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Canty v. Ever-Last Supply Co.

July 9, 1996

CARRIE CANTY, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOSEPH CANTY, CARRIE CANTY, INDIVIDUALLY, AND SAMUEL CANTY, PLAINTIFFS,
v.
EVER-LAST SUPPLY CO., HARVESTER CHEMICAL CO., INC., (A/K/A HARVESTER CHEMICALS INC.), CARY DORSI AND AKZO NOBEL COATING INC., DEFENDANTS.



Julio M. Fuentes, J.s.c.

The opinion of the court was delivered by: Fuentes

OPINION

JULIO M. FUENTES, J.S.C.

In August 1993, plaintiff Joseph Canty was killed and his son, Samuel, was severely injured when vapors from a lacquer floor sealant they had applied to a hardwood floor suddenly burst into flames. Plaintiffs commenced this wrongful death and personal injury action contending that the accident and plaintiffs' injuries were caused by defendants' failure to provide adequate warnings or instructions on the lacquer product.

The primary issue in this summary judgment motion is whether plaintiffs' defective warning claims are preempted by the Federal Hazardous Substances Act (FHSA), 15 U.S.C.A. §§ 1261-1278. Defendants assert that preemption applies and that because the label on the lacquer product fully complies with the applicable federal labeling statutes, plaintiffs' action must be dismissed. For the reasons that follow, I conclude that the FHSA preempts plaintiffs' defective warning claims and that defendants' Lacquer Seal product complies with the labeling requirements of the FHSA. An order granting summary judgment is entered accordingly.

I

The relevant facts are summarized from the evidential materials presented. For over thirty years, Joseph Canty operated a hardwood floor refinishing business with his son, Samuel Canty. In early August 1993, the two were hired to refinish the hardwood floors in defendant Cary Dorsi's apartment building in Upper Montclair. To prepare for the job, Joseph Canty purchased several cans of Lacquer Seal from defendant Ever-Last Supply Co. (Ever-Last), a retail supplier of janitorial and maintenance supplies in Newark. On the date of the fire, the Cantys appeared at Dorsi's apartment building to refinish the floors in six separate apartment units. Prior to commencing, as part of their normal routine, Samuel Canty read the warning label on one of the cans of Lacquer Seal to his father, who was illiterate. After the two had finished applying a coat of sealant in one of the apartments, the sealant's vapors, which had collected throughout the unit, ignited while the two were still inside. The resulting flash fire killed Joseph Canty and seriously injured Samuel. The fire erupted when either the compressor in the apartment's refrigerator switched on, creating a spark which ignited the vapors, or the vapors were ignited by a pilot light in the apartment's gas stove.

The lacquer used by the Cantys is a product manufactured by defendant Akzo Nobel Coatings (Akzo) for use with hardwood floors as a protective sealant. It is composed of a number of highly flammable chemicals, including toluene, isopropanol, and ethyl acetate. The product itself is particularly combustible. One of the primary dangers it presents is the possibility that during application its vapors will collect and suddenly ignite, resulting in the sort of flash fire that injured the plaintiffs in this case.

Akzo manufactures the Lacquer Seal in bulk and ships the product in tankloads to defendant Harvester Chemicals (Harvester). Harvester then repackages the Lacquer Seal into one and five gallon containers which it labels with precautionary language before distributing to the next level of suppliers. Defendant Ever-Last purchases its stock of Lacquer Seal from Harvester and offers the product to its customers, which include tradespeople and the general public alike.

The lettering on the face panel of the Lacquer Seal label is red on a white background and appears in varying degrees of height and boldness. In the center of the label appear the phrases "DANGER!" "EXTREMELY FLAMMABLE" and "VAPORS MAY CAUSE FLASH FIRE." Below these phrases is a sentence directing the user to read the can's other panels, which contain additional warnings: "VAPOR HARMFUL," "PREVENT BUILD-UP OF VAPORS," "VAPORS MAY IGNITE EXPLOSIVELY," and "VAPOR IS HEAVIER THAN AIR-VAPORS MAY TRAVEL TO OTHER THAN WORK AREA."

The back of the can contains two smaller labels, each with white lettering on a bright red background. The top label contains the phrases "DANGER!" "EXTREMELY FLAMMABLE," "VAPORS MAY CAUSE FLASH FIRE," and "VAPORS MAY TRAVEL TO OTHER THAN WORK AREA." The bottom label depicts the symbol of a flame and the phrase "FLAMMABLE LIQUID" written in bold typeface, three-eighths of an inch high, underneath the flame.

Plaintiffs' expert, Stephen Kuzma, submitted a report in which he claims that the warnings on the Lacquer Seal label were "poorly organized" and that the statements of principal hazard on the face panel do not appear in the same size or degree of boldness. Kuzma also found that the label did not provide adequate information about the flammable nature of Lacquer Seal vapors or the kinds of precautions that users should take concerning how to properly ventilate rooms before using the product. In Kuzma's opinion, the label on the Lacquer Seal can:

presents a cluttered and jumbled array of warnings in a poorly organized fashion that is difficult to understand, obscures or renders some warnings and precautionary measures inconspicuous, provides misleading information and fails to define key terms clearly and effectively. As a result, this labeling inadequately warns consumers of the full extent of the dangers associated with lacquer seal and the extensive precautions necessary to protect themselves from these dangers.

