Ellsworth v. Sherne Lingerie, Inc.

LISS, Judge. In February of 1981, Elizabeth Horton Ellsworth, 1 appellant, filed a declaration in the Circuit Court for Montgomery County, in which she sued Sherne Lingerie, Inc., appellee (hereafter Sherne). The declaration alleged damages sustained by the appellant by reason of the defendant’s negligence and strict liability. Subsequently, an amended declaration was filed in which Sherne was charged with a breach of implied warranty.

Another defendant, Cone Mills Corporation, also an appellee herein (hereafter Cone Mills), was added as a co-defendant and the allegations as to negligence and strict liability were added to appellant’s complaint against Cone. No breach of implied warranty was charged against Cone. Compensatory and punitive damages were sought against both defendants. In her amended declaration the appellant alleged that she was seriously burned while wearing a flannelette nightgown which was unreasonably dangerous because of the high flammability of the fabric from which the nightgown had been made and because of an absence of any warnings of the danger inherent in the use of the nightgown.

Jury trial began on September 19, 1983. A directed verdict on the punitive damages count was entered in behalf of both defendants at the close of appellant’s case-in-chief. The jury returned a general verdict-in favor of both defendants on the remaining issues in the case. It is from these ¹⁰⁹ judgments that appellant has filed this appeal, raising the following issues: I. Whether the trial court’s refusal to instruct the jury that contributory negligence is not a defense to strict liability, and the trial court’s actual instruction on product misuse constituted reversible error?

II

Whether there was prejudicial, reversible error in the trial court’s evidentiary rulings as to: The Statistical Data, The British Sleepwear Law, The “Burning Dress” Film, The “Newspaper” Test, and The Chart Illustrating Sherne Lingerie’s Market Position? STATEMENT OF FACTS Appellant, Elizabeth Horton, was injured when her nightgown caught fire while she was in her kitchen making coffee. She was wearing the nightgown inside out so that two pockets at hip level were protruding. Appellant placed a kettle over the small electric burner located on the front of the range.

Most of the burner was covered by the kettle, with less than an inch of the burner exposed. As appellant reached over the range to a cabinet above it, in order to obtain a coffee filter, some part of her nightgown either touched or came close to the exposed portion of the burner. Although appellant was wearing the nightgown inside out, whether a protruding pocket was the actual ignition point was never resolved. One pocket was undamaged, the other partially burned.

The burner height was approximately hip level where the pockets were protruding. Ms. Horton smelled something burning but did not discover that her gown was on fire until she felt the heat moving up her back. Damages were not seriously challenged by the defendants and are not an issue on appeal. ¹¹⁰ The nightgown was made from 8772% cotton and 1272% polyester fabric, manufactured and sold by Cone Mills Corporation; the nightgown was designed, manufactured and placed in the stream of commerce by Sherne Lingerie, Inc. It was an ordinary pullover type gown which has been a popular item of ladies’ sleepwear for many years. In 1977, when this gown was manufactured, approximately thirteen million dozen items of cotton adult sleepwear were produced.

This particular nightgown was the business mainstay of Sherne, and is still manufactured by Sherne today. In early 1977, Cone Mills sold the fabric from which the nightgown was manufactured to Sherne, and at the direction of Cone’s president, the shipping document included the following warning: This fabric is not intended for use in children’s sleepwear or robes in sizes 14 and under. Flammable. Does not meet standards for flammability in children’s sleepwear, FF5-74 and U.S. Department of Commerce Standard DOC FF3-71.

Should not be worn near source of fire. The language was understood by Sherne to be a warning, but Sherne did not pass on this warning to consumers of its products. Sherne offered testimony that no manufacturer of ladies’ nightwear places flammability warnings on cotton nightgowns. Cone Mills marketed the fabric at issue for the adult sleepwear market.

