MICHAEL GRIECO v. DAIHO SANGYO, INC., AW DISTRIBUTING, INC. and WALMART STORES EAST, LP ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL GRIECO,
Appellant,
v.
DAIHO SANGYO, INC., AW DISTRIBUTING, INC., and
WAL-MART STORES EAST, LP,
Appellees.
Nos. 4D20-2294 and 4D20-2557
[June 15, 2022]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No.
502012CA021342XXXMB (AO).
Sean C. Domnick, Matthew T. Christ, and Lindsey E. Gale of Domnick,
Cunningham & Whalen, Palm Beach Gardens, and Andrew A. Harris and
Grace Mackey Streicher of Harris Appeals, P.A., Palm Beach Gardens, for
appellant.
Agnieszka N. Chiapperini of Gaebe, Mullen, Antonelli & DiMatteo, West
Palm Beach, for appellee Daiho Sangyo, Inc.
Lissette Gonzalez of Cole, Scott & Kissane, Miami, for appellee AW
Distributing, Inc.
Sharon C. Degnan of Kubicki Draper, Orlando, for appellee Wal-Mart.
KLINGENSMITH, C.J.
Appellant Michael Grieco appeals the trial court’s entry of final
summary judgment in favor of appellees Daiho Sangyo, Inc. (“Daiho”), AW
Distributing, Inc. (“AW”), and Wal-Mart Stores East, LP (“Wal-Mart”).
Appellant alleges the trial court erred in granting summary judgment in
favor of the appellees in his personal injury lawsuit for damages allegedly
caused by a driver’s (“Merrill”) misuse of a product. For the reasons set
forth below, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
The product in question, known as Ultra Duster, is a compressed gas
dusting spray that is not particularly distinct from other compressed gas
dusters referred to as “keyboard cleaners,” “compressed air,” or “dust
removers.” Ultra Duster is manufactured by Daiho, distributed by AW,
and retailed in several stores, including Wal-Mart. The product is designed
to remove dust, dirt, and debris from computer keyboards and other
electronic devices using pressurized air released from a hand-held
canister. This product and other dust removers typically contain a
pressurized volatile—fluorinated hydrocarbon gas called 1.1-
difluoroethane (“DFE”)—which is used in many aerosol propellant
consumer products, including solvent-based products (e.g., alcohol,
gasoline, paint thinners, hair spray, nail polish removers, and glue), and
aerosol products that provide a propellant with or without a solvent (e.g.,
hair sprays, anti-perspirants, dust removers, spray paints, and spray
varnishes).
DFE is a central nervous system depressant that can produce a short
“high” akin to being impaired when inhaled. Inhaling DFE can also cause
feelings of euphoria, dizziness, drowsiness, delusions, and hallucinations.
DFE has long been associated with substance abuse in part because
products containing DFE are inexpensive and widely available at retail
locations. Getting high from inhaling DFE is informally referred to as
“dusting” or “huffing.” To discourage inhalant abuse, most
manufacturers, including Daiho, use an additive called a “bitterant”
designed to make the product unpleasant for human consumption. Ultra
Duster’s label specifically warns against misuse of the product by stating
that “inhaling contents may be harmful or fatal” and notifying the
consumer that the product “contains a bitterant to help discourage
inhalant abuse.”
To a large extent, such additives are successful. For a drug addict, the
need to self-medicate and become both physically and emotionally numb
is a relentless, persistent hunger that fuels each breath. For many of these
addicts, relief is just a pill, a bottle, or a needle away. Others, however,
get their “fixes” in more unconventional ways by employing commonly
used and easily sourced household products like Ultra Duster. And,
unfortunately, for some individuals, no warning and no chemical deterrent
will dissuade them from a relentless quest to feed their addiction, no
matter the risks. So it was with Amy Merrill.
According to the evidence presented to the trial court, Merrill was so
addicted to getting high from DFE that the bitterant—which she called
2
“that nasty taste”—did not deter her from inhaling Ultra Duster and many
other similar products. Merrill said that while the aerosols which she used
all contained bitterants, she found that the “nasty taste” would get “milder
and milder every time [she] did it. And eventually [she] wouldn’t even taste
it anymore.” Once she became addicted to DFE, Merrill said she was “so
far past the bitterant that [she] was used to [it] and [she] just didn’t care.”
As a long-time daily aerosol user, Merrill was familiar with and had read
Ultra Duster’s warning label as well as labels on similar products, yet she
nonetheless continued to misuse it. Though she understood from reading
the warning label that inhaling the product was dangerous, Merrill said
she felt she was “invincible” and that “nothing’s going to happen to me,
because I can do it.”
Merrill often purchased Ultra Duster and similar products from various
retailers, including Wal-Mart, intending to inhale the product to “get high.”
She had knowledge of both the immediacy and intensity of DFE’s effects,
knew those effects typically lasted between thirty and forty-five seconds,
and knew that she was sometimes affected in different ways, later
explaining that while she would usually just get a high from “dusting,” it
would sometimes cause her to pass out. Merrill also admitted that while
she usually dusted at home and sometimes waited until the effects of DFE
wore off before driving, she would also occasionally get or stay behind the
wheel while under its influence.
The events leading to the accident in February 2012 are undisputed.
