GREVE v. ANGELES CHEMICAL COMPANY

Reset A A Font size: Print

Court of Appeal, Second District, Division 6, California.

William GREVE et al., Plaintiffs and Appellants, v. ANGELES CHEMICAL COMPANY et al., Defendants and Respondents.

No. B098709.

Decided: March 23, 1998

Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, Steven J. Kleifield and Roger L. Gordon, Los Angeles, for Plaintiffs and Appellants. Musick, Peeler & Garrett and William A. Bossen, Los Angeles, for Defendant and Respondent Angeles Chemical Company, Inc. Sidley & Austin, James M. Harris, Howard D. Gest, Lee L. Auerbach and James M. Harris, Los Angeles, for Defendant and Respondent Union Carbide. Wilson, Kenna & Borys, Garth D. Goldberg and Kristin M. Kubec, Los Angeles, for Defendant and Respondent Burbank Paint Company, Inc. White & Baker, Robert P. Baker and Jeffrey N. Stewart for Defendant and Respondent Parallel Products. No appearance for Defendant and Respondent Transchem, Inc.

Plaintiffs brought a products liability action for injuries caused when a flame flashed back into a container of denatured alcohol they were working with and exploded.   Plaintiffs named as defendants two bulk suppliers, a packager and a retailer.   The defendants obtained summary judgment.

We reverse.   There is a triable issue of fact whether the warnings provided by defendants were adequate to advise the consumer that alcohol may burn with a virtually invisible flame and that it may flash back into the container and explode.   There are also triable issues of fact whether the dangers were obvious and whether plaintiffs misused the product.

FACTS

William Greve and Augustine Ramirez were employed as glaziers by Amber Glass and Mirror, Inc.   Each had over 20 years experience.

In August 1993, Greve and Ramirez were cutting laminated glass;  that is, two layers of glass with a plastic laminate between them.   They needed to heat the laminate to soften it for cutting.   They scored the glass along a cut line.   Greve took a one gallon can of denatured alcohol and poured the alcohol into the scoring from a nail hole that had been punched into the top of the can.   Greve ignited the alcohol with a cigarette lighter.

The alcohol burned on the glass for 10 or 12 seconds.   Greve decided one area of the glass had not received sufficient alcohol.   One or two seconds after the flames had disappeared, Greve began to pour more alcohol from the nail hole onto the glass.   Greve was pouring one or two inches from the glass when the newly applied alcohol ignited, flashed back into the can and exploded.

Greve and Ramirez were injured.   Initially Greve was crying, but could not talk.   After he received pain medication he told Ramirez, “This was really stupid.   It was very dumb.   I'm sorry.”

Greve and Ramirez filed a complaint against Union Carbide and Parallel Products manufacturers as bulk suppliers of the alcohol to the Angeles Chemical Company (Angeles).   They named Angeles as the packager and Burbank Paint Company as the retailer that sold the product to Amber Glass.   The complaint alleged causes of action for products liability, negligence and breach of warranty.

DEFENDANTS' SUMMARY JUDGMENT MOTION

The defendants answered and moved for summary judgment on the grounds that Greve and Ramirez misused the product, the dangers were obvious and the defendants gave adequate warnings.

Union Carbide submitted evidence that it provided a material safety data sheet (MSDS) with its bulk delivery of the alcohol to Angeles.   The MSDS stated:  “UNUSUAL FIRE AND EXPLOSION HAZARDS:  [¶] Vapors form from this product and may travel or be moved by air currents and ignited by pilot lights, other flames, smoking, sparks, heaters, electrical equipment, static discharges or other ignition sources at locations distant from product handling point.   [¶] Vapors from this material may settle in low or confined areas or travel a long distance to an ignition source and flash back explosively.”

Under “PRECAUTIONS TO BE TAKEN IN HANDLING AND STORAGE,” the MSDS stated:  “DANGER!  ․ Flammable ․ [¶] ․ Keep away from heat sparks and flame․”

An MSDS provided by Parallel with its bulk deliveries of alcohol warned that the product was flammable and should be kept away from heat sparks and flame.   It also warned:  “UNUSUAL FIRE AND EXPLOSION HAZARDS:  Vapors form from this product and may travel or be moved by air currents and ignited by pilot lights, other flames, smoking, sparks, electrical equipment, static discharges, or other ignition sources at locations distant from handling point.”

