Justia Federal District Court Opinions

Appellant, Mrs. Marguerite Jamieson, bought from Woodward & Lothrop, a department store, an elastic exerciser manufactured by Helena Rubinstein, Inc., which she had seen advertised in a magazine. She bought by brand name, "Lithe-Line", and no special instructions as to use were given her by the vendor's salesperson. While she was using the exerciser she suffered a sudden unconsciousness, and although she testified she did not know what happened it appears to be a reasonable inference that the exerciser slipped and struck her in the eye. She sued Woodward & Lothrop for breach of warranty and Helena Rubinstein, Inc., for negligence. The defendants answered. Appellant's deposition was taken, and in the course of it the exerciser in question and the printed instructions given with it were introduced as exhibits. The District Court, on the basis of the complaint, the answers, the deposition, and the exhibits, granted summary judgment for the defendants. This appeal followed.

The court is in agreement in affirming the District Court in respect to the vendor, Woodward & Lothrop. The statute1 provides: "In the case of a contract to sell or sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose." Since the sale occurred in the District of Columbia, and since Mrs. Jamieson relied solely on the claim of breach of implied warranty, it is clear that she is barred by the quoted language, unless perhaps she can in some way remove herself from the scope of the statute. Nothing in the record or argument would in our view suggest or support any such possibility.

The court is divided in its view of the judgment in favor of the manufacturer, Helena Rubinstein, Inc. A majority agree with the District Court, and so the judgment will be affirmed.

The theory of the plaintiff as to the manufacturer, as set forth in her complaint, was that the exerciser was inherently dangerous and that the manufacturer had failed to warn or otherwise protect her against such danger. In answer to an interrogation she said that when the solid rubber rope is subjected to stress, as in an exercise, great potential striking power is created; that the rope "can depart from the instep" in the course of an exercise; and that no safety or protective device was provided and no warning given.

The exerciser in question was an ordinary rubber rope, about the thickness of a large lead pencil, about forty inches long, with loops on the ends. It had no imperfections or defects whatsoever and no added gadgets. It never broke or went awry. It was a simple elastic exerciser. With the rope came a set of "Instructions". These consisted of a series of eight silhouette sketches of exercises to be done with the rope, with a summary description of each exercise. There were no instructions as to how to operate the device; there was no device to operate, the article in question being merely a rubber rope. In appearance it resembled a child's skipping rope.

In the course of her program Mrs. Jamieson began one of the most normal and natural of exercises. She lay down on the floor, put the rope under her feet, held on to the handles, and, with knees stiff, raised her feet straight up, intending then to lower them and so, alternately raising and lowering them, to give her body muscles a workout. Apparently the rope slipped off the soles of her feet and hit her in the eye. She suffered a serious injury.

The unfortunate event was an accident, we think, — an event so natural that responsibility for it is by common consent not ascribed to fault. Of course one is truly sorry for the unfortunate victim of a chance accident, but the premise of pecuniary liability for tort is not the fact of injury but is negligence.

Problems in this field of the law have grown in recent years coincident with the tremendous growth in the use of manufactured articles and mechanical devices. Many cases in many jurisdictions have dealt with phases of the general subject, and the law has progressed since the opinion of the Court of Appeals of New York in MacPherson v. Buick Motor Co.2 finally demolished the already breached barrier of no-privity of contract which theretofore lay across the path of a user to a manufacturer. Eminent authorities, notably Professor Dillard of the University of Virginia3 and Professor James of Yale,⁴ have written extensive articles on the subject.⁵ The Restatement of the Law of Torts deals with it.⁶ It may now be taken as settled that a user of a manufactured device may under some circumstances recover against the manufacturer for negligence.

Culpable negligence of a manufacturer may arise from a number of causes. There may be an impropriety or a misadventure in the manufacturing process which results in a defective product. There may be negligence in design or plan. The cause of action in the case at bar does not arise from any of these. It arises, as we have said, from alleged negligence in failing to warn or otherwise protect the user in the use of the article.

