*3 safety goggles Before LUMBARD and VAN chemical wear GRAAFEI and face LAND, CARTER, Judges, Circuit and Dis shields and that containers of the chemical Judge.* containing “Danger! trict bear a label the words Eye Causes Severe and Burns.” Skin CARTER, L. Judge: ROBERT District plaintiff On December while Plaintiff-appellee Thelma Billiar em- Scotcheast, mixing a batch of some of ployed by third-party defendant-appellant paper cup spilled contents of the onto (“Mennen”) Mennen-Greatbatch Electronics felt hand. Plaintiff the moisture and as an assembler of electrodes for use in wiped her hand on her smock. A few min- pacemakers. step cardiac One in the as- later, accidentally utes brushed some sembly process required plaintiff prepare perspiration right from the side of her face by mixing liquid an electrical resin two with her hand. Feeling tingling and components by defendant-ap- manufactured face, slightly burning sensation on her pellant Mining Minnesota and Manufactur- plaintiff supervisor up notified a set who ing Company (“3M”) and distributed under washing apparatus plaintiff while contin- (“Scotch- the name Resin No. 5 Scotcheast supervisor’s help, ued to work. With the cast”). plaintiff soap washed her face with and Nevertheless, components Scotcheast were deliv- water for about 15 minutes. appellee’s ered to work station in containers suffered a severe chemical burn in A B. According supervi- marked and to her the area right eye. patch of her After instructions, sor’s testing, Billiar would mix two a dermatologist identified the caus- parts part Scotcheast, A to B tongue agent component one with a wooden ative B. depressor paper cup, required many in a small muffin and The burn the attention of place a drop physicians of the mixture into each elec- years, over several as well as * York, sitting Of the Southern District of New by designation. When per- aware left with grafts. Plaintiff was
skin
dangers,
its
how
nature of
pain
scar,
still feels some
manent facial
ever,
liable for
cannot
held
weather.
windy
cold and
very
v. General
failure to warn him. Rosebrock
this action
commenced
Plaintiff
N.Y. at
140 N.E. at
Electric
the Western District of
district court of
573;
Stores,
Pope, 1
Inc. v.
N.Y.2d
Howard
fail-
negligent
3M for
against
New York
115, 150
134 N.E.2d at
dangers
adequately of the
ure
warn her
Williams,
McDaniel v.
on a
impleaded
3M
Mennen
of Scotchcast.
(1st
Dep’t
702-03
place
provide
safe
theory of failure
“knowledgeable user”
this
The rationale for
work,
failed to
alleging that Mennen had
exception
plain-
clothing, to warn
provide protective
notice;
prior
no one needs
equivalent
tiff,
use
in the safe
instruct her
already
he
Bo
notice of
which
knows.
Scotchcast.
*4
v.
F.2d
Chicago
rowicz
Mastic
367
1966)
(7th
(applying
758
Cir.
New York
mo-
defendants’
The trial court denied
Williams,
law);
v.
23 A.D.2d at
McDaniel
at
close of
tions for a
verdict
the
directed
729, 257
at 702-03.
N.Y.S.2d
case,
notwith-
judgment
plaintiff was
Appellants
awarded
claim that
a
standing
the
the
verdict after
user;
knowledgeable
because she was
$150,-
the sum of
damages
plaintiff in
Scotchcast,
danger
aware of the
3M had
appeal the
Both 3M and Mennen
000.00.
Therefore,
they
duty
to warn her.
ar-
addition,
In
third-
denial of these motions.
question
adequacy
gue, the
the
the
defendant-appellant
appeals
party
Mennen
provided
B
on the Scotchcast
con-
of the lia-
jury’s apportionment
the
68%
tainer should never have been submitted to
bility to it. We affirm.
jury.
the
the trial court erred
deciding
In
whether
jury,
case
the
we must
submitting
in
the
A.
York in
the
law of New
apply
substantive
initially
We note
that it is
at all clear
Although
relevant
diversity ease.
the
this
New York courts would consider
whether
sparse, we
case law is rather
understand
could
Billiar to be
kind of user who
fall
that,
facts, questions
requiring
as
on these
knowledgeable
exception.
within the
to warn and of the
duty
of defendant 3M’s
exception
The
first
in a case
articulated
warnings
be determined
adequacy
electricians,
expert
were
where the users
the trier of fact.
experienced
product
with the
professionally
question.
v. General Electric
Rosebrock
Co.,
237-38,
at
Plaintiff-appellee can
artisan;
was an
In such a
dispute.
or skilled
thus in
professional
in Men-
had worked
worker who
unskilled
ques-
courts have left
New York
only ten
department
electrode
nen’s
to warn to
was a
whether there
tion
exception
knowledgeable user
The
months.
v. General
fact.