Merrill drove to Wal-Mart and purchased one can of Ultra Duster along
with a sports drink to divert any suspicion about her intended use of the
canned aerosol. No Wal-Mart employee was aware that Merrill was
addicted to huffing canned air. She never ingested aerosols on Wal-Mart
property or in the presence of any employee, and no one at Wal-Mart was
aware when she purchased the product that she planned to misuse it.
During her drive after leaving Wal-Mart, Merrill inhaled Ultra Duster
while stopped at a red light. This time the inhalation caused her to lose
consciousness. When the light turned green Merrill did not move her car,
but she awakened when another driver honked his horn. Because of her
altered mental state, she lost control of the car after hitting the gas, drove
off the road, and smashed into two vehicles parked in appellant’s driveway.
Appellant, who was standing in the driveway at the time, was pinned under
one of the vehicles and suffered severe injuries from the crash. 1
1Merrill was subsequently convicted of driving under the influence causing or
contributing to serious bodily injury, a third-degree felony under section
316.193(3)(a), (b) and (c)(2), Florida Statutes, and sentenced to six months in jail.
3
Soon after, appellant filed a civil suit against appellees as the
companies involved in the manufacture, distribution, and retail sale of
Ultra Duster for the following claims: Count I – Strict Liability for Defective
Design; Count II – Strict Liability for Failure to Warn; and Count III –
Negligence. 2 As the factual basis for his suit, appellant asserted appellees
knew: (1) consumers used products like Ultra Duster to get high; (2) the
added bitterant was not evenly distributed throughout the product to deter
misuse; and (3) the canister’s warning label was not adequate to prevent
Merrill and others from misusing the product.
Appellees filed motions for summary judgment in 2015 and 2017, but
the trial court denied both motions. In the first denial, the judge simply
referred to the existence of unspecified material issues of fact. In response
to the second motion, appellant presented information that the inhalation
of compressed air products, like Ultra Duster, was “an emerging public
health threat” and submitted multiple news articles to the court involving
car accidents resulting from DFE inhalation. Appellant also submitted
evidence that Wal-Mart—as well as AW and Daiho—had been notified that
the bitterant added to Ultra Duster did not properly disperse throughout
the can. The judge presiding over that hearing denied the second motion,
stating it was “undeniable . . . that misuse of the instant product by some
individuals for huffing or improper inhaling is foreseeable . . . . Whether
it was foreseeable that Ms. Merrill would misuse the product she
purchased and cause the damage she caused in this instance is a jury
question.”
After the First District Court of Appeal issued its opinion in DZE Corp.
v. Vickers, 299 So. 3d 538 (Fla. 1st DCA 2020), reh’g denied (July 27,
2020), rev. denied, SC20-1280, 2021 WL 1426782 (Fla. Apr. 15, 2021),
appellees moved a third time for summary judgment. Those motions were
considered by a different judge. This court said it was not only persuaded
by, but also bound by, DZE’s rationale, and therefore granted all appellees’
motions for summary judgment, finding that Merrill’s voluntary conduct
of driving while impaired broke the causation chain so that appellees had
no liability to appellant as a third party.
Appellant now appeals these final judgments, which have been
consolidated before us.
2 The complaint also included a negligence claim against Merrill and a loss of
consortium claim by appellant’s wife.
4
STANDARD OF REVIEW
“The standard of review of the entry of summary judgment is de novo.”
Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA
2006). “Summary judgment is proper if there are no genuine issues of
material fact and if the moving party is entitled to a judgment as a matter
of law.” Volusia County v. Aberdeen at Ormond Beach. L.P., 760 So. 2d
126, 130 (Fla. 2000). “[S]ummary judgment is appropriate where, as a
matter of law, it is apparent from the pleadings, depositions, affidavits, or
other evidence that there is no genuine issue of material fact . . . .” The
Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006).
STRICT LIABILITY GENERALLY
“Florida tort law provides that the manufacturer of a defective product
may be subject to liability under two theories: negligence and strict
liability. . . . In order to prevail under either theory, the plaintiff must
establish that the product was defective or unreasonably dangerous.”
Small v. Amgen, Inc., 134 F. Supp. 3d 1358, 1366 (M.D. Fla. 2015). “[P]roof
of a defect determines a breach of duty under a negligence theory and the
presence of an unreasonably dangerous condition under a strict liability
theory.” O’Bryan v. Ford Motor Co., 18 F. Supp. 3d 1361, 1366 (S.D. Fla.
2014).
“[S]trict liability theories are generally distinct from negligence.”
Ferayorni v. Hyundai Motor Co., 711 So. 2d 1167, 1170 (Fla. 4th DCA
1998). “Strict liability means negligence as a matter of law or negligence
per se, the effect of which is to remove the burden from the user of proving
specific acts of negligence.” West v. Caterpillar Tractor Co., Inc., 336 So.
2d 80, 90 (Fla. 1976). “Strict liability is not concerned with the
reasonableness of a manufacturer’s conduct . . . [instead] the focus is on
the product itself and the reasonable expectations of the consumer.”
Faddish v. Buffalo Pumps, 881 F. Supp. 2d 1361, 1370 (S.D. Fla. 2012).
In contrast, “under the negligence theory, the focus is on the whether a
duty of care was owed to the injured parties, and whether the defendants
breached that duty of care.” Wolicki-Gables v. Arrow Intern., Inc., 641 F.
