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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
with the consent of the other . . . for physical harm caused by the use of the [product] in the manner for which and by a person for whose use it is supplied, if the supplier [para.] (a) knows or has reason to know that the [product] is or is likely to be dangerous for the use for which it is supplied, and [para.] (b) has no reason to believe that those for whose use the [product] is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.' (Rest. 2d Torts, § 388; . . .)" (Stevens v. Parke, Davis & Co. (1973) 9 Cal. 3d 51, 64 [107 Cal. Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059].)
Following this formulation, it appears appellants must be able to allege they were foreseeable users, using the chemicals in a foreseeable manner; that the chemical companies knew (or should have known) the chemicals were dangerous to the environment if deposited directly in the ground; that appellants did not know of the dangers of improper disposal; that the companies failed to warn appellants of the dangers; and, ignorant of the dangers, appellants failed to guard against ground contamination.
First, appellants clearly were foreseeable users; they purchased the chemicals directly. Second, it would appear that disposal of the used product, known by the supplier not to be totally "consumed" by its use, is at the very least arguably a foreseeable "use" of a product. The notion of use is not confined solely to the intended use of the product. Just as a manufacturer of a chair should foresee that someone will stand on the chair, so, too, should the manufacturer of wood treating chemicals foresee that used chemicals, or chemical waste products, will be disposed of. (See Rest.2d Torts, § 395, coms. j., k.) Generally, whether or not some use is foreseeable is a question of fact; at the very least, the issue of whether disposal of waste chemicals is a foreseeable use of such chemicals presents a question of fact. (Moran v. Faberge, Inc. (1975) 273 Md. 538 [332 A.2d 11, 15-16].)
In Boyl v. California Chemical Company (D.Ore. 1963) 221 F.Supp. 669, the court found a chemical manufacturer liable to a user of an herbicide when she suffered injury after coming in contact with the area where she
disposed of the unused portions of the chemical. The court found the manufacturer breached the duty to warn.
"So, today a manufacturer who undertakes to produce and sell to the general public a product with high risk of human harm must provide specification, instruction, and warning, so that it is reasonably safe for ordinary persons to use it, not only for the purposes for which it is produced and intended to be used but also all other necessarily incidental and attendant uses (such as storage or disposal) and to give reasonable notice and warning of after or delayed effect or latent or lingering dangers not known or reasonably to be expected by the ordinary user, but which are 'foreseeably probable' to the manufacturer with his expertise.
". . .
". . . however, no warning or protective advice whatsoever as to disposal of the fluid or of any risk to unadvised persons from the stability or long lasting qualities or propensities and lingering risks of the liquid after returning to a dry or solid form is given, or even reasonably inferable." (221 F.Supp. at pp. 674-676.)
Third, Petery does not claim in this particular cause of action that the chemical companies knew of the dangers associated with the unguarded disposal of the chemicals. Knowledge of the danger or ha
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