Rosebrock
the trier of
See
lay persons, even
applied to
has not been
Co.,
N.E. at
N.Y. at
140
Electric
prod-
with the
familiarity
with some
those
Inc.,
Mix,
574;
Young v. Elmira Transit
See,
Elmira Transit
Young v.
g.,
e.
uct.
see also
at
at
383 N.Y.S.2d
A.D.2d
at
Mix, Inc.,
Co.,
at 867-
v. Reardon
319 S.W.2d
Haberly
expe-
with some
builder
(do-it-yourself
law).
York
(applying New
cement); Haberly v. Reardon
rience with
(do-it-yourself
867-68
319 S.W.2d
Haberly
v. Reardon
S.W.2d
could
paint
painter with
law),
York
(Mo.1958) (applying New
injure eyes).
boy, was blinded
12-year
old
plaintiff,
cement-based
quantity of
when a small
B.
eye while he
accidentally got in his
paint
could fall within
Assuming
appellee
father, who
helping his father.
however,
exception,
knowledgeable user
had read the
painter,
professional
was not a
court
whether the district
we must decide
paint
stating that
the box
warning on
knowledgeable as
have held her
cement,
prod-
Portland
law,
or whether
matter of
irritating to tender
alkalinity could
uct’s
*5
properly submitted
knowledge was
her
skin,
contact
prolonged
and that
or sensitive
question
as a
of fact.
the
avoided.
In addi-
the skin should be
plaintiff
that
support
To
their contention
he knew that
testified that
tion the father
as
knowing
a
user
have been deemed
should
eye.
hurt
the
any kind would
paint of
law,
plain-
appellants rely on
a matter of
Nevertheless,
York
held that New
the court
warn-
testimony
she had read the
tiffs
that
the
jury to find that
permit
would
the
law
container and
ing label on the Scotchcast
warn of
duty
its
to
had breached
defendant
her not to
supervisor
her
had warned
that
danger.
Id. at 867-68.
the
skin,
well as on
as
get
the
on
the
experienced
plaintiff
that
had
evidence
Tran-
Young
v. Elmira
recently,
More
prior occasions
of the resin on
toxic effects
Mix, Inc.,
sit
for it.
medical attention
and had received
1976), do-it-yourself home
(4th Dep’t
long
argue that as
Appellants apparently
Portland ce-
supplier
the
of
builder sued
dangerous,
knew the
was
as Billiar
from
to recover for burns suffered
ment
sufficiently knowledgeable to fall
supplier had
with the cement. The
contact
that she was
exception;
the
the fact
within
all, although
he
provided
warning
no
severity
danger
of the
is
ignorant of the
severe
wet cement could cause
knew that
cases, appel-
we read the
immaterial. As
testified at
trial
caustic burns. Plaintiff
are mistaken.
lants
for over 30
he
worked with cement
that
had
the
argues
Plaintiff
that
Scotchcast
never been
years
jobs,
on odd
but had
the
severity
the
of
did not inform her of
before;
that cement
that he knew
burned
skin contact
injury she could receive from
lime,
that con-
but did not know
that
The evidence showed
with Scotchcast.
skin;
he
that
tact with it could burn his
before,
similarly injured
never been
she had
to wet ce-
open
exposed
an
cut
knew that
limited to
prior reaction was
and that her
longer to
get sore and take
ment would
fingers, which her doc-
tiny blisters on her
the
trial court
instructed
heal. The
glycerine salve.
only
treated
with a
tor had
knowledge of
of
that evidence
the
that she knew
Thus while she testified
weight
given
whatever
cement was to
skin,
to
she also stated
product was harmful
charged
appropriate
they considered
extremely harm-
not know how
that she did
as follows:
them
be.
ful
could
supplier’s
expecta-
on
product which
but
the
reasonable
manufacturer of a
[T]he
tions,
may
the
have
Appellate
if
Division
con-
dangerous
certain to be
reasonably
supplier
that a
should not be freed of
cluded
reason-
way
in a
in which he should
used
because,
negligent
liability merely
despite
used is under a
ably foresee it would be
warn,
happened to
plaintiff
failure to
the
care,
give
to
reasonable
to
duty
exercise
Alternatively,
actual
the
knowledge.
have
any
adequate warning of
reasonable and
thought
have
Appellate
may
Division
which,
to
in the
dangers known
him or
Young
partial knowledge in
could
the user’s
care,
exercise of reasonable
he
of
not be held sufficient as a matter
law to
the
the user of
have known and which
warn,
exempt
supplier
duty
the
from
product ordinarily
not discover.
would
but
one fact to be considered
the
degree
of
Reasonable care means
jury.
