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§63.8 Duty to Warn – Time of Sale

The Case: Whitehead v. Dycho Co ., 775 S.W.2d 593, 596 (Tenn. 1989)

The Basic Facts: "The Plaintiffs, Jo Ann Whitehead and her husband, Johnny R. Whitehead, brought this products liability action against multiple Defendants, seeking damages for Mrs. Whitehead's personal injuries resulting from an explosion caused by a chemical known as 'naphtha.' She alleges in her complaint that Defendants were manufacturers or distributors of 'naphtha' to which she had access at work. The complaint alleges that Defendants were liable to Plaintiffs on theories of strict liability in tort, breach of warranty, and negligent failure to warn." 775 S.W.2d at 593-94.

The Bottom Line:

  • "The trial court granted summary judgment for all Defendants, finding that the Defendants owed no duty to warn the Plaintiff with respect to the dangers of naphtha because Magnavox was 'a skilled, sophisticated, industrial purchaser in bulk from the defendants' and secondly, 'Magnavox was a learned intermediary and the defendants could reasonably rely upon Magnavox to warn its employees of the dangers of naphtha and to instruct them in its use.' The trial court also found that Plaintiff's 'use of the product was unforeseeable as a matter of law.' Id. at 596.
  • The Court of Appeals reversed and remanded for a trial on the merits. In discussing the Defendants' duty to warn and the exceptions thereto, the Court of Appeals states:
    In a product liability case, a plaintiff may plead a claim of negligence on the part of the manufacturer in failing to warn of the dangers associated with a particular product, or plaintiff may claim strict liability on the part of the defendant for any injury sustained as a result of the same failure, or he may do both. See Russell v. G.A.F. Corp., 422 A.2d 989, 991 (D.C.1980). In the present case, plaintiff has alleged both negligence and strict liability as a basis for recovery. As stated Payne v. Soft Sheen Products, Inc., 486 A.2d 712 (D.C.1985): 'In either case, the manufacturer's duty is the same: if its product 'could result in foreseeable harm [the manufacturer] has a duty to give a warning which adequately advises the user of attendant risks and which provides specific directions for safe use.'' Id. at 721 (quoting Russell, 422 A.2d at 991).

    When the adequacy of such a warning is to be judged, whether under strict liability, negligence or breach of warranty, the standard of reasonable care is to be applied. Trimble v. Irwin, [441 S.W.2d 818 (Tenn. Ct. App. 1968)]; Young v. Reliance Electric Co., [584 S.W.2d 663 (Tenn. Ct. App. 1979)]; [RESTATEMENT (SECOND) OF TORTS Sec. 402, Comment (j)]. Strict liability under Sec. 402(a) was adopted by our Supreme Court in Ford Motor Co. v. Eads, [457 S.W.2d 28 (Tenn. 1970)]. See also T.C.A. Sec. 29-28-102(6) (1980).

    A cause of action based upon negligence for failure to warn a consumer of a product's danger is set forth in Section 388 of the [Restatement (Second) of Torts Sec. 388 (1965)]. That section provides:

    'Sec. 388. Chattel known to be dangerous for Intended Use

    One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, 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
    1. knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
    2. has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
    3. fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.'
    As will be observed hereafter, some jurisdictions have adopted exceptions to this rule--namely what has come to be known as the 'sophisticated user' exception to Sec. 388(b) and the 'learned intermediary' exception to Sec. 388(c)....

    The trial court found plaintiff's employer to be both a sophisticated user and a learned intermediary....

    The two exceptions we are now considering come into play after the determination of the existence of an underlying duty on the part of a supplier or manufacturer to warn....

    [W]e hold as a matter of law that even if the sophisticated user exception had previously been declared to be the law of this state, it was error to apply it to Magnavox, and it should not have been applied to the plaintiff. In so ruling, we neither adopt nor reject the sophisticated user exception in Tennessee....

    It was and is the defendants' contention that Magnavox was a learned intermediary, knowledgeable of and acquainted with the dangerous propensities of naphtha so that when naphtha was sold by them in bulk to an employer familiar with the risks attendant thereto and which totally controlled its use, their duty to warn was limited as a matter of law to the learned or informed intermediary (Magnavox) and not to any employee of Magnavox. [Restatement (Second) of Torts Sec. 388 (Comment n) (1965)].

    Comment (n) to Sec. 388(c) of the [Restatement], provides for such an exception. It reads in part as follows:
    'Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it.... [I]t is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe.

    Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them (see Sec. 291), and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result (see Sec. 293). Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm to those who use them and those in the vicinity of their use, to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character.

