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07/18/90 EAST PENN MANUFACTURING COMPANY v.

July 18, 1990

EAST PENN MANUFACTURING COMPANY, APPELLANT
v.
FRANCISCO R. PINEDA, ET AL., APPELLEES. LEETH BROTHERS, INC., APPELLANT V. FRANCISCO R. PINEDA, ET AL., APPELLEES



Appeals from the Superior Court of the District of Columbia; Hon. Rufus G. King III, Trial Judge

Rogers, Chief Judge, and Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

A jury returned a verdict in favor of Francisco R. Pineda and his wife on the "failure to warn" count of their product liability claim against the manufacturer and seller of a commercial truck battery. The jury found that the warning label affixed to the battery was inadequate to apprise Pineda -- a truck mechanic partially blinded after the battery exploded -- of the risks associated with charging the battery, and that the inadequate warning proximately caused his injuries. On this consolidated appeal, East Penn Manufacturing Company (East Penn) and Leeth Brothers, Inc., the manufacturer and seller of the battery, respectively, contend that because Pineda was an experienced user of the product in question and aware of its potential dangers, they had no duty to warn him that the battery might explode if handled in the manner he employed. They further argue that the warning on the label was adequate as a matter of law. East Penn also asserts that the allegedly inadequate warning could not have proximately caused Pineda's injury because he did not read the label and would not have altered his behavior even if he had. Finally, East Penn challenges the trial court's order granting judgment on Leeth Brothers' cross-claim for indemnity, arguing that the rule of manufacturer "pass through" liability is inapplicable because Leeth Brothers re-labelled the battery, sold it as its own, and was equally aware of potential dangers.

Our previous decisions indicate that fact-intensive issues concerning the existence of a duty to warn and whether the warning was sufficiently specific to discharge the duty are generally reserved for the jury, and may be resolved as a matter of law only when the evidence would not permit differences of opinion by reasonable jurors. The jury here confronted conflicts in the testimony bearing on these questions, and we hold that it permissibly resolved them in Pineda's favor. Despite Pineda's failure to read the label, we also decline to reverse on the basis of insufficient proof of proximate causation; applying Payne v. Soft-Sheen Products, 486 A.2d 712 (D.C. 1985), we hold that the jury could reasonably infer that information on an adequate label would have been communicated to and heeded by Pineda, and that the deficient label therefore proximately caused his injury. Finally, we affirm the judgment on Leeth Brothers' cross-claim for indemnity: because the manufacturer was in a superior position to Leeth Brothers to identify and warn against the particular risks associated with charging and jump-starting batteries -- the latter's fault consisting only of failing to discover the substantive inadequacy of the warning -- we conclude that Leeth Brothers was entitled to indemnity from East Penn.

I.

A. The Facts

In November 1983, Pineda was employed as lead mechanic at Callaham's Refuse Company in charge of keeping the company's fleet of refuse trucks in operating condition. The trucks were powered by large diesel engines and prone to starting difficulties; jump-starting and recharging batteries were therefore commonplace. On the morning of November 21, 1983, a 1977 Ford refuse truck would not start. A co-worker of Pineda's, Galvez, attached a battery charger to the Ford's battery system, *fn1 and after letting the Ford batteries charge for a while, tried to start the vehicle but to no avail. The driver of the Ford then tried to jump-start the truck by connecting jumper cables from the positive and negative terminals of the Ford to those of a Mack truck with the engine running, also without success.

When Pineda reported to work at about this time, his supervisor told him the Ford would not start and asked him to remedy the situation. Pineda noticed Galvez taking a battery charger away from the Ford but was unaware what he was doing with it. He began working on the Ford minutes after his arrival, and no one told him of Galvez' attempt to charge the battery. He checked to see that cables joining the Ford and the Mack truck were secure and properly connected for a jump-start -- positive terminal to positive terminal and negative terminal to negative -- and had the driver of the Ford attempt to start it. He waited another three or four minutes before asking the driver to try again, then removed the jumper cables. Intending to remove the battery cables from their terminals on each of the four batteries and test the batteries in place, he loosened the positive lead on one battery from its terminal with a pair of pliers, wrapping it in a piece of cloth for insulation and twisting it aside. As he began to loosen the negative lead, the battery exploded. The top of the battery case was blown apart and Pineda was struck in the face with battery acid and case fragments, causing near-total blindness in his right eye.

Callaham's had purchased the battery one month earlier from Leeth Brothers. Its exterior components -- casing, top and vent caps -- were manufactured by the Richardson Company. East Penn manufactured the plates and electrolyte solution, assembled the battery, and sold it to Leeth Brothers. As assembled and sold by East Penn, the battery bore a white warning label about the size of a business card. Before selling the battery, Leeth Brothers affixed a larger yellow label (7 3/4" x 2 7/8") bearing its trade-name "Express", punch-out discs showing the date and year the battery was purchased, and the following warning which was identical to that on the smaller label provided by East Penn:

POISON/DANGER CAUSES SEVERE BURNS

KEEP OUT OF REACH OF CHILDREN

Contains sulfuric acid. -- Avoid contact with skin, eyes or clothing. Antidote: EXTERNAL -- Flush with water. INTERNAL -- Drink large quantities water or milk. Follow with milk of magnesia, beaten egg or veg. oil. Call physician immediately. Eyes: Flush with water for 15 minutes and get prompt medical attention. Batteries produce explosive gases. Keep sparks, flame, cigarettes away. Ventilate when charging or using in enclosed space. Always shield eyes when working near batteries.