There are on the market vast numbers of products as to which the law holds the manufacturer to a duty to warn of foreseeable dangers or to provide safeguards against such dangers. But there are also on the market vast numbers of potentially dangerous products as to which the manufacturer owes no duty of warning or other protection. The law does not require that an article be accident-proof or incapable of doing harm. It would be totally unreasonable to require that a manufacturer warn or protect against every injury which may ensue from mishap in the use of his product. Almost every physical object can be inherently dangerous or potentially dangerous in a sense. A lead pencil can stab a man to the heart or puncture his jugular vein, and due to that potentiality it is an "inherently dangerous" object; but, if a person accidentally slips and falls on a pencil-point in his pocket, the manufacturer of the pencil is not liable for the injury. He has no obligation to put a safety guard on a lead pencil or to issue a warning with its sale. A tack, a hammer, a pane of glass, a chair, a rug, a rubber band, and myriads of other objects are truly "inherently dangerous", because they might slip. They cause accidents and injury even more often, we expect, than do rubber exercisers. But the doctrines fashioned by the law for inherently dangerous objects do not encompass these things. A hammer is not of defective design because it may hurt the user if it slips. A manufacturer cannot manufacture a knife that will not cut or a hammer that will not mash a thumb or a stove that will not burn a finger. The law does not require him to warn of such common dangers. On the other end of the spectrum of practicalities, a manufacturer should not be permitted to market without protection to the user a spray which would kill trees if used at the wrong time, as in McClanahan,⁷ or a skirt which would otherwise ignite if brushed by a lighted cigarette, as in Noone.⁸ A manufacturer might be liable for failure to provide a shield or an emphatic warning to users of an electric power saw, but he would not be liable if he failed so to provide in respect to a kitchen knife.

If a hand slips in a normal operation with a non-defective device, a knife will cut and a lighted stove will burn and an automobile will crash into a tree; but no authority holds that manufacturers must warn of such contingencies. All this is firmly established commercial law and custom. We doubt that any book of instructions given with a car warns that, if a user accidentally steps on the accelerator instead of on the brake, he may be hurt; nevertheless, so far as we are able to ascertain, no case has yet held the manufacturer liable under such circumstances.

In respect to necessary warning the Supreme Court said many years ago, in a case from this jurisdiction:

"In other words, as stated by the Maine court, `No one needs notice of what he already knows,' and `Knowledge of the danger is equivalent to prior notice.'"⁹

The latest extensive judicial discussion of the matter seems to be in Campo v. Scofield,¹⁰ the opinion being by the unanimous Court of Appeals of New York, the same court which decided MacPherson v. Buick Motor Co., supra. A farmer was feeding onions into a machine. His hand slipped and was caught in the rollers. He sued upon the theory that the manufacturer was negligent in not providing guards. The court, holding that the complaint failed to state a cause of action in negligence, discussed the problem at length. The gist of the holding is that a manufacturer is under no duty to protect the user against a danger which is perfectly obvious. The pertinent quotable portions of the opinion are much too long to recite here; two short statements must suffice. The court said:

"If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof."¹¹

And again the court said:

"To impose upon a manufacturer the duty of producing an accident-proof product may be a desirable aim, but no such obligation has been — or, in our view, may be — imposed by judicial decision. Suffice it to note that, in cases dealing with a manufacturer's liability for injuries to remote users, the stress has always been upon the duty of guarding against hidden defects and of giving notice of concealed dangers."¹²

In another recent case, Blissenbach v. Yanko,¹³ a woman bought an electric steam vaporizer. The manufacturer did not warn her that if the device was accidentally upset while in operation somebody might be scalded. The vaporizer was upset, and a child was scalded. The Court of Appeals of Ohio reversed a judgment for the plaintiff based upon a jury verdict and, in holding that a verdict for the defendant should have been directed, said in part:

"A vaporizer is not such a dangerous instrumentality. It has an important place in the field of modern therapy. The question in this case is the operation of the vaporizer itself. It is not per se a dangerous instrument. It is an instrument of dangerous potentialities if carelessly used. Care must be proportioned to the danger to be avoided. It was not fool proof. * * *

"Plaintiff's mother knew when she purchased the vaporizer that she was purchasing a loose lid vaporizer of simple construction. It was not intended that the top should remain intact at all times. The lid was made to be easily removable, and its weight was all that held it in place."¹⁴

