Revlon, Inc. v. Hampton

DIES, Chief Justice.

Defendant below, Revlon, Inc., appeals from the granting of a judgment in the sum of $5,140 in favor of plaintiff below, Glenn Hampton. Plaintiff sought and recovered damages for personal injuries alleged to have been sustained from the use of a hair dye “Color Up” manufactured by defendant. The parties will be referred to as they were below.

Plaintiff applied the “Color Up” to his scalp in the spring of 1970. He testified that before application he followed precisely the directions given by defendant known as “patch test”, the purpose being to determine any allergic reaction a customer might have to the product. Plaintiff said the test on him was negative.

The “Color Up” dye caused immediate burning to plaintiff’s scalp, bleeding the *122following day, and permanent loss of part of his hair, plaintiff contended.

At trial, plaintiff contended his injuries were attributable to the presence of thallium in the dye. This substance is known to cause loss of hair. However, the jury failed to find that the dye contained thallium. They (the jury) did however find that the dye was defective and that this was a producing cause of plaintiff’s injuries, which defendant contends is supported by no evidence. We agree.

Section 402 A of Restatement (Second) of Torts (1965) provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex.1967) held this section of the Restatement applicable in Texas to defective products which cause physical harm to persons.

While plaintiff’s expert testified that any hair coloring that would produce hair loss was defective, on cross examination she admitted this conclusion was based on the assumption the dye contained thallium.

In Gravis v. Parke-Davis & Co., 502 S.W.2d 863, 868-869 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.), the plaintiff was given a spinal anesthetic. Thereafter she suffered from a number of physical disabilities including bladder trouble requiring a catheter continuously, phlebitis of the left leg, high blood pressure, and other problems of the lower extremities. A diagnostician concluded that her condition was related somehow to the spinal anesthetic. The trial court granted an instructed verdict against her. In affirming the judgment, the court said:

“There is no evidence that the drugs were impure or defective. . . The plaintiffs ... did not rule out all of the other possible causes of the injury which could establish circumstantially at least, that the defective drug was the only cause. . . . The fact that the plaintiff was injured does not create liability.”
[Citing Aiberto-Culver Company v. Morgan, 444 S.W.2d 770, 776 (Tex.Civ.App.— Beaumont 1969, writ ref’d n. r. e.), disapproved on other grounds, Crocker v. Winthrop Laboratories, Div. of Sterling Drug, Inc., 514 S.W.2d 429, 432 (Tex.1974)].

See also Royal Crown Bottling Company v. Ward, 520 S.W.2d 797, 801 (Tex.Civ.App.— Beaumont 1975, no writ) [Citing Procter & Gamble Manufacturing Co. v. Langley, 422 S.W.2d 773, 778 (Tex.Civ.App. — Dallas 1967, writ dism’d)]:

“ ‘As a general rule the fact that injury follows the use of the product is not of itself alone a basis for a finding of proximate cause.’ ”

Cases may arise where the circumstantial evidence may be such that it can properly be inferred that the accident was caused by a defect in the product. See Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847, 852 (1950), cited in 1 L. Frumer & M. Friedman, Products Liability, §§ 1101[2], 1101[S] (1976). After a vaporizer was put into operation, it melted causing a fire; therefore “it would seem inescapable that if the vaporizer did . . , melt by the application of its own heat, it was defective.” 1 Frumer & Friedman, supra, § 11.01[3] p. 213.

But the case we review is not such a case. Plaintiff’s theory that the hair dye contained thallium was rejected by the jury. His expert witness really gave no factual *123testimony of a defect in the product or explained what defect caused plaintiff’s hair loss. See 1 Framer & Friedman, supra, § 12.02[1], Expert Evidence. In general p. 254.43 and 12.02[2] Causation in Fact, p. 254.72, and many authorities cited.

In 1 R. Hursh & H. Bailey, American Law of Products Liability 2d, § 1.7, p. 16 (1974) we find:

“In any products liability case, the plaintiff has to show that he was injured or damaged by the product in question. This is usually something more than merely showing that he used the product and that he simultaneously or subsequently suffered some injury or damage. The plaintiff also has to show that the product was defective in some manner and that the defect caused the injury.
“That a manufacturer or seller cannot be held liable for injury allegedly caused by a product in the absence of proof that the product in question was dangerous in some way — that, in short, it was capable of causing the injury — would appear too clear to require exhaustive citation of supporting authority. None of the vast number of cases on the subject of products liability has ever expressed or intimated anything in any way out of harmony with the above principle, and it seems safe to say that none ever will.”
In the language of Dean Keeton:
“The method employed to date [of establishing liability] is the requirement that there must have been a defect in the product as it left the hands of the manufacturer. This requirement remains the principal obstacle to a recovery.”

P. Keeton, “Products Liability — Liability Without Fault”, 41 Texas L.Rev. 855, 858 (1963). And, so it is here — plaintiff has failed to overcome “the principal obstacle” to his recovery.

The dissent does not address directly the evidence supporting a finding that the product was defective. Instead, the quoted testimony (an assumption predicated upon a hypothetical conclusion) may have established cause in fact; it did not establish any specific defect in the product.

Appellant's point of error is sustained. It is ordered, adjudged and decreed that Glenn Hampton recover nothing of Revlon, Inc. All costs are taxed against appellee.

REVERSED and RENDERED.