lighting the paper with a spill, a long wooden match, or the like. The easily ignited paper lights the kindling, and the heat from that ignites the charcoal. When the charcoal is ignited, it forms a greyish-white coating of ash since the combustion occurs at the surface (where the carbon is in contact with air) and continues burning toward the interior.
Impatience or difficulty with the traditional method led to the marketing of charcoal lighter fluid. Many users had for years employed substances such as cigarette lighter fluid, kerosene and alcohol as liquid fuels to ignite the charcoal more easily. Modern commercial fluids marketed for the purpose are less dangerous than these makeshift methods, and are essentially odorless as well.
In any case, the building of a charcoal fire, as with a log fire, involves going from a cold fuel to a fuel sufficiently heated to sustain its own combustion. The rate at which the charcoal passes from the cold state to the fully heated state depends on obvious variables. Enough air must pass through the bed to sustain and expand combustion. Too much air will cool the bed; too little air will fail to sustain the fire. The quantity of fuel is another factor. If there is too little, much of the heat will be lost by convection and ignition will not spread. If there is too much, the mass of charcoal will require a longer time to heat up to combustion.
But at any stage of the process, from the lighting of the fire on, if there is any combustion occurring anywhere in the bed, it is a "lighted fire", and the addition of a flammable material, such as was done by Goodman, is certain to result in an instantaneous flare-up of the volatile liquid coming in contact with burning charcoal.
These are all matters of such common knowledge that the court feels obliged to take judicial notice of them. Under the formulation of Fed.Ev. Rule 201, it is by no means clear whether these are "adjudicative facts", or what the Advisory Committee's Note confusingly calls "legislative facts." In either case, these facts are so well known and not open to challenge as to require that they be judicially noticed.
But, argues Goodman, a genuine issue of a material fact remains, in that the instructions and cautions on the label of the can of fluid did not say: "Do Not Tamper With Sprinkler Disk Under Cap", or "Do Not Punch Hole(s) or Enlarge Hole(s) in Sprinkler Disk", or some such expression. This alleged lack of warning, it is argued, raises a question for a jury and precludes entry of summary judgment. The argument is without substance.
In the first place, the theme goes only to show negligence or mislabelling by Stalfort and A & P. Assuming this were accepted as a rational finding, it utterly fails to wipe out Goodman's contributory negligence in adding fluid to a fire he should have known was lighted if he had heeded what he saw -- and the label not only warned against that, but Goodman remembers reading it.
In the second place, while wording like that referred to was not used (a fact not in dispute), no genuine issue can arise on the point for several reasons. One is that Goodman's expert admits he has no qualifications in regard to labelling; and so his opinion on that subject would not be received in evidence. The other is that in the context of this case and this accident, the adequacy of the labelling, taken as a whole, leave no room for Goodman's contention. The flaw is that the theme is directed to the wording, while what controls is the meaning of the wording that is there. The theme comes down to a matter of semantics, and its implication is that no wording would be satisfactory unless it dealt explicitly with every conceivable way in which the product might be misused, despite adequate labelling and despite the commands of common sense.
The ways in which a product might be misused are, like the stars, an endless number.
The theme, if accepted, would require knives to be labelled: "Caution: Keep All Parts of Body Away From Cutting Edge and Point." Gasoline caps on cars would need a label: "Warning: Do Not Check Gas Level With Lighted Match or Candle."
Steering wheels, in most countries, would need a label: "Caution: Do Not Drive On Left Side of Road". The list would be endless, and would soon use up the available space for labelling.
The futility of the theme is evident. Suppose there had been a warning not to enlarge or punch holes in the sprinkler disk, and suppose Goodman had simply removed it; could it then be claimed that the warning was inadequate? Or suppose he had punched an air hole in the top of the can itself, opposite the spout; this, too, would have caused the fluid to flow freely. Would there have to be a separate warning for that?
No matter how many ways a skillful draftsman might imagine that someone would misuse or abuse the product, and prepare cautions or warnings, the permutations and combinations are so vast that someone would find a way not anticipated. To meet the implications of the theme, the only complete legend (perhaps) would be: "Caution: Keep Refrigerated. Do Not Open. Do Not Use."
On the facts presented with the motions, taken in their most favorable light to Goodman, no legal basis for recovery against Inland appears. Inland is a mere distributor who received and filled an order for one or more tank cars of the fluid in bulk, usually about 7,000 gallons. Nothing is presented to show that Inland supplied a different fluid than what was ordered. If the order were for "Soltrol 130" (the fluid involved), and Inland had sent some other fluid that was more volatile, more inflammable, with a lower ignition point or flash point, there might be some basis for a claim against Inland.
See, for example, Flexmir v. Lindeman, 4 N.J. 509, 73 A.2d 243 (1950); 14 N.J.Super. 379, 82 A.2d 450 (App.1951); 8 N.J. 602, 86 A.2d 585 (1952); and "A Case In 'Flash Point'", Jurimetrics Journal, Summer, 1973, p. 226. In that case a fuel oil dealer who had serviced his customer once or twice a week for several years with supplies of Bunker C or Number 6 fuel oil, delivered a quantity of Number 2 fuel oil. Since the heavy oils must first be run through a preheater the dealer was charged with awareness that the much more volatile Number 2 fuel oil would be vaporized in the preheater, thereby destroying any metering control in the pump and burner nozzle. The inevitable explosion and fire followed.
No such element is present here. There is no fact to even suggest by a scintilla that the fluid in the can was anything other than it should have been. Under these circumstances, if Inland could be held liable, so could the railroad that delivered the shipment, the refiner who produced the fluid, and the Texan, Arab or Venezuelan whose well produced the crude petroleum.