    Thus, while it may be proper to permit a supplier to assume that one through whom he supplies a chattel which is only slightly dangerous will communicate the information given him to those who are to use it unless he knows that the other is careless, it may be improper to permit him to trust the conveyance of the necessary information of the actual character of a highly dangerous article to a third person of whose character he knows nothing. It may well be that he should take the risk that this information may not be communicated.... [I]f the danger involved in the ignorant use of a particular chattel is very great, it may be that the supplier does not exercise reasonable care in entrusting the communication of the necessary information even to a person whom he has good reason to believe to be careful. Many such articles can be made to carry their own message to the understanding of those who are likely to use them by the form in which they are put out, by the container in which they are supplied, or by a label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.'
    In granting summary judgment for defendants, the trial court found as a matter of law: (a) the warnings provided Magnavox by the defendants were adequate warnings; and (b) because of the knowledgeable status of Magnavox, defendants were excused from giving any warning to the ultimate users, Magnavox employees....

    [W]e are of the opinion that the trial court erred when it found Magnavox to be a learned intermediary and in holding as a matter of law that defendants were excused from a further duty to warn plaintiff as well as other employees of Magnavox. While we do not reject the application of the learned intermediary exception to the employer-employee relationship, by the same token, we do not adopt it. Plaintiff is entitled to a jury trial as to the adequacy of warnings given and whether or not defendants' duty to give warnings extended beyond Magnavox to her." Id. at 596-98.
  • "We are of the opinion that the trial court was correct in granting summary judgment for the Defendants, but for different reasons." Id. at 598.
  • "In Adams v. Union Carbide Corp., [737 F.2d 1453 (6th Cir. 1984)], the trial court granted summary judgment for the manufacturer. The Sixth Circuit Court of Appeals held 'while Sec. 388 defines a manufacturer's duty to warn those who may ultimately be exposed to its product, comment n to the [Restatement] also explains that the duty can be discharged by the manufacturer's reasonable reliance on a third party--in this case GMC--to convey the information supplied by the manufacturer to the ultimate user--in this case employees such as Betty Adams.' The Court went on to hold, in affirming the trial court, that 'it was reasonable for Union Carbide to rely upon GMC to convey the information about the hazardous propensities of [the chemical] TDI to its employees within the context of comment n of the [Restatement].' 737 F.2d at 1457." Id.
  • "The record clearly supports a finding that Defendants provided adequate warning to Magnavox. Material Safety Data Sheets were provided by Union and Exxon and were supplied to the distributors Buss and Dycho who supplied the same to Magnavox. Labeling and warning labels were on the 55 gallon drums when they were delivered to Magnavox indicating the product was 'flammable' and 'for industrial use only.' Magnavox wrote its own specifications for the naphtha products purchased from Dycho and Buss. Magnavox clearly knew and was knowledgeable of the dangers and propensities of naphtha to heat, flame, or sparks because of the possibility of explosion and fire. It was, therefore, reasonable for the Defendants to rely upon Magnavox to convey the information about the hazards of naphtha to its employees within the context of comment n of the [Restatement], discussed heretofore." Id.
  • "In Reeves v. Power Tools, Inc., 474 F.2d 375 (6th Cir.1973), the trial court found that when the manufacturer delivered to the supplier the printed instructions (warnings), it had a right to expect the warnings to be passed along to the ultimate user. The trial court granted a directed verdict for the manufacturer. The Sixth Circuit Court of Appeals held that the manufacturer 'adequately discharged its duty to warn of the dangerous nature of the tool by distributing printed instructions complete with diagrams and illustrations with each new tool that it sold or delivered.' 474 F.2d at 379. The supplier never delivered to plaintiff Reeves the printed safety rules prepared by the manufacturer. The Court of Appeals held 'Power Tools, as supplier of the tool to appellant's [plaintiff's] employer had a duty at least to pass on the warning of danger it had received from the manufacturer. [2 Restatement (Second) Torts, Sec. 388 (1965)]; Trimble v. Irwin, [441 S.W.2d 818, 822 (Tenn. Ct. App. 1968)]." 474 F.2d at 380. In Trimble v. Irwin, Id., Judge Cooper, speaking for the Court of Appeals found no error in the trial court's directing a verdict for the defendant manufacturer. The Court found no negligence on the part of the manufacturer who had given the purchaser adequate warning that the floor-sealer was highly volatile and combustible. The Court further held that the liability between the purchaser of the floor-sealer and the injured third party was a question for the jury. In the case at bar, the Defendants had a right to expect the warnings which it had given to Magnavox to be passed along to the ultimate users." Id. at 598-99.