It was aware that ladies’ nightwear has been the subject of particular investigation with respect to the adoption of new flammability standards by the federal government; that ladies’ nightwear has been identified as a higher risk category than other apparel which has been investigated, and that ladies’ adult sleepwear and kitchen ranges in combination has been identified as a significant hazard category by the federal government. A representative of Cone Mills testified that the nightgown worn by appellant should not have been worn while making coffee, because, among other reasons, of its loose and flowing design, although both defendants conceded that wearing ¹¹¹ this nightgown in close proximity to an electric range was foreseeable. Defense experts, however, contended that the fabric was perfectly safe for use in an adult nightgown. It was established that the fabric, and hence the garment, complied with the Federal Flammable Fabrics Act, the only federal standard applicable to general apparel.

The Federal Flammable Fabrics Act is contained in Title 15, Commerce and Trade, of the United States Code Annotated, §§ 1191-1204. Additionally, Title 16 — Commercial Practices — of the Code of Federal Regulations, incorporates the Federal Flammable Fabrics Act and a complete description of the test method which it mandates. The Act renders unlawful the manufacture, sale, importing or introducing of fabric which, under the standard of flammability described in the Act, is so highly flammable as to be dangerous when worn by individuals. The standard provides for three separate classes of flammability as determined by a test method which measures both ease of ignition and the speed of flame spread.

The test method for the standard adopts Commercial Standard 191-53, developed in 1953, and provides for a testing apparatus which basically delineates as “normal” a flannelette textile which, after ignition, requires more than seven seconds for the flame to spread a measured distance in a controlled attitude and atmosphere. When the time of the flame spread is measured between four and seven seconds in the test apparatus, the textile passes the standard but is classified as “intermediate flammability.” Textiles which test the flame spread in the apparatus at less than four seconds are termed “rapid and intense burning” and do not pass the standard. This standard measures the rate of burn of a 5-inch specimen of oven dried fabric mounted at a forty-five degree (45°) angle. After ignition, the time that it takes for the flame to burn a cotton stop cord, which is placed at the top of the fabric, is measured.

Raised fabric, such as cotton flannelette, fails if the time is ¹¹² less than four seconds. The burning time of the fabric at issue, according to that test method, is 9.8 seconds. See Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727 (Minn., 1980) for a case involving identical burning time. The significance and validity of the federal standard as a measure of flammability hazard or safety was the subject of considerable disagreement among the experts at trial.

The flammability characteristics of the fabric at issue were also strenuously disputed by the expert witnesses. Additionally, the experts disputed the feasibility of warning labels and methods of chemical flame retardancy. Evidence which was excluded by the trial court included: oral evidence and federal publications offered to show the nature and magnitude of the risks posed by fabric and garments which comply with the federal flammability standard; oral and written evidence to show the magnitude of the hazard associated with ladies’ sleepwear; a film which was offered to show the flammability and extinguishment characteristics of the fabric; evidence that ordinary newsprint passes the federal standard by a wide margin; and evidence that under longstanding British flammability standards the garment would be banned from commerce unless it were flame retarded or carried a flammability warning label. I. Appellant complains initially that the trial judge, over appellant’s objection, erroneously instructed the jury that misuse of the product was a valid defense to the strict liability count of the declaration, and that such error was compounded by the refusal of the trial court to instruct the jury that contributory negligence was not a defense to that count.

Appellant argues that these errors set the stage for defense counsel to argue, improperly, in their closing arguments, erroneous statements of the applicable law which equated accidental or careless conduct by the appellant with product misuse. That issue, however, has not been pre ¹¹³ served for appeal. No objection was made to the argument by counsel. Maryland Rule 1085.

Appellant did make appropriate objection to the trial court’s instruction that product misuse is a defense to strict liability and also to the trial court’s refusal to instruct the jury that contributory negligence is not a defense to strict liability. The doctrine of strict liability in tort was adopted by the Court of Appeals in 1976. Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976). It is differentiated from an ordinary negligence action in two material respects.

First, the burden of proof for a plaintiff injured by a defective product is eased by eliminating the need to establish negligence on the part of the manufacturer. Id., at 278 Md. 343 , 363 A.2d 955 . Second, the contributory negligence of the plaintiff will not bar recovery. Sheehan v. Anthony Pools, A Division of Anthony Industries, Inc., 50 Md.App. 614 , 440 A.2d 1085 , aff'd, 295 Md. 285 , 455 A.2d 434 (1983).

