Document ymeM0d5knwbN97LDZM1VJqm2X

18,202 Current Decisions 4 J 8 7-79 limitations until .one year, after the last day on which the plaintiff was exposed to the dangerous, conditions which caused the injury. Minyard v. Woodward Iron Co., 81 F. Supp.'.'414 (N.D. Ala.), aff'd, 170 F.2d 508 (5th Cir. 1948). This was, and is, the rule in all cases ., concerning continuous.-; torts in Alabama. . v : . .. = -. '. In the recent cases of, Harig v- Johns- Manville Products Corp; [M.S.' November 21, 1978, Court of Appeals of Maryland] -- A.2d --, and Raymond v, Eli Lilly & Co., [CCH Products Liability Reports 117955] 371 A.2d 1J0 (N.H. 1977), it was noted in the opinions that the courts in those states had already recognized the "Discovery Rule" before it was extended to products liability cases. Although both are well reasoned opinions, they are based on those states' recognition of a rule which has been specifically rejected by Alabama courts for the past 60 years.; ; It may be that Alabama's,rejection of the "Discovery Rule" is contrary to the weight of opinion generally. However, as this Court is committed to the proposition that the legislature has the inherent power to establish statutes of limitation, we have no other alternative than to leave it to the legislature, to abrogate this rule and adopt a more equitable one should it see fit, so that. a plaintiff's claim will not be barred when he has no way to ascertain that he has been damaged by a deleterious substance because the result has not manifested itself until the statute of limitations has run. Of course, Alabama does recognize that a fraudulent concealment by; a defendant tolls ' the running of the statute until the tort or injury is discovered or could have been discovered by due diligence. Although plaintiff purports to make art effort to allege fraud in Count Six, the allegations fall far short of the requirements: of Rule 9, A.R.C.P., that fraud be alleged "with particularity." For instance, the count fails to allege that the failure to disclose was material--that defendant knew the hazards .were harmful to plaintiff-r-that they permitted him nevertheless tb.be exposed to the hazards--which he did hot discover nor could he have discovered with reasonable diligence until the statute had run. plaintiff's ignorance of the: tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort.or injury is discovered. If plaintiff was hot injured in = 1955-1957, then defendant committed ho negligent act at that time- which resulted in injury and defendant'would not be liable. If plaintiff did become injured or damaged at that time, then the statute of limitations has run. *' . To . reach the result espoused by the dissenters, however, laudatory and attractive it may appear to be. Would require overruling dozens of Alabama cases and departing from well-established'principles of law laid down, over the past 60 years.. Moreover, and more importantly perhaps, it would result in usurping the inherent power Of the legislature. Affirmed. .. .... ... Torbert, C.J., and Maddox, Almon. and Embry, JJ., concur. : . .l; Faulkner, Jones, Shores, and Beatty. JJ., dissent,. ' : [H 8453] V. REED, Appellant v. PENN WALT CORP,, Respondent . Washington Court of Appeals, Division Three. No. 2659-3. February 22,1979. Appeal from Superior Court, Franklin County, Affirmed.^ V. . Strict Liability?!-1ntervening Negligence--Employer Action ;. . .. . An injured food processing employee may not recover under strict liability from the manufacturer of caustic soda if the manufacturer adequately warned the employer of the hazards of the product. The employee, who trimmed potatoes before they were cut into french fries, received burns from the caustic solution, despite wearing rubber gloves. Where the intermediate buyer had ..its own safety program, the manufacturer had no eontfol over the. product after the sale, , the. manufacturer had no effective means of warning the ultimate user and the product was not in the original container or form, then the responsibility to warn was shifted to .the buyer and his negligence supersedes the liability of the seller-manufacturer. - Back referencesW-H 4095; 4360.: - r Y [Conclusion] It is thus that we hold that, the statute of limitations of one year began to run when plaintiff was last exposed to radiation and For the Appellant: Critchlow, Williams, Ryals and Schuster. For the Respondent: Leavy, Taber, Schultz, Bergdahl and Sweeney. H 8452 - . 