LISA MCCLAIN, individually and as Special Administrator of the Estate of B.L.M., a minor, Plaintiff/Appellant,
BRAINERD CHEMICAL COMPANY, INC., an Oklahoma corporation, Defendant/Appellee, and PSYCHO PATH, LLC, an Oklahoma limited liability company; VICTOR R. MARQUEZ and SUZETTE MARQUEZ, individually; and WEST TEXAS DRUM COMPANY, LTD, II, a Texas limited partnership, Defendants, and PSYCHO PATH, LLC, an Oklahoma limited liability company; VICTOR R. MARQUEZ and SUZETTE MARQUEZ, individually; and BRAINERD CHEMICAL COMPANY, INC., Third-Party Plaintiffs,
ROBERT THOMAS, an individual, Third-Party Defendant.
Mandate Issued: 03/13/2019
From The District Court Of Tulsa County, Oklahoma Honorable
CarolinE Wall, Trial Judge
W. Fraiser, FRAISER, FRAISER & HICKMAN, LLP, Tulsa,
Oklahoma, for Plaintiff/Appellant
K. Secrest II, Jennifer L. Struble, SECREST, HILL, BUTLER
& SECREST, Tulsa, Oklahoma, for
Defendant/Appellee/Third-Party Plaintiff Brainerd Chemical
DEBORAH B. BARNES, PRESIDING JUDGE
Plaintiff/Appellant Lisa McClain, individually and as Special
Administrator of the Estate of B.L.M., a minor, appeals from
the trial court's order granting the motion for summary
judgment of Defendant/Appellee Brainerd Chemical Company,
Inc. The order states that "all claims presented against
[Brainerd] by [Plaintiff] are hereby dismissed, with
prejudice," and the trial court certified its order as a
final order "pursuant to 12 O.S. § 994 (a), [as]
there is no reason for delay[.]"
For purposes of summary judgment, the parties agree B.L.M.
was employed by Defendant/Third-Party Plaintiff Psycho Path,
LLC to work at its haunted house. They further agree that
B.L.M. was fatally injured as a result of using a torch to
open an empty barrel that had previously contained the
chemical toluene.  Plaintiff admits B.L.M. "was not
killed by using a torch on a barrel full of toluene, but on
an empty drum" -- i.e., a drum containing "residual
toluene [that] went up in flames and killed [B.L.M.]"
Plaintiff asserts "[i]t was foreseeable to
[Brainerd]" -- which is in the business of selling drums
full of toluene  -- that an "empty drum would be
resold and [Brainerd] did not include proper warnings about
the use of resold drums" containing residual amounts of
toluene. Plaintiff asserts "[t]he drum put into commerce
by [Brainerd] was defective and unreasonably dangerous and
caused the injuries to [B.L.M.]," and Plaintiff has also
asserted a theory of ordinary negligence against Brainerd
based on this failure to warn as to the dangers of residual
From the trial court's order granting summary judgment in
favor of Brainerd, Plaintiff appeals.
"This appeal stems from a grant of summary judgment,
which calls for de novo review." Woods v.
Mercedes-Benz of Okla. City, 2014 OK 68, ¶ 4, 336
P.3d 457 (citation omitted). Under the de novo standard, this
Court is afforded "plenary, independent, and
non-deferential authority to examine the issues
presented." Harmon v. Cradduck, 2012 OK 80,
¶ 10, 286 P.3d 643 (citation omitted). Summary judgment
is appropriate "[i]f it appears to the court that there
is no substantial controversy as to the material facts and
that one of the parties is entitled to judgment as a matter
of law[.]" Okla. Dist. Ct. R. 13(e), 12 O.S.Supp. 2013,
ch. 2, app.
As indicated above, Plaintiff states it is suing Brainerd
"in manufacturers' products liability."