Supp. 2d 1270, 1287 (M.D. Fla. 2009), aff’d, 634 F.3d 1296 (11th Cir.
2011).
“[T]he term ‘strict liability’ is something of a misnomer. A manufacturer
is not strictly liable for all injuries caused by its product, however it is
used. On the contrary, a manufacturer is liable only when the product is
used as intended.” Jennings v. BIC Corp., 181 F.3d 1250, 1256 (11th Cir.
1999) (citing High v. Westinghouse Elec. Corp., 610 So. 2d 1259, 1262 (Fla.
5
1992)) (finding strict liability “applies to intended uses of products for
which they were produced”). 3 Therefore, “[i]n order for strict liability to
apply to the manufacturer, the [product] . . . must have been used for the
purpose intended” without regard for reasonable foreseeability of
unintended use. High, 610 So. 2d at 1262. Applied to this case, strict
liability attaches only when Ultra Duster is used as it was intended to be
used, that is, for the purpose of cleaning dust and removing debris. See
Jennings, 181 F.3d at 1256.
Because virtually any product can be misused, a manufacturer cannot
be held responsible and liable for every possible, creative misuse that
consumers can conceive. “Products liability does not make the
manufacturer an insurer of all foreseeable accidents which involve its
product. Virtually any product is capable of producing injury when put to
certain uses or misuses. . . . An action is not maintainable in products
liability merely because the design used was not the safest possible.”
Hernandez v. Altec Env’t. Prods., LLC, 903 F. Supp. 2d 1350, 1360 (S.D.
Fla. 2012) (quoting Husky Indus., Inc. v. Black, 434 So. 2d 988, 991 (Fla.
4th DCA 1983)).
COUNT I – STRICT LIABILITY FOR DESIGN DEFECT
For his strict liability claim, appellant must show that the defective
design—here, the assertion that the bitterant was not efficiently or
uniformly dispersed in Ultra Duster’s product—made the product
unreasonably dangerous. “Strict liability turns on the question of a
defective design which renders a product unreasonably dangerous.”
Brown v. Glade & Grove Supply, Inc., 647 So. 2d 1033, 1035 (Fla. 4th DCA
1994). The alleged design defect must also cause unforeseeable dangers
during normal—that is, intended—use of the product. See Cook v.
MillerCoors, LLC, 829 F. Supp. 2d 1208, 1216 (M.D. Fla. 2011) (“A design
defect is one that causes unforeseen hazards during normal use of the
product.”).
Appellant asserts the trial court made inappropriate factual
determinations in its summary judgment ruling by drawing the conclusion
that appellees did not need to make Ultra Duster a safer product.
Appellant also argues Ultra Duster, with its combination of DFE and
3 The Eleventh Circuit has followed the conclusions drawn by the Florida
Supreme Court in High v. Westinghouse Electric Corp., noting that the Court “did
not adopt the dissenting view that ‘intended use’ includes unintended uses of a
product if they were reasonably foreseeable by the defendant.” Jennings, 181
F.3d at 1256 (quoting High, 610 So. 2d at 1263).
6
bitterant, failed to effectively disperse that bitterant in a way which an
ordinary consumer would expect. In response, appellees argue the trial
court correctly rejected the design defect theory on the grounds that a
product is not necessarily defective simply because it can become
dangerous if used irresponsibly or illegally.
While the elements of strict liability and negligence are similar, strict
liability focuses on the reasonable expectations of the consumer. See
Ferayorni, 711 So. 2d at 1170; Faddish, 881 F. Supp. 2d at 1370. “[U]nder
the consumer-expectation theory[,] a product is defectively designed if the
plaintiff is able to demonstrate that the product did not perform as safely
as an ordinary consumer would expect when used in the intended or
reasonably foreseeable manner.” Aubin v. Union Carbide Corp., 177 So. 3d
489, 504 (Fla. 2015) (quoting McConnell v. Union Carbide Corp., 937 So.
2d 148, 151 (Fla. 4th DCA 2006)). However, in this case Merrill—not
appellant—was the consumer, and appellant was not injured as a
bystander while the product was being used as intended. Furthermore,
given Merrill’s intention to inhale the product for its unintended side-
effects, and the product’s explicit warnings against doing so, no inference
can be made that she had any ordinary expectation whatsoever of the
product performing safely in its customary use. Nonetheless, “[a]
manufacturer is not under a duty in strict liability to design a product
which is totally incapable of injuring those who foreseeably come in
contact with the product.” Husky, 434 So. 2d at 991 (quoting Hunt v.
Blasius, 384 N.E.2d 368, 372 (Ill. 1978)).
Here, appellant alleges that Ultra Duster was not properly designed
because the bitterant either did not properly mix with the DFE for
adequate disbursal or did not effectively deter Merrill’s intentional misuse.
Neither theory meets the standard for a claim premised in strict liability.
See Brown, 647 So. 2d at 1035. Appellant does not suggest a different
bittering agent should have been used or that a change to the amount
added would have prevented Merrill’s improper use. Appellant only claims
that the bitterant did not discourage Merrill from continued use, whether
from inadequate dispersal or some other reason. Appellant argues that
because Merrill continued to misuse the product, despite the foul-tasting
additive, a manufacturing defect must have existed, even though the
canister which Merrill used was never tested.
