*1 MORAN, etc., et v. FABERGÉ, INC. al. et al. Term, September
[No. 1974.] February Decided 1975. *2 J., Murphy, C. and argued before was Singley, The cause Eldridge O’Donnell, JJ. Levine, Digges, Smith, Bulman, Goldstein, Freeman, whom were H. with Martin appellants. brief, for Dunie on the Feld & Salmon, Sasscer, Clagett, James P. with whom were brief, Channing appellees. &Bucher on the opinion of the Court. Digges, J., delivered O’Donnell, J., dissenting opinion page dissents and filed a at 555infra. case,
In this is here on certiorari addressed to the Special Appeals, petitioner, Nancy Moran,1 Court of takes issue with the affirmance that court of the judgment n.o.v., entered in the Circuit Court of Prince George’s County (Couch, J.), jury’s which nullified the Inc., Fabergé, respondent, decision that was accountable damages Nancy’s injuries cologne, caused when its petitioner, filed, 1. The a minor at the time the action was initiated this through father, joined suit her Elbert M. Moran. The father also to recover expenses daughter’s the medical injuries. he incurred for the treatment of his Fabergé, Randy Besides there were also two other defendants Williams, injuries, which caused the young lady Nancy’s who was involved the events which led to Grigsby, P. Louis the owner of the home where the accident injury Grigsby occurred. Williams and Since defendants jury legal responsibility injuries were exonerated from for the question concerning result, no remains is raised here defendant which litigation respondent, Fabergé in the before this Court is the . container, warning ignited.2 flammability on its We no
with
presented
evidence
believe
there
sufficient
and, therefore,
we will
jury’s decision
reinstate
authorize
judgment
the verdict and direct that
be entered
it.
conclusion,
explain
must be
we
our reasons for
As
in mind that
this case is before us on
borne
since
n.o.v.,
judgment
we
propriety
granting
of a motion for
light
required
presented
review the evidence
in the
Bank,
petitioner. Lusby v. First Nat’l
favorable to the
most
Leasing
(1971); I.O.A.
Md.
During trial though warning that, no tending disputed, to show was not given, bottle or otherwise to the fact was attached and, cologne highly flammable Tigress Fabergé’s dangerous.4 demonstrate this the therefore, inherently To experimental evidence produced petitioner scientific composed of, volume, 82.06% revealing cologne, that this water, oils, is a alcohol, perfume and and 12.84% 5.1% point of 73° dangerously with a flash combustible temperature.5 Fahrenheit, approximately room Additionally, petitioner testimony evoked from two Mann, officials, Fabergé its Vice President and Chief Carl Shernov, Stephen company Perfumer, aerosol poet Quintus II, quoting Ennius. Divinatione, Cicero, bk. ch. De *4 3. Tigress spray Fabergé’s however, placed warning, aerosol on 4. Such a warning spray respondent, According container has a cologne. the to the propellant spray a freon “drip has not because bottle” does while chemically different. thus is Testing Utilizing scientific method Materials’ American Standard 5. liquid point, proceeds.as determining follows: the the tester the flash of be bath; cup glass poured a water surrounded tested is into temperature kept water bath its as the in fluid to check thermometer is increasing heated; and, starting slowly but at 40° Fahrenheit passes time, degrees a wand temperature by tester at a increments of cup liquid eighth gas-fed in the at a flame over the of an bead with an inch being liquid The height tested. one-quarter of the inch above the surface ignited vapors temperature flash obtain liquid its constitutes at which its of the expert in order to point. an was run six times In this case the test average point. flash only was chemist, indicated that not which quality but also this hazardous aware of manufacturer dangerous product might well be Fabergé foresaw that its placed when near flame. inherently dangerous
Having produced evidence as to this Tigress cologne, which was known to the characteristic of company though public generally, as the not to the as well knew come contact manufacturer it fact that the circumstance, that with fire and be hazardous presented petitoner jury question was as to contends that negligent failing against Fabergé to warn whether was flammability product’s latent characteristic. Judge petitioner when Couch Consequently, the asserts that judgment n.o.v., saying, granted “there the motion for evidence in this case to indicate to the wasn’t sufficient court, differ on I think minds should and don’t reasonable issue, when in its intended this that this used care, inherently ordinary it was fashion with province jury. dangerous,” improperly he invaded the hand, argues judge Fabergé, that the trial on the other because, properly granted acted when he the n.o.v. motion plaintiff present legally respondent’s words, did “the proof negligence part Fabergé, Inc.” In sufficient position, Fabergé urges support the Court of of this Special Appeals when, considering was correct this matter, opined: any evidence
“There was a total absence support a tend to show or would which would case Fabergé foresaw or should inference that rational haye in the cologne used that its would be foreseen Nancy injuries Moran. which caused the manner use, Fabergé it had no did not foresee Since Williams, against Moran v. 19 Md. duty warn it.” 561-62, App. 546, A. 2d 527 conflicting specific issues these analyzing the Before type negligence breed, we observe contentions liability,” categorized “products but action, frequently “consumer be referred to as appropriately just as
543
Noel,
Liability: Bystanders,
Products
protection,”
Uses,
(1970),
and
To with note that warnings product, appropriate produce a with safe necessary, is from the when no different instructions due responsibility each of us bears to exercise care avoid Harper James, risks of harm to others. & unreasonable Torts, Prosser, The Torts, (1956); Law The Law 28.3 § § 1971). any (4th ed. Whether such unreasonable risk exists balancing depends probability given in a situation against harm, exercised, if seriousness of care Harper taking appropriate precautions. James, & costs 28.4; Restatement, Second, 291-93, supra, 16.9, Torts §§ §§ However, we cases as this observe such warning adequate usually giving cost of so adding minimal, amounting only expense of to the some balancing printing label, process will more to a *6 always weigh obligation almost in favor of an to warn of dangers, latent if the manufacturer required is otherwise to do so.
