ALFONSO MACIAS еt al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents.
No. S039245
Supreme Court of California
July 17, 1995
8 Cal. 4th 844
Litt, Marquez & Fajardo, Litt & Marquez, Barrett S. Litt, Anne Richardson and Ben Margolis for Plaintiffs and Appellants.
Patti A. Goldman, Kristen L. Boyles, Williams S. Curtiss, Brian Wolfman, Adele P. Kimmel, Arthur H. Bryant, Stuart Miller, Vivienne J. Alston, Mark Rosenbaum, Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter and Michael D. Macomber as Amici Curiae on behalf of Plaintiffs and Appellants.
Haight, Brown & Bonesteel, Roy G. Weatherup, Mary Ann Murphy, Munger, Tolles & Olson, Charles D. Siegal, Allison B. Stein and Mark A. Merva for Defendants and Respondents.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Walter Wunderlich, Asssistant Attorney General, Charles W. Getz IV, Deputy Attorney General, Harvey M. Grossman, McKenna & Cuneo, Lawrence S. Ebner, Crosby, Heafey, Roach & May, James C. Martin, Preuss, Walker & Shanagher and Alan J. Lazarus as Amici Curiae on behalf of Defendants and Respondents.
OPINION
ARABIAN, J.--This case arises out of the noted efforts of the State of California (State) to eradicate periodic infestations of the Mediterranean fruit fly (Medfly) through wide-scale helicopter spraying of the insecticide malathion. Three times over the last twenty-five years our Governors, acting pursuant to their extraordinary powers under the Emergency Services Act (
The question before us is whether the defendant malathion manufacturers and distributors had a duty to disseminate health warnings to the public, or to take other measures to protect the general welfare, after they became aware of certain alleged deficiencies in the State‘s warnings. We hold that no such duty devolved upon them. As explained more fully in the discussion which follows, to impose a common law duty to intervene in a declared state of emergency would represent an unprecedented intrusion on the State‘s police power to protect the citizens and economy of California in times of extreme peril. To authorize, indeed to compel, a party to undermine the public heаlth warnings promulgated and published by the State under a specific statutory mandate could severely compromise the government‘s ability to respond effectively to the emergency. Thus, we conclude that summary judgment was properly entered in favor of defendants. Having so determined, we need not resolve the subsidiary question whether plaintiffs’ claims are preempted by federal law regulating the labeling of insecticides.
I. FACTS1
Since the mid-1970‘s, Medfly invasions have posed a serious and recurring threat to the agriculture of California. As noted, at least three times during the last twenty-five years the Governor has declared a state of emergency arising from the “conditions of extreme peril to the agricultural industry and the safety of agricultural properties” within certain counties caused by discoveries of Medfly infestations. The first such emergency was declared in 1980 and resulted in the development of an eradication program that used wide-scale aerial spraying of the insecticide malathion mixed with protein bait. Spraying of the malathion/bait mixture continued periodically thereafter whenever pockets of Medfly infestation were discovered; in 1988, portions of Los Angeles County were sprayed pursuant to an emergency declaration by the Governor.
Insecticides such as malathion are regulated by the Environmental Protection Agency (EPA) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (
The special local needs registration provided, in pertinent part, as follows: “The public shall be given prior notification via appropriate news media and departmental literature handouts of the treatment area schedules. Such information shall include the date treatment is to be made, material to be used, and the precautions listed on the product label.” The warning protocol formulated by the State required written notification in the form of a “flyer” hand-delivered to each residential unit in the treatment area; the flyers were to include the disbursement schedule, the pesticide to be applied, any health, safety or other precautions to be taken by residents of the eradication area, and telephone numbers to call for additional information.
Plaintiffs Alfonso and Sophia Macias and their 14-year-old son Juan resided in one of the treatment areas. Plaintiffs assert that the health warnings actually given by the State were grossly inadequate, and differed markedly from the product labeling approved by the EPA. That labeling, attached as an exhibit to plaintiffs’ complaint, included the following warnings: “CAUTION [¶] IF SWALLOWED: Drink 1 or 2 glasses of water and induce vomiting. Call a physician. [¶] IF ON SKIN: Wash with plenty of water. Call a physician. [¶] IF IN EYES: Flush with plenty of water. Call a physician if irritation persists. [¶] CAUTION: Harmful by swallowing, inhalation or skin contact. Avoid breathing spray mist. Avoid contact with skin. Wash thoroughly after handling. Change contaminated clothing.”