But the fact that Merrill continued misusing the product, whether
because the bitterant had the potential for uneven disbursement or
because of her addiction, does not plausibly suggest that the Ultra Duster
canister which she purchased was not manufactured properly. As the
warning label clearly states, Ultra Duster employs a bittering agent to
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discourage ingesting the product, not to guarantee deterrence or prevent
misuse from occurring. Although the alleged failure of the bitterant to
disperse throughout the entire canister of Ultra Duster could potentially
lead to more inhalation misuse of the product, inhalation is not the
product’s intended use. High, 610 So. 2d at 1262. The danger of
improperly consuming the product, either with the bitterant or (as in this
case) despite its presence, was made clear by the warning on the label and
was expressly known to Merrill. See Husky, 434 So. 2d at 991.
Also significant is Merrill’s admission to using many different products
similar to Ultra Duster and purchasing them from various locations. While
all of the products contained bittering agents to discourage consumption,
Merrill testified that she eventually became so accustomed to the “nasty
taste” found in all of the products to the point where she felt the taste was
no longer noticeable. While any possible disproportionate disbursal of
bitterant might have made Ultra Duster easier for all but the most
undeterrable addicts to misuse, that possibility does not create an issue
of fact regarding whether the product as manufactured was unsafe for its
ordinary and intended use. See Aubin, 177 So. 3d at 504; Husky, 434 So.
2d at 991. Although a product must perform as safely as expected by the
general consumer populace, this did not obligate appellees to make the
product the safest possible or to make it physically impossible to ingest.
See id.; Grunow v. Valor Corp. of Fla., 904 So. 2d 551, 556 (Fla. 4th DCA
2005) (finding any product can be misused and cause injury and to create
liability in that scenario inappropriately makes a manufacturer or
distributor an insurer of the product); Hernandez, 903 F. Supp. 2d at 1360
(quoting Husky, 434 So. 2d at 991)).
Therefore, consistent with cases from the Florida Supreme Court and
other District Courts of Appeal, we too hold that appellees are not strictly
liable when a third party’s injury results from a consumer’s unintended
and illegal use of a product. See High, 610 So. 2d at 1262. As such,
summary judgment in favor of appellees on this claim was properly
granted. See Volusia County, 760 So. 2d at 130. Therefore, we affirm on
this issue.
COUNT II – STRICT LIABILITY FOR FAILURE TO WARN
For claims premised on a failure to warn, Florida courts have
recognized that “[a] warning should contain some wording directed to the
significant dangers arising from failure to use the product in the
prescribed manner, such as the risk of serious injury or death.” Scheman-
Gonzalez v. Saber Mfg. Co., 816 So. 2d 1133, 1139 (Fla. 4th DCA 2002)
(quoting Brito v. County of Palm Beach, 753 So. 2d 109, 112 (Fla. 4th DCA
8
1998)). As we said in Scheman-Gonzalez, the Restatement (Third) of Torts:
Products Liability (1998), is instructive on this point. Under the
Restatement as incorporated into Florida law, a product is considered
defective “when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable instructions
or warnings” and their omission “renders the product not reasonably safe.”
Id. at § 2(c); see also Warren ex rel. Brassell v. K-Mart Corp., 765 So. 2d
235, 237–38 (Fla. 1st DCA 2000).
“Unless the danger is obvious or known, a manufacturer has a duty to
warn where its product is inherently dangerous or has dangerous
propensities.” Scheman-Gonzalez, 816 So. 2d at 1139. “However, there is
no duty to warn of an obvious danger.” Cohen v. Gen. Motors Corp.,
Cadillac Div., 427 So. 2d 389, 391 (Fla. 4th DCA 1983); Insua v. JD/BBJ,
LLC, 913 So. 2d 1262, 1264 (Fla. 4th DCA 2005) (finding an inherent need
for a warning on a dangerous product where an issue exists regarding
whether the injured consumer “was aware of the danger involved and the
danger was not obvious”). The presumption that an adequate warning
would be heeded does not apply in a case where the product’s user is
already fully aware of the danger. Id.Additionally, “a manufacturer has a duty to warn of dangerous contents
in its product which could damage or injure even when the product is not
used for its intended purpose.” High, 610 So. 2d at 1262. “To warn
adequately, the product label must make apparent the potential harmful
consequences. The warning should be of such intensity as to cause a
reasonable man to exercise for his own safety caution commensurate with
the potential danger.” Am. Cyanamid Co. v. Roy, 466 So. 2d 1079, 1082
(Fla. 4th DCA 1984); see also Scheman-Gonzalez, 816 So. 2d at 1139–40.
“A warning should contain some wording directed to the significant
dangers arising from failure to use the product in the prescribed manner,
such as the risk of serious injury or death.” Brito, 753 So. 2d at 112. The
sufficiency and reasonableness of a manufacturer’s warning, considering
whether an injured person knew of the danger, are generally questions of
fact left to the jury; however, that is not the case where the “warnings are
‘accurate, clear, and unambiguous.’” Id. (emphasis added) (quoting Felix v.
