Freund v. Cellofilm Properties, Inc.

432 A.2d 925, 87 N.J. 229, 1981 N.J. LEXIS 1658
CourtSupreme Court of New Jersey
DecidedJuly 30, 1981
StatusPublished
Cited by120 cases

This text of 432 A.2d 925 (Freund v. Cellofilm Properties, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freund v. Cellofilm Properties, Inc., 432 A.2d 925, 87 N.J. 229, 1981 N.J. LEXIS 1658 (N.J. 1981).

Opinions

The opinion of the Court was delivered by

HANDLER, J.

Plaintiff, Elmer Freund, suffered extensive second and third degree burns in an industrial accident at his employer’s paint manufacturing plant. At the time of the accident, Freund was assisting two fellow employees in preparing a large paint mixer for cleaning. As one of the workers swept a commercial chemical dust, nitrocellulose, from the area of the mixer, the chemicals suddenly ignited.

[233]*233Plaintiff and his wife, Carol, brought this action claiming compensatory and punitive damages against several individuals and corporations, including Hercules, Inc., the manufacturer of the chemical that caused the fire, Cellofilm Properties, Inc., the owner of the industrial property which was the site of the accident, and Cellofilm Corp., the plaintiff’s employer. As a result of trial motions, the only defendant left in the case was the manufacturer, Hercules, Inc.

Plaintiffs charged that Hercules, Inc. (Hercules) acted negligently in failing to give adequate warning of the dangers of its product, nitrocellulose. In addition, they sought recovery on strict liability and breach of warranty grounds, alleging that Hercules placed an inherently dangerous product into the stream of commerce without proper warnings. The case was ultimately presented to the jury on the theory of negligence. The specific issues presented in this appeal are (1) whether there is a meaningful distinction between a cause of action based on negligence and one based on strict liability in a products design defect case involving a failure to warn of the product’s dangers; (2) whether, under the circumstances of this case, it was reversible error for the trial court to have presented the liability question to the jury on the grounds of negligence rather than strict liability; and (3) whether the jury should have been charged on concurrent negligence as to the employer, who was no longer involved in the trial, and the defendant manufacturer.

I

Plaintiff was employed at Cellofilm Corporation’s plant from March 25, 1974 until the date of his accident on July 11, 1974. His work mainly consisted of maintenance and unloading drums of nitrocellulose, an extremely flammable liquid chemical used in the mixing of paints and lacquers.

On July 9, 1974 a chemical mixture was made in a slow-speed mixer at the plant. The mixing process consists of pumping chemicals from outside storage areas into the large mixing [234]*234machine and then mechanically dumping liquid nitrocellulose into the mixer. When nitrocellulose is added to a mixer an aluminum shield is placed around the mixer’s hatch to prevent spillage of the chemical. However, a small amount of nitrocellulose dust is inevitably spilled outside the mixer during the dumping process. Nitrocellulose is extremely flammable even in liquid form, but when allowed to dry the chemical dust becomes even more dangerous.

On July 11,1974 Freund and two other workers were assigned to prepare the chute on the mixer for cleaning. They opened the hatch to the mixer and one of the plaintiff’s co-workers, Krowska, began sweeping nitrocellulose dust from around the mixer. The entire area suddenly erupted into flames, resulting in severe burns to both plaintiff and Krowska, who ultimately died from his injuries.

The major disputed issues in the case were the exact cause of the fire and the adequacy of the warning provided by the manufacturer of the nitrocellulose, Hercules. One of plaintiffs’ experts, Braidech, testified that electrostatic effects in the atmosphere ignited the nitrocellulose dust cloud that had formed while Krowska was sweeping. Another expert, Dunning, concluded however, that the sudden eruption of a “big ball of fire” was the result of vapor ignition from the just-opened hatch. Dunning believed that the cause of the fire was a combination of the failure to wet down the area before sweeping and the failure to render the mixing vessel inert by filling it with water or blowing it out.

Hercules’ experts, Doyle and Williams, testified that the sweeping was probably done in the presence of highly flammable vapors escaping from the recently opened mixer. Doyle testified that the least readily ignitable of the vapors was still ten to twenty times more flammable than dry nitrocellulose dust. In Williams’ opinion, the vapors from the mixer ignited first, setting off the fire.

The drums of nitrocellulose contained a warning, viz:

[235]*235Fire may result if container is punctured or severely damaged — Handle carefully — Do not drop or slide — Hazard increases if material is allowed to dry — Keep container tightly closed when not in use — In case of spill or fire soak with water — For further information refer to MCA Chemical Safety Data Sheet DS-96.