The Fifth Circuit held that, where a person splashed some cleaning agent in a sink so that it flew up into her eye, the manufacturer was not liable.¹⁵ There was no duty to warn that a cleaning agent is not intended for use in the eye or that a liquid, if spilled, may splash into the eye. The books contain many other illustrations of this rule.¹⁶

The Restatement deals with this phase of the matter quite clearly. Stating the proposition affirmatively it says¹⁷ that one who supplies a chattel for another to use is liable for bodily harm caused by the use in the manner for which it is supplied, if he (the supplier) "has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition" and fails to give warning. And the authors comment:

"One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character in so far as it is known to him or of facts which to his knowledge make it likely to be dangerous, if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved therein." (Emphasis ours.)¹⁸

Neither an exact definition of liabilities nor a precise delineation of the boundaries is necessary in the present case. It seems clear under all or any of the cases or text authorities that, where a manufactured article is a simple thing of universally known characteristics, not a device with parts or mechanism, the only danger being not latent but obvious to any possible user, if the article does not break or go awry, but injury occurs through a mishap in normal use, the article reacting in its normal and foreseeable manner, the manufacturer is not liable for negligence. If a man drops an iron dumbbell on his foot the manufacturer is not liable.

The case at bar falls within the category just described.¹⁹ The only "dangerous condition" was that a rubber rope is elastic and when stretched will, when released, return to its original length with some degree of force. Small boys know that fact and fashion sling-shots upon the principle. Surely every adult knows that, if an elastic band, whether it be an office rubber band or a rubber rope exerciser, is stretched and one's hold on it slips, the elastic snaps back. There was no duty on the manufacturer to warn of that simple fact.

The "Instructions" given with this rope were simply an illustrated text depicting various exercises which might be performed with it. They were affirmative. No mechanism was involved. There were no instructions as to how to operate the device; there was no "operation" of a "device"; the only action was to stretch the rope and then relax the tension. The instructions showed in silhouette eight exercises to be done with the rope. They were the time-honored routine known to every high school gym class, a modern rendition of the old-time "Daily Dozen". The one Mrs. Jamieson was doing was described thus:

"Tummy Flattener

"Lie on back. Place hands in loops of Lithe-Line. Place feet in middle; pull legs up and lower to ground."

While she was executing this simple maneuver the rope slipped off her feet. The "instructions" did not say that, if the rope, while stretched, slipped out of her hand or off her foot, it might hit her in the eyes, the nose, the mouth, or the ear, thereby possibly causing a detached retina, a chipped septum, a split lip which might become fatally infected, or a ruptured eardrum resulting in permanent deafness. But we are of clear opinion that the manufacturer cannot be held negligent for failing to give such instructions.

The reasonably foreseeable injury from a mishap with this rope was not great — a cut lip, bloody nose, or black eye, at the most. This lady's injury, a detachment of the retina in one eye, is not the sort of thing reasonably anticipated from the snapback of a rubber elastic of this sort. At the same time it is obvious that any injury to an eye may have dire consequences. So may a cut finger or a broken wrist. But we do not find in the authorities a doctrine that, if the injury ordinarily foreseen is relatively minor and so need not be warned against, a manufacturer must nevertheless warn against any dire unusual consequence which, also obviously, may ensue. Quite to the contrary it is well established that a manufacturer is not liable, unless serious bodily harm is reasonably foreseeable.²⁰ Of course, so far as foreseeability is concerned, not only may the usual be foreseen, but the unusual may often be foreseen as a remote possibility. A manufacturer may foresee as a remote possibility that a metal decoration on a jewelry box may scratch one and cause an infection;²¹ the heel of a lady's shoe may break at an inopportune moment, causing serious injury;²² or that a stickpin may stab a man to the heart. Yet for these remote eventualities the law imposes no liability on the manufacturer. "Reasonably foreseeable" in the rule here applicable does not encompass the far reaches of pessimistic imagination.

