PENNWALT CORPORATION v. EVANGELATOS

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

PENNWALT CORPORATION, et al., Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Gregory EVANGELATOS, Real Party in Interest.

CIV. B011871.

Decided: August 30, 1985

McCutchen, Black, Verleger & Shea, by David S. MacCuish, Richard A. Goette, Kurt Osenbaugh, Los Angeles, for petitioner. Magana, Cathcart, McCarthy & Pierry, Daniel C. Cathcart, Deborah Mitzenmacher, Los Angeles, for real party in interest. No appearance for respondent Court.

Proceedings in mandate after the trial court denied defendant Pennwalt Corporation's (Pennwalt) motion for summary judgment.   We issued an alternative writ to consider the question of whether a bulk chemical manufacturer can be liable in tort to the ultimate user of the chemical when the product has been repackaged, relabelled and resold by business entities over which the manufacturer has no control.   We conclude that applicable precedents and sound public policy considerations compel the conclusion that as a matter of law no liability can attach.   We therefore grant Pennwalt the relief requested.

The undisputed facts are as follows:  Plaintiff, an 18 year old, was severely injured while attempting to make fireworks at home.   He had been fashioning homemade fireworks for approximately five years.   When plaintiff was in the process of grinding sodium chlorate, aluminum powder and sulfur with a mortar and pestle, an explosion was caused by the forceful interaction of the three chemicals.

Plaintiff thereafter initiated litigation naming as defendants the manufacturer, distributor and retailer of each of the three chemicals.   The only issue raised in this proceeding is whether Pennwalt, the bulk manufacturer of the sodium chlorate, has any potential liability.

Pennwalt manufactures sodium chlorate in bulk and sells the chemical in 100 pound drums.   An elaborate warning about the product is attached to the drums.   In the instant case Pennwalt sold bulk sodium chlorate to Van Waters & Rogers, an experienced wholesale distributor of chemicals.   Van Waters & Rogers in turn sold the unaltered drums of sodium chlorate to Student Science Service, an experienced retailer of chemicals.   Student Science Service repackaged the sodium chlorate into small jars to which it attached warning labels stating:  “Oxidizer” “Use of this material is at the sole risk of the purchaser.”   Plaintiff bought a jar of sodium chlorate from Student Science Service, along with the sulfur, aluminum powder and mortar and pestle.

Although plaintiff's complaint is cast in several different legal theories and makes liberal usage of the claim that the sodium chlorate was “defective,” our review of the evidence offered by the parties in connection with the summary judgment motion makes it clear that the thrust of plaintiff's claim is that Pennwalt had a duty to warn the distributor, the retailer and him of the general potential dangers of sodium chlorate and, specifically of the fact that it could detonate when forcefully mixed with aluminum powder and sulfur.   The relevant case authorities to not support plaintiff's claim.

In Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669, 96 Cal.Rptr. 803, the plaintiff was injured by the explosion of a drain cleaner which was made of two chemical components.   The label of the product contained warnings about its use.   Plaintiff sued, inter alia, Stauffer Chemical, the bulk manufacturer of sulfuric acid, one of the ingredients of the cleaner.   The trial court granted Stauffer's motion for summary judgment.   Plaintiff appealed.   The court there stated:  “We are referred to no California case, nor has independent research revealed any such, extending the strict liability of the manufacturer (seller) to the supplier of a substance to be used in compounding or formulating the product which eventually causes injury to an ultimate consumer.   On the contrary this dearth of authority indicates to us a reluctance on the part of the bench and bar to consider such an extension necessary or desirable for the protection of the ultimate consumer.   See Witkin, Summary of California Law (1969 Supp.) page 766, wherein the author states at page 768:  ‘The Restatement takes no position on two borderline situations:  (1) Where the seller sells a product which is not intended to reach the consumer in about the same condition as it left, but is expected to be “processed or otherwise substantially changed” before it reaches him.   (Rest., Torts 2d § 402A, Caveat (2), and Comment p, see 18 Hastings L.J. 22.)’

“We see no compelling reason for an extension to a situation such as presented in the instant case.   While not limited by the courts to the manufacturer (seller), the doctrine should not apply to Stauffer.   We do not believe it realistically feasible or necessary to the protection of the public to require the manufacturer and supplier of a standard chemical ingredient such as bulk sulfuric acid, not having control over the subsequent compounding, packaging or marketing of an item eventually causing injury to the ultimate consumer, to bear the responsibility for that injury.   The manufacturer (seller) of the product causing the injury is so situated as to afford the necessary protection.  (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462 [150 P.2d 436].)”  (Walker v. Stauffer Chemical Corp., supra, at pp. 673–674, 96 Cal.Rptr. 803;  footnote omitted.)

