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Court of Appeal, First District, Division 2, California.

Diane SKAGGS, Plaintiff and Respondent, v. CLAIROL INCORPORATED, a corporation, Defendant and Appellant.

Civ. 26012.

Decided: March 26, 1970

Carroll, Davis, Burdick & McDonough, San Franciso, Gerald P. Martin, Jr., Oakland, for counsel, for appellant. Cartwright, Saroyan, Martin & Sucherman, San Francisco, for respondent.

Defendant appeals from a judgment for damages recovered against it by plaintiff, allegedly as the result of injuries sustained when she dyed her hair with a product manufactured by defendant. As grounds for recovery, plaintiff alleged negligence, express and implied warranty and strict liability. Defendant's answer denied the material allegations of the complaint and affirmatively alleged that plaintiff was guilty of contributory negligence.

The case was tried before a jury. Plaintiff testified that on Saturday, February 27, 1965, she purchased Miss Clairol Black Velvet hair dye and cream peroxide. Plaintiff was 21 years old at the time and had used the product in question since she was 16, applying it to her hair approximately twice a year. Plaintiff had never suffered from any type of skin or dermatitis problem, and had never experienced any ill effects from the use of said hair dye.

Plaintiff testified that prior to dyeing her hair she read the directions accompanying the dye. The package containing the hair dye bore the following printed warning: ‘Caution, this product contains ingredients which may cause skin irritation on certain individuals, and a preliminary test, according to accompanying directions, should first be made.’ The directions referred to described a patch test whereby a mixture of the dye and peroxide was to be applied to the bend of the elbow or behind the ear and left on the skin for 24 hours to test for hypersensitivity to the dye.

Plaintiff recalled reading the warning on the package, but did not remember seeing any instructions describing the patch test. She testified that the only test she had ever conducted when preparing to dye her hair consisted of separating one strand of her hair from the remainder, applying the dye to the strand and waiting 45 minutes to see whether the strand had turned the desired color; that she conducted this test and was entirely satisfied with the color; that she then applied the dye to the rest of her hair in accordance with the instructions, used the entire bottle in the process and threw away the package, bottle and instructions when she had finished. Plaintiff testified that she went to bed around 10 p. m. Her hair had been dyed the desired shade and she was experiencing no unpleasant side effects.

On retiring the following evening, plaintiff noticed that her scalp was itching quite badly. Her scalp continued to itch and she did not sleep well that night. Monday morning the itching was worse and her condition continued to worsen until on Tuesday morning she found that her forehead had begun to swell and that scabs were forming on her scalp. Plaintiff went to the San Francisco General Hospital at 8 a. m. on Tuesday and was given a salve to apply to her head. The salve failed to alleviate her symptoms, however, and by Wednesday her head and neck had become extremely swollen and it was no longer possible for her to open her eyes. She went to the Presbyterian Hospital that day but was told that there was no one available to treat her.

On Thursday plaintiff consulted Dr. Dowdy, a dermatologist, who treated her with steroid injections, antihistamines and wet compresses. He treated plaintiff for over a month before discharging her as cured. Dr. Dowdy's medical records indicated that plaintiff had told him that she had noticed a rather severe burning of the scalp within a few hours after she dyed her hair and that her forehead and eyes were swollen by the following morning. However, plaintiff denied that she had made any such statement to the doctor. It was also shown that plaintiff had been examined at the San Francisco Emergency Hospital on March 17, 1965, by a Dr. Simpson, and that according to his records plaintiff had told him that her scalp problems had developed ‘shortly’ after she used the hair dye. Plaintiff denied that she had made any such statement to Simpson.

