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Schwoerer v. Union Oil Co.3/12/1993
e adequate as a matter of law.
II
The principle issue as framed by the summary judgment proceedings and reiterated on appeal is whether the warnings given were adequate as a matter of law. "Under California law, a product may be defective because of the absence of an adequate warning of the dangers inherent in its use." (Jackson v. Deft, Inc., supra, 223 Cal. App. 3d at p. 1320.) "Even though the product is flawlessly designed and manufactured, it may be found defective within the general strict liability rule and its manufacturer or supplier held strictly liable because of the failure to provide an adequate warning." (Persons v. Salomon North America, Inc., supra, 217 Cal. App. 3d at p. 174; see Midgley v. S. S. Kresge Co. (1976) 55 Cal. App. 3d 67, 71 [127 Cal. Rptr. 217].) Whether a warning is adequate depends on several factors, among them "the normal expectations of the consumer as to how a product will perform, degrees of simplicity or complication in its operation or use, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury , and the feasibility and beneficial effect of including a warning." (Jackson v. Deft, Inc., supra, 223 Cal. App. 3d at p. 1320.) Whether the warning is adequate is usually a question of fact. (Ibid., and authorities cited therein; see also Billsborrow v. Dow Chemical, U.S.A. (1988) 139 Misc.2d 488 [527 N.Y.S.2d 352, 355]; cf. Temple v. Velcro USA, Inc. (1983) 148 Cal. App. 3d 1090, 1094-1095 [196 Cal. Rptr. 531].)
Defendants' claim concerning the adequacy of the warnings is based upon the instructions for use and health risk admonitions contained in the MSDS. The MSDS contain explicit instructions with regard to using the solvent with adequate ventilation and respiratory equipment. The MSDS also point out certain health hazards associated with unprotected use of the solvent, including dermatitis resulting from use without protective clothing and, if used without ventilation and protective respiratory equipment, respiratory tract irritation and central nervous system effects ranging from dizzyness to asphyxiation. Significantly, the MSDS do not mention the risk of vital organ damage resulting from unprotected use of the solvent.
Imposition of liability for product defect requires a showing that the manufacturer did not adequately warn of a known or reasonably knowable
risk. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal. 3d 987, 997, 1000-1003 [281 Cal. Rptr. 528, 810 P.2d 549], hereafter cited as Owens- Corning.) This does not require the manufacturer to warn against every conceivable health problem associated with use of a product. However, the more severe the consequences from unprotected exposure, the greater the need to warn of significant health risks. "It is necessary to weigh the degree of danger involved when determining whether a warning defect exists." (Owens-Corning, supra, 53 Cal. 3d at p. 996; see Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal. App. 3d 338, 349 [157 Cal. Rptr. 142].) "The adequacy of the warning must be commensurate with the risk of harm and level of potential of such harm ...." (Billsborrow v. Dow Chemical, U.S.A., supra, 527 N.Y.S.2d at p. 356.) In Jackson v. Deft, Inc., supra, 223 Cal. App. 3d 1305, plaintiff sought recovery for asthma developed as a result of exposure to paint containing toluene diisocyanate. The appellate court reversed summary judgmen
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