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Lewis v. American Cyanamid Co.

July 20, 1998


The opinion of the court was delivered by: Pollock, J.

Argued February 17, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 294 N.J. Super. 53(1996).

Plaintiff, Peter Lewis, was burned in an explosion that occurred while he was using two Combat Room Foggers manufactured by co-defendant United Industries Corp. (United) and sold by co-defendant American Cyanamid Co. (American). He brought failure-to-warn, manufacturing defect, and design-defect claims against both defendants. The Law Division dismissed plaintiff's failure to warn claim, holding it was preempted by the Federal Insecticide, Fungicide and Rodentia Act ("FIFRA"). 7 U.S.C. §§ 136-136y. A jury rejected plaintiff's manufacturing defect claim, but awarded him damages on his design-defect claim.

The Law Division granted defendants' motion for judgment notwithstanding the verdict. R. 4:40-2. The Appellate Division reversed and remanded on the issues of plaintiff's comparative negligence and damages, but not on defendants' liability. 294 N.J. Super. 53, 81 (App. Div. 1996). It affirmed the dismissal of plaintiff's failure to warn claim. Id. at 67.

We granted defendants' petitions and plaintiff's cross-petition for certification. 151 N.J. 74 (1997). We affirm the Appellate Division's decision to dismiss plaintiff's failure-to-warn claim and to reverse the entry of judgment notwithstanding the verdict. We modify the Appellate Division's judgment by remanding for a retrial on the issues of plaintiff's comparative fault and defendants' liability, but not on damages. We also hold that plaintiff introduced sufficient facts to justify submission to the jury of the proposed alternative design of the propellant.

I. On July 4, 1989, plaintiff was burned in an explosion arising from his use of two foggers. Plaintiff had purchased a three-pack of the foggers after reading their instructions and labels. On the day of the accident, he used two of the foggers in his kitchen. He vigorously shook the foggers and blew out the pilot light on his stove. Then he activated one fogger in a cabinet under his sink and another fogger under his stove. He activated the foggers by depressing a lever on the top of the canister that held the insecticide and propellant. On activation, the foggers began spraying their contents upward. The foggers were designed so that once activated they would continue spraying until the canister was empty. After activating the foggers, plaintiff left the kitchen.

Approximately one minute later, plaintiff checked on the foggers. The fogger under the stove appeared to be malfunctioning. It was leaking liquid down its side and producing a weak spray. Contrary to the instructions on the foggers' label, plaintiff reentered the kitchen. He held his breath to avoid inhaling any of the spray, knelt on the ground, and attempted to grab the malfunctioning fogger to depress the actuator a second time. As plaintiff unsuccessfully tried to grasp the fogger, he turned his head and saw a fireball racing toward him.

Plaintiff suffered second degree burns over twenty-five percent of his body. By the date of the trial, he had made a good recovery and had returned to his job as a lab technician and a waiter. His burns resulted in skin damage, including permanent scars.

In his complaint, plaintiff alleged that the foggers' warning concerning flammability was inadequate, that the leaking fogger suffered from a manufacturing defect, and that the flammability of the foggers' contents resulted from a design defect. Before trial, the Law Division dismissed plaintiff's failure-to-warn claim, holding it to be preempted by FIFRA. Plaintiff proceeded to trial on his design- and manufacturing-defect claims.

The foggers used a hydrocarbon propellant. At trial, plaintiff asserted that the foggers should have been designed to use the compound P-22, instead of a hydrocarbon propellant. Both plaintiff and defendants offered expert testimony regarding the practicality and feasibility of P-22 as an alternative design. Plaintiff's expert testified that P-22 was safe for use in the foggers and was three times less flammable than the hydrocarbon propellant. He noted that other foggers marketed at the time of plaintiff's accident used P-22 as a propellant. In contrast, defendant's expert testified that P-22 was a teratogen, meaning it could cause birth defects. He explained further that P-22 was eventually phased out by the 1990 Amendments to the Clean Air Act because of its ozone-depleting qualities. Defendant's expert also stated that P-22 was too highly pressurized for safe use in the foggers.

At the Conclusion of the trial, the jury rendered a verdict based on special interrogatories. It determined that the fogger that had been placed under the stove did not possess a manufacturing defect. Concerning the design-defect claim, the jury made the following determinations:

3. Did the product as designed have a design defect?


4. Did the plaintiff, PETER LEWIS, misuse the product, Combat Room Fogger, or use it in a way that was not reasonably foreseeable?


5. If the product was being misused at the time of the accident, was the misuse objectively foreseeable to the manufacturer?


6. Was the design defective, taking into account your answer to Question No. 5?


7. Was the design defect a proximate cause of the accident?


8. Did the plaintiff voluntarily and unreasonably proceed to encounter a known danger in the manner in which he used the Combat Room Fogger?


9. Was the plaintiff's voluntary and unreasonable encountering of a known danger a proximate cause of the accident?


The jury found that plaintiff was fifty percent at fault and that each defendant was twenty-five percent at fault. It then awarded plaintiff damages totaling $275,000. Thereafter, the trial court granted the defendants' motions for judgment notwithstanding the verdict. The court held that plaintiff had not met his burden of proving that P-22 was a feasible and practical design alternative. According to the court, defendants had adduced sufficient proof that P-22 was dangerous. Thus, the jury should not have been asked whether the manufacturer should have incurred the risks of using P-22 rather than those posed by using the hydrocarbon propellant. The court also held that the defendants were entitled to a heeding presumption that people who used the foggers would heed warnings cautioning against their misuse.

On appeal, the Appellate Division reversed the entry of judgment notwithstanding the verdict, reinstated the jury verdict on liability, and remanded the case for a retrial solely on the issue of plaintiff's comparative negligence and on the quantum of damages. It affirmed the dismissal of plaintiff's failure to warn claim and held that the Supreme Court's intervening decision in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996), did not alter the Conclusion that FIFRA preempted this claim. 294 N.J. Super. at 67.


We affirm the lower courts' dismissal of plaintiff's failure-to-warn claim. Plaintiff contends that the foggers' label was inadequate because it did not contain a warning of the product's potential flammability. As a registered insecticide product, the language on the foggers' label was determined by FIFRA and related regulations promulgated by the Environmental Protection Agency (EPA). See 7 U.S.C.A. §§ 136(p) & 136a(c)(5); 40 C.F.R. § 156.10. In short, federal law determined the contents of the warning on the foggers' label. FIFRA contains an express preemption provision prohibiting a state from imposing additional or different labeling requirements. The statute states:

(a) In general

A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Uniformity

Such state shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from ...

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