Misuse frees the manufacturer from blame

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 25

CASES FROM THE WEEK JUNE 24, 2022

SUMMARY JUDGMENT PROPERLY GRANTED FOR PRODUCT MANUFACTURER WHEN UNDISPUTED EVIDENCE SHOWED INJURED VICTIM USED PRODUCT IN AN UNINTENDED AND ILLEGAL WAY – TRIAL COURT PROPERLY DETERMINED NO CAUSAL LINK BETWEEN THE DEFENDANT’S ACTIONS AND THE PLAINTIFF’S INJURIES

Grieco v. Daiho Sangyo, Inc., 47 Fla. Law Weekly D1288 (Fla. 4^th DCA June 15, 2022):

An innocent man walking was seriously injured by a woman driving under the influence of the product “Ultra Duster” (a compressed gas dusting spray used as a keyboard cleaner), which she had inhaled. The woman purposely inhaled the substance despite its poor taste intended as a deterrent, and despite the warning on the can.

The woman had purchased the highly addictive product (and she was highly addicted to it) from Walmart shortly before the crash, inhaling it while driving. She became unconscious and ran into the plaintiff/pedestrian seriously injuring him.

The plaintiff sued the manufacturer of the product and others in the chain of distribution asserting that the product was defective in design, defective for its insufficient failure to warn, and asserting negligence of the manufacturer.

The court went through an analysis of strict liability, advising that the theory does not concern itself with the reasonableness of a manufacturer’s conduct. Instead, strict liability focuses on the performance of the product itself and the reasonable expectations of the consumer. The court explained that a manufacturer can only be liable when the product is used as intended.

The fact that the user misused the product did not plausibly suggest in this case that the product’s canister, which the user purchased, had not been manufactured or designed properly. Manufacturers are not strictly liable when a third party’s injury results from a consumer’s unintended and illegal use of a product.

Additionally, the user’s addiction led her to ignore the warning about the deleterious effects of inhaling the product. While the product’s warning label did not prevent the user in this instance from misusing the product, it was still sufficient to warn a “reasonable” person not to consume it, eliminating any issue of material fact with respect to the warning in the case.

Finally, the court found as a matter of law the user’s actions were the sole proximate cause of the accident, and thus a legally intervening cause that relieved the manufacturer of liability. Even where an actor’s conduct causes a dangerous situation, the law does not allow a jury to find proximate cause where an unforeseeable, intervening act is responsible for the injuries as it was in this case.

The court concluded that the plaintiff’s injuries were the unfortunate result of the defendant/driver’s reckless indifference to her own safety, as well as the safety of others.

The plaintiff’s injuries were not the result of the defendant manufacturer or retailer’s conduct. Because the driver’s actions were separate from those of the manufacturer’s and retailer’s, neither were controlled, encouraged or caused by them. The driver’s misuse of the canister was the sole proximate legal cause of both the accident and the injuries and it was not objectively reasonable for those defendants to have foreseen that the driver’s criminal conduct would have taken place to establish a duty.

The court affirmed the summary judgment entered for the manufacturer and retailer defendants.

COURT REVERSES SUMMARY JUDGMENT ENTERED IN FAVOR OF A VEHICLE OWNER BASED ON THE DANGEROUS INSTRUMENTALITY DOCTRINE ENTERED BECAUSE THE TRIAL COURT FOUND THE DRIVER USED THE VEHICLE AS A WEAPON, EVEN IN THE FACE OF AMPLE EVIDENCE OF FORESEEABILITY THAT THE OWNER MIGHT KNOW HE WOULD – COURT PAVES THE WAY FOR USE OF DRIVER’S PAST DRIVING RECORD EVEN IN THE FACE OF CLOONEY

Sager v. Blanco, 47 Fla. L. Weekly D1304 (Fla. 3^rd DCA June 15, 2022):

The plaintiff responded to a domestic dispute at the residence of his neighbor whose son had just assaulted his girlfriend. The son fled from the scene driving his mother’s vehicle, and then reversed the vehicle accelerating backwards into the neighbor plaintiff, striking him and dragging him under the vehicle and causing serious injuries.

The trial court granted summary judgment in favor of the defendant owners on the negligent entrustment claim as well as on the vicarious liability claim. The trial judge not only impermissibly relied on certain inapposite criminal statutes, but also on Burch v. Sun State Ford, Inc. before concluding that the weapon-like use of a vehicle precluded vicarious liability under the dangerous instrumentality doctrine.