  • "We are of the opinion that the independent intervening act of Magnavox in placing naphtha in small, pump-type containers with no label and failing to warn its employees of the dangerous nature of the product was the proximate cause of the accident. Ford Motor Company v. Wagoner, [192 S.W.2d 840 (Tenn. 1946)]. In Ford Motor Company, the Supreme Court reversed the Court of Appeals and affirmed the trial court's granting of a directed verdict for the manufacturer. The Court, in citing Beven on Negligence, states: 'A person [Magnavox] who knowing the perilous character of a compound which he has bought yet hands on the compound to a third person [Plaintiff] destroys, by his negligent act, the causal connection between the first person concerned and the ultimate injury sustained.' [192 S.W.2d at 842]." Id. at 599.
  • "The Defendants could not have reasonably anticipated the actions and conduct of Magnavox. Ford Motor Company v. Wagoner, [192 S.W.2d at 843]. The Court in Ford Motor Company concludes by citing what it finds to be the pertinent rule as 'one of continuing liability of the manufacturer to successive purchasers, subject to be destroyed, however, by the intervening act of an agency which is (1) independent, (2) efficient, (3) conscious, and (4) not reasonably to have been anticipated.' [192 S.W.2d at 844]. Magnavox meets the four criteria of the rule and we find the causal connection was broken by the independent intervening acts of Magnavox in failing to place warnings on containers for use by its employees and in failing to warn Plaintiff of the dangerous propensities of naphtha." Id.
  • "What then was the proximate cause of Plaintiff's injuries? To satisfy her burden of proving proximate causation, Mrs. Whitehead was required to establish, at a minimum, that she would not have sustained her injuries had Defendants provided proper warnings. There is no evidence presented from which reasonable minds could conclude that Plaintiff's injuries were proximately caused by the failure to warn on the part of Defendants." Id.
  • "In a case very similar on its facts, Hargis v. Doe, [443 N.E.2d 1008 (Ohio Ct. App. 1981)], the court asked the question: 'How could an adequate and complete warning on the drums have prevented the unfortunate accident? According to the evidence, the supplier had no other reasonable access to the employee, and it appears that the accident would have occurred without any reference whatsoever to Tresler's failure to post a warning on the drums.' 443 N.E.2d at 1011. In Hargis, a directed verdict was entered in favor of the Defendant, Tresler Oil Company, at the conclusion of Plaintiff Hargis' case. Hargis was employed by Mamco who had purchased a solvent from Tresler Oil Company in 55 gallon drums which did not display a warning that the solvent was flammable. Plaintiff testified that no one ever told him about the flammable propensities of the solvent, that he never saw Tresler's 55 gallon drums, and that he only knew that the solution in the vat was some type of liquid. The solvent came into contact with Hargis' clothes and when Hargis began to use an arc welder his clothing caught on fire and he was injured. The Ohio court held: 'One of the hurdles, which is present in all products liability litigation, standing between proof of a negligent failure to warn and ultimate recovery, is the necessity of proof of a proximately causal relationship between the negligence and the injury.' 443 N.E.2d at 1011. The court went on to hold that 'the requirement of an adequate warning extends only to those to whom the distributor had reasonable access.' The court then held: 'We are of the opinion, therefore, that the totally unanticipated misuse of the solvent, as found by the trial court, was not enough to preclude the necessity for some warning that this particular product was flammable, but after construing the evidence most favorable to the plaintiff, as we must in a directed verdict case, we are nonetheless of the opinion that the evidence fails to show any causal connection in this particular case between the failure to warn and the injuries.' 443 N.E.2d at 1011." Id. at 599-600.
  • "In the case at bar, Plaintiff, like Hargis, never saw the 55 gallon drums, although these drums did have warning labels unlike those in Hargis. The employees of Magnavox were prohibited from the area where the drums of naphtha were stored. Had there been inadequate warnings by Defendants, that would not have been the proximate cause of this accident. All the warnings in the world would not have prevented this unfortunate accident insofar as the Defendants are concerned. Even assuming the facts in a light most favorable to the Plaintiff, they have failed to establish a causal connection between the alleged negligence and the injury." Id. at 600.
  • "Magnavox was knowledgeable about the product in question and it was the only party in a position to issue an effective warning to the Plaintiff. The Defendants had no reasonable access to Plaintiff. For the reasons heretofore stated, we are of the opinion that the judgment of the Court of Appeals should be reversed and that of the trial court affirmed." Id.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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