Since the cost here undisputedly factor would be of consequence, question needing minimal then to be is, responsibility answered when does the warn to arise? helpful starting point A inquisition somewhat in this Restatement, Second, (1965) Torts § specifies: Dangerous Known to be
“Chattel for Intended Use supplies directly through person One who or a third subject a chattel for another to use is to supplier expect those whom the should to use the chattel with the consent of the other or to be endangered by probable use, physical its harm by caused use chattel the manner for by person supplied, which and a for whose use it is supplier if the
(a) knows or has reason to know that likely dangerous chattel is is to be supplied, use for which it is (b) has no reason to believe that those for supplied whose use chattel is will realize its dangerous condition, and (c) fails to exercise reasonable care inform dangerous them of its condition or of the facts likely dangerous.” which make it to be general principle been duty This section has cited as cases, by previous Maryland e.g., Twombley to warn area v. Co., supra; Etc., Arundel, Corp., Fuller Brush Katz v. 200, pertains Md. 151 A. 2d As to this case the key language of Section which instructs that a manufacturer for harm liable “caused the use of the supplied.” Strictly chattel the manner for which ... it is speaking these words would lead one to believe that responsibility manufacturer’s extends to those intended supplied. However, uses for which the this is misleading not the case. As most courts and since such is agree, legal of the manufacturer warn authors product goes beyond dangers latent inherent contemplated producer precise use and extends to all Spruill are foreseeable. those which Inc., (4th 1962); 2d Boyle-Midway, 308 F. 83-84 Cir. Hall Supp. 353, E. I. DuPont DeNemours & 345 F. 1972); Comment, (E.D. Foreseeability N.Y. Product Design Duty to Warn Cases Distinctions and Misconceptions, Examples 1968 Wisc.L.Rev. 231-34.
what are these foreseeable uses not can found in j Restatement, and k Comments 395 of the Section section about different element the manufacturer’s *7 responsibility, explanation just appropriate but is whose j to this context. states: Comment or use manner use. The “Unforeseeable persons stated this Section is limited to endangered
who are risks which are created in the course of which uses the chattel reasonably anticipate. In manufacturer should special otherwise, expect absence of reason to product maker entitled will is to assume his put use, to product normal which is appropriate; subject intended or and he is not to liability when uses, it is for all safe such and harm results it way because is in a mishandled expect, which he has no reason to or is used some unusual and unforeseeable manner. Thus a shoemaker is lady not liable to an obstinate who wearing suffers harm she because insists on a size her, too small for and the manufacturer aof bottle cleaning fluid purchaser liable when the splashes it eye.” into his contrast,
In explains: k Comment
“Foreseeable uses risks. The manufacturer may, however, reasonably anticipate other uses than one for which the primarily chattel intended. The chair, maker of a example, may
reasonably expect it; that some one will stand may and the maker of an inflammable cocktail robe expect will in the that it be worn kitchen close proximity fire. to a Likewise the manufacturer discover, know, may under a product especially possible are some users of it, if susceptible harm from it contains an ingredient any percentage to which substantial sensitive, population allergic or otherwise precautions, by and he fails to take reasonable otherwise, against giving warning or harm to such persons.” though ground
Even
there is a vast middle
uses
disagree
reasonable minds could
as to whether
about which
they
manufacturer,
are or should be foreseeable to the
thus
fact,
requiring resolution
the trier of
from these
Restatement elaborations it can be seen that
there are
group,
extremes, abutting
wide in-between
about which
differ
there
reasonable minds would not
as to whether
is a
duty warn, making
the determination of this issue one of
totally
light
require
would be
law.
unreasonable
against every injury
warn
that manufacturer
mishap
product,
from a
the use of its
no matter how
ensue
well
the consumer utilizes the chattel or how obvious or
danger.
instance,
supplier
For
of shoes is not
known is
that,
failing
knowingly
when a
liable for
to warn
woman
*8
small, they
injure
sizes too
will
wears shoes which
two
Co.,
299,
feet,
App.
v. Zak
N.
her
Dubbs
Bros.