It is argued that the criterion is "unreasonable risk of harm to users". One factor in that determination, which appears in all the authorities from the Supreme Court's Moulton opinion in 1901 to the Restatement of 1934 and the Campo case in 1950, is whether the manufacturer may reasonably expect that the user will realize the danger. Any article may slip in use; everybody knows that. We cannot hold a manufacturer negligent because he did not specifically warn that a simple article like a rubber rope might slip. Under such a rule what would we do with the infinite variety of household gadgets, work tools, garden appliances, and all the multitude of things which make up modern living and any of which may slip while being used?

It is argued that the extent and the impact of the rope's recoil were not obvious to the user. This argument means either it was not obvious to the lady that if the rope slipped it would hit her in the eye, or it was not obvious that if it did hit her in the eye the retina might be detached. But it is common knowledge that the distance and force of the recoil of an elastic are controlled by and proportional to the amount of tension placed upon it. If an eye, mouth or nose is in the path of the recoil it may be struck a blow. The force of the blow is determined by the tension placed upon the elastic by the person who stretched it, in this case the lady herself. These facts concerning impact and extent of recoil are obvious to everyone; certainly to a small boy using a slingshot. Therefore they need not be warned against. It is equally obvious that when a recoiling object strikes one in its path it will do some harm, in the ordinary case a slight bruise but in the highly unusual case a more serious injury. The injury in the case at bar falls within the latter category. In the language of the cases it was not "reasonably foreseeable" but, more accurately, was a remote contingency or an unlikely eventuality, as brought out above.

Surely a manufacturer is not negligent if he fails to utter a warning against a general possibility of danger, such as that if a rope slips some injury may result. And surely a manufacturer, to be protected from liability for negligence, need not enumerate the possible injuries which might befall one hit by the rope. We have in the case at bar a detached retina, but we might have had any one of an infinite number of injuries to eye, mouth, ear, nose, etc. We do not agree with, and find no authority to support, a holding either that a manufacturer must utter a general warning of danger from mishap with an article such as this rope or that he must catalog injuries possible upon such a mishap.

Everybody seems to agree that, if an ordinary knife slips and cuts the user — maybe cuts a finger off, — then as a matter of law the manufacturer is not liable. Our dissenting brethren put an ordinary knife on one side of the line and a power-driven rotary blade on the other side. They then err, it seems to us, when they put this simple rubber rope on the side of the electric rotary blade. It belongs on the side of the ordinary knife. This was not a whirling, mechanical apparatus. Indeed it was not nearly as inherently dangerous as is an ordinary knife. The illustrative example makes manifest the error.

We agree that Virginia law applies here, and on that subject the dissent has much to say about the opinion in McClanahan, supra. But that case does not remotely resemble this one and, moreover, does not advance the extreme doctrine now urged upon us. The case involved a spray for apple trees. If used too late in the season, when a scab disease was too far advanced, the spray would kill the trees. That contingency was not patent even to experts. The manufacturer furnished a set of instructions, which gave the correct time for application but failed to warn of the results of a too-late application. There is in Virginia a statute relating to sales of insecticides, fungicides and rodenticides. Code 1950, § 3-198 et seq. That statute contained a provision relating to necessary warnings or cautions. The opinion of the court was an interpretation of that provision. The court adverted to some of the basic common-law principles of negligence liability. It in no way approached the problem now before us. The text of the opinion shows that the learned justice did not have our problem in mind in any respect. The cases cited and quoted by him confirm that view. His quotation from Cooley²³ is from a discussion of basic rules of negligence. The idea entertained by Mr. Cooley is clearly indicated by a statement from the same section from which the Virginia court quoted. Speaking of "imminently dangerous" articles Mr. Cooley says, "The same principle has been applied to a gun, which if defective is an article imminently dangerous to human life." (Emphasis supplied.) The Sadler case²⁴ concerned an employer's liability to an employee, and the quoted rule contained an exception for dangers "such as the servant knew or ought to have known about." That seems to be the Virginia rule. The American Oil Co. case²⁵ dealt with concealed defects; Maize²⁶ with a cleaning fluid inadequately labeled; Farley²⁷ treats of sales of an article dangerous to a person "who has no knowledge of its true character"; Rosebrock²⁸ dealt with concealed packing blocks in a transformer; Highland Pharmacy²⁹ with a solution of silver nitrate labeled "witch-hazel"; and Genesee County³⁰ states the rule, "the danger not being known to the purchaser and the danger not being patent".