The label on the can provided by Angeles warned that the product was flammable and should be kept away from heat, sparks, flame and all other sources of ignition.

Under the heading “PRODUCT USAGE” the label stated:  “SHELLAC THINNER [¶] Thin shellac to give smooth high gloss finish with improved working consistency.   Follow manufacturer's instructions for proper amount.  [¶] FUEL Produces a hot, clean, orderless [sic ], smokeless flame in alcohol stoves.  [¶] CLEANER Fast evaporating cleaner.   Use full strength to clean non-lacquer jewelry and metal parts.   Dilute two parts water with one part denatured alcohol to clean glass and porcelain.”

The defendants also point to the deposition testimony of Greve and Ramirez in support of their motions.   They both testified they had cut laminated glass thousands of times using alcohol in the process.   Greve testified he only used alcohol because it is “clean burning․  It burns hot ․” and “it gets the glass hot.”

Greve testified he frequently reads the warning label on the can of alcohol he uses.   Ramirez testified he read the label each time he used the product.   They both admitted that nothing on the can indicated it was intended to be used for cutting laminated glass.   Ramirez and Greve admitted that prior to the accident they knew that alcohol was flammable.   They also admitted they knew the vapors could be moved by air currents and ignited by an ignition source distant from the product handling point.   They said that had they known of the dangers of flash back they would have waited before reapplying the alcohol.

PLAINTIFFS' OPPOSITION

In opposition to the motion, plaintiffs cited portions of their depositions.   They testified that they did not know the alcohol could flash back into the can causing the can to explode.   They testified the method they used was standard in the glass industry for cutting laminated glass.

Plaintiffs also submitted affidavits of experts.   Harvey Cohen declared that he received his Ph.D. in chemistry from the Massachusetts Institute of Technology.   He is certified by the American Board of Industrial Hygiene in the chemical aspects of industrial hygiene.   His specialty includes the hazard of fire and explosion of flammable liquid such as alcohol.

Cohen declared that alcohol burns cleanly and that its blue flame is “virtually invisible” in bright light.   This property is not known to the general public and has led to a number of accidents.   People may be burned by adding more alcohol to an area that appears not to be burning.   Substances such as kerosene or gasoline, in contrast, burn with a yellow flame which is easily observed until it is extinguished.   In Cohen's opinion the accident happened when Greve, thinking that the flame had gone out, applied more alcohol.   The additional alcohol hit an invisible flame and ignited, flashing back into the can.

In Cohen's opinion the container used for the alcohol was inadequate.   It had no flame arrester;  that is, a mechanism to prevent flame from entering the container.   A flame arrester can consist of a wire screen placed over the opening through which the liquid is poured.   Cohen said it is difficult to pour through the normal opening without spillage.   Any spillage can ignite and flash back into the can if vapors reach a source of ignition.   Cohen said the danger can be alleviated by a number of methods.   One method would be to provide a “dispensing top” backed by or containing a wire screen.

In Cohen's opinion the warnings provided were inadequate.   They did not advise the user that alcohol can burn with a virtually invisible flame and that users should be exceptionally cautious in adding alcohol to a device or surface that has had alcohol burning in or on it.

Although Union Carbide warned that the vapors could “flash back explosively,” Cohen believed the warning was inadequate.   It did not warn that the flash back could go into the can causing it to explode.

Cohen pointed out the label on Sunnyside Corporation's can of denatured alcohol warns both that the alcohol can burn with a “virtually invisible flame” and “Fire may flash back into can and explode.” 1

James McGrath declared he received his Ph.D. degree in industrial psychology from the University of Southern California.   Industrial psychology includes the evaluation of product safety instructions and warnings.   He has developed and evaluated such instructions and warnings many times.

McGrath stated it is not common knowledge that alcohol can burn with a virtually invisible flame or that it can flash back into the can and explode.   He opined the warnings were defective for failure to so state.

McGrath also opined that the use categories stated on the label would not be interpreted by a rational consumer as prohibiting all other uses of the product.   There is no prohibitory language in the statement of uses for the product.   In McGrath's opinion, Greve and Ramirez were acting reasonably in using the alcohol as a fuel to soften the glass laminate.

DISCUSSION

I.

