Moran v. Fabergé, Inc.

O’Donnell, J,

dissenting:

I concur that my learned brethren have correctly set forth the general principles of a manufacturer’s liability for negligent failure to warn of a latent danger in his product as posited in Restatement (Second) of Torts § 388 (1965), and our holdings thereunder in Twombley v. Fuller Brush Co., 221 Md. 476, 492, 158 A. 2d 110, 118 (1960); Katz v. Arundel-Brooks Concrete Corp., 220 Md. 200, 203, 151 A. 2d *556731, 733 (1959); and Kaplan v. Stein, 198 Md. 414, 420-21, 84 A. 2d 81, 84 (1951). That section in the Restatement, as well as our holdings under it, emphasizes a liability “to those whom the supplier should expect to use the chattel . . . for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied. ...” (Emphasis supplied.) See Twombley v. Fuller Brush Co., supra.

I similarly agree that it is not necessary that the manufacturer should have reasonably anticipated the exact sequence of events which might lead up to the injury to subject him to liability. See Volkswagen of America v. Young, 272 Md. 201, 321 A. 2d 737 (1974); Segerman v. Jones, 256 Md. 109, 132, 259 A. 2d 794, 805 (1969); F. Harper, Torts § 7 (1933). See also Pease v. Sinclair Refining Co., 104 F. 2d 183, 185 (2d Cir. 1939); Hall v. E. I. DuPont DeNemours & Co., 345 F. Supp. 353, 362 (E.D.N.Y. 1972) — all cited by the majority.

The majority similarly premises that “the duty of the manufacturer to warn of latent dangers inherent in its product goes beyond the precise use contemplated by the producer and extends to all those [uses] which are reasonably foreseeable [by the manufacturer],” citing Spruill v. Boyle-Midway, Inc., 308 F. 2d 79, 83-84 (4th Cir. 1962); Hall v. E. I. DuPont DeNemours & Co., supra; and Comment, Foreseeability in Product Design and Duty to Warn Cases Distinctions and Misconceptions, Wis.L.R. 228, 231-34 (1968). Comment k to Restatement (Second) of Torts § 395 (1965), is illustrative of the principle that the manufacturer may “reasonably anticipate other uses than the one for which the chattel is primarily intended.”

Although § 395 of Restatement (Second) of Torts (1965), the comments to which were cited by the majority, pertains to the negligent manufacture of a chattel, liability thereunder is predicated on a foreseeability of an unusual risk of harm “to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom *557he should expect to be endangered by its probable use,” when being lawfully used “in a manner and for a purpose for which it is supplied. ”

Comment j thereunder, as set forth by the majority, points out that the liability is limited to persons endangered by risks “in the course of uses of the chattel which the manufacturer should reasonably anticipate.” It emphasizes that “[i]n the absence of special reason to expect other wise, the maker is entitled to assume that his product will be put to a normal use, for which the product is intended or appropriate; and he is not subject to liability when it is safe for all such uses, and the harm results only because it is mishandled in a way which he has no reason to expect, or is used in some unusual or unforeseeable manner.”

The cases cited by the majority indeed have applied this concept of the doctrine of “foreseeability.”

In Spruill v. Boyle-Midway, Inc., supra, the mother of a 14-month old child was using furniture polish in a room where the infant was in a crib; leaving the room for a few moments the mother placed the bottle of furniture polish upon a scarf on an adjacent bureau. While absent from the room the child, in tugging upon the scarf, obtained possession of the furniture polish, ingested it and died. The evidence established that the manufacturer had actual knowledge of 32 prior cases of young children, who, acquiring possession of the polish, had ingested it and ten had died therefrom. There was present in the case evidence not only of the foreseeability of physical harm from the ingestion of the product, but there was evidence from which it was foreseeable that in a home environment such use as was made by the child could have been reasonably anticipated.

In Hall v. E. I. DuPont DeNemours & Co., supra, 18 children, in 18 separate incidents, had been injured by the use made by them of blasting caps. The manufacturer maintained statistics on the frequency with which children had been injured by the use of the blasting caps. There was thus found present not only a foreseeability of a general risk of harm that injury might result in any number of ways *558from the use of blasting caps, but it was foreseeable — from the data collected by the manufacturer — that the blasting caps would probably be misused by children.