The article in the Virginia Law Review by Professor Dillard and Mr. Hart, to which we have referred, is an analysis and critique of the McClanahan case — "to locate this particular case in the broader context of that liability."³¹ They offer Noone v. Fred Perlberg, Inc., supra, as perhaps the best statement of the modern rule. In that case the court said, in so far as here pertinent, that a manufacturer is liable if he sells an inherently dangerous article without notification of the danger, "the danger not being known to the purchaser and not patent". The authors of the Virginia Law Review article say "The problem is one of judging the defendant's duty in light of the general circumstances that prevail in the area of expected use."³² They conclude that McClanahan announced no novel or sweeping doctrine likely to embarrass a careful manufacturer but rather serves to call attention to the intrinsic importance of the common-law and statutory rules as to warnings. It is perfectly clear that these authors did not deem McClanahan to contemplate in any way the problem we have in the present case. And it clearly appears that they would conclude from the governing principles they recite that a manufacturer has no duty to warn of the obvious danger of a mishap in the ordinary use of an uncomplicated and non-defective article.

A more recent Virginia case affords insight into the thinking of the Supreme Court of Appeals in the McClanahan case and better understanding of its general approach to tort problems. In Olds v. Wood³³ the same judges, less one, who decided McClanahan reversed a judgment upon verdict for a plaintiff. The plaintiff's husband had purchased a bottle of shampoo from the defendant manufacturer. The directions on the bottle set out the usual instructions for shampooing and advised the user to "Heat until warm". There was no warning as to possible dangers in the use of the product according to instructions. The husband gave his wife a shampoo and dried her hair with a towel. He was combing the hair back from her face when she put a cigarette in her mouth and struck a match "at arms length in front of her". There was a flash of flame which enveloped her hair and clothing. She sued for personal injuries, claiming that the defendant failed to use due care in manufacturing and selling a product which was inherently and imminently dangerous in normal use and in failing to give proper and complete instructions on its use. At trial it was agreed by expert witnesses that the flash point of this shampoo was 171 or 172 degrees Fahrenheit. It was also agreed that at that temperature the shampoo would have been too hot to apply with comfort, and plaintiff did not testify to any discomfort. The defendant's expert witness, a chemist, gave uncontradicted testimony that under the circumstances described by the plaintiff and her husband the liquid in question could not have ignited and caused the fire. The Supreme Court of Appeals rejected both of plaintiff's theories of negligence, stating that the uncontradicted testimony of the defendant's expert witness proved the product was not inherently dangerous, that the mere happening of the accident was no proof of negligence, and that plaintiff failed to produce affirmative preponderating proof of negligence. According to the directions on the bottle this substance was to be heated, often and naturally over an open flame, and its normal use would be in the vicinity of stoves, fireplaces, and lighted cigarettes. The flash point was 172 degrees, a notably low point, well below the boiling point of water. An extra moment on the stove could bring the substance above this temperature. It cannot seriously be contended that, in a jurisdiction where such a substance is not regarded as inherently dangerous and need not be accompanied by warnings, a simple rubber rope, the dangerous properties of which are well known even to a child, is inherently dangerous and must be warned against. The Olds case seems to make clear beyond question that the basic discussion of tort law by the same court in McClanahan cannot be read to cover the case at bar.