 Summary judgment is properly granted only where there is no triable issue of fact and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c).)  Where the defendant is the moving party, it bears the burden of showing that one or more elements of the cause of action cannot be established or that there is a complete defense.   (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-745, 41 Cal.Rptr.2d 719.)   Unless the defendant meets its burden, there is no obligation on the plaintiff to demonstrate that there is a triable issue of fact.  (Ibid.)

 All business entities in the chain of production and marketing of a defective product, from the manufacturer, to the distributor and wholesaler, down to the retailer, may be strictly liable for injuries caused by a defective product.  (Kaminski v. Western MacArthur Co. (1985) 175 Cal.App.3d 445, 453-454, 220 Cal.Rptr. 895.)   A product may be defective because of inadequate warnings of the dangers inherent in its use.   (Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 111, 17 Cal.Rptr.2d 227.)   Whether a warning is adequate depends on several factors;  among them are the normal expectations of the consumer, the degree of complication in its use, the nature and magnitude of the danger, the likelihood of injury and the feasibility and beneficial effect of including a warning.   (Ibid.) A manufacturer or bulk supplier that has no means to communicate with the ultimate consumer has satisfied its duty to warn when it supplies adequate warnings to an intermediary who can reasonably be expected to give the warnings to the consumer.  (Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 178, 265 Cal.Rptr. 773.)

 Here, no defendant provided a warning that alcohol can burn with a virtually invisible flame.   A reasonable trier of fact could conclude that the omission made the warnings given by the defendants inadequate, particularly because the product was intended to be used as a fuel.   Such a conclusion would be supported not only by the opinions of plaintiffs' experts but also by evidence that another company, Sunnyside, expressly warned consumers that, “alcohol and its vapors ․ burn with a virtually invisible flame.”

Union Carbide argues the failure to warn that alcohol burns with a virtually invisible flame did not contribute to the accident.   Instead, it posits that the alcohol was ignited when Greve poured the alcohol onto glass that was still hot.   Union Carbide states that the heat from the glass was by itself sufficient to trigger the explosion.

But, Union Carbide cites no support for such a statement.   No defendant has produced any evidence that the glass itself in the absence of a flame was hot enough to trigger the explosion, or that the explosion was not, in fact, triggered by an invisible flame.

In addition, no defendant warned that fire may flash back into the can and explode.   Union Carbide is the only defendant that even mentioned flash back in its warning.   Union Carbide warned that vapors may travel to an ignition source and “flash back explosively.”   But the Union Carbide warning did not expressly advise that the flash back might go into the can and cause it to explode.   In contrast, the warning on Sunnyside's container provides:  “Keep container away from heat, sparks or fire.   Fire may flash back into can and explode.”   Whether Union Carbide's warning is sufficient to advise the consumer of the dangers of flash back into the can is a question of fact for the trier of fact.

 Union Carbide argues that Greve and Ramirez conceded the adequacy of its flash back warning.   Union Carbide points to the deposition testimony of Greve and Ramirez.

Greve's deposition reveals the following colloquy:  “Q You testified that you did not know of the risk of flash back explosions from the use of denatured alcohol;  is that right?  [¶] A That's correct.  [¶] Q If you had known of that risk, would you have used the product in the manner that you did on the day of the accident.  [¶] A No.  [¶] Q What would you have done differently?  [¶] A Well, I would have waited quite a bit longer before I reapplied it.”

Ramirez's deposition reveals the following colloquy:  “Q ․ Based on your observation that the first alcohol applied to the glass had gone out, the flame had gone out, would you have wanted to stop Mr. Greve from reapplying alcohol if you had known that there was a propensity for the vapors from the denatured alcohol to flash back explosively?  [¶] A If I had known that, I would have absolutely waited, stopped him or make him wait a real, real long time before he reapplied it.  [¶] Q And why is that?  [¶] A Because it could explode like a bomb.”

Elsewhere in the deposition Ramirez testified:  “Q And by ‘flash back’ you mean what?  [¶] A I mean the flame going inside the can and exploding like a bomb.   That's what happened to us, and we didn't know that.”

Union Carbide's argument is not persuasive.   Greve's and Ramirez's testimony amounts to nothing more than a statement that had they known of the danger they faced (the propensity of the alcohol to flashback into the can causing it to explode) they would have acted differently.   That does not amount to a concession that Union Carbide's warning was sufficient to apprise them of the dangers they faced.

 Nor can we conclude that the warnings to keep the alcohol away from flame, heat and other sources of ignition were by themselves adequate as a matter of law.

