Law, Business and Society 11th Edition by Tony McAdams

Exercise 19

Per Curium (Judges Michael J. Kelly and Douglas B. Shapiro)
1. Summary of Facts and Proceedings
Plaintiff's decedent, Craig White, purchased a muffler repair kit manufactured and marketed by defendants. The kit included a metal patch to be placed over the hole in the muffler, a strip of "bandage" to be wrapped around the patch and the muffler to hold the patch in place, and mechanic's wire to wrap around and secure the bandage. The packaging described the product as a "Muffler and Tail Pipe Repair Kit" and stated, "Just wrap it on for instant repair." The instructions included with the kit, however, directed the user to "start the engine and run at idle for at least 10 minutes" after applying the "bandage." The instructions provided with the kit read in total:
INSTRUCTIONS:
1. Allow exhaust system and muffler to cool to a touch.
2. Clean surface of muffler or pipe to be repaired with sand paper, steel wool, or wire brush.
3. Cover holes with included metal heat shield, or by using metal or tin can.
4. Open foil packet containing bandage.
5. Wrap bandage completely around damaged area, overlapping each wrapping at least 3/4 inch. Note: Large repairs may require more than one bandage to adequately cover repair.
6. Secure bandage with mechanic's wire enclosed.
7. Start engine and run at idle for at least 10 minutes.
8. Bandage will cure with heat from exhaust system.
WARNING: Always wear safety classes and cloth or leather gloves when working on exhaust systems. Rust and debris can injure eyes and skin. Flush eyes thoroughly with water if contacted-for skin use soap and water. Never work on vehicle suspended in air NOT supported by adequate jack stands.
IF SWALLOWED, DRINK WATER AND GET IMMEDIATE MEDICAL ATTENTION. [Emphasis in original.]
White attempted to perform the muffler repair on April 29, 2005. According to the testimony of White's wife and son, when they left the house at about 11:00 a.m., White was in the driveway, working on the muffler. When they returned at about 2:15 p.m., they found White dead in the garage with the car up on a floor jack, the motor running and the garage door closed. Tools were under the car and the bandage was found wrapped around the muffler. White was found near the exit to the garage. The police report stated in pertinent part:
In the garage I observed the Buick to be elevated on a jack stand. Underneath the Buick I observed a small, rolling platform, that is used to enable a subject to crawl underneath a vehicle and assist with mobility while working on the vehicle. I further observed an activated utility light as well as several tools and accessories lying on the floor. On the rear trunk area of the Buick, I observed an empty package that contained a muffler repair kit. By looking at the picture on the muffler repair kit, and observing the muffler underneath the Buick, it was apparent that the victim had in fact used the kit as its contents were on the muffler.
When Detective Steinaway arrived, I assisted in his investigation. During the investigation, I collected the empty package from the Buick to be placed as evidence at LCSD. While reading instructions listed on the back of the package, it appeared as though the victim went step by step with the directions. The final instruction on these directions was to turn on the automobile and allow it to run for approximately ten minutes, which would in turn allow the bonding agent applied to the muffler to heat up and activate properly. This could be a possible explanation for why the vehicle's ignition was activated and running. While reading the warning label on the package listed directly below the instructions, it did not advise of the dangers of carbon monoxide. [Emphasis added.]
An autopsy confirmed that White died of asphyxiation from carbon monoxide.
Plaintiff's complaint alleged two violations of the duty to warn. First, plaintiff alleged that "Defendants breached their duty of care.... in failing to include an instruction with the product that vehicles should not be run in an enclosed space or must be moved outside before starting the engine as directed [in the instructions]." Second, that "Defendant's breached their duty of care.... in failing to warn of the dangers of carbon monoxide poisoning."
