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Schwoerer v. Union Oil Co.3/12/1993
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
No. C012895
1993.CA.46017 ; 17 Cal. Rptr. 2d 227; 14 Cal. App. 4th 103
Decided: March 12, 1993.
MICHAEL SCHWOERER ET AL., PLAINTIFFS AND APPELLANTS,
v.
UNION OIL COMPANY ET AL., DEFENDANTS AND RESPONDENTS.
Superior Court of Calaveras County, No. 14964, Orrin K. Airola, Judge.
Byron C. Foster for Plaintiffs and Appellants.
Landels, Ripley & Diamond, John F. Barg, Sanford Svetcov, Mayall, Hurley, Knutsen, Smith & Green, C. D. Knutsen, Joyce E. Shigekawa, Porter, Scott, Weibert & Delehunt, Craig A. Caldwell and Jeffrey S. Nelson for Defendants and Respondents.
Opinion by Puglia, P. J., with Sims and Davis, JJ., Concurring.
Puglia
Plaintiff Michael Schwoerer (plaintiff) appeals from a judgment of dismissal entered after the trial court granted summary judgment in favor of defendants Union Oil Company of California (Union), Ashland Chemical, Inc. (Ashland), E. R. Vine & Co. (Vine), and Ebbetts Pass Gas Service (Ebbetts). Plaintiff's action is based on injuries allegedly caused by inhalation of and dermal contact with a solvent manufactured and/or distributed by defendants. Plaintiff alleges that as a result of his exposure to the solvent, he now suffers from multiple physical ailments, including permanent liver damage.
As against the defendants involved in this appeal, plaintiff's complaint pleads two legal theories of liability: strict liability and breach of warranty. The complaint alleges several distinct acts upon which liability is predicated but the summary judgment proceedings focused on the claim defendants failed to provide adequate warnings of the dangers posed by use of their product.
On appeal, plaintiff argues there is a triable issue of fact concerning adequacy of the warnings provided by defendants with regard to the potential risks to health associated with unprotected exposure to the solvent. We
agree. Our review of the record indicates defendants did not meet their burden of establishing the warnings they provided are adequate as a matter of law. Furthermore, defendants have not shown a misuse of this product by plaintiff such that will relieve them of liability as a matter of law. We shall therefore reverse the judgment.
For purposes of this appeal defendants do not challenge plaintiff's claim he was injured as a result of inhalation of and dermal contact with a solvent manufactured and/or distributed by defendants. The solvent, known as Stoddard's Solvent, was manufactured independently by Union and by Ashland and sold independently by them to Vine in bulk quantities. Vine resold the solvent in bulk to Ebbetts, which repackaged and distributed the solvent in 55-gallon drums. Plaintiff's employer, Sierra Contractors (Sierra), purchased the solvent from Ebbetts.
Both Union and Ashland provided Vine with "Material Safety Data Sheets" (MSDS) containing warnings with regard to use of the solvent and the possibility of physical injury from inhalation of and dermal exposure to the solvent. Vine distributed the safety warnings to Ebbetts which passed them along to Sierra.
The MSDS distributed by Union provided the following pertinent instructions and warnings:
"Section II--EMERGENCY AND FIRST AID PROCEDURES:
"Skin Contact [--] If this product comes in contact with the s
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