Hoffmann-LaRoche, Inc., 540 So. 2d 102, 104 (Fla. 1989)); see also Salozzo
v. Wagner Spray Tech. Corp., 578 So. 2d 393, 394 (Fla. 3d DCA 1991);
Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695, 701 (1st Cir. 1988);
see generally Vega v. City of Pompano Beach, 551 So. 2d 594 (Fla. 4th DCA
1989).
Such warning labels are necessary to advise only those consumers who
might be unaware of the danger involved. See Cohen, 427 So. 2d at 391
9
(“[T]here is no duty to warn the [consumer] of a danger that he is aware
of,” nor is there a duty to warn of an obvious danger). The first part of the
warning label on the Ultra Duster canister purchased by Merrill reads in
pertinent part as follows:
MISUSE BY DELIBERATELY CONCENTRATING AND
INHALING CONTENTS MAY BE HARMFUL OR FATAL.
PLEASE USE THIS PRODUCT RESPONSIBLY.
Contains a bitterant to help discourage inhalant abuse.
Caution
KEEP OUT OF REACH OF CHILDREN. MISUSE BY
DELIBERATELY CONCENTRATING AND INHALING
CONTENTS MAY BE HARMFUL OR FATAL. Use in well
ventilated area. . . .
This label expressly warned unaware consumers of the dangers associated
with the intentional misuse of the product, specifically inhalation, due to
the risk of harm and fatality, and it provided explicit notice of the
significant dangers to consumers’ health. See Brito, 753 So. 2d at 112.
The consumer in this case—Merrill—was a regular purchaser and
improper user of Ultra Duster, who admitted she not only knew of the
warning label and the risks involved in inhaling DFE but also admitted
she was so addicted that the warnings had no effect and she did not care
about any possible harm.
Perhaps in the past Merrill may have been unaware that inhaling Ultra
Duster could cause adverse health effects such as altered or loss of
consciousness, euphoria, or dizziness. But she admittedly knew about the
warning before this incident and disregarded the warning with full
knowledge of the possible consequences. That being the case, appellees
had no duty to further warn Merrill or to specifically warn that altering her
mental state while driving might lead to an accident and thereby cause
injury to third parties. See Insua, 913 So. 2d at 1264. Such consequences
of intentionally driving under the influence of a mind-altering chemical—
whether it be alcohol, DFE, or something else—are well known and
obvious. In fact, Merrill certainly knew about such consequences and
admitted to knowingly driving while under the influence of DFE in the past.
By her own admission, Merrill’s addiction led her to simply ignore Ultra
Duster’s warning about the deleterious effects of inhaling, including the
warning about its potential for causing death. This belies appellant’s
10
argument that a different warning (for instance, that if she became
unconscious while driving that she might injure someone else) would have
caused Merrill to heed such caution and be more concerned about others
than about herself. While Ultra Duster’s warning label did not prevent
Merrill from misusing the product, it was nonetheless sufficient to warn a
reasonable person not to consume it. See Scheman-Gonzalez, 816 So. 2d
at 1139; Brown, 647 So. 2d at 1035. Therefore, the sufficiency of this
product’s warning is not an issue of material fact in this case. See Moore
v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (finding summary judgment
should be granted where “the facts are so crystallized that nothing remains
but questions of law”). Therefore, we affirm the court’s summary judgment
on this issue as well.
COUNT III – NEGLIGENCE
Appellant argues the trial court erred in granting summary judgment
on his negligence claim based on the First District’s DZE decision and in
finding that Merrill’s conduct was the sole superseding proximate cause of
the accident and his resulting injuries. In response, appellees assert the
trial court correctly relied on DZE to grant the motion for summary
judgment on the negligence claims because Merrill was the sole proximate
cause of the accident.
To prevail on a products liability claim based on negligence, a plaintiff
must establish: (1) a duty or obligation recognized by the law requiring the
defendant to protect others from unreasonable risks; (2) a breach of that
duty; (3) a reasonably close casual connection between the conduct and
the resulting injury; and (4) actual loss or damages. Williams v. Davis, 974
So. 2d 1052, 1056 (Fla. 2007).
“Of the four elements of a negligence claim, breach, causation, and
damages are generally questions to be decided by the trier of fact.
However, the determination of whether a duty is owed presents a question
of law to be determined by the court.” Jackson Hewitt, Inc. v. Kaman, 100
So. 3d 19, 28 (Fla. 2d DCA 2011). “The duty element of negligence is a
threshold legal question; if no legal duty exists, then no action for
negligence may lie.” Jenkins v. W.L. Roberts, Inc., 851 So. 2d 781, 783–84
(Fla. 1st DCA 2003) (affirming summary judgment granted in favor of a
store because “there is no legal duty requiring a store to ensure that a
product lawfully sold will ultimately be used by a customer or unknown
third party for a lawful purpose”).
Only when foreseeability is a “close case” does a question of fact arise.
When the issue of foreseeability is clear, the courts should decide the issue
11
as a matter of law. Demelus v. King Motor Co. of Fort Lauderdale, 24 So.
3d 759, 761 (Fla. 4th DCA 2009) (“Foreseeability as it relates to duty in
negligence cases is a question of law.”). Two components of negligence
employ a foreseeability analysis: duty and proximate cause. The
foreseeability component of duty requires a general analysis of the broad
type of plaintiff and harm involved, without regard to the facts of the actual
occurrence. The foreseeability component of proximate cause requires an
evaluation of the facts of the actual occurrence. This is why proximate
cause is normally a factual question for the jury while duty is usually a
legal question for the court.
