Town of Bridport v. Sterling Clark Lurton Corp.

Town of Bridport v. Sterling Clark Lurton Corp.  (96-083); 166 Vt. 304; 
693 A.2d 701

[Filed 14-Mar-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 96-083


Town of Bridport                                  Supreme Court

                                                  On Appeal from
     v.                                           Addison Superior Court

Sterling Clark Lurton Corp.                       September Term, 1996


Matthew I. Katz, J.

       John B. Webber and John H. Klesch of Hull, Webber & Reis, Rutland, for
  plaintiff-appellant

       Allan R. Keyes and Marion T. Ferguson of Ryan Smith & Carbine, Ltd.,
  Rutland, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.  Plaintiff, the Town of Bridport, brought suit against
  defendant Sterling Clark Lurton Corp. after its town hall was destroyed by
  a fire caused by the spontaneous combustion of products manufactured by
  defendant.  Plaintiff appeals the trial court's grant of summary judgment
  in favor of defendant, arguing that (1) an inadequate warning may be a
  proximate cause of an injury even though the user did not read the warning
  given; and (2) a genuine issue of material fact exists as to the adequacy
  of the warnings given in this case. Defendant urges us to accept the
  court's conclusion that plaintiff failed to show proximate cause, and also
  argues that it had no duty to warn on these facts.  We agree with the trial
  court that, as a matter of law, the warnings on defendant's products were
  adequate to alert a reasonable consumer to the risk of spontaneous
  combustion, and therefore affirm.

                                I.

       Summary judgment is appropriate only if defendant has established
  first, that there is no genuine issue of material fact and second, that
  defendant is entitled to judgment as a matter of

 

  law.  See Murray v. White, 155 Vt. 621, 628, 587 A.2d 975, 979 (1991). 
  Plaintiff must be given the benefit of all reasonable doubts and inferences
  and all allegations opposing the motion for summary judgment that are
  supported by evidence must be taken as true.  Messier v. Metropolitan Life
  Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990).

       Viewing the parties' allegations in light of this standard, the facts
  are as follows.  With the help of grants, donations and volunteer labor,
  the Bridport Restoration Project Committee was gradually restoring the old
  town hall.  Although plaintiff owned the hall, the Masonic Lodge leased the
  second floor of the building as a meeting room.  In preparation for an
  upcoming dinner, several Masons decided to work on the floor, which was in
  poor condition as a result of the renovations.

       One of the Masons, Robert Grant, volunteered to purchase the chemicals
  needed to prepare the floor.  He bought two products, a gallon container of
  gum turps and a gallon container of boiled linseed oil, both manufactured
  by defendant.  Grant stated in his deposition that he did not read the
  labels "to any extent" but that he thought he had "briefed the label" for
  application instructions.  On the advice of a store clerk, he mixed the
  products using a 50/50 ratio.

       Another volunteer, Gary Barkley, joined Grant at the hall.  Barkley
  never looked at the product containers.  The two men spread the mixture of
  linseed oil and gum turps on the floor and swept or mopped it up with
  sawdust that was provided by Margaret Sunderland, the Secretary of the
  Restoration Project Committee.  When Barkley and Grant left the hall, they
  left behind the materials used to clean the floor, including a bucket
  containing the wet, oily sawdust, the product containers, and possibly a
  mop used to clean the floor.  The building burst into flames the next day,
  and the fire was traced to the materials used to clean the floor.

       The appearance and content of the warnings labels on the products are
  not in dispute. The front of the gum turps container stated "DANGER! 
  FLAMMABLE.  HARMFUL OR FATAL IF SWALLOWED.  VAPOR HARMFUL.  SKIN AND EYE
  IRRITANT.  See other

 

  cautions on back panel."  These capitalized warnings were set forth in
  large, bold print directly beneath the identifying product label.  The back
  panel contained a box with several warnings regarding dangers from
  breathing, swallowing, and suffering skin or eye contact with the product,
  as well as an instruction to "Keep away from heat, sparks and flame." 
  Under the box, a paragraph labeled "USES" noted "When mixed one part Gum
  Turpentine to two parts Boiled Linseed Oil it makes an excellent furniture
  polish.  Be sure to wash and dispose of oily rags in a safe place to avoid
  spontaneous combustion."

       Similarly, the front of the linseed oil container displayed a box
  measuring nearly 1" by 3", which stated "READ CAUTION ON BACK PANEL BEFORE
  USE."  The back of the panel displayed a box about 1" by 4", printed in two
  colors, which set forth this warning: "CAUTION: Oily cloths are subject to
  spontaneous combustion.  All oily cloths should be spread to dry in airy
  spot or burned promptly after using."