approving
the submission
prudent concrete
reasonably
care which a
jury,
question
duty
of
warn to the
would exercise under
manufacturer
court,
minimum,
it was
held that
same circumstances.
trier
a duty
of fact
decide whether
731.
in-
Id. at
383 N.Y.S.2d at
This
Id. at
existed in the circumstances.
language
tracks the
of
closely
struction
Sec-
Young
strong authority
seems to us to be
Torts,
tion 388 of the Restatement
2d
duty
submission of
edition,1
Judge
and served as the model for
warn
when
charge
Curtin’s
in the
case.
instant
nonprofessional
knowledge
with some
appeal,
Young
ar-
On
the defendant
product.
propensities
the harmful
alia,
gued,
inter
had no
he
appellants
agree
We do not
plaintiff
warn
because
Young
inapplicable
because
de
cement
well
dangerous properties of
are
supplied
warning
fendant
in that case
had testified to
known
because
Where,
here,
whatsoever.
effects
his own
the harmful
provided
warning, plaintiff’s
has
some
Appellate
of wet cement
the skin. The
on
warning
disposi
knowledge of that
could be
Division,
noting
is an
while
that “[c]ement
clearly
if the
ade
tive
“dangers
irri-
product”
ancient
and that
Rosebrock
General Electric
quate. Cf.
*6
and
been
tations
burns from
have
[lime]
235,
Unless we could hold as a matter the evidence showed 3M had of law that plaintiff’s knowledge, aside reason to foresee that chemical burns such knowledge from or in combination de as Billiar’s could result from skin contact label, reading Indeed, rived from was sufficient Scotchcast. apprise danger, ques provided of the by 3M evinces its awareness that adequacy
tion of the the warning contact with skin could be harmful. The correctly jury. to the We submitted cannot fact experienced that Mennen had never Here, plaintiff hold. so had read the warn injury among similar its workers is irrele- knew, addition, ing and that contact with duty vant to 3M’s to warn. Scotchcast could cause blisters on her fin II
gers.
necessarily
This is not
equivalent
The appellants argue, Mennen
knowledge
that contact with the
explicitly and 3M implicitly, that
the trial
could cause severe chemical burns.
court should have found the warning ade
We conclude that New York law
quate as a matter of law because the label
would
jury
allow the
to decide whether
mentioned Scotchcast’s toxic and caustic
plaintiff was sufficiently aware of the dan
components. To our knowledge, no case
ger
exempt
duty
from its
applying New York law has held a warning
warn. The district court
instructed the
adequate as a
Moreover,
matter of law.2
they
were to consider the extent
we could overturn the
verdict
if we
concluded that
no rational
could have
determining whether defendant had ful
decided on the evidence
clearer,
that a
duty
filled its
adequately.
to warn
We find
stronger, or more explicit warning was
charge
correct on the facts of this case.
called for under the circumstances.
See
Simblest v. Maynard,
427
(2d
F.2d
Cir.
C.
1970); Stief v. J.A. Sexauer Manufacturing
Mennen,
Guerlain,
citing Hafner v.
380 F.2d
(2d Cir.),
cert.
Inc.,
(1st
A.D.2d
denied,
389 U.S.
88 S.Ct.
1970),
Dep’t
argues that New York law
(1967).
L.Ed.2d 216
light
of the recom
places
on a manufacturer
to foresee
mendations of the Manufacturing Chemists
against
and warn
possibility
the remote
Association
testimony
that the potency
that a small number of
will experi
users
diethylenetriamine
was not diminished
ence a severe reaction. The Hafner case
when mixed with
components
the other
finding
turned on a
that the manufacturer
Scotchcast, there
clearly
evidence from
reasonably
could not have
foreseen the like
which a
could conclude that 3M failed
widely-sold perfume
lihood that
would
to warn adequately of the dangers of the
plaintiff’s highly
cause
allergic
abnormal
*7
product.
injury
reaction.
If the
reasonably
fore
seeable, however,
rare,
even if
the seller
Mennen also contends that
in the
cannot rely
history
good
on its
expert
fortune to
absence of
evidence on what a more
exempt itself
liability.
from
Butler v.