1979, Commerce Clearing House, Inc. ' ' 055-56 .4 I - C't-- St r PCB-ARCH-EXT0375782 41H 7-7SI Current Decisions' 18,203 [Caustic Soda Injury] use, handling and safety of chlorine and Roe. J.: Defendant Pennwalt Corporation (Pennwalt) owns a chemical manufacturing plant. It supplies caustic soda to Rogers of Walla Walla (Rogers), a food processing plant, whose primary product is frozen french fries. Rogers is not a party to this action. The caustic soda, sold in bulk to Rogers, arrives in Walla Walla via railroad tank cars'or tank truckloads. Upon arrival it is transferred to bulk holding tanks with capacities up to 15,000 gallons. From the bulk storage tank, it is piped through a sealed system to tumblers where it is used in . a potato peeling and washing system in diluted . amounts as determined by, Rogers. Rogers has exclusive control ' of, its equipment' and operation, without any past or present involvement of Pennwalt. The design of the.entire "potato processing system, including the machinery, purchase, repair, and replacement'is exclusively Rogers'. Pennwalt was aware of the general use and function of its product in this plant. However, it had no specific knowledge concerning, the potato washing, operation and , what amounts of residue,, if any, ; of caustic soda would be on the potatoes, as they were handled by the employees! : caustic soda, both of which Pennwalt shipped and sold to Rogers. Meetings were arranged through the plant supervision or operations manager of Rogers, which, contacted its own employees for attendance at the . presentation.1. This included . management, supervisory personnel and' crew foremen. No laborers or trimmers were invited to attend. Attendees were given product news,, safety and warning posters, with (a . general. discussion concerning Pennwalt's products. Pennwalt was not involved in implementing any safety program for trimmers. Rogers' personnel did not believe that the trim line workers had any harmful exposure to. caustic soda, nor were they, .invited. to the safety seminars. The.manager felt there was.no exposure absent a spillover of which there was no . evidence. He testified that all of the equipment was within the exclusive control of Rogers, ` whose trim line supervisors attended Pennwalt's presentation. The manager did, not think trace amounts of caustic soda were ori the potatoes when trimmed by the employees, since he personally: had ' trimmed, barehanded without any skin problems. . , . - .'Processing, potatoes includes peeling ; The head, of the plant safety , committee, accomplished by bathing the'potatoes in a testified that the employee in charge of the diluted solution of caustic soda. The peeling , process took pH readings of waste . solution utilized by Rogers contains from 6 solution on a daily basis, and this was taken ' to 22 percent caustic soda, the balance being- from the liquid on potatoes as they'exited water. The bathing ;process loosens the the washer. The reading was 7.4-pH and 7.6 potato peel and they are put directly into, a, pH; that a pH of 7.0 is neutral.arid 7.2 and tumbler where high pressure jets of .water 7.6 are average and is the approximate level and the tumbling action remove the. peels . of normal drinking; water .for Richland;.' and wash the potatoes, They then exit the Washington. Hence, he! believed there was washing drum to the trim line where the no appreciable caustic soda beyond the. employees (trimmers) trim defects from the potato washer and thus no exposure to trim potatoes before they are cut into:french line employees. . . ..... fries. This is where plaintiff worked. The . trim line, employees wear plastic aprons and [Duty to Warn] . . ' rubber gloves. About 48 trimmers are employed at one time and the production line turnover is approximately 150 trimmers . per year. ' .. - .... " , . As a trimmer, plaintiff used a sharp knife to cut bad spots from the potatoes. On occasion she would cut her gloves, and incur . a small, tear, or a hole and, when the drippings from the potatoes invaded her gloves, it would burn. Presumably, she had dermatitis as a result of this contact with the caustic, soda.-For this injury, she sues the manufacturer, Pennwalt. The jury rendered a verdict for the defendant and the action was dismissed. Plaintiff made timely objection to certain instructions and proposed her own. . Essentially the question, raised is: Must the manufacturer warn the ultimate consumer (in this case the trimrners) of dangers presented by its product, or stated alternatively, was the manufacturer's duty satisfied with warnings given to the employer, Rogers, of the hazards of the product? The court's instruction No. 16 was to the effect that, "The manufacturer is not In previous years, at least annually, . required to communicate warnings; Pennwalt had called upon Rogers and concerning the safe use, or hazards, to its. offered safety and handling information, to employees of its purchaser." This practically plant .personnel. . The seminars covered the directed a verdict for the defendant.. Products Liability Reports >' 010-60 . ..... . . : . ... " |8453 PCB-ARCH-EXT0375783 18.204 Current Decisions Plaintiff relies heavily upon Haugen v. common to painters who. will actually Minnesota Mining & Mfg. Co.,- [CGH open the containers and use the paints; Products Liability Reports u 7697] 15 the possibly superior knowledge and Wn. App. 379, 550 P.2d 71 (1976). In that understanding of painting contractors is case the 'plaintiff was using a defective . irrelevant. ' !.