A defense expert, E. Patrick McGuire, stated in his report that the label in question contains conspicuous warnings and detailed instructions in the appropriate type size. He concluded that "defendant met its obligation to warn the plaintiffs on the hazards associated with the ordinary and expected use of this product" and that the label is in compliance with the applicable federal statute.

Plaintiffs' primary contention is that defendants Akzo, Harvester, and Ever-Last are liable under the doctrine of strict product liability for failing to provide adequate warnings of the dangers or instructions on the safe use of the product. See New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11. Plaintiffs additionally claim that the defendants are liable in negligence for failing to adequately warn and instruct plaintiffs of the dangers associated with the use of Lacquer Seal.

Defendant Akzo, joined by Harvester and Ever-Last, now moves for summary judgment, contending that (1) Lacquer Seal falls within a class of products subject to the labeling requirements of the FHSA; (2) the Lacquer Seal label complies with FHSA requirements; and (3) compliance with the federal statute preempts plaintiffs' state law damages action, whether it be based on statutory or common law. *fn1

II

The preliminary issue in this motion is whether the FHSA governs the lacquer product used by plaintiffs at the time of the fire. Only where the federal statute applies to a given product does preemption become an issue. The parties agree that Lacquer Seal is a "hazardous substance" as defined by § 1261(f) of the statute. However, only hazardous substances which are "intended, or packaged in a form suitable, for use in the household or by children" are subject to the labeling requirements of the Act. 15 U.S.C.A. § 1261(p). Hazardous substances intended for household use which fail to comply with the federal labeling requirements are deemed "misbranded," and the introduction of such an item into interstate commerce is prohibited. See 15 U.S.C.A. § 1263(a).

Plaintiffs contend, however, that Lacquer Seal is a professional product sold primarily to tradespeople and that it therefore is not a product intended for household use. According to plaintiffs, the controlling factor on this issue is the manufacturer's intended use of the product. They argue that products that are developed and marketed for use by professionals do not require the FHSA's protective measures which were designed in part to help prevent accidents involving children. See Barnes v. Litton Indus. Prods., 409 F. Supp. 1353, 1361 (E.D. Va. 1976), aff'd in part rev'd in part on other grounds, 555 F.2d 1184 (4th Cir. 1977). Plaintiffs further assert that by labeling the lacquer container "For Professional Use Only," the defendants intended the product for industrial application, not household use; thus, Lacquer Seal would not be covered by the FHSA. See Christenson v. St. Mary's Hosp., 835 F. Supp. 498, 502 (D. Minn. 1993) (cleaner designed for hospital use was not within scope of FHSA); Barnes, supra, 409 F. Supp. at 1363 (burning alcohol intended for use by dentists not household product regulated by FHSA).

The manufacturer or the distributor's intended use, however, is not the correct standard for determining whether a product is subject to the federal labeling statutes. The appropriate test is found at 16 C.F.R. § 1500.3(c)(10)(i), which defines the phrase "intended, or packaged in a form suitable, for use in the household" to include:

any hazardous substance, whether or not packaged, that under any customary or reasonably foreseeable condition of purchase, storage, or use may be brought into or around a house, apartment, or other place where people dwell, or in or around any related building or shed including, but not limited to, a garage, carport, barn, or storage shed. The term includes articles, such as polishes or cleaners, designed primarily for professional use but which are available in retail stores, such as hobby shops, for nonprofessional use. Also included are items, such as antifreeze and radiator cleaners, that although principally for car use may be stored in or around dwelling places. The term does not include industrial supplies that might be taken into a home by a serviceman. An article labeled as, and marketed solely for, industrial use does not become subject to this act because of the possibility that an industrial worker may take a supply for his own use. Size of unit or container is not the only index of whether the article is suitable for use in or around the household; the test shall be whether under any reasonably foreseeable condition of purchase, storage, or use the article may be found in or around a dwelling. [16 C.F.R. § 1500.3(c)(10)(I) (emphasis added).]

Reading the section as a whole, the test is not what the manufacturer intends, but whether it is reasonably foreseeable to the manufacturer that the product will be available for household use. See Barnes, supra, 409 F. Supp. at 1359. Under the appropriate test, the focus is whether the product, through its normal distribution scheme, is made available to the ordinary consumer. The fact that the defendants' product is labeled "For Professional Use Only," does not determine the issue. The important consideration is whether the product could be purchased by the average consumer for household use.

The cases cited by plaintiffs in support of their contention that the lacquer used by the Cantys was not a household product covered by the FHSA are inapposite. See Christenson, supra, 835 F. Supp. at 502; Barnes, supra, 409 F. Supp. at 1359.

