On appeal from Superior Court, Law Division, Burlington County.
Bischoff, Botter and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[174 NJSuper Page 138] Plaintiffs brought this action against Caruso Masonry Corporation (Caruso), Louis J. Giacomozzi trading as Lou's Electric (Lou's Electric) and TEC Technical Adhesives (Tec), a division of the H.B. Fuller Company. Plaintiffs sought damages by reason of the destruction on December 12, 1972 by fire of their home in Cherry Hill which was in the final stages of construction. Plaintiffs alleged that Caruso, which was installing a slate floor, and Lou's Electric, which was an electrical contractor, had caused the fire by their negligence. Liability was asserted against Tec on theories of strict liability, in tort, breach of warranty and negligence with respect to supplying a contact adhesive used in the project for installation of the floor. After jury selection but before the start of presentation of evidence Caruso and Lou's Electric settled with plaintiff so that the action went forward only against Tec as an actual participating defendant. However, the liability of Caruso and Lou's Electric was nevertheless adjudicated so as to determine the consequence of their settlements in the event plaintiffs recovered against Tec. See Theobald v. Angelos , 44 N.J. 228 (1965). After a lengthy trial the judge submitted the case to the jury in the form of seven interrogatories. R. 4:39 1. The jury returned a verdict that Caruso and Lou's Electric were each guilty of negligence which proximately caused the fire, that Tec was not "negligent or derelict" and that plaintiffs' damages were $136,582.19. Since plaintiff had already settled with Caruso and
Lou's Electric, the practical consequence of the judgment was that plaintiffs obtained a no cause for action.
Plaintiffs appeal, alleging five grounds for reversal: (1) the trial judge improperly restricted plaintiffs from introducing evidence of a labeling change by Tec made prior to the fire; (2) the judge should have permitted plaintiff to introduce evidence of defendant's alleged violation of the Federal Hazardous Substances Act, 15 U.S.C.A. § 1261 et seq.; (3) he improperly instructed the jury as to the consequence of the settlements, and in particular, erroneously instructed the jury that the settling defendants were presumed to be negligent; (4) he abused his discretion in restricting testimony by plaintiffs' expert on the adequacy of the warnings of the properties of Tec's product; (5) the charge was misleading with respect to proximate and intervening cause and with respect to strict liability in tort.
The germane facts developed were as follows. Plaintiffs' home was being custom built. On December 11, 1972 Allan Perez, an employee of the general contractor on the project, purchased a five-gallon pail of TEC 21F, a product of Tec, from a distributor in New York. TEC 21F was a mastic cement to be used by Caruso for installation of a slate floor in the swimming pool dressing room in the east wing of the house. There was evidence that Perez read the label on the container of TEC 21F and determined that the product was safe for use when not used near flames or heat, and thus gave the product to the employees of Caruso with instructions not to smoke while applying it and to keep it away from open flames. The Caruso personnel applied the TEC 21F to the floor in the pool dressing room. That room was seven by ten feet and had no windows for cross-ventilation. Unfortunately one of the Caruso workers brushed an electrical wire which fell to the floor setting the TEC 21F on fire. The fire spread and damage was extensive. The container of TEC 21F from which the material had been taken was destroyed in the fire.
The evidence further showed that Perez returned to New York following the fire and bought a second container of TEC 21F from the same dealer from whom the destroyed container had been purchased. The second container had a printed warning reading as follows:
DANGER: EXTREMELY FLAMMABLE MIXTURE DO NOT USE NEAR FIRE OR FLAME NYFD C of A NO. 3365.
IMPORTANT: Contains Hexane-Extinguish all flames and pilot lights. Keep the product and its vapors away from heat, sparks and flames. Avoid prolonged breathing of vapors and repeated contact with skin. Do not take internally. If swallowed do not induce vomiting. Call a physician. Keep out of reach of children. Keep container closed when not in use.
The label on the second container did not give specific warnings about the need for ventilation or the possibility that the vapors from the product could explode. There was testimony from which the jury could have concluded that the warnings on the label on the second container were the same as the warning on the first container.
Plaintiffs ascertained during discovery that Tec had changed the label on TEC 21F in 1972 before the fire. The new label read as follows:
VAPORS MAY CAUSE FLASH FIRE, VAPORS HARMFUL, IRRITANT.
Read precautions on back panel. NYFD C of A NO. 2880.
IMPORTANT-Contains Hexane vapors may ignite explosively. Prevent build-up of vapors-open all windows and doors-use only with cross ventilation. Keep away from heat, sparks and open flame. Do not smoke, extinguish all flames and pilot lights, and turn off stoves, heaters, electric motors, and sources of ignition during use and until all vapors are gone. Avoid prolonged breathing of vapors and repeated contact with skin. Do not ...