The flyers distributed by the State throughout the Medfly treatment area did not contain the health warnings set forth in the EPA-approved label. The State‘s flyer, attached as an exhibit to plaintiffs’ complaint, stated as follows: “NO HEALTH HAZARD: [¶] Malathion is considered one of the safest
Thus, in contradistinction to the warnings set forth in the EPA-approved label, the State‘s flyers represented that malathion posed no health risks and failed to alert persons exposed to the spray to wash immediately and consult a physician. The State‘s flyers did warn, however, that the spray could cause “discoloration to the finishes of some cars” and advised residents to place their cars “in the garage, or cover” them to avoid exposure.
Plaintiffs alleged that an aerial disbursement of the malathion/bait mixture took place on the evening of March 28, 1990, in their residential area. As the helicopters approached, the minor Juan Macias, relying on the State‘s representations, left his house and went outside without taking any protective measures against personal contact with the spray, to tell his father to cover the family car. The helicopter passed low overhead and deposited large amounts of the malathion/bait mixture on Juan‘s head, face, and other exposed parts of his body. Shortly after his exposure to the spray, Juan‘s eyes reddened and became painful and his vision began to deteriorate. Unaware of any connection between these symptoms and the malathion spray, however, plaintiffs took no remedial action and sought no immediate medical assistance. Eventually plaintiffs consulted a physician after Juan‘s eyesight continued to deteriorate, but it was too late to prevent serious injury; Juan‘s exposure to the spray eventually resulted in legal blindness. Plaintiffs alleged that, had they been properly warned of the health risks of malathion, Juan would not have ventured outside during the aerial disbursement, or, had he done so, they would have washed his face and eyes with water and sought immediate medical attention, thereby preventing the deterioration of his eyesight.2
II. PROCEDURAL HISTORY
Plaintiffs filed the instant lawsuit against the manufacturers and distributors of the malathion utilized by the State (American Cyanamid Company, United Agri Products, and Platte Chemical Company), the helicopter company which contracted with the State to dispense the malathion (Joaquin
Plaintiffs’ claims against the defendant chemical manufacturers and distributors (hereafter defendants) were also based upon a failure to warn. Specifically, plaintiffs alleged that defendаnts were aware of the State‘s intended use of the malathion, knew that the public had not been warned of the health risks enumerated in the EPA-approved labels, and, in fact, understood that the public had been affirmatively misled by the State to believe that the malathion posed no health risks. Plaintiffs further alleged that defendants were aware that malathion may be particularly toxic to children, the sick and the elderly, that exposure of the skin or eyes of persons in these vulnerable population groups could cause organophosphate poisoning leading to partial or total blindness, and that such dangers were generally not known by the public or set forth in the notices distributed by the State.
Notwithstanding their awareness of the alleged deficiencies in the State‘s warnings, defendants made no attempt either to induce the State to modify its warnings, or to warn the public directly. In thus failing, under the circumstances, to undertake any measures to ensure that plaintiffs were adequately apprised of the health risks posed by the malathion spray, dеfendants breached a common law duty to warn sounding in both negligence and strict product liability.
Defendants moved for summary judgment or, in the alternative, summary adjudication of issues.4 The trial court addressed the motion in three separate orders. The first order addressed defendants’ assertion that plaintiffs’ failure-to-warn claim was preempted by FIFRA. The court ruled that the claim was
In its second and third orders the trial court considered the validity of the failure-to-warn claim itself. The court noted that the State, as the immediate purchaser, was aware of the contents of the EPA-approved malathion labels. Indeed, the State was directly responsible for obtaining the special “local needs registration” from the EPA, which conditioned approval of the Medfly program upon the State‘s providing public notice of the “precautions listed on the product label.” Thus, the trial court concluded that defendants had reasonably relied on the State to comply with its legal obligations to warn the public, and owed no further duty to plaintiffs.
