowledge and is said to exist when one may reasonably foresee danger of injury or damage to one less knowledgeable unless adequate warning of danger is given.” Lakatosh v. Diamond Alkali Co., 208 N.W. 2d 910, 913 (Iowa 1973). See also Uloth v. City Tank Corp., supra at 880-881; Wolfe v. Ford Motor Co., supra at 350, and cases cited; Sterner v. U.S. Plywood-Champion Paper, Inc., 519 F.2d 1352, 1353-1354 (8th Cir. 1975). Furnishing instructions designed to make the product’s use more efficient will not necessarily
We hold that it was for the jury to determine whether the label on the Rondrite CC-60 five-gallon container was adequate to inform the plaintiffs of the dangers of a serious accident which might result from the cement’s use near a closed and concealed pilot light. H. P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976). Wolfe v. Ford Motor Co., supra at 350. We also conclude that the jury’s determination that the warning was insufficient was warranted by the evidence. Staley stood in a superior position with respect to the characteristics of Rondrite CC-60. The company knew that the product was inherently dangerous
Staley points to the plaintiffs’ past experience with the product, their knowledge that it was flammable, and their awareness that the kitchen contained a gas stove, as obviating any duty to warn. Thus it contends that while the warnings might have been insufficient to advise a consumer of the risks involved, they were adequate to alert a professional user. We believe, on the evidence, that this issue was also one for the jury to resolve.
Two other exhibits (31 and 32) were labels adopted by Staley subsequent to the accident (see supra 433) which contained more explicit warnings. Staley contends that ex-
The last two exhibits challenged — a pre-accident label from one of Staley’s products containing a stronger warning (exhibit 33) and a postaccident company letter suggesting that better warnings were necessary (exhibit 46) — were properly admitted for the reasons we have already discussed.
Judgments affirmed.
According to the witness who testified on this point, the heavier-than-air vapors were lying on the floor and were not picked up by the air exchange from the open windows which were at counter level. After the vapors flowed into the draft of the oven and were ignited, the flame flashed back following the vapors (like a wick) to the plaintiffs.
Exhaust vents were installed along the floor to pick up vapors that had settled. In the factory, grounding straps were attached to vessels containing the product being poured from one container to another to prevent the risk of static spark.
These standards would require the following information: “DANGER-EXTREMELY FLAMMABLE —VAPORS MAY EXPLODE . . . Before applying extinguish pilot lights.”
This organization recommended use of the word “Danger” to advise that a product was extremely flammable and suggested the word “Warning” for substances that were classified as flammable.
This group classified any product with a flashpoint of twenty degrees Fahrenheit or below as extremely flammable and also recommended the signal word “Danger" to advise that the product was hazardous.
Because of the FDA’s concern, the Adhesive and Sealant Council drafted the following label for consideration by its members, including Staley: “DANGER! EXTREMELY FLAMMABLE VAPORS MAY CAUSE FLASH FIRE . . . Vapors may ignite explosively . . . . [Extinguish all flames and pilot lights.”
See Bean v. Ross Mfg. Co., 344 S.W. 2d 18 (Mo. 1961) (jury question whether warnings needed on a drain solvent despite plaintiff s practical experience with the product as a licensed plumber); Post v. American Cleaning Equip. Corp., 437 S.W. 2d 516 (Ky. 1968) (jury question whether label on a vacuum cleaner that it could explode used on 115 volts AC or DC warned plaintiff that it could explode if used in an industrial job on 220 DC); Blasing v. P.R.L. Hardenbergh Co., 303 Minn. 41 (1975) (for jury to decide whether workmen who had used a liquid finish remover extensively in the past were adequately warned about a danger of fire associated with its vapors by a label which stated: “Keep away from fire, heat and open-flame, lights”); Burch v. Amsterdam Corp., 366 A.2d 1079 (D.C. App. 1976) (question of fact whether label that did not advise to extinguish pilot lights was adequate to warn of flammable vapors despite warning not to use “near fire or flame”). See also Everett
Section 1274 was added to this Act after the accident; however, the parties appear to have litigated the case as if it were in effect at the time of the accident; in any case, the section is not relevant to the issues on appeal.
Concurring Opinion
(concurring). The practice of admitting postaccident design changes to show the feasibility or practical possibility of an improved design arose out of cases involving physical improvements to products or premises. See, e.g., Beverley v. Boston Elev. Ry., 194 Mass. 450, 458 (1907); Coy
As to our holding that the jury could properly find the earlier warning inadequate, it bears emphasis that the holding rests on something more substantial than mere size of type or number of exclamation points: namely, the qualitative insufficiency of the warning to inform the user of the gasoline-like tendency of the cement to form heavier-than-air vapors which, unless dispersed, will flow in an invisible stream to distant sources of ignition.
Reference
- Full Case Name
- Antonio Fiorentino & Another vs. A. E. Staley Manufacturing Company
- Cited By
- 35 cases
- Status
- Published