Dr. Butler, a dermatologist called by the defense, examined plaintiff on June 5, 1967. He found no evidence of any scalp disease at that time. She told him of her 1965 reaction to the Clairol hair dye and stated that she had had no trouble with her scalp until two days after she dyed her hair. Dr. Butler gave plaintiff a patch test, placing a bandage wetted with a mixture of Black Velvet hair dye and peroxide upon her inner forearm. He told her to remove the bandage if she felt uncomfortable and arranged to see her the next day. At that time, she told him that she had removed the bandage early that morning because it was reacting the same way her scalp had. Dr. Butler examined the patch test site and found a 50-cent-piece sized area of redness with some swelling and a few blisters. He concluded that plaintiff had developed an allergy to paraphenylene-diamine dye. Dr. Butler stated that the dye in question was one in common usage because it was the most effective in holding color in hair as well as animal products such as wool and leather. Dr. Butler thought it unusual but medically possible that plaintiff's initial 1965 allergic reaction to the dye could have taken two days to set in. It was also quite possible that a particular individual could use the dye two or three times without difficulty and develop an allergic reaction to it only on the third or fourth application. An allergic reaction to the dye in question could be severe enough to require hospitalization and could even be fatal in some individuals. Such a reaction was not a mere skin irritation but a skin sensitization which came up through the epidermis. Dr. Butler stated that the skin irritation warning on the Clairol bottle was considered adequate by the federal Food and Drug Administration but that he personally would prefer a stronger warning. The 24-hour patch test described in the Clairol instructions was recognized by medical authorities as being an efficacious method of determining whether an individual had become sensitized to paraphenyl-enediamine dye.

Dr. Dowdy was also called as a witness for the defense and testified that when plaintiff initially consulted him, he diagnosed her condition as acute contact-type dermatitis. He ascertained from plaintiff that her symptoms had come on after she had used Clairol hair dye. However, since her condition was acute enough to require prompt treatment, he made no attempt at that time to determine whether she was suffering from an allergic reaction to the dye or had used an improper procedure when applying the dye to her hair. Dr. Dowdy stated that the type of reaction which plaintiff had experienced was a fairly rare one, considering the large number of people who were able to use that particular type of hair dye safely. Dr. Dowdy was questioned regarding plaintiff's positive reaction to the patch test administered by Dr. Butler in 1967, and he testified that even though said reaction occurred within 24 hours, it was entirely possible that she could have used the same product two years earlier, in 1965, and experienced no adverse symptoms within a 24-hour period.

The jury returned a verdict in the amount of $2,500 in favor of plaintiff and against defendant Clairol.

Defendant Clairol's contention on appeal is that the trial court erred in instructing the jury on strict liability because plaintiff's reaction to the hair dye was a comparatively rare one which would occur in only a minimal percentage of the population and there was no evidence that the hair dye was defective in the sense that it was not manufactured in accordance with the manufacturer's tested standards.

Plaintiff, in response to this contention, makes no attempt to contend that there was any evidence in support of a finding that defendant's hair dye was defectively manufactured. However, plaintiff does assert that since defendant's product contained a paraphenylenediamine dye and there was evidence that this ingredient could produce allergic reactions in certain individuals and in fact had such an effect on plaintiff, instructions on strict liability were justified on the theory that defendant had failed to label its product in such a manner as to adequately warn potential users of the presence and dangerous effect of the paraphenylenediamine dye. Plaintiff bases this contention upon section 402A, comment j, of the Restatement Second of Torts.

Section 402A, which deals with strict liability, provides that ‘(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer * * * is subject to liability for physical harm thereby caused to the ultimate user or consumer * * * 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.’

Comment j to section 402A provides in pertinent part that ‘In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. * * * Where * * * the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. * * * Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.’

The basic difficulty with comment j to section 402A is that a manufacturer who knew or had reason to know that his product contained an ingredient dangerous to a substantial number of the population and who failed to adequately warn users of such danger would obviously be liable in negligence without recourse to the doctrine of strict liability. Thus, comment j is not truly illustrative of the rule of strict liability set forth in section 402A and is actually in conflict therewith, since section 402A purports to impose liability upon the seller where he ‘has exercised all possible care in the preparation and sale of his product.’ Comment j, on the other hand, imposes liability upon the seller only where he has failed to exercise such care, and this fact was pointed out in the recent case of Oakes v. Geigy Agricultural Chemicals (1969) 272 A.C.A. 735, 740, footnote 4, 77 Cal. Rptr. 709, 713. The court stated: ‘A rule imposing an obligation upon a manufacturer (or seller) to give a suitable warning and a rule conditioning liability upon the fact of knowledge or reason to acquire knowledge are rules fixing duties of care. Since violation of a duty of care has always been an element in the definition of negligence, the rules expressed in comment j of the new Restatement, although stated as an adjunct to ‘strict’ liability are merely well settled rules already a part of the law of negligence.'