       Plaintiff alleged that these warnings were inadequate, and that the
  manufacturer's failure to provide adequate warnings was a proximate cause
  of the fire.  Defendant moved for summary judgment, arguing that plaintiff
  could not show that inadequate warnings were a proximate cause of the fire
  where the users of the products did not read the warnings given.  The trial
  court accepted this reasoning, and awarded summary judgment to defendant. 
  Plaintiff moved for relief from judgment on the grounds that one factor in
  determining the adequacy of a warning is its conspicuousness on a label. 
  The court rejected this argument, noting that plaintiff's failure to
  "present[] . . . evidence of what a reasonable linseed oil warning should
  be. . . . [left] no triable question of fact for resolution by the jury,"
  and holding that the warnings given were sufficient as a matter of law. 
  This appeal followed.

                                II.

       Plaintiff's claims are premised on a manufacturer's duty to warn of
  known product defects, which "`arises when the product manufactured is
  dangerous to an extent beyond that which would be contemplated by the
  ordinary purchaser, i.e., a consumer possessing the

 

  ordinary and common knowledge of the community as to the product's
  characteristics.'" Ostrowski v. Hydra-Tool Corp., 144 Vt. 305, 308, 479 A.2d 126, 127 (1984) (quoting Menard v. Newhall, 135 Vt. 53, 55, 373 A.2d 505, 507 (1977)).  In "failure to warn" cases, the plaintiff must show that
  the manufacturer had a duty to warn, that the failure to warn made the
  product unreasonably dangerous and therefore defective, and that the lack
  of a warning was a proximate cause of the injury.  Menard, 135 Vt. at 54,
  479 A.2d  at 506; see also McCullock v. H.B. Fuller Co., 61 F.3d 1038,
  1044-45 (2d Cir. 1995) (outlining plaintiff's burden in failure to warn
  case under Vermont law).

       Proximate cause in these cases is typically shown by means of a
  presumption.  If a plaintiff can demonstrate that the manufacturer had a
  duty to warn and failed to provide an adequate warning, a causal
  presumption arises that had an adequate warning been provided, the user
  would have read and heeded the warning and the accident would have been
  avoided.  See Menard, 135 Vt. at 54-55, 479 A.2d  at 506-07 (adopting "read
  and heed" presumption); Restatement (Second) of Torts § 402A cmt. j (1965).

       A defendant may, of course, present evidence to overcome the
  presumption.  See Menard, 135 Vt. at 55, 373 A.2d  at 506-07 (where child
  ignored instructions given by father, presumption that warning would have
  been read and heeded disappeared).  Defendant argues, relying on Menard,
  that the evidence in this case that the product users did not read the
  warnings on the containers rebuts the presumption, leaving no evidence of
  proximate cause.

       Defendant reads our holding in Menard too broadly.  In that case, a
  child playing with a BB gun shot and injured a friend.  The plaintiffs
  argued that the manufacturer should have warned of this danger.  The
  child's father, however, had instructed his son in the use of the weapon,
  including what kinds of things he could shoot.  The child ignored those
  instructions when he shot at his playmate.  Under those circumstances, the
  "read and heed" presumption disappears; if the user is cautioned of the
  risk and ignores that advice, there is no reasonable basis to assume that
  the user would have heeded a warning from the manufacturer.  Cf. Neff

 

  v. Coleco Indus., Inc., 760 F. Supp. 864, 868 (D. Kan. 1991) (pool
  manufacturer's failure to warn of dangers of diving into shallow water not
  proximate cause of plaintiff's injuries; plaintiff had some swimming and
  diving experience, had previously been in same and similar pools, and knew
  water was only four feet deep), aff'd mem., 961 F.2d 220 (10th Cir. 1992).

       Here, Grant was not aware of the risk, nor did he read the warnings on
  the containers and then disregard them.  Plaintiff's claim that inadequate
  warnings were a proximate cause of the accident does not fail as a matter
  of law merely because Grant did not read the warnings. To be adequate, a
  warning must be displayed so as to catch the eye of a reasonably prudent
  person.  See, e.g., Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 85 (4th
  Cir. 1962) (where manufacturer has duty to warn, warning must be in such
  form as to catch attention of reasonably prudent person); Payne v. Soft
  Sheen Prods., Inc., 486 A.2d 712, 723 n.12 (D.C. 1985) ("The adequacy of a
  warning `depends, not only on its content, but also on its ability to catch
  the eye, inducing the user to read it.'") (quoting Ferebee v. Chevron Chem.
  Co., 552 F. Supp. 1293, 1303 (D.D.C. 1982)).  Although Grant did not look
  at the warnings, plaintiff still could show that inadequate warnings were a
  proximate cause of the fire by establishing that the warnings were not
  properly designed to draw the attention of a reasonably prudent person. 
  See Nowak v. Faberge U.S.A., Inc., 812 F. Supp. 492, 498 (M.D. Pa. 1992)
  (even when warning is given, failure to read it does not necessarily bar
  recovery where plaintiff challenges adequacy of manufacturer's efforts to
  convey dangers of product to user; jury could conclude that warning should
  have been presented in manner immediately obvious to even casual reader);
  Shell Oil Co. v. Gutierrez, 581 P.2d 271, 280-81 (Ariz. Ct. App. 1978)
  (rejecting manufacturer's argument that inadequate labelling was not cause
  of injury because user did not read the warning given; jury could have
  concluded that label was too small and that larger, more conspicuous label
  would have been seen, read and heeded); Johnson v. Johnson Chemical Co.,
  588 N.Y.S.2d 607, 612 (App. Div. 1992) (failure of user of roach bomb to
  read warnings given did not necessarily sever causal connection between
  alleged inadequacy of those warnings and occurrence of