Walker was followed by Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 196 Cal.Rptr. 52, a case in which the plaintiff was injured when he attempted to light a fire with a can of camper stove fuel.   Among the defendants named in the subsequent lawsuit were the bulk manufacturer of the fuel, Shell Oil Co.   The evidence established that Shell had sold the fuel to a distributor (A.G. Layne, Inc.) that in turn sold it in bulk to another entity (Chase Chemical) which repackaged it into quart and gallon cans sold to the public.   Chase Chemical furnished a warning sheet about the fuel.   Based on these facts, the trial court granted Shell's motion for a nonsuit and plaintiff appealed.

The Court of Appeal affirmed the contested ruling, holding that Shell, as the bulk manufacturer, had no duty to warn the consumer about the potential danger of the product.   The appellate court surveyed recent decisional law and concluded that a duty is only imposed on the manufacturer to warn the ultimate consumer in those cases that “․ involved tangible items that could be labeled, or sent into the chain of commerce with the manufacturer's instructions, ․”  (Id. at p. 449, 196 Cal.Rptr. 52.)   It then held that the responsibility of a bulk manufacturer “․ must be absolved at such time as it provides adequate warnings to the distributor who subsequently packages, labels and markets the product.   To hold otherwise, would impose an onerous burden on the bulk sales manufacturer to inspect the subsequent labeling of the packaged product.   In addition, the manufacturer would have severe enforcement problems if the bulk product purchaser failed to adhere to the recommended warnings.”  (Ibid.)  (Accord:  Lee v. Butcher Boy (1985) 169 Cal.App.3d 375, 389, 215 Cal.Rptr. 195;  see also Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 372, 373, 377–379, 203 Cal.Rptr. 706.)

 These principles are especially persuasive where plaintiff himself compounded the ultimate product which caused the injury and preclude any possibility that Pennwalt could be held liable to plaintiff.   Realistically Pennwalt simply did not have the ability to prepare a warning for the ultimate retail purchaser of the chemical because the sodium chlorate was sold in bulk by Van Waters & Rogers and later repackaged and retailed by Student Science Service.   Pennwalt could reasonably rely on the subsequent distributor and retailer of its product to communicate to the ultimate users the potential hazards of the product.   It, however, had no control over the subsequent repackaging, relabeling and combining of its product with other chemicals nor any ability to monitor those actions.

Sodium chlorate has many legitimate uses, some of which involve using it in conjunction with other chemicals.   Pennwalt cannot be expected to anticipate every possible use and issue warnings of any potential danger involved in each such use.   To hold otherwise would place an impossible burden on a bulk manufacturer which would be tantamount to imposing absolute liability for injury resulting from use of a product not claimed to be otherwise defective.

The alternative writ is discharged.   Let a peremptory writ of mandate issue compelling respondent court to set aside its order of February 28, 1985 denying Pennwalt Corporation's motion for summary judgment and to enter a new and different order granting said motion.

If the question were now before us, I would be unable to agree that every manufacturer of a potentially dangerous chemical which will, to its knowledge, reach the consuming public in an unaltered form, may Pilate-like wash its hands of all responsibility in the premises merely by passing the commodity on to a middleman.

In such a situation, of course, it might well be impossible for the bulk producer to insure or guarantee that those ultimate distributors of its products who merely repackage it into smaller containers suitable for individual sale, will actually provide the true consumer with adequate warnings of the perils inherent in those uses that are reasonably foreseeable.   Nonetheless, such a manufacturer could, at least, be expected to make appropriate efforts designed to achieve that goal, e.g., by providing educational materials to its own customers, or by accompanying its bulk containers with labels suitable for use upon repackaging, etc., etc.

Here, however, even if plaintiff had been provided with a copy of the label which Pennwalt attached to its 100 gallon drums, and upon which it necessarily stresses it is placing no reliance, this most tragic accident would not have been avoided.   To have afforded pragmatic assistance to plaintiff it would have been necessary for Pennwalt to have instructed in detail as to the manner in which its sodium chlorate might best be combined with other substances by anyone wishing to engage in the illegal production of explosive fireworks.   No manufacturer should be so burdened.

I, therefore, concur in the judgment.

COMPTON, Acting Presiding Justice.

BEACH, J., concurs.