Pease v. Sinclair Refining Co., supra, involved a case where a science teacher obtained bottles of petroleum products from the manufacturer for a student exhibit; one bottle marked “kerosene” actually contained water. In conducting a laboratory experiment the teacher, believing the liquid to be in fact kerosene, mixed it with sodium metal with a resultant explosion (there would have been no explosion had the contents been “kerosene”). The court rejected the contention of the appellee that it was impossible to have contemplated that the exhibit would have been used in this exact manner for a laboratory experiment; it did recognize, however, that the bottle might be put to uses other than a mere science class display. In affirming the decision of the trial court to submit the issue of foreseeability to the jury, the court held that there was evidence of a foreseeability of the general risk of injury and it was equally reasonably foreseeable that a science teacher might use such a petroleum product for a laboratory experiment although it had been supplied for a science exhibit.

In Bean v. Ross Manufacturing Co., 344 S.W.2d 18 (Mo. 1961), a plumber undertaking to unclog a drain poured liquid drain cleaner into the opening and inserted a plug — which was the usual practice — to prevent the emission of noxious odors. After several minutes the liquid drain cleaner reacted chemically, exploded in his face and blinded him. In holding that the question of foreseeability, under those facts, was for the jury, the court found that there was no misuse of the product by the plumber, but there was, on the part of the manufacturer, a reasonable foreseeability of the product’s being used in this fashion.

Tampa Drug Co. v. Wait, 103 So. 2d 603 (Fla. 1958), involved the use by a plaintiff’s decedent. of carbon tetrachloride in cleaning the floors of his home. He had poured the chemical into a pan and upon his knees, after dipping a rag into the pan, cleaned his floor; from the *559inhalation of the fumes he became ill and died. The Florida court ruled that liability arises when a duty exists to take reasonable precautions to avoid reasonably foreseeable injuries to those who might reasonably be foreseen as using the product; that reasonable care must be taken to give adequate notice of the possible consequences of use, as well as reasonably foreseeable misuse. Although the court held that the burden was upon the plaintiff to show a failure to warn of a latent danger which the distributor knew or should have known, or in the reasonable course of business should have been able to foresee from possible uses of the product, found that there was evidence that the drug company was aware of the general risk of harm from the inhalation of carbon tetrachloride vapors and the use of the product in cleaning floors at home was to be reasonably anticipated.

In Martin v. Bengue, Inc., 25 N. J. 359, 136 A. 2d 626 (1957), the plaintiff had been using the liniment “Ben-Gay” twice a day, for several days, and continued to wear the same pajamas during that interval. While sitting in a chair as he struck a match the matchhead fell off igniting his pajamas, which had now become saturated with the liniment. The New Jersey court held that the failure to warn of the general risk of harm and danger from fire constituted negligence where it was reasonably foreseeable that the liniment might be applied heavily to the body over an extended period of time and saturate apparel even though there was no foreseeability on the part of the manufacturer of the exact sequence of events that did occur — that an ill man, sitting in his living room chair, might have the head of a match sever and ignite his saturated pajamas.

Similarly, in Brown v. Chapman, 304 F. 2d 149 (9th Cir. 1962), it was held that it was foreseeable that the hula skirt worn by the plaintiff to a party was unusually susceptible to fire and it was equally reasonably foreseeable that in that condition it might be ignited by someone’s lighted cigarette at a party attended by several hundred people.

Perhaps Haberly v. Reardon Co., 319 S.W.2d 859 (Mo. 1958), best exemplifies the application of the rule. There a *56012-year old boy lost the sight of one eye while assisting his father who applied a cement paint to a row of bricks along a driveway. Both the father and son were working on their knees, the boy a few feet ahead cleaning leaves and grass from the bricks. The father directed his son to remove some leaves from bricks he had just painted. As the son undertook to comply he stood, moved a space, and as he began to kneel again his eye accidentally came in contact with the paint brush held in the father’s hand. The child was instantly blinded. In rejecting the contention of the manufacturer that there was no duty to warn because the cement paint was being applied by the father in a way it could not reasonably anticipate and that the injury to the child did not arise out of a hazard which it could reasonably have foreseen, the court held that it was reasonably foreseeable that cement paint would be used to paint bricks and that the general risk of harm of accidentally getting it in the eye of a helper was equally reasonably foreseeable; that there was both a foreseeability of the use to which the product was being put and a foreseeability of the harm resulting from that use. Compare Katz v. Arundel, Etc. Corp., supra. See also majority opinion n. 6.