 

  accident; one aspect of adequacy of warning is prominence with which it is
  displayed).

       Defendant points to several cases in which courts have held that a
  user's failure to read a warning removed any causal connection between the
  inadequacy of the warning and the accident.  In those cases, however, the
  conspicuousness of the warning was not at issue.  See, e.g., Stanback v.
  Parke, Davis & Co., 657 F.2d 642, 645 (4th Cir. 1981) (where physician
  testified that he already knew of risk associated with flu vaccine, and did
  not inform patients of warnings accompanying vaccines, manufacturer was not
  liable for failure to warn); Bloxom v. Bloxom, 512 So. 2d 839, 850-51 (La.
  1987) (auto manufacturer had duty to warn of danger in manual, but as owner
  of car never looked at or read manual, manufacturer was insulated from
  liability for its failure to do so); Felice v. Valleylab, Inc., 520 So. 2d 920, 926-27 (La. Ct. App. 1987) (manufacturer of electrosurgical unit
  should have warned of danger of using machine on small appendages, but as
  doctor never read manual or warning on machine, adequate warning would have
  been futile).  Here, plaintiff squarely raised the conspicuousness of the
  warnings as an issue; in its memoranda opposing the motion for summary
  judgment plaintiff argued that the warnings were inadequate in both form
  and content.

                               III.

       As an alternate ground in support of the court's decision, defendant
  argues that summary judgment was proper because no genuine issue of
  material fact exists with respect to the conspicuousness of the warning
  labels on the product containers.  The trial court adopted this reasoning
  in its denial of plaintiff's motion for reconsideration.  Defendant
  correctly notes, as did the court, that plaintiff did not produce evidence
  to support its allegation that the warnings were insufficiently prominent. 
  Plaintiff defends this omission on the grounds that counsel for both
  parties had agreed to postpone depositions of expert witnesses pending
  decision on the motion for summary judgment.  Apparently both parties
  believed that defendant's motion for summary judgment turned on issues
  unrelated to the adequacy of the warnings.

       Defendant's argument that plaintiff failed to show proximate cause
  cannot be separated

 

  from the adequacy of the warnings, however, because in this case the two
  issues are closely intertwined.  See Stanley Indus., Inc. v. W.M. Barr &
  Co., 784 F. Supp. 1570, 1575 (S.D. Fla. 1992) ("Plaintiff's contention that
  the defendants inadequately conveyed warnings . . . demonstrates the
  overlapping of adequacy and proximate cause.").  Under these facts, where
  the user did not read the warning given, plaintiff can show proximate cause
  only by showing that the warning should have been more conspicuous. 
  Plaintiff could not survive summary judgment by claiming that adequacy was
  an issue for the jury without providing evidence that the warnings were in
  fact inadequate.  See Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266,
  438 A.2d 373, 375 (1981) (allegations alone cannot create triable issues of
  fact).  Although the parties may have wished to defer presenting expert
  testimony until the trial, plaintiff could not escape its burden of
  demonstrating to the court the existence of a genuine issue of material
  fact.

       We recognize that, where a warning has been provided by the
  manufacturer, ordinarily the sufficiency of that warning is a question for
  the jury.  See, e.g., Bushong v. Garman, 843 S.W.2d 807, 810 (Ark. 1992)
  ("adequacy of a warning is generally a question of fact for the jury").  In
  a proper case, however, a court may conclude that the sufficiency of a
  warning is apparent as a matter of law.  Pruitt v. P.P.G. Indus., Inc., 895 F.2d 734, 736 (11th Cir. 1990), cert. denied 498 U.S. 899 (1990); Copeland
  v. Ashland Oil, Inc., 373 S.E.2d 629, 630 (Ga. Ct. App. 1988).  The
  warnings at issue in this case were bold and prominent, and warned of the
  dangers of fire and spontaneous combustion.  As plaintiff presented no
  evidence showing that the warnings were not sufficiently conspicuous, the
  court's grant of summary judgment was proper.

       Affirmed.


                              FOR THE COURT:


                              _______________________________________
                              Associate Justice