In this analysis, Stalfort and A & P are treated as one. Stalfort undertook and was responsible for both the packaging and the labelling. A & P merely had its brand on the label and sold the product as packaged and labelled by Stalfort. What has been said about Stalfort applies equally to A & P, and it is entitled to indemnification from Stalfort and its insurer. The result as to one is no different than the other. As to both, not only is there a clear-cut instance of contributory negligence as a matter of law, but there is no showing of any facts to support liability on the part of any defendant. If the current statute on comparative negligence applied, the allocation would be 100% to Goodman and zero to the defendants.
C. THE APPLICABLE LAW. Since this is a diversity case, the controlling law is that of New Jersey where the incident occurred.
Reference has already been made to the decisions in Pennsylvania R. R. Co., Siegler and Flexmir, supra. It remains to review more fully the law of New Jersey in regard to "contributory negligence as a matter of law", and the way that the local law has been interpreted in this circuit.
New Jersey decisions in which a claimant's conduct was held to constitute contributory negligence as a matter of law include Schwanewede v. No. Hudson Ry. co., 67 N.J.L. 449, 51 A. 696 (S. Ct.1902); Saunders v. Smith Realty Co., 84 N.J.L. 276, 86 A. 404 (E & A 1912); Card v. Carrigan, 137 N.J.L. 722, 61 A.2d 263 (E & A 1948); Bratka v. Castles, etc., 40 N.J.Super. 576, 123 A.2d 793 (App.1956); Ferrie v. D'Arc, 31 N.J. 92, 155 A.2d 257 (1959).
In this circuit, the Court of Appeals has analyzed the principles of State law by pointing out that to hold a plaintiff contributorily negligent as a matter of law, that negligence must appear clearly and conclusively as a fact, or as a necessary and exclusive inference that would be drawn by all reasonable men in the exercise of fair and impartial judgment. Saporito v. Holland-America Lines, 284 F.2d 761 at 765 (CA3, 1960), citing Gudnestad v. Seaboard, etc., 15 N.J. 210, 104 A.2d 313 (1954) and earlier cases.
In Saporito, the issue was somewhat obscured by a contention that plaintiff had "assumed the risk" of injury when he removed a prop for an overhead door that he knew had been damaged so that it could only be raised and lowered with difficulty. Removal of the prop was found not sufficient knowing conduct to bar recovery because what occurred was something entirely different -- the complete collapse of the door in its raised position, by leaving its guide tracks entirely, rather than difficulty of movement in the tracks.
As Judge Forman aptly observed in that case, the New Jersey decisions in which contributory negligence was found to bar the claim as a matter of law were cases in which the plaintiff "invited calamity" by consciously in some proximate degree making himself "the instrumentality of his own injury" in the face of a known danger. 284 F.2d at 766. That is this case.
Ferrie, decided before Saporito but not mentioned there, is in accord with Judge Forman's analysis. As Mr. Justice Francis there noted, referring to another decision, "He knew the danger, but did not keep it in mind. Was his forgetfulness an excuse?" This is but another expression equivalent to that in Pennsylvania R. Co., supra, "he did not look or, looking, did not heed what he saw".
This is not a case coming within one of the recognized exceptions. No fact advanced suggests a basis for claiming wanton or wilful misconduct on the part of any defendant, as in Camden, etc. v. Preston, 59 N.J.L. 264, at 266-267, 35 A. 1119 (E & A 1896), cited and followed in Tabor v. O'Grady, 59 N.J.Super. 330, at 340, 157 A.2d 701 (App.1960). Nor is it a case of a plaintiff child of tender years who cannot be expected to be aware of the dangers and the consequences. See Schneider v. Winkler, 74 N.J.L. 71, 70 A. 731 (S. Ct.1906); Bush v. N. J. & N. Y. etc., 30 N.J. 345, 153 A.2d 28 (1959).
The fact that the complaint here, based on the same set of facts, asserts theories of recovery based on strict liability in tort and breach of warranty as well as negligence does not alter the matter. The bar of contributory negligence is equally applicable under those theories; it has been so ruled in Maiorino v. Weco Products Co., 45 N.J. 570, 214 A.2d 18 (1965), and Bexiga v. Havir Manufacturing Co., 60 N.J. 402, 290 A.2d 281 (1972).
Applying the test for summary judgment as interpreted in this circuit, the court finds that there is no genuine issue as to any material fact, and that Goodman's conduct was the proximate cause of his own injury constituting contributory negligence as a matter of law.
D. GOODMAN's MOTIONS FOR FURTHER ANSWERS TO REQUESTS FOR ADMISSIONS.
Goodman has filed motions directed to Inland, Stalfort and A & P, to compel further answers to 16 requests for admissions. The court has reviewed the requests and the answers, and finds that they are either adequately answered or properly objected to. The requests were served a considerable time back, and the normal period for discovery has long since expired. The requests served by Goodman numbered well in excess of 600, and no question of adequacy was raised at the pretrial conference. Nor would any of the requests tend to adduce any fact that would alter the result arrived at on the motions for summary judgment.
E. DIRECTIONS TO THE PARTIES.
A & P is to submit a form of summary judgment against Stalfort on its cross-claim and against Camden Fire on the third party complaint. Those parties will have 10 days from mailing to them in which to submit another version if they desire, and the court will resolve any differences.
Summary judgment against plaintiff and in favor of the defendants will not be entered until May 31, 1976. Until then, Goodman has leave to point out any fact in the record, or otherwise adduced, tending to show the existence of a genuine issue that calls for jury resolution, in the light of the matters judicially noticed and the ruling above noted in regard to the lack of qualification of Goodman's expert witness in regard to labelling. Goodman may also address the propriety and tenor of any matter judicially noticed, Fed.Ev. Rule 201(e).
The foregoing opinion constitutes the court's findings of fact and conclusions of law.