Nor, the trial court ruled, were defendants affirmatively obligated to monitor the State‘s warnings and to intervene if they proved to be inadequate. As the court explained: “It would be quite anomalous for state statutory law to authorize a government program of this type and to allocatе responsibilities for its effectuation, while at the same time [S]tate case law required suppliers to monitor the program and to involve themselves in the program, especially when the object of a supplier would not be to carry out the objective of the statutorily authorized program, but rather to absolve itself of potential liability . . . . No existing authority imposes such a duty on [defendants].”
Nor did it matter, in the trial court‘s estimation, whether defendants actually knew the State had omitted the EPA warnings from its public notices. As framed by the trial court, the issue was whether a manufacturer, “upon obtaining actual knowledge that its product is being used without proper warnings, incurs a duty of some scope to take action of some type to counteract the lack of proper warning, presumably by providing information or warnings of some type to downstream users or potential bystanders.”5
The trial court ruled in favor of defendants on this point, as well. Its rationale was twofold. First, as a policy matter, the trial court reasoned that
The Court of Appeal, in a divided opinion, reversed. Although it concurred in the trial court‘s judgment that the action was not preempted by FIFRA, it disagreed with the lower court‘s finding that defendants had discharged their duty to warn as a matter of law. Whether defendants had reasonably relied upon the State to convey the EPA-approved health warnings to the affected public represented, in the Court of Appeal‘s judgment, a material question of fact which was not susceptible to resolution by summary judgment. Unlike the trial court, however, the Court of Appeal did not consider the significance of the fact that the purchaser of the malathion was not a private entity engaged in a normal commercial transaction, but rather the State acting pursuant to a declared agricultural emergency.
We granted defendants’ petition for review.7
The fundamental issue may be succinctly stated: was it reasonable for defendants here to rely on the State to convey the requisite EPA-approvеd warnings to the residents of the Medfly spray area, or should they have affirmatively intervened in the State‘s prosecution of the Medfly emergency to provide a more affective warning? Defendants emphasize in this regard several largely undisputed facts. The State was fully cognizant of the warnings set forth in the EPA-mandated malathion labels; indeed, the State was solely responsible for obtaining EPA approval for the “off-label” use of malathion in the Medfly program, and was affirmatively responsible, as a condition of EPA approval, for ensuring that the public was informed of “the precautions listed on the product label.” Moreover, the State‘s decision to produce and distribute the allegedly inadequate warnings was made unilaterally pursuant its statutory authority under the Emergency Services Act (
In addressing this question, the Court of Appeal and the parties have focused primarily on whether and under what circumstances a product manufacturer may reasonably rely upon an intermediary in the chain of distribution to convey any necessary warnings to the public. A substantial body of case law has developed around this subject, and judicially created doctrines such as the “sophisticated purchaser” and “bulk supplier” defenses have become familiar maxims of product liability law. (See, e.g., Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444 [196 Cal.Rptr. 52]; Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 989 [95 Cal.Rptr. 381]; Rest.2d Torts, § 388, com. n, pp. 307-310; Note, Failures to Warn and the Sophisticated User Defense (1988) 74 Va. L.Rev. 579.) As discussed below, however, the case before us involves specific and fundamental issues of legislative and public policy which, factored into the duty analysis, prove to be dispositive and thus render such abstract doctrines largely superfluous.
A. Statutory Background
As noted earlier, the Medfly eradication program that resulted in plaintiff‘s injuries was set in motion when the Governor declared a state of emergency at the request of the Los Angeles County Board of Supervisors, which had earlier declared a local emergency (
One of the primary purposes of the act is to ensure that “all emergency services functions” of the State and local governments, the federal government, and “private agencies of every type,” “be coordinated . . . to the end that the most effective use be made of all manpower, resources, and facilities for dealing with any emergency that may occur.” (
Thus, the Emergency Services Act makes clear that in situations of “extreme peril” to the public welfare the State may exercise its sovereign authority to the fullest extent possible consistent with individual rights and liberties. As summarized in Martin v. Municipal Court (1983) 148 Cal.App.3d 693, 696 [196 Cal.Rptr. 218] (upholding the Governor‘s emergency power to prosecute an earlier Medfly eradication program), “The [act] recognizes and responds to a fundamental role of government to provide broad state services in the event of emergencies resulting from conditions of disaster or of extreme peril to life, property, and the resources of the state. Its purpose is to protect and preserve health, safety, life, and property.” The act makes equally evident the overriding necessity of a broadly coordinated effort to deal with emergencies, and places the primary responsibility, and the means for carrying out such efforts, with the State.
