Home/Fifth Circuit/Donnell Brownlee, a Minor Who Sues by and Through His Father and Next Friend, John Brownlee and John Brownlee v. Louisville Varnish Company

Donnell Brownlee, a Minor Who Sues by and Through His Father and Next Friend, John Brownlee and John Brownlee v. Louisville Varnish Company

641 F.2d 397, 1981 U.S. App. LEXIS 14631
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 3, 1981
Docket80-7035
StatusPublished
Cited by12 cases

This text of 641 F.2d 397 (Donnell Brownlee, a Minor Who Sues by and Through His Father and Next Friend, John Brownlee and John Brownlee v. Louisville Varnish Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donnell Brownlee, a Minor Who Sues by and Through His Father and Next Friend, John Brownlee and John Brownlee v. Louisville Varnish Company, 641 F.2d 397, 1981 U.S. App. LEXIS 14631 (5th Cir. 1981).

Opinion

FAY, Circuit Judge:

Appellant, a child, appeals the District Court’s grant of summary judgment in favor of the appellees, certain manufacturers and distributors of aerosol spray paint cans, on his products liability action for personal injuries caused by the explosion of an aerosol paint can. We find that summary judgment was erroneously granted and reverse.

I

On February 15, 1976 appellant, Donnell Brownlee a five year old boy, was burned over his face, chest, arms and hand when an aerosol paint can which he had put into a trash fire exploded spewing hot burning paint onto his clothing. 1 On the morning of the incident, appellant, his mother, older brother and younger sister gathered up newspaper which had been blown into the backyard. After putting the debris into their trash can in the alley adjacent to their house, Mrs. Brownlee put on top a paper bag containing a partially filled aerosol spray paint can as ballast against the wind. This can had been disposed of in the trash can the previous day by Mrs. Brownlee after cleaning out some cabinets. Subsequent to the backyard cleanup Mrs. Brownlee returned to the house while the children played in the backyard. About a half hour later there was an explosion, Mrs. Brownlee rushed out of her kitchen and found the appellant in flames from the waist up. Appellant’s injuries are extensive and severe.

*399 The product involved is alleged to be defective by virtue of both its potential for explosion when exposed to heat and the availability of economical and effective design alternatives which would have significantly reduced the severity and frequency of this hazard. The appellees are aware of the hazard of explosion and rather than redesign their product they have provided a warning on their label. 2 Mrs. Brownlee testified that she, also, was aware of the hazard and had read the warning provided on the can prior to the explosion.

Appellant alleged four grounds of recovery: (1) negligence in the design and/or manufacture of the can, (2) the application of the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD) to the design and manufacture of the can, (3) breach of the implied warranty of merchantability and (4) failure to warn. The District Court found the warnings to be not only adequate and sufficient but concluded also that any deficiencies in the warnings were not the proximate cause of the accident. The court disposed of the other three allegations by concluding as a matter of law, that since the product “was being used in a manner not intended by [the appellees] or by the ordinary purchaser” when it was placed in the fire, it was not unreasonably dangerous. 3 Record at 352, 354, 355.

II

The principal issue joined on appeal is the trial court’s final conclusion that the product in question was not unreasonably dangerous for its intended uses as a matter of law. Appellant argues that “intended use” *400 is equal and interchangeable with “foreseeable use” under Alabama negligence and AEMLD jurisprudence. The appellees contend that at the time of the accident the aerosol paint can was not being used in the ordinary manner for its intended purposes, taken from the viewpoint of either the purchaser or the manufacturer. Therefore, the product could not be unreasonably dangerous for its intended use under Alabama law. They also assert that the appellant is confusing foreseeable use with foreseeable risk of harm in his arguments. Finally, they rely heavily on the adequacy of the warning placed on the product to obviate their duty to better design the spray can. While the arguments of counsel and the erudite opinion of the trial court are thorough and well reasoned, we find that the proper interpretation of Alabama law is much simpler than it appears to the litigants.

The decisions of Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976) and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), announced the adoption of the Alabama Extended Manufacturer’s Liability Doctrine. While this doctrine is closely aligned to the theories propounded in the Restatement of Torts 2d, § 402A and § 398, the Alabama Supreme Court did not adopt a strict liability theory based upon social or economic justifications. Rather, the Court retained the requirement for fault. Casrell, 335 So.2d at 132; Atkins, 335 So.2d at 139. The gravamen of the action is the fault of the manufacturer in placing a product on the market which is in an unreasonably unsafe or dangerous condition when put to its intended use. Id. at 140. The practical consequence of this distinction is the availability of various affirmative defenses, specifically (1) lack of casual relation, (2) assumption of the risk in the instance of an unavoidable unsafe product and adequate warning being provided and (3) contributory negligence as in the case of “plaintiff’s misuse of the product.” Id. at 143. See McCaleb v. Mackey Paint Mfg. Co., Inc., 343 So.2d 511, 514 (Ala.1977). “Ordinarily, the conduct of the plaintiff, in his use of an alleged defective product, is a factual issue for the jury.” Beloit Corp. v. Harrell, 339 So.2d 992, 997 (Ala.1976). See Ford Motor Co. v. Rodgers, 337 So.2d 736, 738-39 (Ala. 1976); General Electric Co. v. Mack, 375 So.2d 452, 456 (Ala.1979). This issue can be taken from the jury only where it is undisputed that the product involved was not put to its intended use, for example, if flammable paint thinner is used in open vats as a reducing agent to clean bumpers dipped into it. McCaleb v. Mackey Paint Mfg. Co., Inc., 343 So.2d 511, 513-14 (Ala.1977).

In determining whether a product was put to an “intended use”, the Court must be careful not to construe the phrase so strictly as to actually resolve questions of contributory negligence or assumption of the risk without submitting those issues to the jury. Cf. General Electric Co. v. Mack, 375 So.2d 452, 456 (Ala.1979). See generally, Noel, Defective Products: Abnormal Use, Contributory Negligence and Assumption of the Risk 25 Vand.L.Rev. 93 (1968). As admitted by counsel for the appellees in oral argument before this Court, the disposal of aerosol cans is an “intended use” or “incident to an intended use” of the product. 4 In considering what could be characterized as the intended disposal of the product, it is significant that the aerosol cans in question were marketed generally for household consumption and not for industrial or professional use. Compare De Santis *401 v. Parker, Feeders, Inc., 547 F.2d 357, 361-62 (7th Cir.) with Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 847, 855-57 (5th Cir. 1967). Household disposal is frequently accomplished by placing spent or partially used products in the family trash can.

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641 F.2d 397, 1981 U.S. App. LEXIS 14631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnell-brownlee-a-minor-who-sues-by-and-through-his-father-and-next-ca5-1981.