38 Ohio
175 E.
producer
required
(1931) and a
should not be
to warn
626
that “a
will
knife . . .
. . . cut or a hammer
. . . will
finger.”
. . . mash a thumb or a stove . . . will . . burn a
.
(D.C.
Lothrop,
23,
Jamieson v. Woodward &
247
2dF.
26
Cir.),
(1957).
denied,
cert.
and
Corp.,
Baby Bathinette
persons
v.
present, Hentschel
(2d
1954),
denied,
This Court to a rather limited assayed concept the in the context of Arundel, products liability. Etc., In Katz Corp., Md. (1959) A. supplier 2d a consumer sued the ready-mix personal injuries concrete for he sustained while cementing protecting over his dirt-floored cellar without his skin the from caustic chemicals contained the cement. The properly trial found court was to have taken the from case ruled, jury law, when as a matter of product, manufacturer could not have foreseen that its designed use, professional would fact be used “do-it-yourself” homeowner who did not know that when using Consequently, cement mix skin should covered. producer failing was not liable for to warn about this danger product, danger patent, because is not “[i]f at least in the realm knowledge it is of common [among the professionals supplied] supplier may whom it properly granted.” Twombley take for at 204.6In 220 Md. Fuller Brush A. (1960), 2d 110 Md. arising damages consumer sued from an illness (hepatitis) allegedly he contracted when he breathed vapors given spot using off defendant’s remover while it to being clean his clothes. Because the was used intended, which it manner for this Court did not directly However, have define foreseeable use. Perhaps today of this be reached on the facts a different result would 6. by “do-it-yourself” case, widely ready-mix sold for use concrete is now since non-professional consumers. *10 recognizing principle generally, to warn we said jury that was for the to decide both or not the “[w]hether ought defendant knew or spot to have known that likely dangerous put remover was when to its intended use,” and warning danger “whether or not the was adequate,” because the manufacturer would be in liable event that there probability injury” was “a reasonable if warning given. sufficient were not In the recent case of Volkswagen Young, supra, America v. the death of a Volkswagen driver resulted when his automobile was struck in sign. the rear while the stop vehicle was halted at a This impact assembly fail, caused the allegedly seat because it negligently designed had been and manufactured.
answering question propounded by a certified the United State (Maryland District Court for the District of Columbia (1974) Proceedings Article, Code Courts Judicial § seq.) whether, 12-601 et Maryland law, as to under the intended use of a motor in vehicle includes involvement collisions, observed, speaking through we Judge Eldridge,
“
negligence’
‘traditional
rules of
lead to the
conclusion that an automobile manufacturer
design
liable for a
in
defect
which manufacturer
reasonably
could have
foreseen would cause or
injuries
impact,
enhance
patent
on
which is not
user,
obvious to the
in
fact leads to or
injuries
enhances the
in an automobile collision.”
Because none of these three cases was this called Court upon meaning to discuss or determine scope foreseeable use jury question context of whether a presented concerning it, these decisions render little aid solving presented the issues here. glean sampling We can from this many small products liability concerning cases
various consumer uses courts, decided our sister well only tangentially as those of this Court which are point, determining that the standard given whether a consumer use is producer foreseeable so as to require warning danger is, say latent least, quite vague.7 Probably development because of case-by-case on a eye basis with achieving a desired result in the case, individual following logic without and applying definitions, consistent the decisions often seem to be thrashing about in a subjective semantic and morass in their attempts apply negligence concepts products litigation. The reason for many this confusion is that cases recognize have failed to that when a liability suit tort, *11 sounds rather than in frequently contract as is permissible, the action negligent is based on a duty breach of by owed plaintiff8 and, manufacture to the consequently principles settled pertaining of law negligence, including explaining the terms in used that law and their definitions, appropriately are applicable. When these negligence concepts well-established applied the dense fog which litigation seems to have concerning surrounded the Spruill manufacturer’s largely dissipate. to warn will (4th
v. Boyle-Midway, Inc.,
1962);
requirement products liability cases, in guidance we obtain many Maryland from the cases which dealt with this same concept general negligence in the E.g., Segerman context. v. respected suggest 7. It should be noted that there are authorities who concept adequately of foreseeable use has never been defined it cannot In the words of because be. Professor Prosser: sense, nothing entirely unforeseeable, “In one almost since very slight chance, recognizable there is a mathematical advance, possible that even the most freakish accident which is occur, particularly happened history will another, if it ever has before. In entirely foreseeable, no event whatever is since exact sequence predicted complete
