Moran v. Williams

Powers, J., delivered the opinion of the Court. This appeal involves the question of liability of a manufacturer, Faberge, Inc., for injuries resulting from a use of its product, when no warning against such use was given on the container. The issue, a narrow one, 1 is whether the evidence would permit a finding that Faberge should have foreseen that two teenage girls would attempt to scent a burning candle by pouring Tigress Cologne 2 on the candle. ⁵⁴⁸ Suit was filed in the Circuit Court for Prince George’s County by Nancy Moran, then a minor, through her father, Elbert M. Moran, as next friend, and by Mr. Moran in his own right, against Randy Williams, a minor, and against Louis P. Grigsby. By a subsequent amended declaration Faberge, Inc. was added as a defendant.

It was claimed that Faberge had a duty to warn of the product’s inherent danger and that its negligent failure to do so was a proximate cause of injuries sustained by Nancy Moran. Trial was held before a jury in the Circuit Court for Prince George’s County with Judge James F. Couch, Jr., presiding. The evidence showed that the product was marketed in a glass bottle at the top of which was a small hole, through which the contents could be applied by the user. The container was sometimes referred to in the record as a “drip bottle”, perhaps to distinguish it from a spray container, which includes a propellant for application by spraying.

The testimony showing how the minor plaintiff was injured was summarized in her brief as follows: “On June 8, 1969, the Appellant, Nancy Moran, then age 17, visited the residence of Mr. & Mrs. Louis P. Grigsby to see some friends, eventually going down to the basement club room with her date to play some records. It was a warm June night, and the uncontradicted testimony of the Appellant placed the club room temperature at around 72 or 73 degrees Fahrenheit. The club room was furnished with the usual articles (couch, shelves, record player, etc.) and there was a washing machine located behind the stairs leading down to the club room. Above the washing machine were some shelves; and on one of these shelves was a bottle of Faberge Tigress Cologne.

The cologne had been given to Mr. Grigsby’s wife by a friend, and Mrs. Grigsby had been using the cologne to scent her wash because of damp odors in the basement. There came a time during the evening when Nancy found herself alone with Randy Williams, then age 15, who had been living with the ⁵⁴⁹ Grigsbys. While they were alone, Nancy noticed a green, Christmas tree-shaped candle which was burning on a shelf behind the couch, and asked Randy if it were scented. When Randy replied that she didn’t know, Nancy went over to the candle and they both smelled it to see if it was scented.

At that point, Randy said, “Well, let’s make it scented”, and poured some of the Tigress Cologne which she had gotten from the shelf over the washing machine onto the lower part of the candle, below the flame, from the back towards the front. Nancy was standing in front of the candle and the testimony is conflicting whether she knew that Randy was about to pour the cologne. In any case, neither girl knew that cologne was flammable. In an instant there was a flame and a burst burning Nancy seriously on the neck and portions of her breasts, the result of which has left Nancy with permanent scars.” In addition, Miss Moran- testified she had never perfumed a candle herself and had never heard of anyone perfuming a candle before, but she had heard of scented candles.

She said that at the time it happened, she thought the fluid was a spray and was squirted on the candle, but she did not know what cologne contained, and was not even sure it was cologne. She guessed she knew that you don’t pour things on lighted candles or lighted flames of any kind when you don’t know what they contain. There was also evidence of the chemical composition of the cologne, and of its flash point, that is, the temperature at which, under certain controlled conditions, its vapors would ignite when in contact with a flame, and that it was flammable. We do not consider the scientific data significant in this appeal.

The jury was entitled to infer that the pouring of the cologne caused the flame, regardless of its composition or flash point. There was testimony given by a representative of Faberge, called by the plaintiffs and uncontradicted, that Tigress Cologne had been on the market since 1942 and they had not had any complaints about a fire such as this. ⁵⁵⁰ At the close of the plaintiffs’ evidence Judge Couch granted a directed verdict in favor of Mr. Grigsby. At the close of all of the evidence the judge denied a motion for a directed verdict in favor of the defendant Randy Williams, and likewise denied a motion of the plaintiffs for a directed verdict against Randy Williams. He reserved his ruling on a motion by Faberge for a directed verdict.

The jury found in favor of the plaintiffs against Faberge only, and assessed damages, upon which judgments nisi were entered. Thereafter Judge Couch granted Faberge’s motion for judgment n.o.v., and denied the plaintiffs’ motion for judgment n.o.v. against Randy Williams. Final judgments were entered in favor of all defendants for costs. This appeal was taken by Nancy Moran and her father from the judgments for Faberge and for Randy Williams.

Counsel for Randy Williams filed in this Court a motion to dismiss the appeal as to her, pointing out that appellants’ brief argues no error as to her. Although the ground asserted in the motion is correct, the result is not dismissal of the appeal, but affirmance of the judgment on the merits. Urging that the trial judge erred when he granted Faberge’s motion for judgment n.o.v., appellants seek reversal, and pose the questions involved in this way: 1. Is the question of what constitutes an intended or ordinary use more properly answered against a backdrop of community experience, rather than by the pronouncements of manufacturers, and therefore, a question of fact to be decided by the jury? 2.

Should a manufacturer be held liable for negligent failure to warn of dangers'inherent in the use of his product where that use is reasonably foreseeable to him? 3. Could a jury find that use of Faberge Tigress Cologne near flame, in general, and in scenting a candle, in particular, was reasonably foreseeable by Faberge? Faberge states the question in ultimate terms when it asks, “Did the plaintiffs present legally sufficient evidence ⁵⁵¹ to raise a jury question as to whether, vel non, Faberge, Inc. was negligent?” Appellants’ first question presents two alternative answers, neither of which is correct. The only proper answer to what constitutes an intended or ordinary use of a product is to be determined from the evidence in the case in which the question arises.