To determine whether the risk of injury to a plaintiff is foreseeable
under the concept of duty, courts must look at whether it was objectively
reasonable to expect the specific danger causing the plaintiff’s injury, not
simply whether it was within the realm of any conceivable possibility. “As
to duty, the proper inquiry for the reviewing appellate court is whether the
defendant’s conduct created a foreseeable zone of risk, not whether the
defendant could foresee the specific injury that actually occurred.” McCain
v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla. 1992) (emphasis omitted).
As we have explained in the context of a products liability action:
[F]oreseeability, alone, does not define duty—it merely
determines the scope of the duty once it is determined to exist.
The injured party must show that a defendant owed not
merely a general duty to society but a specific duty to him or
her, for without a duty running directly to the injured person
there can be no liability in damages, however careless the
conduct or foreseeable the harm.
Grunow, 904 So. 2d at 556 (quoting Hamilton v. Beretta U.S.A. Corp., 750
N.E.2d 1055 (N.Y. Ct. App. 2001)); K.M. ex rel. D.M. v. Publix Super Mkts.,
Inc., 895 So. 2d 1114, 1117 (Fla. 4th DCA 2005) (“The existence of a special
relationship gives rise to a duty to control the conduct of third persons so
as to prevent them from harming others.”).
“The duty element of negligence focuses on whether the defendant’s
conduct foreseeably created a broader ‘zone of risk’ that poses a general
threat of harm to others.” Granicz v. Chirillo, 147 So. 3d 544, 547–48 (Fla.
2d DCA 2014) (quoting McCain, 593 So. 2d at 502)). “This concept is not
to be confused with the proximate cause element of negligence which
focuses on ‘whether and to what extent the defendant’s conduct
foreseeably and substantially caused the specific injury that actually
occurred.’” Id. “The court in proximate cause cases must determine, inter
alia, (1) causation in fact, i.e., whether the defendant’s conduct was a
12
substantial factor in producing the result, and (2) whether the defendant’s
responsibility is superseded by an abnormal intervening force.” Hoffman
v. Bennett, 477 So. 2d 43, 44 (Fla. 3d DCA 1985).
Therefore, proximate cause is not always a jury question. Courts may
resolve this issue as a matter of law in certain cases such as those
involving intervening negligence: “Florida law does not permit a jury to
consider proximate cause where a person responsible for the injury is
voluntarily impaired or intentionally misuses a product.” See DZE, 299
So. 3d at 541.
Under the doctrine of intervening negligence, the original
negligence is not regarded as the “proximate cause” of the
injury, even though the injury might not have occurred but
for the original negligence, if an independent efficient cause
intervenes between the negligence and the injury and the
original negligence does not directly contribute to the force or
effectiveness of the intervening cause.
St. Fort ex rel. St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244,
249 (Fla. 4th DCA 2005) (citing Tampa Elec. Co. v. Jones, 138 Fla. 746,
190 So. 26, 27 (1939)). “It is only when an intervening cause is completely
independent of, and not in any way set in motion by, the tortfeasor’s
negligence that the intervening cause relieves a tortfeasor from liability.”
Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1287–88 (Fla.
1st DCA 2004).
In DZE, a man brought a wrongful death action on behalf of his
deceased family members’ estates against a manufacturer of certain
products that included a chemical marketed as “potpourri” containing a
synthetic marijuana labeled as “spice.” DZE, 299 So. 3d at 539. A driver
who had voluntarily consumed the potpourri became impaired, drove at
high rate of speed, and rammed his vehicle into another vehicle, causing
the deaths of the other vehicle’s passengers. Id. The plaintiff alleged
numerous bases for liability yet went to trial on only two of the claims—
negligence and strict liability—both of which were premised on a “failure
to warn” theory. Id. The First District held the driver’s criminal conduct—
not the manufacturer’s actions—was the sole proximate cause of those
deaths as a matter of law. Id. at 540; see McCain, 593 So. 2d at 504(stating the question of proximate cause is generally left to the fact-finder,
but the judge may address this matter where the facts are unequivocal,
such as where the evidence supports no more than a single inference). As
such, the manufacturer owed no duty to the plaintiff to prevent the
13
accident. See DZE, 299 So. 3d at 540 n.2 (citing Aguila v. Hilton, Inc., 878
So. 2d 392 (Fla. 1st DCA 2004)).
The DZE court relied in part on the Florida Supreme Court’s decision
in Department of Transportation v. Anglin, 502 So. 2d 896, 898 (Fla. 1987),
a case involving a suit against the Department for a negligent road design
that caused the plaintiff’s car to stall. Id. at 897. There, the plaintiff
suffered catastrophic injuries when an intervening actor slammed into
plaintiff’s stalled car. Id. The court upheld the trial court’s summary
judgment in the Department’s favor on the issue of proximate cause,
holding that even where an actor’s conduct creates a dangerous situation,
the law will not allow a jury to find proximate cause where an
unforeseeable, intervening act is responsible for the injuries:
While it may be arguable that petitioners, by creating a
dangerous situation which caused the respondents to require
assistance, could have reasonably foreseen that someone may
attempt to provide such assistance, it was not reasonably
foreseeable that [an intervening actor] would act in such a
bizarre and reckless manner. Petitioners’ negligent conduct
did not set in motion a chain of events resulting in injuries to
respondents; it simply provided the occasion for [the
intervening actor’s] gross negligence.