details of a omniscience and ed. never can be with accuracy.” Prosser, Torts, (4th The Law 43§ 1971). yet accepted State, 8. Because been strict this has we pursue possibility. do not
551 Pleasant, (1969); Sacks v. 109, A. 2d 794 Jones, 259 256 Md. Yerman, Farley 231 Md. (1969); 40, A. 2d Md. 251 858 253 Terio, 330, 147 Md. (1963); Baltimore v. A. 444, 2d 773 through running common thread A. The which refer to many Maryland cases other these and Judge encapsulated for this Court foreseeability, was 132, Jones, supra he said: Segerman at Singley, when, in well foreseeability was stated “The test Dist., County School 42 Wash.2d Grant McLeod v. held the (1953), a case which P. 2d 360 girl damages who answerable
school district adjacent unlighted in an room was attacked said: gymnasium. There the Court school being con- . . Whether ‘. negligence or standpoint of from
sidered inquiry is not pertinent cause, the proximate particular harm was of the actual whether Rather, expectable. kind which was actual within harm question is whether fell danger should have general field of [citing 42 Wash.2d at anticipated, been case].’ ” added). (emphasis P.2d at with the one foreseeability negligence is consistent test This *12 Harper: provided by Professor declaring perfectly in that are accurate
“the courts
liability where the
is
be no
harm
there can
foreseeability’
the
unforeseeable,
if
to
refers
literally
general type
harm sustained. It is
true
of
damage
falls
there is no
for
that
general
harm
entirely
the
threat
which
outside
of
negligent. The
of the actor
made the conduct
events,
course, need not be
sequence of
of
the risk
The manner
in which
foreseeable.
unusual, improbable
may
in harm
be
culminates
highly unexpectable,
point
the
view
from
of
of
yet,
And
the
the actor at the time
his conduct.
of
if
general danger area,
harm
within the
falls
suffered
requisites
liability, provided
there
be
other
”
legal
present. Harper,
causation are
A Treatise on
Torts,
(1933)
the Law
(emphasis
added).
§
v.
Refining Co.,
183,
See Pease
Sinclair
(2d
104F. 2d
185 Cir.
1939);
Co.,
Hall v. E. I. DuPont
&
Supp.
DeNemours
345 F.
(E.D.
1972); Noel,
N.Y.
Products:
Defective
Use, Contributory
Abnormal
Negligence, and Assumption of
Risk,
(1972);Comment, Foreseeability
25 Vand.L.Rev. 93
Design
Product
Duty Warn Cases
Distinctions
Misconceptions,
And,
product
1968Wisc.L.Rev. 228.
once the
“general
used
danger,”
this
field of
if
the
significant
manufacturer’s conduct is a
causing
factor in
another,
harm to
the fact that the manufacturer
neither
foresaw nor should
severity
have foreseen the
of the harm or
the exact manner in which it occurred,
prevent
does not
it
being
from
liable. As Justice Cardozo reiterated in the
Palsgraf
Long
celebrated case
R.
Island
N. Y.
(1928):
Based on this think imposed liability domain warn is produces if the item has an inherent and manufacturer danger producer knows, hidden about which or should bringing know, injury factor in could be substantial property product when or his the manufacturer’s individual with the elements comes near to or contact present normally in environment where the can reasonably brought expected Spruill or used.10 Although speaking 9. term to in about relates proximate causation, language Judge Oppenheimer this Court Woodall, 620, 626, (1966), equally Little v. applicable 244 Md. 224 A. 2d wrongfully in the context of case: “if the situation created damage, through operation the defendant increased the risk of force, ensuing another foreseeable defendant is liable for the loss.” connection, although dispositive case, making 10. prior proper the trier determination it is history year of fact to consider both *13 product (such in case a 27 of the as evidence this which showed history Tigress cologne), Morris, Bengue, Inc., accident free Martin v. 25 N. of 359, (1957); Safety History Negligence J. A. 2d 626 136 in Proof of Cases, (1948), and the of the 61 Harv.L.Rev. 205 extent manufacturer’s
553 79, 1962); (4th Inc., 308 F. 2d 83-84 Cir. Boyle-Midway, Comment, Design Foreseeability Duty Product to in Misconceptions, supra. Cases Distinctions and Warn analysis the unusual and bizarre details this Under accidents, experience are far from human shows which background significant facts unlikely, to necessary case; that the manufacturer individual it is Thus, in in which accidents occur. foresee the exact manner case, necessary cologne it for a was not the context would be hurt when a foresee that someone manufacturer to candle; poured flame a lit it friend near the producer it only necessary that be foreseeable to the was environment, product, while its normal that its brought catalyst, likely near a to be found that environment, danger. inherent can untie the chattel’s table, example dressing while seated at a a woman For light enough cigarette might a match to a close to the strike open explosion, top cologne bottle as to or so cause while similar manner she turn seated accidentally cologne suddenly bump with the bottle of elbow, splashing cologne burning some on her candle placed So, Supreme vanity. the words Court probability of Missouri: “If there is some of harm sufficiently ordinary serious men would take precautions it, negligence.” to then so do is avoid failure Manufacturing Co., 18, v. Ross (Mo. Bean 344 25 S.W.2d 1961); Co., supra 186; also Refining see v. Pease Sinclair at Co., Haberly 859, (Mo. 1958); 319 Reardon S.W.2d 863 Tullgren Amoskeag Mfg. Co., 