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Shaw v. Calgon Inc.

Decided: May 6, 1955.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


[35 NJSuper Page 321] After hearing argument the court announced that the judgment would be affirmed and a written opinion filed at a later date.

Plaintiff sued defendant to recover damages for personal injuries resulting from her use of defendant's product, "Calgonite." She appeals from the judgment of involuntary dismissal entered by the Law Division on defendant's motion made at the close of plaintiff's case.

Defendant manufactures an alkaline product called "Calgonite," sold in a gold-colored box and intended mainly for use in automatic dishwashers. It also manufactures a product known as "Calgon," which is a water softener and is sold in a silver-colored box. Plaintiff, a nurse, had been employed by a Mrs. Martone to care for her mother-in-law. Her nursing services being at an end, she continued doing housework for Mrs. Martone three days a week. On April 3, 1953 Mrs. Martone asked her to clean the venetian blinds, and instructed her to use the Calgon in water. Plaintiff knew that Calgon was a water softener made by the same company which produced Calgonite, and that it came in a silver-covered box. Mrs. Martone had both products, and used Calgonite in her dishwasher only. The two boxes were stored underneath the kitchen sink. Plaintiff testified she reached for the Calgon, but mistakenly picked up the box of Calgonite. She did not look at the box before using it, but poured some of its contents into a pail of hot water and began to wash the blinds. She claims she used "maybe a teaspoon or a little bit more" in something over a gallon of water. However, she admitted she did not measure the Calgonite but just "poured it in." She immediately felt a burning sensation on her arms and noticed that the rubber gloves she was wearing (we have nothing more than her word that she wore the gloves) had begun to disintegrate at the wrists. It was then that she looked at the box and found she had used the wrong product. Plaintiff further testified she could find no antidote printed on the Calgonite package although she read that the product was highly alkaline, the specific alkali not being mentioned. She resorted to home remedies but got no relief. The burning sensation became worse. She then sought medical attention and was treated by several physicians.

The treating dermatologist testified that plaintiff had suffered a chemical (detergent) burn, and that her condition was not an allergenic reaction. His initial diagnosis was contact dermatitis. At the time of the trial she still had irregular patches of dermatitis on her elbows and under the armpits, the forearms exhibited numerous small depressed white scars, and the skin over her hands and arms was generally thin, dry and sensitive. The specialist believed the condition to be permanent; plaintiff would have to avoid wearing wool and silk, use a special kind of soap, apply certain ointments to the affected areas and take certain medicines.

The original complaint claimed that as a result of using Calgonite "in connection with a washer," and because of its dangerous and injurious ingredients, plaintiff was severely burned and otherwise injured. Defendant's answer set up the following defenses: it violated no duty owed plaintiff; it was not guilty of any negligence that was the proximate cause of the alleged injuries; plaintiff was guilty of negligence contributing proximately to the alleged happening in that she failed to exercise due care for her own safety under the circumstances then existing, failed to exercise proper observation and precaution, and was otherwise careless and negligent; assumption of risk; and unavoidable injury. The pretrial order stated that the action "sounded in negligence." It contained a stipulation that defendant manufactured the Calgonite in question and that the box bore the printed statement about to be mentioned. The order set out plaintiff's contention that defendant was negligent in that it failed to give sufficient warning as to the dangers attending the use of Calgonite, and defendant's denial of any negligence and its separate defense of contributory negligence and assumption of risk. The pretrial order noted that plaintiff had received workmen's compensation.

It is to be observed that after the entry of the pretrial order plaintiff filed two amended complaints. The first alleged that the Calgonite container did not bear a statement of its specific ingredients and so failed to give adequate warning

as to excessive alkalinity; and that as a result of defendant's neglect in these respects plaintiff was injured. The second amended complaint contained the additional allegation that the container carried no notice of any antidote or neutralizing agent to be used in case of injury, and that as a result of defendant's neglect to warn the public of excessive alkalinity and to print an antidote or neutralizing agent on the container, plaintiff was injured while innocently using the product. Defendant set up the same defenses as before to these amended complaints.

There should have been another pretrial conference resulting in an amended order that would have reflected the new allegations on which plaintiff relied. This is the better practice, for it results in a more definitive trial of the issues. Since the abbreviated record reveals sufficient to indicate that the trial generally followed the allegations set out in the second amended complaint, we will dispose of the appeal as though there had been an amended pretrial order.

The Calgonite box was placed in evidence. The following printing appears on the back of the box:



For Mechanical Dishwashing

Calgonite gives Twin-Action in mechanical dishwashing. Its highly alkaline silicates provide positive cleansing power in removing stubborn soil and grease. Its water conditioning agent, Calgon brand sodium phosphate glass, assures maximum freedom from film and stain, not only on dishes, but in the machine as well."

Directions follow for the use of Calgonite for china, glassware, silver, etc., in dishwashing machines ("one rounded tablespoonful of Calgonite per gallon of water") and for aluminum ware ("two to three tablespoonfuls of Calgonite per gallon of water"), with the comment that "While general in character, these instructions will give satisfactory results in any of the better dishwashing machines." The following then appears:

"IMPORTANT -- DO NOT USE for bath, shampoo, or cleansing tasks involving contact of the hands, with the wash water. If Calgonite is spilled on linoleum, wipe ...

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