Our recent holdings in Volkswagen of America v. Young, supra, are in accord with the application of this scope of “foreseeability.” In that case, decided under the Uniform Certification of Questions of Law Act, the pleadings alleged that the defendants had “actual notice and knowledge” of the defective seat assembly in their vehicles and we held, on the question certified, that the vehicle of the decedent, when struck in the rear by another vehicle while stopped at a traffic signal, was within the “intended use” and “intended purpose” of an automobile at the time of the impact; that there was a reasonable foreseeability of the actual harm of injury resultant from the defective seat assembly and a reasonable foreseeability of such resultant harm when the vehicle was being used for a purpose or in a manner which should have been reasonably anticipated.

It is with the lack of syllogistic application of these principles to the facts in this case that I emphasize my *561dissent. The majority, from a recognition of these principles, breaches the chasm by concluding that “it was only necessary that the evidence be sufficient to support the conclusion that Fabergé, knowing or deemed to know that its Tigress cologne was a potentially dangerous flammable product, could reasonably foresee that in the environment of its use, such as the home of the Grigsbys, this cologne might come close enough to a flame to cause an explosion of sufficient intensity to burn property or injure bystanders, such as Nancy [Moran].” This result was reached after the majority found that it was “not necessary for a cologne manufacturer to foresee that someone would be hurt when a friend poured its product near the flame of a lit candle; it was only necessary that it be foreseeable to the producer that its product, while in its normal environment, may be brought near a catalyst, likely to be found in that environment, which can untie the chattel’s inherent danger.” (Emphasis supplied.)

It must be emphasized that upon the record there was no evidence whatsoever of such a use as was here made of the cologne ever having previously occurred; in fact, the use of Tigress cologne had a 27 year accident-free history. The evidence does not establish a general flammability of the cologne vapors, but only when such vapors are positioned within one-quarter inch from an open flame. Cologne is not a new or mysterious product and does not have a multitude of uses or functions. Eau de cologne, sometimes called “toilet water,” is defined as a “perfumed, largely alcoholic, liquid for use in or after a bath or as a skin freshener”; it has a limited utility; there is no suggestion historically or otherwise of its use as a product other than as a toilet water or skin freshener. There was no evidence presented in the trial court that the Tigress cologne could ever be dangerous when being put to the uses for which it was supplied.

When a use is made of a product so remote from that intended as to be unforeseeable, the manufacturer is relieved of liability from such use. See Smith v. Hobart Mfg. Co., 185 F. Supp. 751 (E.D. Pa. 1960), citing 2 F. Harper & F. James, Torts § 28.6 (1956) and W. Prosser, Torts, at 503 (2d ed. 1955).

*562Assuming, arguendo, that Fabergé may have a duty to warn of a general risk because of a latent danger of flammability of its cologne — where its vapors might be brought within one-quarter of an inch of an open flame — it does not follow that this duty to warn is owed to everyone, howsoever the product might be used or abused. It may well be true that the manufacturer owes a duty to warn of the general risk of fire to a young lady who, while applying the cologne, accidentally should knock over the container and spill it upon a burning candle, but such are not the facts here. See Whitehurst v. Revlon, Inc., 307 F. Supp. 918 (E.D. Va. 1969), where the plaintiff was burned while applying fingernail polish and raised a lighted cigarette and where it was concluded that there was a foreseeability that nail polish presented a general hazard when brought near a flame or severe heat and it was equally foreseeable that a user in applying fingernail polish might do it in proximity to such flame or heat from a cigarette. Concededly, such a duty to warn might be owed to one scenting a billet-doux, or intimate wearing apparel, or to one dabbing a droplet at pulse points of the body.

Although admittedly a jury may have found that the existence of a latent general danger of harm from the flammablilty of cologne vapors was reasonably foreseeable, the majority, in the application of the principles which they endorse, have concluded that since the evidence established that the injury fell within a “general field of danger” that the duty to warn was applicable because, in its normal environment, the cologne might be brought near an open flame, likely to be found in that environment, and regardless of the manner in which the product happened to be used or misused.