\ grinding disc which, virtually exploded, injuring him, resulting in the loss of an eye. In that case, the.: product was defective. There is no showing here that the caustic soda was defective. The court stated:: ; ' The court called attention on pages 813-14 to the fact that "Paint is not a product `the use of which is to be directed by technicians or engineers.' Further it is a product , so dispensed that warning to the ultimate [We] hold that _ a manufacturer may "be consumer can readily be given.',' A held strictly liable if a plaintiff establishes distinction was drawn between packaged that a product is unreasonably'dangerous, paint on one hand and other products. , . > though faultlessly manufactured, when placed in the hands of a user without " giving suitable aiid adequate warnings or instructions concerning the safe manner in which to use it. See Rindlisbaker v. Wilson, [CCH Products-Liability Reports U 7179] 95 Idaho 752, 519 P.2d 421 (1974). ' ; Haugen v. Minnesota Mining & Mfg. Co., supra at. 388. Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974), involved a We find the above cases distinguishable.. Restatement (Second) of Torts 388(b) (1965), provides that prior to imposition of liability upon the manufacturer, it must be established that the supplier ' < ' {{/. . has no reason to believe that those for whose, use the chattel is supplied will . realize its dangerous condition,. .. . '. Comment (k) at page 306 of the Restatement elaborates on the meaning of section 388(b): / factual question of. the defendant's failure to k. When warning of defects' unnecessary. warn that an applicator's wing: 0n a liquid ' - One who Supplies a chattel to others to use* fertilizer machine could fall, which it did, - for any purpose is tinder a duty to exercise and injured the plaintiff, ;.The factual reasonable'.care to inform them of its question was the obviousness of the danger dangerous character in''.so far as it is involved in the applicator, wing lowering known to him ... if,.but only if, he has no procedure.' . . ;'i.! ` . . reason to expect that those for whose use Plaintiff also cites as supportive of her position Jackson v. Coast Paint & Lacquer .: /, the chattel is supplied will; discover its . condition and realize the danger involved. . Co., [CCH Products Liability Reports. Here, Pennwalt gave ample warning of the .17232] 499 F.2d 809 (9th Cir. 1974). The defects to Rogers, and there is no suggestion plaintiff, was injured by a fire which that its warnings- were insufficient; - occurred while he was spray painting the Pennwalt had no control over the use of its inside of a tank using defendant's product! . product in the Rogers plant, unless, as The question arose as to whether the paint suggested in oral argument, it would be was ' adequately labeled not only as to made a condition of doing business with ventilation but as to inflammability. In Rogers. This would assure that the warnings approving the test in Restatement (Second) would be promulgated and followed. Counsel of Torts 402(a) (1965) (adopted by also suggested alternatively that Rogers give Washington in Teagle v. Fischer & Porter a holdharmless agreement to Pennwalt. We Co., [CCH Products Liability' Reports must look at the realities of the situation. f 8076] 89 Wn.2d 149, 570 P.2d 438 (1977)), . The law does not require this extreme the court held it is not essential to strict position. We doubt any manufacturer could liability that the product be defective in its . or would try to exert such commercial manufacture; if it is unreasonably pressure on a prospective customer. dangerous, that: is enough.- The manufacturer may be liable to consumers because of a failure to warn of its dangerous characteristics. In Jackson v. Coast Paint & Lacquer Co., supra at .812-13, the court stated: . . ' . .. -'. > . In Little v. PPG Indus., Inc.,. [CCH Products Liability Reports f 8200] 19 Wn. . App. 812; 579 P.2d' 940 (1978), the application of section 402(a) of the Restatement was discussed in the case where a man was found dead in a sump, the The seller's duty under 402A is to "the evidence indicating he had died from the ultimate user;`or consumer." At least in inspiration of Tri-Ethane manufactured by : the case of paint sold in labeled . . the defendant. The barrels of defendant's containers, the adequacy of warnings must' brand had been lettered with a caution that be measured according-to whatever the vapor may be harmful, but the knowledge and understanding may . be plaintiff's witness testified that the labeling 118453 " .