The content of the warning had been determined by East Penn based upon standards promulgated by the Battery Council International.

In deposition Pineda testified that he had read the label on the battery and understood that sparks from a jumper cable could ignite explosive gases. On cross-examination at trial, however, he explained that he had read warnings on other batteries but not the particular one that exploded, *fn2 because it had "dust . . . on top of it."

Pineda was a mechanic with approximately twenty years of experience on a variety of vehicles, though without formal training or certification. He was born in Guatemala, had attended school there through the sixth grade, and read and spoke English at a level commensurate with his education. He testified at trial that he had worked on "500, maybe a thousand batteries," had charged batteries at least 500 times, and had used jumper cables on batteries "more than 500 times," all without incident. He had learned how to handle batteries from his uncle in Guatemala and handled the Ford battery in the way he had always been shown, and in the same way as his co-workers. He understood that charging batteries generated explosive gas but believed the only way one could explode was if the vent caps were not securely in place and a nearby flame, a lighted cigarette, or a large number of sparks caused the accident. In this case he had checked to see that the vent caps were in place and secure before starting to loosen the cables. He noticed that the battery was warm to the touch and smelled of gas before the explosion, but these conditions did not concern him because he regarded them as normal for a battery being charged.

B. Proceedings Below

Pineda and his wife brought suit in Superior Court naming East Penn, the Richardson Company, *fn3 and Leeth Brothers as defendants. Damages were sought for personal injury and loss of consortium on theories of negligence, strict liability, and inadequate warning. At the close of plaintiffs' case, the court directed verdicts in favor of Richardson on the failure to warn count and in Leeth Brothers' favor on the negligence count. As to the remaining claims, the jury entered findings by answers to interrogatories on a special verdict form. It found East Penn negligent in the design or manufacture of the battery, and that its negligence was a proximate cause of Pineda's injury, but deadlocked on the question of Richardson's negligence. It found that Pineda had not assumed the risk of injury caused by the exploding battery. It found all defendants liable on the strict liability count, and that the defect proximately caused Pineda's injury, but deadlocked on whether the injury was caused by misuse of the battery not reasonably foreseeable to the defendants. Finally, it found that the warning label on the battery was inadequate, and that the inadequacy was a proximate cause of Pineda's injury.

The defendants filed various motions for judgment notwithstanding the verdict. Pineda moved for judgment on the strict liability count and, in the alternative, for a new trial on all issues as to which the jury had deadlocked. With respect to the verdict on negligence, the court noted that all of the evidence pointed to the possibility that the vent caps, which had been manufactured by Richardson, were defective in that they failed to stop a flame or spark from passing through the cap to the space within the battery above the electrolyte where hydrogen gas concentrated. In the absence of any other plausible theory of manufacturing negligence, and the jury's inability to reach a verdict with respect to Richardson, the court concluded that the verdict against East Penn on this count was so clearly inconsistent with the evidence as to reflect confusion or mistake. The court refused to grant East Penn's motion for j.n.o.v. on this point, but vacated the verdict and set the negligence claim for a new trial.

On the strict liability count, the court noted that much of the two-week trial had focused on whether the explosion was caused by the way the battery was charged, and whether this created risks reasonably unforeseeable to the defendants, or rather by some defect in the vent caps. Under these circumstances, the court reasoned that the jury's inability to resolve the question whether unforeseeable misuse by Pineda or someone else might have caused the injury "suggests its grave misgivings about the weight of the evidence." The court vacated the verdict on strict liability and remanded that count, as well as any defenses, for retrial.

The court refused to disturb the jury's verdict on the failure to warn counts, denying East Penn's and Leeth Brothers' motions for j.n.o.v. It rejected the argument that the defendants were not obliged to warn Pineda because he was already aware of the dangers associated with working around batteries. As to the adequacy of the warning, the court concluded that whether the warning was sufficiently specific to warn or remind a mechanic with Pineda's level of experience was an issue of fact for the jury, and one on which reasonable jurors could disagree on the evidence presented. The court granted plaintiffs' motion to enter judgment upon fewer than all the claims and parties, finding that even when evidence of other defects is lacking, a product can be rendered defective by the absence of an adequate warning. Because this claim was not linked to any of the other counts remanded for retrial, the court found no just reason to delay entry of judgment. *fn4

Invoking Super. Ct. Civ. R. 54(b), the court also entered judgment in favor of Leeth Brothers on its cross-claim for indemnity, noting that in its larger, brighter label Leeth Brothers had used language provided by the manufacturer in its own label. He also concluded that, "in the context of the evidence in the case that Plaintiff read the label," the jury's finding that the warning label was inadequate could only relate to the content of the label, not the form, and that under these circumstances Leeth's replacement of the East Penn label, if anything, ameliorated the deficiency of East Penn's warning.

II.

Appellants' primary challenge is to the trial court's denial of their motions for judgment notwithstanding the verdict on the failure to warn claim. In granting judgment non obstante veredicto, the trial court "render the verdict mandated by law irrespective of the verdict issued by the jury." District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C. 1983) (per curiam). The court's authority is limited, however, for it may resolve as a matter of law factual issues put to the jury only when "the facts, viewed most favorably to the non-moving party, permit but one reasonable Conclusion as to the proper judgment." Id., quoting District of Columbia ...


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