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McClain v. Brainerd Chemical Co., Inc.

Court of Appeals of Oklahoma, Division IV

January 2, 2019

LISA MCCLAIN, individually and as Special Administrator of the Estate of B.L.M., a minor, Plaintiff/Appellant,
v.
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,
v.
ROBERT THOMAS, an individual, Third-Party Defendant.

          Mandate Issued: 03/13/2019

          Appeal From The District Court Of Tulsa County, Oklahoma Honorable CarolinE Wall, Trial Judge

          Frank W. Fraiser, FRAISER, FRAISER & HICKMAN, LLP, Tulsa, Oklahoma, for Plaintiff/Appellant

          James K. Secrest II, Jennifer L. Struble, SECREST, HILL, BUTLER & SECREST, Tulsa, Oklahoma, for Defendant/Appellee/Third-Party Plaintiff Brainerd Chemical Company, Inc.

          DEBORAH B. BARNES, PRESIDING JUDGE

         ¶1 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[.]"

         ¶2 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. [1] 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 [2] -- 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 toluene.

         ¶3 From the trial court's order granting summary judgment in favor of Brainerd, Plaintiff appeals.

         STANDARD OF REVIEW

         ¶4 "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.

         ANALYSIS

         ¶5 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."

         I. Products Liability

         ¶6 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)).

         ¶7 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).

         ¶8 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.

         ¶9 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 ...


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