- " 1979, Commerce Clearing House, Inc. 418 7-79 Current Decisions 18^205 was inadequate and that it should have been argument that the manufacturer had a duty labeled with a skull and crossbones with a to warn, and that it be especially, yellow background containing such words as communicated to the decedent, the court "very dangerous," ."highly toxic," or referred to Restatement (Second) of Torts "poisonous." Thus, the question of fact was 388 (1965). Quoting comment (k), it stated: whether^the warnings were adequate. The One who supplies a chattel to others to court stated: ' use for any purpose, is under a duty to Arid if the product has dangerous exercise reasonable care to inform them of propensities i.'.V unless.the. dangers are ; ; its dangerous character in so far as it is : obvious or known to the user, the known to him * * * if, but only if, he has manufacturer will be' held strictly liable if ' no reason to expect that those for whose it has not adequately warned the user of use the chattel is supplied will discover its the dangers inherent in the use of the condition and realize the danger involved. . product by, for example, affixing a proper ' label. . > - v \ . ' v (Italics ours.), Luintttlie v. PrrPuG Imnadus., Imnec., supra at 822. This implies feasibility. Nothing in this opinion excludes__a_n_y__ca_u__se off aacrttiinonn H byv ttVhiep npllsaninntt'iiffff.ffhorr hheprr iinn*jurie' s, 'but. only refuses'to extend liability to a remote Jacobson v. Colorado Fuel & Iron Corp., supra at 1270. The supplier is liable only if . he has no reason to believe that those who use it will not have such special expeiience as will enable them to perceive the danger. Then "`[H]e is required to inform them of the risk of which he. himself knows and " manufacturer: ' ' '; j.-r. which he has no reason to suppose that they .; [Intervening Cause] will realize.' " Jacobson y. Colorado Fuel & Iron Corp., supra at 1270. Discussing In discussing the principle of. the., 'Hopkins v. E:I. Du Pont De'Nemours & Coy -'-' superseding or intervening cause, the court [3 ^Negligence Cases (2d) 696] 212 F.2d 623. stated, quoting W. Prosser, Law Of Torts (3d Cir. 1954), where there was a premature 102, at 667:68 (4th ed. 1971): ;,f ''-,/ yi-? * : explosion of dynamite, the blasting foreman '.T,, On the other hand, it is ordinarily hot . . reasonably, to be expected that one who ;, Vknows that a chattel is dangerous will pass ,',iton to another without a warning. Where had knowledge of-the danger; therefore,.the manufacturer of the dynamite was not liable . for failing to warn the' ultimate purchaser. The court pointed out that: ; .. ); . the buyer is notified of, the danger, or, \b.This is a salutary rule because obviously . discovers it for himself, and delivers the ' 'ri-there is .no point in giving a warning of a- product without warning, it usually has ' dangerous product to the purchaser whose: been held that the responsibility is shifted supervising personnel, the ones who are . . to him, and that his negligence supersedes going to direct the use of it, already have V-. the liability of.the seller. : sufficient. knowledge of.-.,the danger Little v. PPG Indus., Inc., supra at 824. inherent in the product, r- l. . The doctrine' is particularly appropriate Jacobson v. Colorado Fuel & Iron Corp., when, as here, the intermediate buyer is a supra at 1271. Since, in the Jacobson large industrial concern with its own safety case,the decedent's employer and programs and method of product supervisory personnel did know the dangers distribution and where the manufacturer inherent in the use of the defendant's > may have no effective means of. product, any breach of duty owed the communicating the warnings to the ultirnate decedent was the liability, of the decedent's user. The supplier has: fulfilled its duty employer and supervising personnel and not... when it gives adequate' warning to the the liability of the defendant .manufacturer. intermediate buyer or supervisory personnel and the product is not in the original can, box, or form, such as a grinding disc, and it'is reasonable to expect that the intermediate The judgment of the trial court is affirmed.. . V.. - \ Green, C.J.; and McInturff,J.,: concur.- . buyer has a safety program and that it will Reconsideration denied March 13, .1979.. communicate whatever is necessary to the . ultimate users. In reaching this conclusion, we are fortified in our position by Jacobson v. Colorado Fuel & Iron Corp., [CCH Products Liability Reports h 6171] 409 F.2d 1263 (9th Cir. 1969). There a man was killed when a steel strand, which was [ H 8 4 5 4 ] E . EZAGUI, as Administratrix, etc., et- al., PlaintiffsAppellants v. DOW CHEMICAL CORP., et al., Defendants-Appellees being used in a concrete prestressing " U.S. Court of Appeals, Second Circuit. No. operation, failed!' In response to the 78-7148. April -23, 1979. Appeal 'from the Products Liability Reports 01? 59 . . . : V: If 8454 PCB-ARCH-EXT0375785