In this case, appellant’s principal contention at trial was that the appellees were strictly liable for the manufacture and distribution of the nightgown manufactured and distributed in a defective and unreasonably dangerous condition. Appellees denied that either the fabric or the nightgown was unreasonably dangerous and further contended that the appellant had misused the product by wearing the nightgown inside out so that the two hip pockets of the nightgown protruded in close proximity to a lit electric burner on a kitchen range, and that this conduct of the appellant was the proximate cause of the fire. We agree with the trial judge that there was sufficient evidence before him to require him to submit the issues of strict liability and misuse of product to the jury for its determination. Since the trial court denied appellees’ motions for directed verdict it was left to the jury to decide whether the appellees were strictly liable for the sale of a defective and unreasonably dangerous product and if they were, whether ¹¹⁴ any defense was available to appellees to defeat appellant’s recovery of damages.

Appellant’s complaint is directed primarily at the court’s instruction on- the misuse of product defense and on its refusal to instruct the jury that the “inattention, lack of alertness or contributory negligence of the plaintiff is not a defense to strict liability.” The trial court’s instructions on strict liability and product misuse were given as follows: With respect to strict liability, in order for you to find in favor of the plaintiffs, you must find by a preponderance of the evidence that the defendants manufactured a defective product which was unreasonably dangerous to the consumer and that the defect was the approximate [sic] cause of plaintiff’s injuries. And that the defendant has not shown by a preponderance of the evidence that the plaintiff misused the product. So in the strict liability theory, it is for the plaintiff to show by a preponderance of the evidence that the defendant manufactured a defective product, which was unreasonably dangerous and that the defect was an approximate [sic] cause of the plaintiff’s injuries. On the other hand, it would be for the defendant, if they established — if the plaintiff established what I just mentioned, it would be the burden of the defendant to show that the defendant [sic] misused the product.

On a strict liability theory, you must find by a preponderance of the evidence that the defendant manufactured a defective product, which was unreasonably dangerous to the consumer and that the defect approximately [sic] caused the plaintiff’s injuries. That is the burden of the plaintiff. The burden is then upon the defendant to show that the plaintiff misused that product. So if the plaintiff meets her burden of sharing [sic] the strict liability theory, you ¹¹⁵ then look as to whether the defendant might have shown a misuse of the product.

Appellant objected to the misuse instruction, stating that there was no factual basis in the record to justify the giving of such an instruction and specifically requested the court to give an additional instruction that the “inattention, lack of alertness or contributory negligence of the plaintiff is not a defense to strict liability.” Appellant argues that the trial court’s refusal to give the requested instruction left the jury without essential guidance in determining whether the appellant could recover in strict liability even if she had been contributorily negligent or whether she was barred because she had “misused” the product. The gist of appellant’s argument appears to be that, through this combination of circumstances, defense counsel were permitted to argue improperly that it is possible to misuse a product accidentally as well as purposefully, and that the jury was therefore misled in that it was not made clear that some “deliberate, knowing and unreasonable conduct on the part of appellant is required to defeat her claim____” We note, however, that appellant made no specific objection to any argument by appellee’s counsel at any time. Appellant’s counsel had the last word in rebuttal argument and had the opportunity to point out to the jury any misconception appellant felt may have been caused by defense counsel’s argument to the jury. While this would not cure erroneous instructions by the trial court, our reading of the record extract convinces us that the evidence before the court focused primarily on the threshold issue, i.e., whether the product here involved was unreasonably dangerous and its manufacture and sale subjected the appellees to strict liability for its sale and distribution.

The affirmative defenses of misuse of product and whether plaintiff’s conduct was misuse of the product so as to amount to the proximate cause of plaintiff’s injuries was, however, also generated by the evidence. We do ¹¹⁶ not conclude that the court’s instructions as given in the light of the evidence before it were erroneous. The general verdict returned by the jury offers us no enlightenment as to the basis of its finding of a verdict for the defendants. If appellant entertained any serious thought that the jury would find one or both of the appellees to be legally liable for her injuries, yet deny her a verdict by applying an affirmative