The evidence may show community experience; it may show names, labels, or other pronouncements by the manufacturer; but it is in the evidence that the answer must be found. Appellants’ second question is coüched in general terms which presuppose that the failure to warn is negligent, that the product is inherently dangerous, and that the dangerous use is reasonably foreseeable. It begs the very question involved in this case. A manufacturer may be required to warn of a danger when a warning is necessary.

One could list many foreseeable dangerous uses of gasoline, for example, but it could hardly be contended that a warning should be delivered with each sale of gasoline. Appellants’ third question, insofar as it is directed to the use made of the cologne in this case, does pinpoint the issue of whether the jury, on the evidence before it, could find that use to be reasonably foreseeable. The rule that guides our consideration of the question before us has been stated repeatedly by the Court of Appeals and by this Court. A clear statement of the rule is found in Smith v. Bernfeld, 226 Md. 400 , 174 A. 2d 53 (1961), where the Court of Appeals said, at 405: “The general rule by which the sufficiency of the evidence is to be tested when this Court is reviewing a motion for a directed verdict or judgment n.o.v. for the defendant is well established as being that this Court must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff’s right to recover — that is, the evidence must be viewed in the light most favorable to the plaintiff.” ⁵⁵² To the same effect are Beck v. Baltimore Transit Co., 190 Md. 506, 509 , 58 A. 2d 909 (1948), I.O.A. Leasing v. Merle Thomas Corp., 260 Md. 243, 248-49 , 272 A. 2d 1 (1971), and many other cases.

See also Lusby v. First National Bank, 263 Md. 492 , 283 A. 2d 570 (1971), where the Court said, at 506: “Where it is manifest to the court upon the plaintiff’s own showing in the uncontradicted evidence in the case that there is no rational ground upon which a verdict can be based for the plaintiff, it becomes the duty of the court to direct a verdict for the defendant, or, as in this case, grant a motion for a judgment n.o.v. in favor of the defendant.” We have applied the rule in a number of cases, including Miller v. Michalek, 13 Md. App. 16 , 281 A. 2d 117 (1971), Burns v. Goynes, 15 Md. App. 293 , 290 A. 2d 165 (1972), and Tippett v. Quade, 19 Md. App. 49 , 309 A. 2d 481 (1973). Since the question is whether the evidence was sufficient to present a question for the jury, we consider the record down to the close of the evidence, the posture at which the motion for a directed verdict was made. Whether the motion was granted at that time, or granted retrospectively in ruling on a motion for judgment n.o.v., the record stops at the close of the evidence. Instructions given and verdicts or answers returned by the jury are totally irrelevant to our inquiry.

See Lewis v. Accelerated Express, 219 Md. 252, 255 , 148 A. 2d 783 (1959). The law by which we test the evidence in this case lies in the field frequently referred to as products liability. A general comment in a case involving defective manufacture is found in the opinion written by Judge Hammond for the Court of Appeals in Babylon v. Scruton, 215 Md. 299 , 138 A. 2d 375 (1958), at 303: “The law now generally is that a seller or other supplier for a consideration of a chattel may be liable for harm to the person or property of a person who may be expected to be in the vicinity of the chattel’s probable use if he has failed to exercise ⁵⁵³ reasonable care to make the chattel safe for the use for which it is supplied. Prosser, Torts (2nd ed.) Ch. 17, Sec. 84; 2 Harper & James, The Law of Torts, Sec. 28.2; Restatement, Torts, Sec. 388.

The principle has been recognized and applied in Maryland. Kaplan v. Stein, 198 Md. 414, 420 . One who supplies a chattel to another to use for the supplier’s business purposes ‘knowing it to be or to be likely to be dangerous for the use for which it is supplied’ is subject to liability. Restatement, Torts, Sec. 391.

So, too, is a manufacturer of a chattel, which, unless carefully or properly made, ‘he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured * * *’ Restatement, Torts, Sec. 395.” Cases involving alleged defects inherent in the basic design of a product, as distinguished from its negligent manufacture, are Telak v. Maszczenski, 248 Md. 476 , 237 A. 2d 434 (1968), Myers v. Montgomery Ward & Co., 253 Md. 282 , 252 A. 2d 855 (1969), and Blankenship v. Morrison Machine Co., 255 Md. 241 , 257 A. 2d 430 (1969). In Telak the Court quoted from Restatement, Torts, 2d § 388, which says under the general topic of Rules Applicable to All Suppliers: “§ 388. Chattel Known to be Dangerous for Intended Use One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for ⁵⁵⁴ whose use the chattel is. supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” An aspect of products liability law more directly involved in the present case must be considered when a product, although designed and manufactured without negligence, may be inherently dangerous in its intended use, or other foreseeable use or misuse. There then may or may not be a duty to warn of such danger.

There appears to be no duty to warn of a danger which should be known to a user, or of a danger which would not reasonably be expected to exist when the product is used in a manner for which it was intended, or which was reasonably foreseeable. In Katz v. Arundel-Brooks Concrete Corp., 220 Md. 200 , 151 A. 2d 731 (1959), damages were claimed from a supplier of wet mixed concrete by the purchaser, who sustained burns when he worked in the concrete for several hours, spreading it to cover a cellar floor. There was evidence showing the chemical properties of cement. It is made of kiln-burned limestone and clay.

When mixed with sand, gravel and water, it hardens into concrete. It contains alkaline ingredients which on prolonged contact with the human skin can produce chemical burn. There was evidence that among people who worked with cement these properties were well known, and that it was customary to use some protection, such as boots, pads, burlap wrappings, or gloves. Katz had never worked with concrete before and wore no protective covering.

In affirming a judgment for the supplier entered upon a directed verdict the Court of Appeals said, at 203: “There was no showing that the concrete delivered was