276, N. H. 133 82 A. 8 here, we applying test hold that petitioner, unnecessary, support a verdict favor of the evidence, produced as demanded there be Court Appeals, support Special “which would tend show Fabergé foresaw or should have inference that rational Hooper, industry-wide practices, F. standards and The T. J. adherence (2d (1933); 1932), denied, 2d 737 Cir. cert. S. 662 Hall v. E. I. DuPont U. 1972); Supp. 353, (E.D. 1 Frumer & F. DeNemours & N.Y. Prosser, Friedman, Liability, Torts, The Law (1970); Products § § (4th 1971). ed. *14 [Tigress] cologne its foreseen that would be used [(pouring cologne portion manner on the lower a lit of it)] attempt in an injuries candle to scent which caused the Moran,” Nancy Williams, 561-62; supra to Moran v. at only necessary rather, was it that the evidence be sufficient support Fabergé, knowing to that conclusion or deemed cologne Tigress potentially dangerous to its know that was a product, reasonably flammable could foresee that in the use, Grigsbys, environment of its such as the home of the cologne enough this come close to a flame to cause explosion intensity property injure of sufficient to burn or bystanders* Nancy. such as opinion then, totality
It that the of evidence is our presented case, favorably in this viewed toward the most petitioner, legally jury find sufficient to enable the to place warning Tigress Fabergé’s that failure to a its cologne We “drip negligence. bottle” constituted actionable which, say presented at because there was evidence trial this Fabergé’s Tigress accepted true, if to that as tends show cologne danger flammability; that possessed latent of a officials, through knew should known of Fabergé, or have find home danger; normal to in the this is reasonably cologne; that it was environment both flame may cologne Fabergé the flame and the foreseeable to other, contact, as cause an with the so well one come standing injures person happens to explosion a who be prudent Nancy; and nearby product’s manufacturer, knowing of its characteristics latent propensities, have warned consumers should danger. flammability regardless the defendant course, of whether
Of may constitute a bar negligent, plaintiff’s own conduct determined, plaintiff either a matter recovery if that negligence fact, guilty law the trier of also contributing injury. But cause which was a direct by its specifically, jury as the here such is not the result contributory Nancy 3, absolved answer to issue No. negligence. if we stand personal persuasion be our
Whatever recovery jury, as to whether should the shoes case, eyes permitted specific we our cannot close foreseeability, that, generally although the fact reasonable Woodall, Segerman Jones, supra; jury question, Little v. (1966), encompass 2d still “does not Md. 224 A. pessimistic imagination,” the far reaches Jamieson Lothrop, supra F. 2d Woodward & at 247 the outer *15 limits, minds differ so that within reasonable which permitted liability in jurors to find a manufacturer’s warn, in this negligence based on a failure to are broad case Therefore, we are jurisdiction in others. constrained as case, especially that, in the instant believe and hold considering day, of our the economic and social climate Fabergb’s negligence jury and that of for issue granted for Judge have the motion should not Couch judgment n.o.v.
Judgment Special the Court Appeals and reversed case with court to that remanded that it reverse the instructions judgment Court Circuit George’s County Prince for enter court that instruct judgment in accordance with jury’s to the issues answers which it. were submitted to Costs in Court and Special Appeals to be Court of Faberge, paid by Inc. O’Donnell,J, dissenting: correctly set forth have my learned brethren
I concur liability for a manufacturer’s general principles of danger product as in his negligent failure to warn of latent (1965), and 388 (Second) of Torts posited in Restatement § Co., v. Fuller Brush Twombley holdings thereunder our v. Katz (1960); 110, 118 A. 2d 476, 492, 158 Md. 221 2d 200, 203, 151A. Corp., 220 Md. Concrete Arundel-Brooks 556 Stein, Kaplan
731, 420-21, 414, (1959); 733 198 Md. 84 81, (1951). Restatement, well A. 2d 84 That section in the as holdings it, emphasizes under “to those our expect . . . for supplier should to use chattel whom the chattel in the manner physical harm the use caused by person supplied, use it is which whose if the for for knows, supplier (a) or has reason to know that the chattel is it is the use which likely dangerous or is Twombley v. See supplied.) supplied. ...” (Emphasis Co., supra. Fuller Brush similarly agree necessary
I is not reasonably anticipated the exact manufacturer should have sequence up injury to lead to the events Volkswagen See America v. liability. subject him to Segerman v. Jones, Young, 201, (1974); 272 Md. A. 2d 737 321 132, 794, (1969); Harper, A. 2d F. Torts 256 Md. § Refining Co., also See Pease Sinclair 104 F. 2d 1939); Hall v. E. I. DuPont DeNemours & (2d Cir. Supp. 353, (E.D.N.Y. 1972) F. all cited majority. *16 premises “the of the majority similarly