In Christenson, a five-year-old was injured when she drank Liquiset, a specialized cleaner used to sanitize medical supplies. The court found Liquiset to be a professional product that was not covered by the FHSA because it was sold only to hospitals and because its highly specialized application made it unlikely that the product could be adapted to household use. In Barnes, an inmate at a state prison suffered personal injuries after consuming burning alcohol labeled "For Professional Dental Use Only." In holding that the FHSA did not apply, the court specifically noted that burning alcohol, which is used to fuel bunsen burners and melt wax, was not a product ordinarily found in the home and that the seller had taken careful steps to prevent sales of the alcohol to anyone but dentists and dental laboratories See Barnes, supra, 409 F. Supp. at 1359. In both Barnes and Christenson, the plaintiffs' personal injury claims escaped FHSA preemption because the products involved had highly specialized industrial applications which limited their distribution to professional users and made their use by the average household consumer not reasonably foreseeable.

In this case, the evidence reveals that Ever-Last, one of the stores where Lacquer Seal is sold, is open to the general public as well as tradespeople. Any Ever-Last customer, whether a professional or not, may purchase Lacquer Seal for household use. Where, as here, there is no evidence to show that the manufacturer, wholesaler, or retailer of a hazardous substance sought to limit sales of the product to industrial or professional users, it is reasonably foreseeable that household consumers will have access to the product. The lack of restrictions on who may purchase Lacquer Seal, along with its obvious utility to an average household consumer as a wood floor sealant make it a product "intended, or packaged in a form suitable, for use in the household" within the meaning of the regulations. Accordingly, Lacquer Seal is a product governed by FHSA.

III

In their complaint, plaintiffs assert two separate theories of recovery, negligence and strict products liability. In regard to the negligence claim, plaintiffs assert that defendants "had a duty to properly design the [Lacquer Seal label] and to warn the plaintiffs of the dangers associated with the [use of the product]." Plaintiffs contend that defendants breached this duty of care by failing to provide "adequate warnings or instructions" and, as a proximate result of this breach, plaintiffs sustained severe injuries.

Plaintiffs' common law negligence claim must be dismissed because it is superseded by state legislation. With the enactment of the Product Liability Act, N.J.S.A. 2A:58C-1 to -11, effective July 22, 1987, virtually all common law tort claims in New Jersey were combined into a single theory of recovery. Passage of the Act signaled the intention of the Legislature to replace common law negligence theories in the product liability area with a statutorily defined cause of action. As the Appellate Division recently observed in Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 398-99, 591 A.2d 643 (App. Div.), certif. denied, 126 N.J. 390 (1991):

Where the Product Liability Act conflicts with the common law, it governs [the] action. The Product Liability Act no longer recognizes negligence or breach of warranty (with the exception of an express warranty) as a viable separate claim for "harm" (as defined in the Act) caused by a defective product.

Since a product liability action encompasses "any claim or action brought by a claimant for harm caused by a product," N.J.S.A. 2A:58C-1, (emphasis added), and section 2 describes the sole method of proof, namely that recognized for strict liability claims, it is clear that common-law actions for negligence or breach of warranties (except express warranties) are subsumed within the new statutory cause of action, if the claimant and harm also fall within the definitional limitations of section 1. [Ibid.]

See also Repola v. Morbark Indus., Inc., 934 F.2d 483, 488-89 (3d Cir. 1991); Ramos v. Silent Hoist & Crane Co., 256 N.J. Super. 467, 473, 607 A.2d 667 (App. Div. 1992); Koster v. Scotch Assocs., 273 N.J. Super. 102, 110 n.1, 640 A.2d 1225 (Law Div. 1993); William Dreier et al., New Jersey Products Liability & Toxic Torts Law 1-10 (1996). Thus, here, plaintiffs' common law negligence claims must be dismissed as being pled in violation of the Product Liability Act's single cause of action rule.

I now turn to whether plaintiffs' strict liability claim under the Products Liability Act is preempted by the FHSA. See N.J.S.A. 2A:58C-4. The basis for federal preemption of state law rests within the Supremacy Clause of the Constitution. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 77, 577 A.2d 1239 (1990). The clause provides that federal law is the "supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. State law may be preempted by valid federal statutes or regulations, and this preemption applies equally to state common law and statutory law. Feldman v. Lederle Lab., 125 N.J. 117, 134, 592 A.2d 1176 (1991), cert. denied, 505 U.S. 1219, 112 S. Ct. 3027, 120 L. Ed. 2d 898 (1992).

Whether a federal statute preempts state law turns on the intent of Congress when it passed the law, and that intention may be either express or implied. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407, 422-23 (1992). As stated by the Supreme Court, "'the purpose of Congress is the ultimate touchstone' of pre-emptive analysis." Ibid. (quoting Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 223, 11 L. Ed. 2d 179, 184 (1963)). There must be a clear showing of Congressional intent to supersede state authority, because there is a strong presumption against preemption. See 505 U.S. at 523. In this case, because plaintiffs' claims "concern rights and remedies traditionally defined solely by state law, namely, tort compensation," defendant must clearly establish that Congress intended to preempt this area of tort law. Feldman, supra, 125 N.J. at 137.

In Moss v. Parks Corp., 985 F.2d 736, 739 (4th Cir.), cert. denied, 509 U.S. 906, 113 S. Ct. 2999, 125 L. Ed. 2d 693 (1993), the Fourth Circuit examined Congress' intent in passing the FHSA and set forth the ...


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