Hardiman v. Zep Manufacturing Co.

Respectfully, I dissent from the decision of the majority affirming the judgment of the trial court awarding plaintiff damages in the amount of $250,000.

The presence of an adequate warning is a defense to a claim of strict tort liability.⁹ Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456 [21 O.O.3d 285]. The warning on the can of drain cleaner states in large print,

"DANGER! CAUSES SEVERE BURNS"

In smaller print, directions for use and precautions are addressed to the user. The user is advised to use forty to sixty pounds in smaller lines and up to one hundred pounds in larger lines, to keep hands and face away from the drain when using, to add the drain cleaner "slowly" to avoid "violent spattering," and to wear goggles or a face shield. The user is further advised that the product was designed exclusively for industrial and institutional use by trained personnel, and that the label directions must be followed exactly.¹⁰

The appellee testified that he could read "very little," and that the only part of the label that he read before using the product was the word "ZEP." He had learned how to use the product by watching his boss (and possibly other employees) pour it into sewer drains. None of the persons whom he observed ever wore goggles.¹¹

Appellee was sent alone by his supervisor to unclog a sewer at a church on Warrensville Center Road. Appellee's supervisor testified that the city of Shaker Heights had been using the product for eleven years, apparently without incident, and they were still using it. They had stopped taking the precautions recommended on the label of the product because they felt it was a "safe" product.

The jury found this warning to be inadequate because the word "Danger" was not on a separate label, because the label did not contain warnings in picture form and because the rate and amount of drain cleaner to be used was allegedly not sufficiently specific.

In my considered opinion the label does constitute an adequate warning, as a matter of law.¹² The issue is not whether the warning is susceptible to improvement, but whether it wasadequate under the circumstances. The danger of "flashback" or "violent spattering" is an obvious one to persons familiar with cleaning drains with a product which creates heat. But even to a person unfamiliar with this phenomenon, the label provides adequate warning, and demands the user to take adequate precautions: to pour slowly, to keep hands and face away from the drain, and to wear protective face gear. Any manufacturer that produces a product which can be safely and effectively utilized only if certain instructions are followed, need not assume that the users of its product cannot read, as the evidence demonstrates was the circumstance in the case at bar.

I am persuaded that under the posture of the evidence herein the appellant should not be held liable for the appellee's personal injuries.

Furthermore, as to a procedural point made by the majority in disposing of the appellant's third assigned error, it is my considered opinion that the appellant adequately preserved its right to appeal the refusal of the trial court to give its fourth and sixth requested jury instructions. The majority finds that counsel for appellant did not preserve an objection to the charge of the court, because counsel did not "state specifically the matter to which he objects" as required by Civ. R. 51(A). Counsel stated, after the instructions were given, that his client objected to the failure of the court to read to the jury its fourth and sixth suggested charges, which had been submitted in writing to the court. The first paragraph of the syllabus in the case of Presley v. Norwood (1973), 36 Ohio St.2d 29 [65 O.O.2d 129], states:

"Where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and that the complaining party has unsuccessfully requested the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto. * * *"

The appellant need not object to the failure of the court to read a requested charge. Consequently, the appellant preserved the right to appellate review of the decision of the court not to charge on the requested issues.

Nevertheless, I agree with the majority that the appellant's requested jury instructions were not a correct statement of the law as applied to the facts developed at trial, and that the trial court did not err in refusing to give the requested instruction.

In my considered opinion the decision of the trial court should be reversed on the ground that the manufacturer's printed warning on its product was adequate as a matter of law.

⁹ Such claims are based upon the provisions of 2 Restatement of the Law 2d, Torts (1965) 347-348. Section 402A, and the comments thereto, were incorporated into Ohio law by the Supreme Court in Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317 [4 O.O.3d 466]. Section 402A provides:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

"(a) the seller is engaged in the business of selling such a product, and

"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although

"(a) the seller has exercised all possible care in the preparation and sale of his product, and

"(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

¹⁰ The label is retyped below:

"DIRECTIONS

"Introduce into drain or sewer line in dry form. Quantity to be used will depend upon size of line (diameter and length from point of entry to point of obstruction). For small lines, use 40 to 60 pounds; for larger lines, use up to 100 pounds, introducing in two or three increments at different points along the line. For specific quantity instructions, refer to Technical Data Report No. 277.

"DANGER! CAUSES SEVERE BURNS KEEP OUT OF REACH OF CHILDREN

"Harmful or fatal if swallowed. Contains Sodium Hydroxide. Careless use can cause severe burns to skin and eyes. Avoid contact with skin, eyes, and clothing. When handling, wear goggles or face shield. Keep hands and face away from drain when using. Add slowly to drain to avoid violent spattering. USE COLD WATER ONLY.

"DO NOT ADD TO HOT WATER. In case of contact, remove contaminated clothing and shoes and wash before re-using. Immediately flush skin with plenty of water. For eyes, flush with plenty of water for at least 15 minutes and call a physician.

"This product may pick up moisture from the air which decreases its activity. When not in use, close and reseal plastic bag in the large containers and close lid tightly, avoiding undue exposure to air.

"FOR INDUSTRIAL AND INSTITUTIONAL USE ONLY.

"ZEP MANUFACTURING COMPANY

"Division of National Service Industries, Inc.

"ATLANTA, GEORGIA 30301

"PRINCIPAL CITIES, USA AND THROUGHOUT THE WORLD

"This product is designed exclusively for industrial and institutional use by trained, professional maintenance personnel. Label directions and precautions must be followed exactly. Zep Manufacturing Company will not be responsible for any injury, loss or damage, if product is used in any manner not in compliance with label directions or if precautions are not observed."

¹¹ Any liability of the appellee's employer, the city of Shaker Heights, is governed by the Workers' Compensation Act. R.C. Chapter 4123. Employers are immune from suit in civil proceedings pursuant to R.C. 4123.74. Workers' compensation benefits are awarded to employees in lieu of civil damages.

¹² The Supreme Court has held that a strict liability suit may be determined on summary judgment, as a matter of law, under proper circumstances. King v. K.R. Wilson Co. (1983), 8 Ohio St.3d 9.