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Macrie v. SDS Biotech Corp.

Decided: August 5, 1993.


Calendared for submission May 12, 1993. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County

Havey, Stern and Brochin. The opinion of the court was delivered by Brochin, J.A.D.


In this strict-liability, failure-to-warn suit, plaintiffs appeal from an order for summary judgment dismissing their complaint. Because we are "reviewing the dismissal of [plaintiffs'] claims as legally insufficient, we must accept as true all the allegations of the complaint, the affidavits and products of discovery submitted on [their] behalf. We must also draw those reasonable inferences that are most favorable to [their] cause." Littman v. Gimello, 115 N.J. 154, 160, 557 A.2d 314, cert. denied, 493 U.S. 934, 110 S. Ct. 324, 107 L. Ed. 2d 314 (1989), quoting from Portee v. Jaffee, 84 N.J. 88, 90, 417 A.2d 521 (1980). The following are the material facts viewed in that light.

Plaintiffs are employees of a produce broker, a family-run corporation which purchases fruits and vegetables from farmers and resells them to other resellers in the distribution chain. Defendant SDS Biotech Corp. manufactures Bravo 500, a fungicide which it sells to farmers to be applied to their crops in the field. Either directly or through a distributor, defendant sold Bravo 500 to Albert Iulianetti, a farmer.

When the fungicide was sold to Mr. Iulianetti, it was accompanied by a detailed, six-page brochure whose contents are prescribed by regulations promulgated by the Federal Environmental Protection Agency pursuant to the Federal Insecticide, Fungicide,

and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. These warnings and precautions include the following:

Causes eye irritation. May be a potential skin sensitizer.

Do not get in eyes. Wear goggles or eye shield when handling this product. In case of contact with eyes, flush with plenty of water immediately for 15 minutes. Seek medical attention for eyes immediately.

Avoid contact with skin or clothing . . . .

Do not take internally.

Avoid breathing spray mist.

Do not apply this product in such a manner as to directly or through drift expose workers or other persons. The area being treated must be vacated by unprotected persons.

It is a violation of Federal law to use this product in a manner inconsistent with its labeling.

Do not enter treated area to perform hand labor within 24 hours of application unless protective clothing is worn.

Written or oral warnings must be given to workers who are expected to be in a treated area or in an area about to be treated with this product . . . . " Warning. Area treated with Bravo 500 on (date of application) Do not enter without appropriate protective clothing until the sprays have dried. In case of accidental exposure, wash exposed area with plenty of water and get medical attention. For further information, see 'Precautionary Statements' on the label."

Contrary to the manufacturer's directions, Mr. Iulianetti sprayed the Bravo 500 on his butternut squash after harvesting, while they were stored in bins. One of the plaintiffs testified in depositions that he learned afterwards that the squash had been "drenched" with the fungicide. This use of the fungicide in a manner "inconsistent with its labeling" is a violation of federal law. 7 U.S.C.A. § 136j(a)(2)(G).

Plaintiffs' employer purchased the squash from Mr. Iulianetti. Ordinarily, the fruits and vegetables that plaintiffs received arrived packed in cardboard cartons and plaintiffs did not touch the produce. However, on the occasion pertinent to this law suit, they accepted the squash from Mr. Iulanetti in pallet bins and repacked them into cartons. In the course of repacking the squash, they rubbed off the dried residue of Bravo 500, causing particles of the fungicide to become airborne and to permeate the entire building.

Bravo 500 settled on plaintiffs' skin and entered their lungs, and they were seriously injured.

On the record before us, there are only two sources of proof of the severity of the threat which Bravo 500 poses to human health. The first is plaintiffs' claim that they have suffered serious injuries as the result of their exposure to the product. Defendant's motion for summary judgment does not dispute those claims. The second is the insert or brochure prescribed by the Federal Environmental Protection Agency pursuant to FIFRA, supra, 7 U.S.C.A. ยง 136 et seq., which details the warnings and precautions required and the grave risks entailed in the application of defendant's fungicide to field crops before harvesting. If these ...

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