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Whiston v. Bio-Lab3/3/1993
REECE, Judge.
Plaintiffs-appellants, Robert and Sandra Whiston, commenced this lawsuit on August 10, 1989. They allege that Robert, while working as a medical technician for the Green Township Fire Department, was exposed to chlorine gas, resulting in permanent injuries. As amended on September 1, 1989, the complaint named eighteen identified and numerous unknown defendants, asserting causes of action sounding in negligence, strict liability, product liability, and a derivative claim for loss of consortium.
The case proceeded to trial against the sole remaining defendant, Bio-Lab, Inc., the manufacturer of the canisters of trichloro, marketed under the name "Bio-Guard Thrif Tab." The Whistons claimed that Bio-Lab was negligent and strictly liable in failing to provide an adequate warning of the risks associated with its product. At the close of all the evidence, the Whistons dismissed their negligence claim, proceeding only on the issue of Bio-Lab's strict liability. The jury returned a verdict in favor of Bio-Lab. The Whistons appeal, raising seven assignments of error relating to trial procedures and the grants of summary judgment.
"The court erred in failing to direct a verdict against defendant Bio-Lab on the issue of liability for failure to warn."
At trial, it was established that the only warning provided by Bio-Lab concerning the hazards of its product was printed on a plastic sleeve wrapped around the canisters. In order to puncture the canisters before insertion into the automatic chlorinator, this label must be removed. Indeed, the warning label had been removed from the canister handled by Whiston.
The Whistons first point out that trichloro-s-triazinetrione is listed as a hazardous chemical in the federal Department of Transportation's Table of Hazardous Materials. Section 172.101, Title 49, C.F.R. Additionally, by Bio Lab's own admission, its product is regulated under the federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"). Section 136 et seq., Title 7, U.S.Code. Under Section 136w(c)(3), Title 7, U.S.Code, the Administrator of the Environmental Protection Agency is required to establish standards for the packaging of regulated pesticides. In compliance with this duty, the administrator had adopted the following regulation:
"Placement of Label - (i) General. The label shall appear on or be securely attached to the immediate container of the pesticide product. For purposes of this Section, and the misbranding provisions of the Act [Section 1 36 q, Title 7, U.S.Code], 'securely attached' shall mean that a label can reasonably be expected to remain affixed during the foreseeable conditions and period of use. * * *" (Emphasis added.) Section 1 56.10(a)(4), Title 40, C.F.R.
The Whistons assert that because its label was designed to be removed during the "foreseeable conditions and period of use" of the product, Bio-Lab was in violation of federal law. As one purpose of FIFRA is to protect human life from the inadvertent exposure to dangerous pesticides, appellants contend, this violation gave rise to a per se liability on the part of Bio-Lab. Additionally, the Whistons claim that Bio-Lab's inadequate warning rendered its product defective pursuant to R.C. 2307.76. Accordingly, they contend the court erred in denying their motion for directed verdict as to Bio-Lab's liability. We disagree.
Under Civ.R. 50(A)(4), a motion for directed verdict may be properly granted only when, after construing the evidence most strongly in favor of the nonmoving party, the court finds that, based upon the evidence submitted, reasonable minds could come to but one conc
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