Professor James appears to be a proponent of the rules most liberal toward plaintiffs, but, even so, it seems clear enough that he would not find liability in the case at bar. Throughout his article³⁴ he emphasizes that a manufacturer must protect users against "unreasonable risk of harm". At one point he relates the factor of obviousness to this risk, saying:

"(a) Obviousness of the danger, including the likelihood that it will be appreciated. This is a factor which diminishes the likelihood of danger and militates against the need for precautions. The sharpness of knives and axes, or the tendency of unpacked fresh meat to spoil are so notorious that a warning could be expected to add nothing useful to the perception gained from one's senses and the knowledge common to all men. Nor does any alternative feasible precaution suggest itself. People generally can and do protect themselves against the dangers; thus they are not unreasonable ones."³⁵

Then, rejecting the theory that there is never a duty to guard against a patent danger, the author nevertheless concludes:

"Under this analysis the obviousness of a condition will still preclude liability if the obviousness justifies the conclusion that the condition is not unreasonably dangerous; otherwise it would simply be a factor to consider on the issue of negligence."³⁶

Professor James points out that obviousness of a danger diminishes the likelihood of injury and militates against the need for precautions. He urges, candidly against much authority, that a general rule that an obvious danger requires no safeguard is too broad. But obviousness, in his view, would preclude liability if the condition is so obvious as not to be "unreasonably dangerous". His thesis, he emphasizes, would not make manufacturers insurers or require foolproof machinery. "As it is," he says, "manufacturers must use care to provide a reasonably safe design, but it would be absurd to say that this requires foolproof plans.³⁷ With regard to warnings Professor James cites the Restatement and states: "When a dangerous condition is fully obvious and generally appreciated nothing of value is added by a warning."³⁸

Appellant makes reference to the possibility of safeguards. The District Court referred to this possibility but pointed out, correctly, that nothing whatever was offered as a fact or as an issue of fact to indicate the desirability or feasibility of additional accessories to the rope or a different type of rope. Nothing offered the court tended to suggest that flapping stirrups or midway loops would create less rather than more danger. And nobody ventured to suggest as a fact that a flat elastic might slip out of a hand less easily than a rope-shaped line. Plaintiff tendered no issue of fact on this topic; a motion for summary judgment had been made, and she was opposing it; she should have posed a genuine issue of material fact as to the reasonableness and feasibility of a safeguard if she wished to make that contention. It was not necessary that her evidence be proffered, but faced with a motion for summary judgment she had to raise an issue of fact.³⁹ The District Judge who heard this case is well aware of the rules of procedure.

It is urged that a contest of the sort here involved can just as well be submitted to a jury, without a prior determination of possible liability on the part of the defendant. There is in some socio-logical circles a philosophy that the burden of damages suffered in accidents with manufactured articles ought to be widely spread, by way of the manufacturer and his available insurance, such as is the plan widely adopted in respect to injuries suffered in employment.⁴⁰ But such a plan ought to be adopted, if it is to be adopted, by the voice of the people generally, expressed by the legislative branch of the government. It ought not be imposed by the judicial branch. To be sure, there are many respects in which the development of the common law calls for reexamination and change by the courts. The advances made by the courts in this very field by cases such as Huset⁴¹ and MacPherson, supra, are illustrations. But so sweeping a change in commercial liability as the change just mentioned is not within that area. We must, when appropriate procedural demands have been made, determine at the outset of an action whether a possible liability in law of the defendant has been indicated by the plaintiff. This is a concept basic in our jurisprudence. It is established, firmly and correctly, that if a defendant has violated no legal obligation, his liability for pecuniary damages must not be submitted to the possible prejudices, sympathies or whims of a lay jury. His basic liability is first to be tested as a matter of law by the judge. In the case at bar the judge did not rule on the pleadings alone. The plaintiff's deposition was in, and so were the pertinent exhibits. If there is no possible liability in law, and no genuine issue of material fact exists, the established practice is summary judgment.

Since the rope in the case at bar was without defect or accessory gadgets and did not break or fail in any manner, no fault, and surely no negligence, can be ascribed to the manufacturer merely because it slipped off the lady's foot while in perfectly normal use. It would be erroneous to hold that the manufacturer may be liable for damages if he fails to warn users that a rope such as this might slip off a foot or out of a hand. When all the discussion of involved legal principles has been concluded, the case remains as simple as it was in the beginning: A lady was doing a simple exercise with a simple rubber rope, and it slipped off her foot and hit her in the eye. That is the whole of it. And the question is equally simple: Was the manufacturer therefore negligent? We think it was not. To hold otherwise would go beyond any reasonable dictates of justice in fixing the liabilities of manufacturers of products sold on the market.

Affirmed.