adequate
See
have provided,
the
Sons, Inc.,
L. Sonneborn
jury
but use own Young v. Elmira See all the circumstances. Ill Mix, Inc., 52 A.D.2d at Transit the allo The final issue is whether Building Rainbow v. Elia to of the fault 68% cation evi weight of the against Mennen was (4th Dep’t dence. Next, argues if the that even Mennen court that agree We with the district inadequacy this warning inadequate, was ample in the to was evidence record there proximate not shown to be cause was only The support jury’s determination. injury. plaintiff plaintiff’s Since testi- supplied to clothing Mennen protective her face with her fied that she brushed gloves rubber plaintiff were smocks and “inadvertently,” Mennen claims that hand Moreover, fingers. Mennen with cut-off way even would have behaved the same she encourage or even require, did not instruct adequate warning pro- if had been a more protective clothing, plaintiff to wear such vided. There merely but made available. argument rests not on ingenious This a could find some evidence from which fact, premise proven the dubious but on attempt impress not that Mennen did equally careless person that a will be posed by plaintiff extreme hazard upon great slight. whether the harm risked is Scotchcast. hold of law that We cannot as matter Further, plaintiff’s supervisor testified severe chemical burns clear require plaintiff to read that she did not reasonably might result would cause cans; printed on the Scotchcast warnings she prudent person be more careful than safety gave she no instructions slight risk were would be if the known telling her to wash her aside from plaintiff Co.,319 blistering. Haberly v. Reardon See face; she hands and not to touch at 867. S.W.2d plaintiff soap to use did not instruct rule, cited The York New water, although provided; were these itself, is Mennen clear: warnings after gave safety cannot negligence of the defendant also at which time day, first excluded as of the actual causes be one complex perform on instructed how accident, it can be said unless making electrodes. procedural steps that, certainty if the defendant had even addition, undisputed evidence there the accident would negligent, not been implements what that Mennen decided It is not happened. nevertheless have depressors tongue The choice provide. enough speculate “that the same harm cups mixing these caus- paper and small have sustained had might possibly been of Men- chemicals was further evidence tic negligent.” actor not Restate- been cavalier attitude toward nen’s Torts, 432, “c”. The ment of comment § safety. regarded as one of negligent act must *8 it injury if was the actual causes jury’s When a determination bringing injury substantial factor within interpretation of facts on an based about. sphere, permit does not New York law their the verdict 2, reviewing court set aside State, 179, 131 Rugg v. A.D. N.Y.S.2d 284 in fa preponderates so added). unless evidence (emphasis The (3d Dep’t 1954) 6 the verdict against whom party vor of the judge correctly instructed district it clear that the finding was rendered requires proximate causation on a fair inter- its conclusion did reach negligence was a material that defendant’s 248 evidence,
pretation of the
Calabrese v.
person
On
reasonable
can be in doubt as to
1008, 1009-10,
County,
tario
A.D.2d
When,
58
397
being
against.
what she is
warned
493,
(4th
1977);
Dep’t
N.Y.S.2d
495
Mar
as in the instant
has been
Mastodon, Inc.,
21, 23,
shall v.
51 A.D.2d
379
months,
using
for 10
has been
177,
(3d
1976),
Dep’t
180
or if a
orally
warned
that it could be harmful to
contrary
conclusion is
reasonable
skin,
and on several occasions has
proven
inference that can be made from the
burned her
seriously enough
hands
to re
Benson,
Zipay
facts.
v.
47 A.D.2d
treatment,
quire medical
I can see no basis
920,
(3d
1975).
Dep’t
365 N.Y.S.2d
922
finding
whatever for a
is the
inno
virtually
federal standard in this circuit is
inadequate warning.
cent victim of
I
identical. See Mattivi v. South African Ma
Verdiglione
Ridge
would reverse. See
v.
163,
Corp., “Huguenot,”
rine
618 F.2d
167- Lumber, Inc.,
817,
(2d
1980);
68
Cir.
Maynard,
Simblest v.
aff’d,
(1965),
17 N.Y.2d
270 N.Y.
F.2d at 4.
(1966);
S.2d
use of Scotchcast. GRAAFEILAND,
VAN Judge Circuit
(dissenting): English
If there was ever an word whose
meaning crystal clear, that word is “caus-
tic”. The Century Dictionary of 1895 said
that it meant “capable burning, corrod-
ing, or destroying the tissue of animal sub- al., Appellees, Isaac LORA et stances.” The Century New Dictionary (1931) defines “capable it as burning, corroding, destroying or animal tissue.” In BOARD OF EDUCATION OF CITY Webster’s Third New International Diction- al., Appellants. NEW OF YORK et ary (1971) “caustic” “capable is defined as No. Docket 79-7521. destroying anything texture of eating away its substance chemical ac- United Appeals, States Court of tion” “capable destroying animal or Second Circuit. organic other tissue.” Webster’s New Ele- mentary Dictionary, intended Argued for use March 1980. school elementary grades, children in the Decided June says that “capable “caustic” means of de- stroying or eating away by chemical ac-
tion.” It is “caustic” action of chemical destroys
drain cleaners that organic clogged
matter in drains and that can
equally injurious to human tissue.
When the label product urges on a “CAU-
TION”, stating contains components
caustic and that contact with avoided,
the skin should be preferably by protective
use of clothing, suggest I that no