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Eagle-Picher Industries Inc. v. Balbos8/29/1990
ng products. They claim that because Bethlehem Steel was a knowledgeable industrial purchaser, appellants acted reasonably in relying on Bethlehem Steel to protect its employees and thus were relieved of any duty to warn the employees
independently of the dangers associated with the asbestos-containing products supplied by the appellants.
The Court of Appeals has adopted the Restatement (Second) of Torts § 388 (1965), as an authoritative statement of the "reasonableness" standard applied in failure to warn cases under all three theories of negligence, breach of implied warranty, and strict liability. Dechello v. Johnson Enter., 74 Md. App. 228, 236, 536 A.2d 1203(1988) (failure to warn claim brought against an importer who supplied a retailer with the bottle of sparkling wine, out of which allegedly flew a plastic stopper, which injured the plaintiff); Moran v. Faberge, Inc., 273 Md. 538, 544, 332 A.2d 11(1975) (failure to warn claim brought against a manufacturer of cologne that exploded when it was dripped on a lit candle). The sophisticated purchaser defense relates to clause (c) of Restatement § 388. Section 388 in pertinent part states:
Chattel Known to be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
If established by the evidence, this defense negates the essential element of liability that the defendant supplier failed to exercise reasonable care to warn the ultimate user of the product or those endangered by its ultimate use.
Appellants cite two cases to support their position that the sophisticated purchaser defense applies in this case, Goodbar v. Whitehead Bros., 591 F.Supp. 552, 557 (W.D. Va. 1984), aff'd sub nom. Beale v. Hardy, 769 F.2d 213(4th Cir. 1985); Higgins v. E.I. DuPont de Nemours & Co., 671 F.Supp. 1055, 1058 (D.Md. 1987), aff'd, 863 F.2d 1162(4th Cir. 1988). Goodbar involved the delivery of silica sand to a foundry via unpackaged railroad car lots. In Goodbar the court applied Restatement (Second) of Torts § 388, focusing on the requirements of clause (c), to determine "whether the Defendants failed to exercise reasonable care in relying upon the Foundry to supply its employees with the necessary information to satisfy the duty to warn." Goodbar, 591 F.Supp. at 557. The court found that the danger was clearly known to the purchaser/employer and that only the Foundry was in a position to communicate an effective warning to its employees. Id. at 566. The court held that the supplier of silica-containing products did not have a duty to warn foundry employees about the dangerous characteristics of silica products.
In Higgins fire fighters exposed to glycol-ether-acetate-based paint at a Baltimore fire station brought a products liability suit against the paint manufacturer (Dupont) and the manufacturer's chemical suppliers (Eastman and Union Carbide) for failure to warn the purchaser's employees about the possible teratogenic effects of Imron paint which plaintiffs claimed caused the death of their offspring. Higgins, 671 F.Supp. at 1058. The court opined that the Court of Appeals of Maryland would recognize the sophisti
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