Plaintiff's contention in this regard is that "the
drum was defective in that there was no warning that it was
flammable even when empty, and that this made the drum
unreasonably dangerous -- dangerous beyond the extent
contemplated by an ordinary user." Plaintiff does not
dispute that the drum included a warning addressing the
dangers of a drum full of toluene, but Plaintiff asserts that
because this "limited warning on the drum [did] not
contain the danger of an empty drum, ... it was defective at
the time it left [Brainerd's] control." Plaintiff
has also asserted a theory of ordinary negligence against
Brainerd, and states in this regard that Brainerd was
"in a position to need to warn" B.L.M. and/or his
employer regarding the dangers of residual toluene, and
breached its duty to B.L.M. and/or his employer "by
failing to do so."
The Oklahoma Supreme Court has identified three elements to a
products liability claim: the defect must have (1) caused the
injury in question, (2) existed at the time it left the
manufacturer's control, and (3) made the product
unreasonably dangerous. Kirkland v. Gen. Motors
Corp., 1974 OK 52, ¶ 0, 521 P.2d 1353 (Syllabus by
the Court) (adopting § 402A of the Restatement (Second)
of Torts (1965)). "The defect can stem from either a
dangerous design or an inadequate warning about the
product's dangers." Braswell v. Cincinnati
Inc., 731 F.3d 1081, 1085 (10th Cir. 2013) (applying
Oklahoma law). See also Swift v. Serv. Chem., Inc.,
2013 OK CIV APP 88, ¶¶ 15-16, 310 P.3d 1127 (The
plaintiffs in Swift argued the chemicals in question
were defective "because they left [the
manufacturer's] hands without a warning adequate to
anticipate and prevent [the alleged] injury," and the
court explained that "[l]iability is contemplated... if
a product does not have a warning sufficient to inform
'an ordinary consumer of the product' of its
dangerous characteristics...." (citation omitted)).
As indicated above, Plaintiff in this case asserts a defect
existed in the form of an inadequate warning. "The
manufacturer of a product has a duty to warn the consumer of
potential dangers which may occur from the use of the product
when it is known or should be known that hazards exist."
Swift, ¶ 16 (quoting McKee v. Moore,
1982 OK 71, ¶ 4, 648 P.2d 21).
In order to qualify as "unreasonably dangerous,"
however, "[t]he article sold must be dangerous to an
extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its
characteristics." Restatement § 402A, comment
(i). Thus, a supplier's duty to warn extends only to the
"ordinary consumer" who purchases the product.
Liability is contemplated only if a product does not have a
warning sufficient to inform "an ordinary consumer of
the product" of its dangerous characteristics, and if
the risk of harm is not one that an "ordinary consumer
who purchases the product" reasonably would expect....
Swift, ¶ 16 (emphasis added).
Thus, "[t]he distinction to be made regarding who
constitutes an ordinary consumer of a specific product is of
important consequence." Woods v. Fruehauf Trailer
Corp., 1988 OK 105, ¶ 13, 765 P.2d 770. "Only
when a defect in the product renders it less safe than
expected by the ordinary consumer will the manufacturer be
held responsible." Id. (citation omitted).
However, in Woods, where the product in question was
a gasoline tanker trailer, the ordinary consumer was
articulated by the Court as "one who is familiar with
the hazards associated with loading, transporting and
unloading gasoline[.]" Id. ¶ 14. The
Woods Court further explained that "an alleged
'defect' may not render the product less safe than
expected where the same 'defect' may render the
product unsafe as to the general public." Id.
The Woods Court again emphasized that "evidence
that the tank could have been made 'safer' does not
establish that it was less safe than would be expected by the
ordinary consumer." Id. ¶ 17.
In the present case, it is undisputed that Psycho Path, LLC
acquired the used and empty (or seemingly empty) barrel in
order to use it for its own unique purposes at its haunted
house. It is undisputed Psycho Path, LLC was not attempting
to purchase toluene; indeed, it purchased, or sought to
purchase, an empty drum. Thus, the evidence unequivocally
shows B.L.M. and his employer were not ordinary consumers of
the product sold by Brainerd. Furthermore, it is undisputed
that, as set forth above, the tanks of toluene sold by
Brainerd did include a warning addressing the dangers of a
drum full of toluene. Although an additional warning setting
forth the dangers of residual toluene may have made
the product safer to non-ordinary consumers, Oklahoma
products liability law does not impose such an obligation on
manufacturers or suppliers. Any ...