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Butz v. Lynch6/23/2000
The only issue in this appeal is whether the intentional inhalation of the contents of a can of air brush propellant to produce an intoxicating effect while operating a motor vehicle is a "reasonably anticipated use" of that product by an "ordinary person." The trial court ruled as a matter of law that this conduct did not constitute a reasonably anticipated use of the product. We affirm.
BACKGROUND
These consolidated lawsuits arose out of a vehicular accident that occurred on October 15, 1995 on U.S. Highway 190 in St. Tammany Parish. Angela Butz was driving a van south on Highway 190 while Patrick Lynch was driving a BMW convertible north on Highway 190. Patrick Lynch left the northbound roadway, crossed the neutral ground separating the lanes of travel and entered the southbound lane directly into the path of the vehicle driven by Mrs. Butz. Mrs. Butz sustained severe injuries in the accident, from which she died three years later. Patrick Lynch and his guest passenger, Michael Bacon, died at the scene.
This lawsuit was originally filed by Mrs. Butz and her husband against the parents of Patrick Lynch and Michael Bacon. A second lawsuit was filed by Mrs. Butz's former husband, Francis R. White, III, on behalf of their son, Francis Randall White, IV, against the parents of Patrick Lynch. Both sets of plaintiffs added The Testor Corporation and its parent company, RPM, Inc., as defendants.
Testor manufactures and markets hobby items such as models, paints, glues and other model accessories. During the late 1980's, Testor began marketing air brushes, which allow for finer detailed application of paints. An essential component of an air brush is a propellant system, which forces the paint through the brush. In 1990, Testor began marketing an aerosol air brush propellant in a hand-held canister for use when painting through an air brush or sprayer. The product, called Testor Ozone Safe Air Brush Propellant (OSP), is sold primarily through chain, hobby, craft and home decor stores. OSP is a specialized blend of organic liquefied propellants. When high concentrations are intentionally inhaled or "huffed" (as the practice is commonly referred to), the amount of oxygen to the brain is reduced, which produces a "high" feeling. Continued intentional over-exposure to the product can result in unconsciousness, coma and possible death. From the time of its introduction, OSP carried a warning label advising consumers that "deliberate misuse by concentrating or inhaling contents can be harmful or fatal."
For the purpose of this appeal, it is undisputed that Patrick Lynch obtained a can of OSP and intentionally inhaled the contents of that can while driving on Highway 190 for the purpose of "getting high." It is further undisputed that a chemical in the product caused him to lose consciousness, which caused his vehicle to leave the roadway and enter the path of the vehicle driven by Mrs. Butz.
In their petition, plaintiffs alleged that OSP was unreasonably dangerous in design. They averred that Testor knew or should have known three years before the accident that teenagers such as Patrick Lynch were using the product to get high and averred such uses were "reasonably anticipated uses" under the Louisiana Products Liability Act (LPLA). Plaintiffs asserted that Testor was on notice that a secondary market for its product had developed among young people who intentionally inhaled the product for the purpose of experiencing an intoxicating-like effect. They further alleged that Testor knew about an additive, oil of mustard, a chemical found in horseradish, which could have prevented or made it unlikely that anyone would have intentionally abused the produ
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