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Schwoerer v. Union Oil Co.3/12/1993
dividuals. The holding of Oakes, subsequently reaffirmed in Owens-Corning, supra, 53 Cal. 3d 987, is that a manufacturer cannot be held liable for failure to warn unless the manufacturer knew or should have known of the risk or danger involved. (272 Cal. App. 2d at pp. 651-652.) Since plaintiff's complaint did not allege that defendant knew or should have known of the possible deleterious effect of the use of the product upon some individuals, the order sustaining defendant's demurrer was upheld. ()
The plaintiff in Oakes argued that a warning "which does not warn of the extent of injury possible if its cautionary advice is not followed is an inadequate warning, and thus no warning at all." Under the facts in Oakes, plaintiff's position was "that a warning that 'irritation' may result from contact with or inhalation of the product does not insulate the manufacturer
from liability where the result of such contact or inhalation is more severe than just 'irritation.' " Given that the Oakes court had found plaintiff's complaint fatally defective in other respects, the court dismissed this contention, stating, "We do not reach that question on this appeal." (Id., at pp. 649-650, fn. omitted.) Obviously, defendants' reliance on Oakes is misplaced.
Finally, the plaintiff here is not alleging, as was plaintiff in Oakes, that he suffered an injury different in degree from that warned against, i.e., plaintiff is not complaining his skin was more irritated than might be expected in light of the warnings given. Instead, plaintiff claims his liver was irreparably damaged, an injury different in kind from and significantly greater than any consequence of dermal exposure against which the MSDS warned. Here, the issue of misuse is inherently implicated in the larger issue of adequacy of the warnings given. Where the warnings given are inadequate to apprise of the dangers associated with a product, the manufacturer cannot escape liability by asserting perfect compliance with instructions would have prevented the injury. (Ferebee v. Chevron Chemical Co. (D.D.C. 1982) 552 F.Supp. 1293, 1304-1305.) The uncompensated consequences which plaintiff must bear for failure to comply with instructions for use should at least be loosely commensurate with those against which warning was given, that is, they should be more closely congruent than are skin irritation and permanent liver damage.
The judgment is reversed. Plaintiff is to recover costs on appeal.
Sims, J., and Davis, J., concurred.
Disposition
The judgment is reversed. Plaintiff is to recover costs on appeal.
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