Aetna Casualty & Surety Co. v. Ralph Wilson Plastics Co.

509 N.W.2d 520, 202 Mich. App. 540
CourtMichigan Court of Appeals
DecidedDecember 1, 1993
DocketDocket 139812
StatusPublished
Cited by23 cases

This text of 509 N.W.2d 520 (Aetna Casualty & Surety Co. v. Ralph Wilson Plastics Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Casualty & Surety Co. v. Ralph Wilson Plastics Co., 509 N.W.2d 520, 202 Mich. App. 540 (Mich. Ct. App. 1993).

Opinions

Per Curiam.

Plaintiff appeals as of right an order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10) in this products liability action arising out of an industrial fire caused by the use of a glue solvent.

Plaintiff, as subrogee, brought this action against the manufacturer of the glue solvent, [542]*542Ralph Wilson Plastics Company (rwpc), and the seller, Plywood-Detroit, Inc. (pdi), alleging negligence and breach of implied warranty based on defendants’ failure to warn. Plaintiff is the property and casualty insurer for its subrogor, National Seating Company (nsc).

Nsc is a manufacturer of tables and chairs. Foam rubber, glue, and glue solvents are commonly used in nsc’s manufacturing process. Beginning in 1980, nsc began purchasing fifty-five-gallon drums of Lokweld 110, a glue solvent, from pdi at intervals of eight to ten weeks. Shortly after nsc began these purchases, pdi provided nsc with the relevant material safety data sheets (msds) required by the Occupational Safety and Health Act (miosha), MCL 408.1001 et seq.; MSA 17.50(1) et seq., which nsc, as an employer, was obligated to disseminate to its employees pursuant to MCL 408.1011(c); MSA 17.50(11)(c).

According to the msds, Lokweld is a highly flammable, even explosive solvent, with a flash point of ten to fifteen degrees Fahrenheit. Lokweld is to be stored and used only in well-ventilated areas. All electrical equipment is to be explosion proofed, and spills are to be immediately sponged with absorbent rags that must be placed in a closed metal container.

The fifty-five-gallon drums in which Lokweld was sold by pdi carried red and yellow warning labels on the top and sides, proclaiming Lokweld to be a flammable liquid, with a second label announcing "danger” in inch-high letters, beneath which were these warnings:

EXTREMELY FLAMMABLE
VAPORS MAY CAUSE FLASH FIRES!
HARMFUL OR FATAL IF SWALLOWED!
TAKE THE FOLLOWING PRECAUTIONS BEFORE REMOVING lid:
[543]*543DO NOT SMOKE—BE SURE WORK AREA IS WELL VENTILATED—OPEN WINDOWS—EXTINGUISH ALL FLAMES, PILOT LIGHTS—TURN OFF STOVES, HEATERS, ELECTRIC MOTORS—READ WARNINGS AND FIRST AID INSTRUCTIONS ON SIDE LABELS—POST NUMBER OF DOCTOR OR POISON CONTROL CENTER AT NEAREST TELEPHONE.

Another label contained the following warnings:

Prevent buildup of vapors—open all windows and doors—use only with cross ventilation. Keep away from heat, sparks, and open flame. Do not smoke, extinguish all flames and pilot lights, and turn off stoves, heaters, electric motors, and other sources of ignition during use and until all vapors are gone. Avoid prolonged contact with skin or repeated breathing of vapors.
Close container tightly after use. Store in a cool, well-ventilated area.

Nsc’s management was well aware that the foam rubber used in the chair manufacturing process is routinely subject to a build up of static electricity. On May 5, 1987, David Swift, a new, part-time employee of nsc, used a rag soaked in Lokweld to clean excess glue from his work table. Some of the Lokweld spilled on the floor. Swift used a piece of foam rubber to soak up the solvent. When Swift picked up the foam rubber, a flash fire erupted. Nsc sustained extensive property damage, for which plaintiff reimbursed nsc. Fortunately, no one was injured. Plaintiff contends, and defendants do not dispute, that the solvent was ignited by static electricity.

Plaintiff brought suit in February 1990 contending that the warnings about the flammability of Lokweld were inadequate. During the course of discovery, plaintiff’s expert testified in a deposition that the warning labels on the drums were inadequate because they failed to warn of the specific [544]*544danger from static electricity. The expert contended that hazard studies and literature in the chemical industry regarding volatile products had recognized fire hazards from static electricity for many years, but that the danger of fire from static electricity is a little-known phenomenon among the lay public. According to the expert, most people would not include static electricity in the term "spark.” However, neither the American National Standards Institute nor the Federal Hazardous Substances Act, 15 USC 1261 et seq., distinguish among sparks by virtue of the generating cause. Plaintiffs expert conceded that nsc, having purchased the product for a number of years, was probably experienced in using Lokweld, but noted that long-term use can result in carelessness.

David Swift testified that neither he nor his coworkers were ever given any information about using Lokweld by nsc managers. He could not remember whether warning labels were on the drum but stated that if there were labels, he did not read them. He had never heard of a material safety data sheet, and had never seen any written information about Lokweld. Although he assumed Lokweld to be flammable, and knew that foam rubber is always charged with static electricity, he claimed to have no idea that a static spark could start a fire.

In moving for summary disposition under MCR 2.116(C)(10), a pdi representative submitted a supporting affidavit, asserting that nsc continued to purchase Lokweld through January 1991. Nsc’s president and owner stated, in an opposing affidavit, that he had no knowledge of the particular risk from static electricity sparks, and claimed he had never been warned that static electricity could ignite Lokweld. He asserted that nsc had taken precautions against other sources of ignition, and [545]*545that if nsc had known of the danger from static electricity, it would not have used Lokweld.

In seeking summary disposition, defendants contended that they owed no duty to warn, because the product was placed in the hands of a sophisticated user; plaintiff contended that its subrogor was not a sophisticated user of the product. Defendants further asserted that, if they had a duty, their warnings were adequate, but even if their warnings were inadequate, plaintiff could not show proximate cause. Defendants noted that nsc had been cited by the Michigan Occupational Safety and Health Administration on February 2, 1987, for failing to provide its employees with information regarding hazardous substances and failing to maintain and make available msds records for its employees.

In a written opinion, the circuit court concluded that defendants had a duty to warn, and that the warnings given adequately encompassed the risk. Absent inadequate warnings, the circuit court reasoned that plaintiff could not possibly show proximate cause.

Plaintiff argues that the warnings given by defendants were inadequate as a matter of law because they did not warn of the risk of ignition by static electricity and that the failure to warn was a proximate cause of nsc’s damages. We disagree.

If a manufacturer had to list all sources of friction, or all sources of sparks, as a means of warning of a flammability hazard, its warning label would have to be of epic or encyclopedic proportions. Even then, the manufacturer could not be certain that it had covered every possibility. The combinations of circumstances or materials that could create a spark or friction would be almost limitless.

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Bluebook (online)
509 N.W.2d 520, 202 Mich. App. 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-ralph-wilson-plastics-co-michctapp-1993.