Defendants cite Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 196 Cal.Rptr. 52.   There, plaintiff was injured when he used stove and lantern fuel to light logs in a fireplace.   The label on the can warned that the fuel was extremely flammable and to keep it away from heat and open flame.   In affirming a judgment of nonsuit the Court of Appeal stated:  “[Plaintiff] was injured, not as a result of inadequate warnings ․, but rather, as a consequence of his own improper use of the product.”  (Id., at p. 448, 196 Cal.Rptr. 52.)

But a product intended to be used as a fuel for a stove was obviously not intended to be kept away from all sources of heat and flame.   The trier of fact may find the label could reasonably be read as a warning to guard against sources of accidental ignition.

Moreover, the label here showed the product could be used for a number of purposes, including as a fuel.   The use portion of the label contained no language prohibiting the use of the product for other purposes.   A reasonable trier of fact could find the label was simply suggesting some of the many ways in which the product could be used.

By failing to warn that the alcohol might burn with a virtually invisible flame, the warnings failed to apprise Greve and Ramirez that they might be exposing the alcohol to a source of ignition.   Undoubtedly, Greve and Ramirez knew they were exposing the alcohol to heat.   But, it would be almost impossible to use alcohol for any purpose without exposing it to some heat.   The warnings do not advise how much heat is too hot.   It is not at all clear that the glass would have been hot enough to ignite the alcohol in the absence of a virtually invisible flame.

Even if the warnings to keep the alcohol away from flame, heat or other sources of ignition were sufficient by themselves to warn of some unspecified danger, they say nothing of the catastrophic consequences that can occur in the event of a flash back into the container.

 Defendants point out there is no duty to warn of a danger that is known or obvious.  (Holmes v. J.C. Penney Co. (1982) 133 Cal.App.3d 216, 220, 183 Cal.Rptr. 777.)   But, we cannot say as a matter of law that the ability of alcohol to burn with an invisible flame or to flash back into the container are obvious or generally known to the consumer.   The court in Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 933, 133 Cal.Rptr. 483 stated in dicta that it is unnecessary to warn persons of the dangerous nature of alcohol.   We feel confident it was referring to drinking it, not using it as a fuel.

II.

 Defendants contend the proximate cause of the accident was misuse of the product.

 A seller of a product is entitled to assume the product will be put to its normal use, and will not be liable for unintended, unexpected and abnormal use.  (6 Witkin, Summary of Cal. Law (9th ed.   1988) Torts, § 1306, p. 761.)   If, however, the use was reasonably foreseeable, the seller will not be absolved from liability.  (Id., at § 1307, p. 761.)

Here, the label on the container under the heading “Product Usage” states:  “Produces a hot, clean, orderless [sic ], smokeless flame in alcohol stoves.”   A reasonable trier of fact could find it is foreseeable that a consumer might wish to use the product in any situation in which a hot, clean, odorless, smokeless flame is desired.   Yet, the label contains no language restricting the use of the product to the uses stated in the label.   If the product was intended to be used as a fuel only in stoves, the warnings fail to say so.

The evidence presented here by the defendants fails to foreclose the possibility they should have foreseen that alcohol would be used by pouring it on a surface and lighting it.   According to the testimony of Greve and Ramirez, that is the customary way laminated glass is cut.

 That Greve told Ramirez that he was sorry the accident happened, that it was “stupid” and “dumb” does not change our conclusion.   Such a statement does not reflect knowledge of the undisclosed danger and a reasonable trier of fact could so find.

Defendants also point out that Greve was pouring the alcohol through a nail hole instead of the normal opening in the can.   But the normal opening had no flame arrester, and pouring through the normal opening would have increased spillage.   A reasonable trier of fact could conclude that pouring through the normal opening would not have prevented the accident.

The judgment is reversed.   Costs are awarded to appellants.

FOOTNOTES

1.   The Sunnyside label provides:  “Safety Note:  Alcohol and its vapors are very flammable and burn with a virtually invisible flame.   Do not fill any alcohol burning device while ignited or hot.   Do not attempt to start or re-kindle:  charcoal, wood or any other fire with this product.   Keep container away from heat, sparks or fire.   Fire may flash back into can and explode.   Do not use in kerosene or oil burning devices, such as lamps, patio torches, or log lighters.”

GILBERT, Acting Presiding Justice.

YEGAN and COFFEE, JJ., concur.