Id. at 899–900 (citing Mull v. Ford Motor Co., 368 F.2d 713 (2d Cir. 1966)).
The First District held that any conclusion that the manufacturer’s
failure to warn had been the proximate legal cause of the devastating crash
required speculation that the manufacturer could have foreseen that the
driver would: “1) disregard the warning on the product and consume the
potpourri; 2) become voluntarily intoxicated; and 3) drive recklessly in
violation of the state’s criminal laws and cause an accident.” DZE, 299 So.
3d at 541. The manufacturer correctly argued that liability could not be
imposed for injuries to a third party who was not directly impacted by the
manufacturer’s product, especially where another party voluntarily
consumed the product to become intoxicated and made the illegal decision
to drive. Id. As a matter of law, the driver’s conduct—not the
manufacturer’s—was the accident’s sole superseding proximate cause,
and the trial court in that case erred in allowing a jury to decide otherwise.
Id.
The DZE court also looked to similar cases outside of Florida that
refused to recognize proximate causation where voluntary impairment
resulted in injuries to third parties. The facts of one such case, Horstman
14
v. Farris, 725 N.E.2d 698 (Ohio Ct. App. 1999), closely mirrors what
occurred here. In Horstman, the plaintiffs appealed a summary judgment
arising from an automobile accident that occurred when the minor driver
of another car inhaled a harmful intoxicant and drove head-on into the car
operated and occupied by the Horstman family. Id. at 517. The plaintiffs
further argued the manufacturer knew its product was being abused but
failed to remedy the problem in a timely manner despite readily available
methods of preventing misuse. Id. at 517–18. The plaintiffs contended
that a genuine issue of material fact existed about whether the intoxicant
was a defective product and whether the defect was the proximate cause
of their injuries. Id.
The Horstman court found as a matter of law that even if the
manufacturer’s product was defective in design, that defect was not the
proximate cause of plaintiff’s injuries. Id. at 518. The driver’s conduct
was the proximate cause. Id. The court also found that the retailer was
not negligent in selling the propellant to the minor driver without inquiring
about his intended use for it. Id. at 523–24. The driver’s intentional
inhalation of the propellant to become intoxicated broke the chain of
causation, making the driver the sole proximate cause of plaintiffs’
injuries:
In the case before us, the record shows that [the driver]
knowingly, intentionally, and willfully misused the product in
an illegal manner that he knew was dangerous. He not only
abused the product but he did so while driving a vehicle,
despite his knowledge that the product caused intoxication.
He also proceeded to drive that vehicle while intoxicated from
huffing, although he testified that he knew that he was not
capable of driving at that time. [The manufacturer] did not
prompt the criminal act. Thus, [the driver]’s purposeful
misuse of the product, in a manner for which it was clearly
not intended, is enough to break the chain of causation
between the alleged defect and the injuries to the Horstmans.
Id. at 521. As a result, the plaintiffs’ injuries were not the foreseeable
result of any alleged defect—as injuries to third parties caused by a motor
vehicle’s defective brakes or faulty accelerator would be—but were instead
caused by the driver’s willful, reckless, and unlawful conduct. Id.
These cases demonstrate that a duty of reasonable care is not owed to
the world at large but arises out of a relationship between the parties. See
McCain, 593 So. 2d at 504; Grunow, 904 So. 2d at 556. In Florida, there
is no duty to prevent—and no liability for—a third party’s misconduct
15
absent the existence of a special relationship. See Trianon Park Condo.
Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985).
Therefore, to succeed on his negligence claim, appellant must also show
that appellees owed a specific duty to him. None exists here between
appellant and appellees, nor did such a relationship exist between
appellees and Merrill to support the imposition of any such duty:
Under the common law, a person has no duty to control the
tortious or criminal conduct of another or to warn those placed
in danger by such conduct unless there is a special
relationship between the defendant and the person whose
behavior needs to be controlled or the person who is a
foreseeable victim of such conduct.
Palmer v. Shearson Lehman Hutton, Inc., 622 So. 2d 1085, 1089 (Fla. 1st
DCA 1993) (citing Boynton v. Burglass, 590 So. 2d 446 (Fla. 3d DCA
1991)). “Implicit in the special relationship exception . . . is the proposition
that such special relationship must include the right or the ability to
control another’s conduct.” Garrison Ret. Home Corp. v. Hancock, 484 So.
2d 1257, 1261 (Fla. 4th DCA 1985) (emphasis in original) (quoting Hasenei
v. United States, 541 F. Supp. 999, 1009 (D. Md. 1982)).