The dangers in to of inherent its manufacturer warn latent contemplated by beyond precise the product goes the use producer to all those which and extends [uses] manufacturer],” citing [by reasonably the foreseeable Inc., (4th Spruill Boyle-Midway, F. 2d 83-84 Cir. Co., supra; E. & Hall v. I. DuPont DeNemours and 1962); Design Foreseeability Duty to Comment, Product Misconceptions, Warn Cases Distinctions Wis.L.R. (Second) k of to Restatement 231-34 Comment (1965), principle is illustrative of the Torts § “reasonably anticipate other uses than manufacturer primarily for which the chattel intended.” one (Second) (1965), Although 395 Restatement Torts § by majority, pertains were to which cited comments chattel, liability negligent a manufacture predicated foreseeability a thereunder an unusual purpose a risk “to who use it of harm those for for expect it to should be used those whom manufacturer expect endangered by probable use,” he should to be being lawfully when purpose used “in a manner and a for ” supplied. which it is by j thereunder, majority, set forth Comment points liability persons endangered that the is limited to out by “in risks the course of uses of the chattel which the reasonably anticipate.” emphasizes manufacturer should It special expect wise, the absence of reason to other “[i]n product the maker is put entitled to assume that his will be use, normal for which the is intended or appropriate; not subject and he is when it is safe uses, all such only and the harm results because it is mishandled in way which he has no expect, reason to or is used some unusual or unforeseeable manner.” The cases majority cited applied indeed have concept of the doctrine of “foreseeability.” Spruill Boyle-Midway, Inc., supra, the mother of a 14-month old using polish child was furniture a room where crib; the infant leaving was the room for a few placed moments the mother the bottle polish of furniture upon a adjacent scarf on an bureau. While absent from the child, tugging upon room the scarf, obtained possession of polish, ingested the furniture it and died. The evidence established that the manufacturer had actual knowledge prior of 32 young cases of children, who, acquiring possession polish, ingested of the had it and ten had died present therefrom. There was in the case evidence physical harm from the ingestion product, but there was evidence from which it was foreseeable that in a home environment such use as made the child could have been anticipated.
In Hall v. E. I. DuPont Co., supra, DeNemours & *17 children, in separate incidents, injured by had been the by use made them blasting caps. of The manufacturer maintained statistics on the frequency with which children injured had been by blasting the use of caps. the There was present thus found foreseeability a general of a risk of harm injury might any result in ways number of — blasting caps, from
from the use of but it was foreseeable — blasting by the manufacturer that the the data collected probably by caps would be misused children. Refining Co., supra, involved a case
Pease v. Sinclair petroleum where a science teacher obtained bottles of exhibit; products from the manufacturer for a student one actually water. In bottle marked “kerosene” contained experiment teacher, believing conducting laboratory the a kerosene, liquid mixed it with sodium metal to be fact explosion (there resultant would have been no with a “kerosene”). explosion The had the contents been court appellee impossible rejected the of the that it was contention contemplated the exhibit would have been used to have laboratory experiment; manner for a it did this exact however, put recognize, bottle to uses display. affirming than a mere science class other the trial court to submit issue decision jury, foreseeability the court held that there was foreseeability general injury risk of evidence of a equally reasonably foreseeable that a science teacher it was petroleum product laboratory might use a for a such supplied experiment although it had been for a science exhibit. (Mo. Manufacturing S.W.2d
In Bean v. Ross undertaking unclog poured liquid 1961), plumber a drain a opening plug into the and inserted a drain cleaner — prevent practice the emission of noxious was the usual liquid After minutes the drain cleaner reacted odors. several holding chemically, exploded in him. In his face and blinded foreseeability, facts, question under those that the misuse of jury, that there was no for the the court found was, part plumber, but there on the prod- manufacturer, reasonable being in this fashion. uct’s used 1958), Wait, (Fla. 2d Drug 103 So. Tampa Co. v. plaintiff’s decedent. carbon involved the use cleaning home. He had the floors of his tetrachloride pan upon knees, his after poured into a the chemical floor; pan, from the dipping rag cleaned his into *18 he ill and died. The inhalation of the fumes became Florida when a court ruled that arises exists to take precautions reasonably to avoid foreseeable reasonable might reasonably injuries using who be foreseen as to those give product; that reasonable care must be taken to the use, adequate possible consequences notice of the as well Although reasonably as foreseeable misuse. the court held upon plaintiff to show a failure that the burden was danger warn a latent which the distributor knew or of business known, course the reasonable should have possible have been able to foresee from uses of the should product, drug found that there was evidence that company general was aware of the risk of harm from the vapors inhalation of carbon tetrachloride and the use of the cleaning reasonably product in floors at was to be home anticipated. Bengue, Inc., 25 N. J. A. 2d Martin v.