In declaring the instant emergency, the Governor found that “conditions of extreme peril to the agricultural industry and the safety of agricultural properties exist within the County of Los Angeles . . . caused by the discovery of an infestation of the Mediterranean Fruit Fly, on or about July 20, 1989.” The Governor thereupon implemented the State‘s peacetime
The State thereupon commenced the Medfly eradication program in Los Angeles in 1989-1990. A major focus of the State‘s eradication effort was the design and implementation of a public information protocol, in compliance with certain provisions of the
Other statutes delineate in precise and detailed terms the nature of the “outreach” efforts required of the State during an eradication project.
The contents of the State‘s notice is also statutorily prescribed. (
B. No Duty to Warn
As even a summary description of the foregoing statutes makes vividly clear, the power to declare and abate a public emergency represents a formidable undertaking. It is, without a doubt, the single most compelling and absolute exercise of sovereign authority that the State, acting through its chief executive, may pursue. The court in Martin v. Municipal Court, supra, 148 Cal.App.3d 693, was accurate when it observed that the Emergency Services Act “responds to a fundamental role of government” to provide broad public relief in the event of an emergency. (Id. at p. 696, italics added.) To take action in times of “extreme peril to life, property, and the resources of the state” (
Although plaintiffs here dispute the necessity of the Governor‘s emergency declaration, there is no question that the State, in prosecuting the Medfly eradication program, was acting pursuant to its authority under the
Furthermore, although the accuracy of the State‘s health warnings is clearly the subject of bitter dispute, it is genеrally uncontested that the warning protocol designed and implemented by the Department of Food and Agriculture during the 1989-1990 Medfly eradication program conformed to the statutory requirements discussed above. Leaflets containing information in both English and Spanish were hand delivered to residents of the Medfly spray area; the State‘s notice set forth the scheduled application dates, some health information, and telephone numbers where additional information could be obtained. Notices were also sent to local physicians, hospitals, public health clinics, and schools. In addition, health department officials appeared before various news media, local government agencies, and civic groups to discuss the eradication program and address public concerns. The county health department established a “health effects” hot line, as did the Department of Food and Agriculture, which together fielded many thousands of telephone calls during the emergency period.
To hold in these circumstаnces that a private citizen or corporation was compelled, at the risk of potentially substantial civil damages, to interfere with the State‘s comprehensive efforts to respond to the Medfly emergency would be truly extraordinary. Plaintiffs ask this court, in effect, to recognize a private tort duty to judge independently the adequacy of the State‘s emergency warning protocol and, if found wanting, to undertake a separate public information campaign in direct conflict with that promulgated by the State. Alternatively, they would have us impose on defendants a duty to demand that the State modify its public notices to include the EPA-approved warnings and, should the State fail to comply, a further duty to halt future shipments of the pesticide.
To accept plaintiffs’ position would be to contravene fundamental legislative judgments implicit in the Emergency Services Act and the Food and
This is not to say that the law necessarily preempts all private voluntary efforts during an emergency; indeed, the Emergency Services Act specifically contemplates the contribution of “private agencies of every type” in coordination with the State, federal, and local governments. (
We have recognized that certain areas of law are peculiarly appropriate to legislative judgment, and have deferred in such cases to the policies implicit in statutes and administrative regulations in determining a tort duty of care. (See, e.g., Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 550-555 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899] [declining to judicially declare a tort duty to provide drug warnings in languages other than English where state and federal law had failed to do so].) This is plainly such a case. Defining the locus of power and responsibility during “conditions of disaster or . . . extreme peril to life, property, and the resources of the state” is a task for which the Legislature is peculiarly well suited, and the State is the natural and logical repository of such power and responsibility. In the Emergеncy Services Act and related provisions of the Food and Agricultural Code the Legislature has provided a clear framework of authority, so that, as we observed in a somewhat analogous situation, “affected persons and entities, in both the private and public spheres, know exactly what is expected of them.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 551, italics added.)