Below this warning, in large letters, appeared the words

“DANGER — FLAMMABLE”

Plaintiff testified that he was aware of the “warning” on the drums but had never bothered to read it. Plaintiffs’ expert, Braidech, stated that while the warnings contained on the nitrocellulose drums were adequate to warn of the dangers involved in transporting nitrocellulose, they were not sufficient warnings for the job. On cross-examination, however, he admitted that no fire would have occurred had the warnings contained on the drums of nitrocellulose been heeded.

Cellofilm’s plant superintendent testified that the company had a long-standing cleanup procedure for dealing with nitrocellulose spills. Employees were instructed to clean up the spills as soon as possible after they occurred and to soak all spills with water before picking them up. A poster provided by the manufacturer, Hercules, and displayed in the employee locker room warned of the dangers of dry nitrocellulose and instructed that in case of a spill, the chemical should be wet with water before cleanup.

Plaintiffs submitted requests for jury charges on the law of negligence and strict liability, as well as the issue of concurrent negligence. Despite plaintiffs’ objections, the trial court refused to instruct the jury on strict liability or concurrent negligence. The essence of the strict liability request to charge was that a manufacturer of a product is strictly liable if the product is defective by virtue of inadequate warnings and the “defect” proximately causes injury to a reasonably foreseeable consumer or user. Additionally, the request stated that “[pjroof of the manufacturer’s negligence in the making or handling of the article is not required.” Addressing plaintiffs’ objections to the charge as made, the trial court ruled that a strict liability charge [236]*236was inappropriate as a matter of law since any “defect” in the adequacy of the warning would necessarily result from negligence by the defendant.

On the question of the relevance of concurrent negligence, the trial judge chose not to follow the proposed charge. He simply informed the jury that it was to determine if Hercules was negligent and, if so, whether that negligence was a proximate cause of Elmer Freund’s injuries. The proposed charge, if given, would have expressly permitted the jury to find defendant, Hercules, negligent even if it concluded that Cellofilm Corp. was also negligent in failing to provide adequate warnings to its employees on the dangers of nitrocellulose. Plaintiffs did not raise a further objection upon the trial court’s failure to submit the concurrent negligence charge to the jury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Karst v. Shur-Co.
2016 SD 35 (South Dakota Supreme Court, 2016)
A-0778-11t2 Elbert Hughes v. A.W. Chesterton Co.
New Jersey Superior Court App Division, 2014
Hughes v. A.W. Chesterton Co.
89 A.3d 179 (New Jersey Superior Court App Division, 2014)
Kendall v. Hoffman-La Roche, Inc.
36 A.3d 541 (Supreme Court of New Jersey, 2012)
Henry v. New Jersey Department of Human Services
9 A.3d 882 (Supreme Court of New Jersey, 2010)
Fletcher v. Cessna Aircraft Co.
991 A.2d 859 (New Jersey Superior Court App Division, 2010)
Yarchak v. Trek Bicycle Corp.
208 F. Supp. 2d 470 (D. New Jersey, 2002)
Magistrini v. One Hour Martinizing Dry Cleaning
109 F. Supp. 2d 306 (D. New Jersey, 2000)
R.F. v. Abbott Laboratories
745 A.2d 1174 (Supreme Court of New Jersey, 2000)
Myrlak v. Port Auth. of NY and NJ
723 A.2d 45 (Supreme Court of New Jersey, 1999)
James v. Bessemer Processing Co.
714 A.2d 898 (Supreme Court of New Jersey, 1998)
Lewis v. American Cyanamid Co.
715 A.2d 967 (Supreme Court of New Jersey, 1998)
Zaza v. Marquess and Nell, Inc.
675 A.2d 620 (Supreme Court of New Jersey, 1996)
In the Matter of Rhone-Poulenc Rorer Incorporated
51 F.3d 1293 (Seventh Circuit, 1995)
Becker v. Baron Bros.
649 A.2d 613 (Supreme Court of New Jersey, 1994)
Coffman v. Keene Corp.
628 A.2d 710 (Supreme Court of New Jersey, 1993)
Feldman v. Lederle Laboratories
608 A.2d 356 (New Jersey Superior Court App Division, 1992)
Dewey v. R.J. Reynolds Tobacco Co.
577 A.2d 1239 (Supreme Court of New Jersey, 1990)
Harford Mutual Insurance v. Moorhead
578 A.2d 492 (Supreme Court of Pennsylvania, 1990)
Snyder v. City of Philadelphia
564 A.2d 1036 (Commonwealth Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
432 A.2d 925, 87 N.J. 229, 1981 N.J. LEXIS 1658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freund-v-cellofilm-properties-inc-nj-1981.