(1957),
plaintiff
using
“Ben-Gay”
had been
the liniment
day,
days,
twice a
for several
and continued to wear the
pajamas during
sitting in
same
that interval. While
a chair
igniting
he
struck a match the matchhead fell off
his
pajamas, which had now become saturated with the
Jersey
The New
held that
liniment.
court
the failure to warn
general
danger
risk
fire
of harm
from
constituted
negligence
where it was
foreseeable that
might
applied heavily
body
liniment
to the
over an
period
apparel
though
extended
of time and saturate
even
part
there was no
on the
of the manufacturer
sequence
of the exact
of events that did occur
that an ill
man, sitting
living
chair, might
in his
room
have
head of
ignite
pajamas.
a match sever and
his saturated
Similarly,
Chapman,
in Brown v.
(9th
12-year boy sight eye assisting lost while old one his applied paint along father who a cement to a row of bricks driveway. working were Both father son on their knees, cleaning boy grass a few ahead feet leaves and *19 from The his son to remove some the bricks. father directed painted. just As the undertook leaves from bricks he had son stood, space, began he a and as he to kneel comply moved paint again eye accidentally came in contact his with instantly in the hand. The child was brush held father’s rejecting that blinded. In the contention of the manufacturer paint was there was no to warn because the cement reasonably being way in a applied the father it could not anticipate injury to the did out of and that the child not arise foreseen, reasonably it have the court a hazard which could reasonably paint held it was foreseeable that cement that general paint of would used to bricks and that the risk eye helper accidentally getting harm it in the of a was of reasonably foreseeable; equally there both a that was put foreseeability product being of the to which the was use foreseeability resulting a harm that use. of the from Arundel, Corp., supra. Etc. Katz See also Compare opinion majority n. 6. Young, holdings Volkswagen Our recent America of scope
supra, application of of in accord with case, under “foreseeability.” decided the Uniform that alleged Act, pleadings Questions of Law Certification of knowledge” “actual of that the defendants had notice held, assembly in we their vehicles and the defective seat decedent, when question certified, that vehicle stopped while at a rear vehicle struck in the another “intended the “intended use” and signal, was within traffic impact; that purpose” at the time of of an automobile foreseeability harm actual there was a reasonable assembly a seat injury the defective resultant from harm when the of such resultant reasonable in a being purpose a or manner was used for vehicle reasonably anticipated. been should have application syllogistic It of these with the lack my emphasize I principles to the in this case that facts recognition principles, The majority, dissent. from a these by concluding “it was breaches chasm that necessary support evidence be sufficient Fabergé, knowing conclusion that or deemed to know that Tigress cologne potentially dangerous a its was flammable product, could the environment foresee that use, Grigsbys, cologne its such as the home of the enough explosion come close flame to cause an intensity property injure bystanders, sufficient to burn Nancy such as This result was reached after the [Moran].” majority necessary cologne found it was “not manufacturer to foresee that someone would be hurt when a poured candle; friend near the flame of a lit only necessary producer it be foreseeable to the product, environment, that its while its normal likely in that catalyst, to be found brought near danger.” inherent the chattel’s environment, which can untie supplied.) (Emphasis *20 upon there was no emphasized the record
It that must be here made of the a use as was of such evidence whatsoever occurred; fact, in the use of having previously cologne ever history. The year a 27 accident-free Tigress cologne had flammability general of the a evidence does not establish vapors positioned vapors, when such cologne but a open Cologneis not flame. one-quarter inch from within a mysterious not have multitude product and does new or cologne, called “toilet Eau de sometimes uses or functions. alcoholic, liquid “perfumed, largely a water,” is defined as freshener”; it has a as a skin in a bath or for use or after historically suggestion or utility; there is no limited as a water a other than toilet of its use as otherwise presented was no evidence skin freshener. There or dangerous cologne Tigress ever be could trial court that supplied. being which it was put when to the uses for product so remote from that When a is made of a use unforeseeable, the manufacturer intended as to be Mfg. v. Hobart use. See Smith relieved of from such Harper (E.D. 1960),citing 2 F. & F. Supp. F. Pa. Prosser, Torts, (2d at James, (1956) W. 28.6 Torts § 1955). ed. arguendo, Fabergé
Assuming, may duty that have a general danger a risk because of a latent warn of — flammability cologne vapors might of its where its be open brought one-quarter of an inch of an flame it within duty everyone, that this to warn is owed to does not follow product might used It well or abused. howsoever duty manufacturer owes a to warn of the be true that the lady who, applying young while general risk of fire to a accidentally cologne, should knock over the container and candle, spill upon burning but are not the facts it a such Revlon, (E.D. Inc., Supp. here. See Whitehurst 307 F. plaintiff applying while 1969), where was burned Va. lighted cigarette fingernail polish a and where it and raised nail there was a that was concluded general brought when a polish presented a hazard near equally foreseeable that a flame or severe heat and was applying fingernail polish might proximity do it user cigarette. Concededly, duty such a such flame or heat from scenting billet-doux, to warn be owed one wearing apparel, dabbing droplet or to one at intimate body. pulse points of the jury may