A public emergency is not a time for uncoordinated, haphazard, or antagonistic action. It requires little imagination to perceive the perils lurking in plaintiffs’ arguments. Fearing potential civil damages for failure to
The instant case contains the seeds of an equally disturbing scenario. In response to the declared emergency, the State here had designed and promulgated a detailed public-outreach program containing, inter alia, certain health information. Its duty was to convey the most complete and accurate health information practicable to the affected citizens. (
If, in addition to the information conveyed by the State, the public had also received urgent notices from defendants stating that malathion posed a substantially different and far more serious health threat than that allowed by the State, the eradication program might have been fatally compromised. Certainly the time and resources necessary to address the public‘s concerns would have delayed, if not derailed, implementation of the program in circumstances where time was of the essence. And the conflicting public and private health alerts, rather than clarifying the issue, more likely would have confused the public‘s understanding and made any timely response to the emergency more difficult, if not impossible.
We do not mean by this to suggest that the State may withhold critical information during an agricultural emergency to suppress public opposition. On the contrary, the Food and Agricultural Code clearly requires full disclosure. (
Accordingly, we hold that defendants owed plaintiffs no duty to warn or otherwise interfere with the Medfly eradication project. Summary judgment was therefore properly entered in favor of defendants. We express no opinion, of course, on the merits of plaintiffs’ remaining claims against the State and other governmental officials and entities.10
CONCLUSION
The judgment of the Court of Appeal is reversed.
Lucas, C. J., Kennard, J., Baxter, J., George, J., and Werdegar, J., concurred.
MOSK, J.--I dissent.
Juan (“Johnnie“) Macias, a 14-year-old boy who alleged that he became legally blind from exposure to malathion during aerial spraying by the State of California (State), charged that defendant manufacturers and distributors of the pesticide knew the State did not provide complete and accurate health and safety warnings to the public. He contends that defendants had a duty to warn and failed to discharge that duty.
The majority reject the claim, concluding that because the aerial spraying was conducted under the Emergency Services Act (
To the majority, recognizing a duty to warn on the part of the manufacturers and distributors “contains the seeds of a[ ] . . . disturbing scenario.” (Maj. opn., ante, p. 859.) As they describe the situation: “In response to the declared emergency, the State here had designed and promulgated a detailed public-outreach program containing, inter alia, certain health information. Its duty was to convey the most complete and accurate health information practicable to the affected citizens. [Citation.] It is probably no exaggeration to state that the program‘s ultimate success depended upon the public‘s complete trust and confidence in the medical information contained in the State‘s official findings and public pronouncements.” (Ibid., italics added.) The majority posit that if the public had also received notices from defendants, the eradication program “might have been fatally compromised.” (Ibid.) Any intervention by the defendаnts could have “place[d] in jeopardy the lives, property, and resources of the citizens of California.” (Id. at p. 860.)
The flaw in the majority‘s reasoning becomes obvious if we merely look to the allegations in this action, which we must assume to be true for the purposes of review. (Maj. opn., ante, p. 847, fn. 1.) The State apparently conformed to the formal statutory protocol for public outreach during a pest eradication project, to the extent of providing some notice to residents and physicians practicing in the area. (
Thus, the notice disseminated by the State in leaflets and by other media to the public did not inform the public that malathion, as described on the EPA label, is “Harmful by swallowing, inhalation or skin contact.” It did not warn that skin or eyes should be flushed with water if contacted by malathion. Instead, it assured the public there was “NO HEALTH HAZARD. . . .” It even affirmatively suggested that contact with the insecticide was innocuous: “in Europe, it is used by physicians to treat head lice in children.”