The confusion which may result from a trial court's failure to accurately distinguish between a theory of recovery predicated upon strict liability and one predicated upon negligence is graphically demonstrated by a reading of the jury instructions in the instant case. The court first instructed the jury quite thoroughly on negligence and, in particular, advised the jury that a manufacturer who knew or should have known that his product was likely to be dangerous to users and who had reason to believe that such users would not realize the risk had the duty to warn them of the danger involved and was guilty of negligence if he failed to fulfill that duty. The court also instructed that although defendant had complied with the labeling requirements of the federal Food, Drug and Cosmetics Act and with the state Drugs, Foods and Cosmetics Act, bare compliance with the law did not necessarily establish the exercise of ordinary care and it was for the jury to determine whether more care was required of the defendant under all the circumstances of the case. The court finally instructed that because of the great danger involved in the manufacturing, compounding, packaging, inspecting, labeling and recommending the use of coal tar hair dyes (such as paraphenylenediamine dyes), a person of ordinary prudence would exercise extreme caution while engaged in such an activity.

The court then explained that plaintiff was relying upon different theory of liability and went on to instruct upon express and implied warranty. Upon concluding these instructions, the court stated: ‘Now, in this case plaintiff seeks to establish liability on different theories, another one of which is strict liability in which I will now instruct you. Strict liability may be established without proof of negligence on the part of the defendant.

‘Now, the manufacturer of an article who places it on the market for use under circumstances where he knows that such article will be used without inspection for defects is liable for injuries proximately caused by defects in the manufacture or design of the article of which the user was not aware, provided the article was being used for the purpose for which it was designed and intended to be used.’

The court gave no other instructions on strict liability and never explained to the jury that the only ‘defect’ in defendant's product which found any support in the evidence was defendant's alleged failure to adequately label its product in such a way as to warn users that it contained an allergy-producing ingredient.

The instructions above summarized were obviously both misleading and inaccurate. Since there was no evidence, as plaintiff tacitly concedes, that defendant's product was defectively ‘manufactured,’ in the literal sense of the word, defendant could be found liable under the Restatement rule set forth in comment j to section 402A only if it negligently failed to label its product in such a manner as to warn consumers of the dangerous ingredient contained therein. Thus, the court's instruction that liability for a ‘defect’ in the product could be established ‘without proof of negligence on the part of the defendant’ was patently erroneous. Moreover, it is apparent that since the court had already fully instructed on negligence, with particular reference to negligent labeling, the instructions on ‘strict’ liability were wholly unnecessary. They were also dangerously misleading, in that the court incorrectly advised the jury that strict liability afforded a separate basis for liability, independent of the negligent labeling theory on which it had already instructed, and also incorrectly advised the jury that defendant could be held strictly liable for a defect in its product without proof that it was negligent.

Faced with the above instructions, the jury could believe that plaintiff's right to recover damages from defendant was dependent solely upon a showing that she purchased defendant's product, used it and suffered an allergic reaction caused by the paraphenylenediamine dye contained therein. This is not the law.

The fact that the jurors attached special significance to the erroneous instructions on strict liability is apparent, since they returned to the courtroom, after commencing their deliberations, and specifically requested that the court reread the instructions on strict liability. The instant case cannot be characterized as one where defendant's liability was so clearly established as to render it improbable that the jury would have returned a different verdict had it been properly instructed. Defendant had labeled its product in such a manner as to comply with both federal and state requirements, and a properly instructed jury might well have found that a stronger warning as to the potentially dangerous ingredient in defendant's product was unnecessary and that defendant was not negligent in failing to provide same. In addition, the medical records of two physicians whom plaintiff consulted cast serious doubt upon her testimony that she experienced no adverse symptoms within 24 hours after she used defendant's product. Thus the jury could have found that if plaintiff had heeded the warning accompanying the product and had taken the recommended patch test, she would have learned of her allergy to the product before using it to dye her hair.

Under the circumstances, the erroneous instructions on strict liability were prejudicial.

The judgment is reversed.

SHOEMAKER, Presiding Justice.

AGEE and TAYLOR, JJ., concur.