Although admittedly a have found that danger general of harm from the existence of a latent vapors reasonably foreseeable, flammablilty cologne application principles they majority, in the endorse, have concluded that since the evidence established injury “general danger” fell within a field of that the applicable because, to warn was in its normal environment, cologne might brought open near an flame, likely environment, regardless to be found product happened of the manner which the to be used or *21 misused. Co., supra,
In E. I. DuPont & the Hall v. DeNemours analogized liability of a manufacturer for his Court the product trespasser, in with a landowner’s to a two-pronged foreseeability. emphasizing facets of Under the holdings possessor property real in some states a has general duty been held to be under a to warn of unsafe upon premises injury his causes to a condition which reasonably trespassory presence is trespasser whose duty is to conclude that there foreseeable.1 Those cases unsafe general risk of harm inherent warn aof possessor of the is immaterial condition that it sequence events which the exact premises did foresee trespasser, he up i.e. need not injury to the led to running merely trespasser anticipate would be or that the upon he condition. walking when the hazardous came duty to warn cases, however, it does not follow that such everyone; held to it is risk harm owed general of the trespassers who should to those that such extends endangered reasonably anticipated to become have been the unsafe condition. majority support of their All the cases cited — conspicuously element absent
conclusion contain the was a on the that there reasonable this case being was made part use of the manufacturer that the injury itself at the time by the manufacturer. foreseeable Fabergé succinctly:
As the observed counsel like who would their “There be some iconoclast rum, were candles like but if someone to smell [sic] proof lighted rum pour to alcohol] [75% give vapors of a rum and the candle scent injure someone, rum were to catch fire and manufacturer of the rum would not liable idiosyncratic and unforeseeable use because product.” fortiori, A if a skin someone undertakes use freshener body cologne lighted vapors, perfume a candle and its flame, open ignite, juxtaposition should palpably not be should liable because manufacturer product. unanticipated and misuse of its unforeseeable court, granting judgment The n.o.v. the motion for trial charge just “I it is stated: don’t believe that reasonable to Maryland Pollin, See Wurz v. substantially 1. The Rule is different. Abe Inc., (4th 1967); Thompson, 287 A. F. 2d 549 Bramble Md. Cir. Peters, (1972); 2d Osterman v. 260 Md. 272 A. 2d
Fabergé reasonably foreseeing with will its be body cologne.” other used than as a I with concur its conclusion and that reached the Court Williams, App. 546, 19 Md. Special Appeals [Moran (1974)] Judge Powers, court, A. 2d 527 where for that concluded: any
“There was a total absence of evidence support tend to case which would show would Fabergé or should rational inference that foresaw cologne have would in the that its be used foreseen injuries Nancy manner which caused Moran. Fabergé use, Since did not foresee the it had no against (Emphasis supplied.) it.” to warn App. 561-62, Md. at 313A. 2d at 536. majority pitfall, to me that the has fallen
It seems into recognized by Prosser, who, undertaking Professor analyze illusory the treatment various courts of the concept “foreseeability” noting the confusion resulting therefrom, states: leeway’ left for the ‘margin of has to be
“Some opened unexpected. But has and the unusual door; have taken so much very wide and the courts scarcely leeway advantage it can ordinary man great deal of what doubted that a freakish, bizarre, regard would as crept within the bounds of unpredictable has jury simple permitting the liability by the device of very broad, vague, at least to foresee Prosser, Torts, 43, at 269 general W. outlines.” § 1971). (4th ed. majority, holding
It seems to me that the that there was, jury negligence sufficient evidence for the to find Fabergé because could have foreseen that their cologne, use,” might brought “in the environment of its enough open bring close to an flame about resultant injury, harm or modifies the rule enunciated in the — (Second) (1965) Restatement of Torts which this § adopted well as consistently applied and § has Court j thereunder, and thus has *23 particularly comment harm from a liability for the resultant permitted a — notwithstanding the fact uses very limited itself of showed the evidence of its use” “in the environment way in a which [the been “mishandled product had that the expect.” has no reason manufacturer] motion for defendant’s firm my conclusion It is since in the trial court properly entered judgment n.o.v. was differ would not minds I reasonable believe Fabergé issue of whether negative the answering in the cologne would have that its foreseen should have open flame for one-quarter inch poured within been burning See candle. undertaking to scent purpose of Jones, supra. Segerman v.