It appears, then, that the State did not meet its duty to “convey the most complete and accurate health information” to the public. Instead, it omitted
In evaluating the scope of a manufacturer‘s common law duty to warn, numerous courts—including this court—have turned to the factors set forth in
There is also considerable, and I believe persuasive, case authority holding that private manufacturers have a continuing duty to the public notwithstanding the presence of a governmental intermediary with independent statutory responsibilities. (Reyes v. Wyeth Laboratories (5th Cir. 1974) 498 F.2d 1264; Davis v. Wyeth Laboratories, Inc. (9th Cir. 1968) 399 F.2d 121; Mazur v. Merck & Co., Inc. (3d Cir. 1992) 964 F.2d 1348; Allison v. Merck and Co., Inc. (1994) 110 Nev. 762 [878 P.2d 948].) These cases hold that the existence of a governmental duty to warn dоes not displace a manufacturer‘s common law duty. Thus, Allison holds that a drug manufacturer has a duty to warn the ultimate recipients of measles vaccines in a mass immunization effort, notwithstanding the fact that it supplied the product to the Center for Disease Control: “‘We recognize that the government has attempted to statutorily assume . . . the duty to warn the vaccinee, however, we do not find that this . . . thereby relieves the manufacturer from liability for any resulting inadequacy of the warning.’ ” (878 P.2d at p. 959, quoting Petty v. United States (8th Cir. 1984) 740 F.2d 1428, 1440.)
No previous case has found that a manufacturer‘s duty to warn is abrogated simply because a governmental entity has declared a state of emergency. The legislative policy that the majority purport to advance in crafting this new exception to the common law duty to warn is articulated as “provid[ing] the greatest amount of information practicable to affected citizens” during a pest eradication effort. (
To be sure, defendants are not required to “second-guess” or “interfere with” the State‘s legitimate exercise of its emergency powers. As this case demonstrates, however, the interest in an informed public militates against the total abrogation of a defendant‘s common law duty when it knows that the State is not following legal requirements. In a state of emergency, the possibility of error or miscalculation by an overzealous—or simply uninformed—state official may be magnified. Manufacturers and distributors that know that the State has in fact failed to give adequate notice of public health risks may be in the best position to assure that complete and accurate information is provided. The appropriate standard is one of reasonableness,
Thus, defendants could have contacted the responsible State officials to ensure that they were informed of the situation and hence aware of the need to disseminate different or additional warnings. Alternatively, defendants could have supplied the State with a preprinted flyer or leaflet containing accurate product warnings for mass distribution. (See Whitehead v. St. Joe Lead Co., Inc. (3d Cir. 1984) 729 F.2d 238, 247; Macrie v. SDS Biotech Corp. (1993) 267 N.J.Super. 34 [630 A.2d 805, 810-811].) Other cases point to the possibility of contractually obligating an intermediate purchaser to provide accurate instructions or warnings to subsequent users. (See Donahue v. Phillips Petroleum Co. (8th Cir. 1989) 866 F.2d 1008, 1011 [“Phillips made no effort to discharge its obligation by contracting with its purchaser to ensure that adequate warnings ultimately reach the consumer.“]; see also Bryant v. Technical Research Co. (9th Cir. 1981) 654 F.2d 1337, 1347-1348; Mazur v. Merck & Co., Inc., supra, 964 F.2d at p. 1365.)
Defendants could also have undertaken reasonable measures to directly inform the public, in advance of aerial spraying, of the true health dangers from exposure to malathion. The court in Whitehead refers to inexpensive direct warnings by way of “joint information sessions.” (729 F.2d at p. 247.) Similarly, in this case it might hаve been feasible to hold a press conference, independently or with state officials, to inform the public of the advisability of staying indoors during spraying or, if exposed, of taking the simple precautions of promptly washing malathion spray from the skin or eyes and contacting a physician if irritation from exposure to the skin or eyes persisted.
Contrary to the vision of “complete chaos” conjured by the majority (maj. opn., ante, p. 859), reasonable measures of this kind were unlikely to have interfered with the State‘s ability to carry out an effective eradication program or its obligation to provide clear and effective warnings to the public of the very same health risks. They would, on the contrary, be fully consistent with the legislative intent to provide affected citizens with the “greatest amount of information practicable.” (