In Hall v. E. I. DuPont DeNemours & Co., supra, the Court analogized the liability of a manufacturer for his product with a landowner’s liability to a trespasser, in emphasizing the two-pronged facets of foreseeability. Under the holdings in some states a possessor of real property has been held to be under a general duty to warn of an unsafe condition upon his premises which causes injury to a *563trespasser whose trespassory presence is reasonably foreseeable.1 Those cases conclude that there is a duty to warn of a general risk of harm inherent in the unsafe condition and that it is immaterial that the possessor of the premises did not foresee the exact sequence of events which led up to the injury to the trespasser, i.e. he need not anticipate that the trespasser would be running or merely walking when he came upon the hazardous condition. In such cases, however, it does not follow that the duty to warn of the general risk of harm is owed to everyone; it is held that such duty extends only to those trespassers who should have been reasonably anticipated to become endangered by the unsafe condition.

All the cases cited by the majority in support of their conclusion contain the element — conspicuously absent in this case — that there was a reasonable foreseeability on the part of the manufacturer that the use which was being made of the product at the time of the injury was itself reasonably foreseeable by the manufacturer.

As the counsel for Fabergé observed succinctly:

“There may be some iconoclast who would like their [sic] candles to smell like rum, but if someone were to pour 150 proof rum [75% alcohol] on a lighted candle to give it a rum scent and the vapors of that rum were to catch fire and injure someone, the manufacturer of the rum would not be liable because this is idiosyncratic and unforeseeable use of the product.”

A fortiori, if someone undertakes to use a skin freshener or body cologne to perfume a lighted candle and its vapors, in juxtaposition to the open flame, should ignite, its manufacturer should not be liable because of this palpably unanticipated and unforeseeable misuse of its product.

The trial court, in granting the motion for judgment n.o.v. stated: “I just don’t believe that it is reasonable to charge *564Fabergé with reasonably foreseeing that its product will be used other than as a body cologne.”

I concur with its conclusion and that reached by the Court of Special Appeals [Moran v. Williams, 19 Md. App. 546, 313 A. 2d 527 (1974)] where Judge Powers, for that court, concluded:

“There was a total absence of any evidence in this case which would tend to show or would support a rational inference that Fabergé foresaw or should have foreseen that its cologne would be used in the manner which caused the injuries to Nancy Moran. Since Fabergé did not foresee the use, it had no duty to warn against it.” (Emphasis supplied.) 19 Md. App. at 561-62, 313 A. 2d at 536.

It seems to me that the majority has fallen into the pitfall, recognized by Professor Prosser, who, in undertaking to analyze the treatment by the various courts of the illusory concept of “foreseeability” and noting the confusion resulting therefrom, states:

“Some ‘margin of leeway’ has to be left for the unusual and the unexpected. But this has opened a very wide door; and the courts have taken so much advantage of the leeway that it can scarcely be doubted that a great deal of what the ordinary man would regard as freakish, bizarre, and unpredictable has crept within the bounds of liability by the simple device of permitting the jury to foresee at least its very broad, and vague, general outlines.” W. Prosser, Torts, § 43, at 269 (4th ed. 1971).

It seems to me that the majority, in holding that there was, sufficient evidence for the jury to find negligence because Fabergé could reasonably have foreseen that their cologne, “in the environment of its use,” might be brought close enough to an open flame to bring about a resultant harm or injury, modifies the rule enunciated in the Restatement (Second) of Torts § 388 (1965) — which this *565Court has consistently applied and adopted — as well as § 395, particularly comment j thereunder, and thus has permitted a liability for the resultant harm from a product — itself of very limited uses — notwithstanding the fact that “in the environment of its use” the evidence showed that the product had been “mishandled in a way which [the manufacturer] has no reason to expect.”

It is my firm conclusion that the defendant’s motion for judgment n.o.v. was properly entered in the trial court since I believe that reasonable minds would not differ in answering in the negative the issue of whether Fabergé should have reasonably foreseen that its cologne would have been poured within one-quarter inch of an open flame for the purpose of undertaking to scent a burning candle. See Segerman v. Jones, supra.

. The Maryland Rule is substantially different. See Wurz v. Abe Pollin, Inc., 384 F. 2d 549 (4th Cir. 1967); Bramble v. Thompson, 264 Md. 518, 287 A. 2d 265 (1972); Osterman v. Peters, 260 Md. 313, 272 A. 2d 21 (1971).