Johnston v. J.C. Ehrlich Co.

14 Pa. D. & C.4th 4, 1991 Pa. Dist. & Cnty. Dec. LEXIS 22
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedNovember 22, 1991
Docketno. 88-C-2171
StatusPublished
Cited by2 cases

This text of 14 Pa. D. & C.4th 4 (Johnston v. J.C. Ehrlich Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. J.C. Ehrlich Co., 14 Pa. D. & C.4th 4, 1991 Pa. Dist. & Cnty. Dec. LEXIS 22 (Pa. Super. Ct. 1991).

Opinion

WALLITSCH, J.,

We have before us a motion for summary judgment filed by defendant Dow Chemical Company, t/a Dow Chemical U.S.A., as well as a motion for partial summary judgment filed by defendant J.C. Ehrlich Co. Inc.

On October 1,1986, pursuant to an arrangement between plaintiffs, James and Betty Johnston, and Ehrlich, one of Ehrlich’s employees sprayed a pest control formulation containing Dursban L.O., an insecticide, and Precor 5E, an insect growth regulator, in the plaintiffs’ home. Four to six hours later, one of the plaintiffs, Betty Johnston returned home and was exposed to this flea infestation spray. As a result of that exposure, she contends that she suffered chronic respiratory problems, including constriction and hyper-irritability of the lungs, periodic “asthma-like” attacks, and other maladies. As a result of this occurrence and the alleged damages, plaintiffs have filed suit against the defendants seeking compensatory and punitive damages for the alleged injuries.

Dow has filed a motion for summary judgment and, in the alternative, partial summary judgment on the issue of punitive damages. Dow also suggests, and the plaintiffs agree, that if the claims of plaintiff Betty Johnston are dismissed, then plaintiff James Johnston’s derivative claim for loss of consortium should also be dismissed.

[6]*6Ehrlich contends that plaintiffs’ claim for failure to warn, as well as the claim for punitive damages, should be dismissed. Apparently, Ehrlich concedes that there is a genuine issue of material fact concerning the plaintiffs’ action for negligence in the application of the pesticide.

In deciding whether we may grant Dow’s motion for summary judgment and Ehrlich’s motion for partial summary judgment, we are guided by well-established principles of law concerning such motions. Summary judgment should be granted only in cases where the entitlement to such relief is clear. Pennsylvania Rule of Civil Procedure 1025(b) provides that summary judgment should be granted only if there is no genuine issue of material fact. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts in favor of that party. Held v. Neft, 352 Pa. Super. 195, 197, 507 A.2d 839, 840 (1986); quoting Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981). Our role is to evaluate whether any factual issues exist which would prevent us from granting defendants’ motions.

Both Dow and Ehrlich have similar arguments concerning the plaintiffs’ “failure to warn” claim and we will address those arguments initially. On May 3,1990, plaintiffs’ only expert, George B. Koelle, M.D., Ph.D., issued a report which has been made part of the record. Dr. Koelle, professor emeritus of the Department of Pharmacology at the University of Pennsylvania School of Medicine, apparently formed an opinion, based upon a review of correspondence, medical records, insecticide labels and certain other information, that “Mrs. Johnston suffered an idiosyncratic reaction to chlorpyrifos.” The [7]*7doctor defined “idiosyncrasy” by stating that it is a reaction that is “unpredictable; persons who so respond are normal in all other respects, but show a greater response to the compound than that of the average population.” Defendants contend that, because Mrs. Johnston’s reaction was idiosyncratic, they cannot be liable for failure to warn the plaintiffs of the possibility of such a rare, unpredictable, idiosyncratic reaction.

Plaintiffs’ failure-to-wam claim is actually composed of three separate theories: negligence, breach of warranty and strict liability under section 402A of the Restatement (Second) of Torts. Each of these theories of recovery, which will be addressed separately, must fail due to the fact that Mrs. Johnston suffered an idiosyncratic reaction to the chlorpyrifos contained in the pest control formulation.

In order to establish a prima facie case for plaintiff’ section 402A strict liability claim, they must show that (1) the product was in defective condition upon delivery, (2) the product was unreasonably dangerous to the consumer, and (3) the product was the cause of the injury sustained. Morris v. Pathmark Corp., 405 Pa. Super. 274, 277-78, 592 A.2d 331, 333 (1991); Ellis v. Chicago Bridge & Iron Co., 376 Pa. Super. 220, 226, 545 A.2d 906, 909 (1988). Specifically, in a strict liability case for failure to warn, the plaintiff must prove that the lack of warning rendered the product dangerous and was the proximate cause of the injury sustained. Morris at 278, 592 A.2d at 333.

Determinations of whether a warning is adequate and whether a product is defective due to inadequate warnings are questions of law to be answered by a trial judge. Mackowick v. Westinghouse Elec. Corp., 525 Pa. 52, 56, 575 A.2d 100, 102 (1990). Cases involving inadequate warnings generally turn on the facts of each [8]*8particular case. Ellis, 316 Pa. Super, at 233, 545 A.2d at 913.

Both Dow and Ehrlich contend that the flea spray was not defective because the reaction suffered by Mrs. Johnston was idiosyncratic and, as a result, they cannot be liable for failure to warn of the possibility of such a rare, unpredictable, idiosyncratic reaction. Among other cases cited by the defendants, they argue that the case of Morris v. Pathmark Corp. fully supports this position.

The appellant in Morris filed suit after suffering an allergic reaction following the use of a hair straightening product. The only evidence presented in the case was the unusual allergic reaction to the product. As a result, the Pennsylvania Superior Court rejected the argument that the product was defective by it being unreasonably dangerous to persons susceptible to allergic reactions to its ingredients because there was no warning to patch the product before using it. The court relied on comment (J) to section 402(A) of the Restatement (Second) of Torts which provides:
“(J) Directions or warning — In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge or by the application of reasonable, developed [9]*9human skill and foresight should have a knowledge, of the presence of the ingredient and the danger.

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Bluebook (online)
14 Pa. D. & C.4th 4, 1991 Pa. Dist. & Cnty. Dec. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-jc-ehrlich-co-pactcompllehigh-1991.