Although negligence outside the context of products liability is broader
and encompasses a foreseeable zone of risk, appellees’ duty of
foreseeability for the usage of Ultra Duster is narrowed. Because no one
disputed that Merrill was voluntarily impaired by her misuse of the
product, and without a special relationship between appellees and Merrill,
the trial court was able to properly determine no causal link existed as a
matter of law between appellees’ actions that caused the accident and
appellant’s injury. See DZE, 299 So. 3d at 541; Barnes v. B.K. Credit Serv.,
Inc., 461 So. 2d 217, 219 (Fla. 1st DCA 1984); Labzda v. Purdue Pharma,
L.P., 292 F. Supp. 2d 1346, 1356 (S.D. Fla. 2003). The causal link between
the danger (being struck by a vehicle driving off the roadway) and the
alleged misconduct (manufacturing and selling a household dust-removal
product containing DFE) is simply too attenuated and remote to support
the existence of any duty to third parties arising from the product’s
misuse. The foreseeability of Merrill’s huffing Ultra Duster while driving
is not a close case that would raise a question of fact for a jury to
determine.
Without the existence of a special relationship with Merrill, appellees
had no ability to supervise or control her behavior and no involvement in
her decision to become impaired while driving. No contractual relationship
16
existed between appellant, appellees, and Merrill. The accident did not
involve either an employee or vehicle owned or operated by appellees, nor
did it occur on their property. Nor did the canister used by Merrill
malfunction to directly cause appellant’s injury.
Although we can foresee that a person who is distracted or impaired
while driving might cause an accident, we do not agree with the leap in
logic which appellant asks us to make—that it is likewise foreseeable to
any legally significant extent that the manufacture and ultimate sale of
Ultra Duster would result in a car crash. Stated differently, the subject
product did not cause this accident; rather, Merrill’s impaired faculties
resulting from the product’s inappropriate use caused the accident. Taken
to its logical extension, appellant’s theory of liability against appellees
could allow almost limitless legal responsibility relating to any ordinary
consumer product which a driver could conceivably and improperly use to
cause injury or damage. See, e.g., Grunow, 904 So. 2d at 556–57
(“Virtually any product is capable of producing injury when put to certain
uses or misuses,” and “[t]o hold otherwise would make a manufacturer or
distributor an insurer of its product.”); Bruner v. Anheuser-Busch, Inc., 153
F. Supp. 2d 1358, 1361 (S.D. Fla. 2001) (“[V]oluntary drinking of alcohol
is the proximate cause of an injury, rather than the manufacture or sale
of those intoxicating beverages to that person.”); Williams v. Cingular
Wireless, 809 N.E.2d 473, 479 (Ind. Ct. App. 2004) (“Although it is
foreseeable that cellular phone use while driving may contribute to a car
accident, it is not foreseeable that the sale of a phone to a customer will
necessarily result in a car accident.”); Allen v. Walmart Stores, L.L.C., 907
F.3d 170, 176–77 (5th Cir. 2018) (finding no liability as a matter of law
arising from a retail store’s sale of sixty cans of dust remover in a twenty-
seven-hour period to a purchaser who inhaled the contents and died in
the store’s parking lot). As the Williams court observed:
[M]any items may be used by a person while driving, thus
making the person less attentive to driving. It is foreseeable
to some extent that there will be drivers who eat, apply make
up, or look at a map while driving and that some of those
drivers will be involved in car accidents because of the
resulting distraction. However, it would be unreasonable to
find it sound public policy to impose a duty on the restaurant
or cosmetic manufacturer or map designer to prevent such
accidents. It is the driver’s responsibility to drive with due
care . . . . To place a duty on [a company] to stop selling [a
product] because [it] might be involved in a car accident would
be akin to making a car manufacturer stop selling otherwise
17
safe cars because the car might be negligently used in such a
way that it causes an accident.
Williams, 809 N.E. 2d at 478.
In sum, appellant’s injuries were the unfortunate result of Merrill’s
reckless indifference to her own safety as well as the safety of others. His
injuries were not the result of appellees’ conduct. Because Merrill’s
actions were separate from those of the appellees and were neither
controlled, encouraged, nor caused by them, Merrill’s misuse of the Ultra
Duster canister was the sole proximate legal cause of both the accident
and appellant’s resulting injuries. See Deese, 874 So. 2d at 1287–88.
Even though the risk of a driver simultaneously abusing a dust-removal
product and consequently striking either a vehicle or person off a roadway
is within the boundless realm of conceivable possibilities, it was not
objectively reasonable for Merrill’s criminal conduct to be foreseeable as a
matter of law to establish either duty or proximate cause in the context of
this product liability action. Cf. Vining v. Avis Rent-a-Car Sys., Inc., 354
So. 2d 54, 55–56 (Fla. 1977) (finding “a reasonable man should foresee the
theft of an automobile left unattended with the keys in the ignition in a
high crime area”); but cf. Shurben v. Dollar Rent-A-Car, 676 So. 2d 467,
468 (Fla. 3d DCA 1996) (finding a Miami car rental company had a duty
to warn its foreign customers of foreseeable criminal conduct because it
had knowledge of the high level of crime in Miami and a reasonable rental
company in possession of those facts would understand that its customers
would be exposed to unreasonable risk of harm if not warned). That
specific danger was not “clear to the person of ordinary prudence,” because
Merrill’s unlawful actions constituted an intervening force which replaced
any alleged negligence on appellees’ part. See St. Fort, 902 So. 2d at 249.
We therefore agree with the trial court’s application of DZE and affirm
the summary judgment granted in favor of appellees on appellant’s
negligence claim.
Affirmed.
LEVINE and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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