After a hearing, the trial court granted summary disposition to defendants, concluding:
[I]t's clear that the material risk of death due to carbon monoxide poisoning as a result of running a car in an enclosed garage would be obvious to the reasonably prudent user of a muffler repair kit. I don't think you can really argue that much about it.... I think it would be obvious and that would be to the general public, and it would be especially obvious to someone who used motors. Granted he may have been an.... outboard engine mechanic, but nevertheless, it seems to me that he was in a position especially to know this even more than an average citizen. But nevertheless, to a reasonably prudent person it would be obvious this was a highly dangerous thing. I think it is common knowledge that it's a dangerous thing and-especially when you look at so many other options he would have had, like just open the garage door, might have been a lot better.
Plaintiff now appeals.
A. REASONABLY PRUDENT PRODUCT USER
[T]he first issue is whether a reasonable juror could find that the material risk of remaining in a closed garage with a running automobile while the muffler bandage cures is or should be "obvious to a reasonably prudent product user."....
Given the lack of an obvious risk of harm contained within the product's appearance or function, defendants argue that no reasonable person could fail to know that remaining present while running a car in a closed garage while the muffler bandage cured carried with it a risk of material harm. For reasonable minds not to differ on the issue, it would have to be obvious that the exhaust contained carbon monoxide or other injurious chemicals and that exposure for a period long enough for the muffler bandage to cure created a material risk of harm.
A fact finder may ultimately conclude that defendants are correct that a reasonably prudent person would be aware that automobile exhaust contains carbon monoxide or other injurious chemicals and that exposure for a period long enough for the muffler bandage to cure creates a material risk of harm. However, defendants have not provided any evidence from which such a conclusion may be drawn....
At the time of the motion, plaintiff had proffered several articles and data that significant numbers of people, as many as 100 per year die, from accidental carbon monoxide poisoning in Michigan in a manner that supports plaintiff's claim that the danger of exposure to automobile exhaust is not necessarily "obvious to a reasonably prudent user." Plaintiff also presented an expert affidavit in this regard. Finally, plaintiff submitted warnings from devices that create carbon monoxide exhaust.
In contrast to plaintiff's presentation, the defense did not proffer any evidence supporting its contention that a reasonable person would know that carbon monoxide is present in automobile exhaust or that an exposure long enough for the muffler bandage to cure presents a material risk of harm.
Defendants provided no evidence in the present case that a reasonable person would know that an exposure to automobile exhaust in a garage for the time needed to cure the muffler repair presented a risk of material harm. Indeed, the only evidence in the record at this time is the data provided by plaintiff that significant numbers of people die from accidental carbon monoxide poisoning and the affidavit from plaintiff's expert supporting plaintiff's claim that the danger was not obvious. Under these circumstances, defendants were not entitled to summary disposition on the question of whether the risk of material harm from carbon monoxide inhalation from running an automobile long enough to cure this muffler product is or should be obvious to a reasonably prudent product user.
We take no position on whether a reasonably prudent user knows that automobile exhaust contains carbon monoxide nor that a exposure long enough to cure the muffler bandage can cause material harm-Rather, we hold that there was insuf­ficient evidence in the record as it presently exists to make that determination as a matter of law....
Reversed and remanded.
Judge Kirsten F. Kelly Dissenting
I disagree with my colleagues' conclusion that the trial court's grant of summary disposition in this matter was premature.... [R]unning the engine of a car in a small, enclosed space, such as a garage, is an obvious material risk to a reasonably prudent product user and would be especially obvious to a person like decedent whose employment involved servicing and repairing engines. I would affirm the trial court.
Bresnahan, age 50 and 5'8" tall, was driving her Chrysler LeBaron, equipped with a driver's side air bag, at between 25 and 30 miles per hour. She was seated less than one foot from the air bag cover. Bresnaham was distracted by police lights and rear-ended a Jaguar, triggering the LeBaron air bag, which broke Bresnahan's arm and caused various abrasions. The vehicle did not include a warning about the danger of sitting too close to the air bag. Was the vehicle defective because of the absence of a warning? Explain. See Bresnahan v. Chrysler Corp., 65 Cal. App. 4 th 1149 (1998).