The court revisited the doctrine, and agreed that the strict liability under the dangerous instrumentality doctrine is not absolute. The owner of a dangerous instrumentality who entrusts its use to another is liable for damages caused by the negligence of the operator with very few exceptions: (1) when an owner voluntarily entrusts a vehicle to a repair service and injuries are caused by the negligence of an employee (so long as the owner does not exercise control over the injury causing operation of the vehicle and is not otherwise negligent); (2) when a breach of custody amounting to a species of conversion or theft; and (3) where a vehicle owner possesses bare-naked title but another party holds beneficial ownership.

Courts have imposed limitations on the doctrine as applied to powered shopping carts, vessel operators, and as to owners or natural persons who loan a car to a permissive user. Congress also enacted the Graves Amendment, which prohibits states from imposing vicarious liability on car rental companies.

In this case, the trial court concluded that the driver was “more than negligent,” thus finding that the vehicle owner was absolved from vicarious liability under the dangerous instrumentality doctrine.

In Burch, the court found that a weapon like use of a vehicle absolves an owner from vicarious liability unless the use in that manner is reasonably foreseeable. The court here found that the record demonstrated evidence that the weaponized use was reasonably foreseeable here.

Additionally, the law allows the promulgation of alternative theories of recovery.

The court observed that any potential prejudice stemming from the negligent entrustment claim could be mitigated by incorporating appropriate procedural safeguards to protect – in this case – the admissibility of the defendant’s past driving record.

The Third District observed that the three-phase trial that was agreed to by the parties in this case was one example of an appropriate method (the first phase excluding the defendant’s past driving record from the jury’s determination of the driver’s negligence, but then including in the second phase the jury’s determination of the vehicle owner’s culpability for negligence entrustment). The court reversed the summary judgment.

PARAGRAPH IN ORDER INDICATING THAT TRIAL COURT HAD PREJUDGED THE ISSUE OF WHETHER THE PARTIES QUALIFIED FOR ATTORNEYS’ FEES EVEN THOUGH THAT MATTER WAS NOT PENDING BEFORE THE COURT WAS SUFFICIENT TO REQUIRE DISQUALIFICATION

Chmilarski v. Empire Fire & Marine Ins., Co., 47 Fla. L. Weekly D1312 (Fla. 3^rd DCA June 15, 2022):

In this case involving an insurer’s failure to pay a claim, the trial court entered an order observing the many permutations the case had had in almost nine years of litigation. The trial judge, who had inherited the case as part of a circuit wide initiative to resolve open insurance cases, knew motions for attorneys’ fees would be coming, and in an order addressing cross-motions for rescission, gratuitously noted that as to future claims for attorney’s fees, the court believed that neither party had significantly prevailed and the court would entertain motions for §57.105 fees.

The plaintiff argued that this paragraph of the order showed that the trial court had pre-judged the issue of whether they were the prevailing party entitled to attorney’s fees.

Even though sometimes observations and mental impressions from the bench are not legally sufficient to require disqualification, the trial court’s statements here did warrant it, because they concerned an issue that was not before the court for decision, and did not contain any of the usual qualifications or caveats which would lead a reasonably prudent person to conclude that the trial court’s mind was still open about the ruling.

COURT REVERSES DENIAL OF SUMMARY JUDGMENT FOR PLAINTIFF BASED ON WORKERS’ COMPENSATION IMMUNITY, FINDING TRIAL COURT SHOULD HAVE GRANTED EMPLOYER SUMMARY JUDGMENT ON PLAINTIFF’S GROSS NEGLIGENCE CLAIM

Electric Boat Corp. v. Fallen, 47 Fla. L. Weekly D1325 (Fla. 5^th DCA June 17, 2022):

Plaintiff’s employer was a subcontractor on a project at Cape Canaveral. The plaintiff was a supervisor for her employer on the project and had a mobile office trailer on site.

The defendant was another contractor on the project site. While working the night shift on the evening before the plaintiff’s injury, defendants’ employees determined that the stairs on one side of the plaintiff’s mobile office were in their way. Without notifying anyone, they moved the stairs and forgot to put them back. They also failed to put up any cones or warning signs to advise that the stairs had been moved.

The next morning while it was still dark, the plaintiff went into her mobile office. When she walked to the stairless side to leave, she stepped out, and fell three-and-a-half feet to the ground getting injured in the process.

The court explained the difference between simple and gross negligence, explaining that there are three elements for gross negligence: (1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril; (2) knowledge or awareness of the imminent danger on the part of the tortfeasor; and (3) an act or omission that evinces a conscious disregard of the consequences. The court observed that the difference between simple negligence and gross negligence is theoretically clear, but is sometimes difficult to apply.

Because it was undisputed that the defendant’s workers intended to replace the stairs before leaving the worksite, the court concluded that the defendant did not evince the requisite “conscious disregard” needed to establish gross negligence, reversing the summary judgment for the plaintiff and entering it for the defendant.