Court of Appeals Agrees That a Manufacturer Does Not Have a Duty to Warn of Obvious and Avoidable Dangers

On March 17, 2011, the Georgia Court of Appeals in Kelly v. Hedwin Co.¸ affirmed the principle that a manufacturer has no duty to warn of a product-connected danger which is obvious and generally known. The Court upheld the granting of summary judgment to Hedwin Corporation (“Hedwin”) in this products liability lawsuit.

Plaintiff Ernie Kelly, a hospital employee, cleaned up formaldehyde spilled by a nurse from a five-gallon plastic storage container originally manufactured by Hedwin. Mr. Kelly, a clinical engineer at the hospital, was at home one evening when he received an emergency call from hospital staff informing him that a chemical spill had occurred. Mr. Kelly replied that the hospital’s “Environmental Services” personnel should clean up the spill, and the nurse explained that they had refused to do so. Mr. Kelly told the nurse he would come to the hospital, and upon arrival, he observed a large spill of liquid on the floor. He could smell strong fumes, and before he began cleaning, he was told that the spill was embalming fluid containing formaldehyde. Mr. Kelly then helped other staff clean up the spill with mops and buckets. He did not wear a mask, and he experienced coughing and restricted breathing as he cleaned.

The nurse who spilled the liquid testified in a deposition that it came from a five-gallon collapsible plastic cube regularly used at the hospital to store and dispense embalming fluid. The cube had a mouth on one side such that a full cube could be rotated up to substitute a spigot for the cap with which it was shipped and the cube could be rotated down to dispense the liquid from the spigot. The nurse also testified that the spigot was apparently not fastened tightly, and as soon as she touched the spigot, it fell off and liquid poured rapidly out of the open mouth of the cube.

Hedwin manufactured the empty container only. It did not sell formaldehyde, fill the container with formaldehyde, package or label the filled container, or sell the formaldehyde-filled container to the hospital. Hedwin did not manufacture or install the spigot on the container. The filled container had been provided to the hospital by a separate entity, Cardinal Health, which was also sued.

Mr. Kelly made claims against Hedwin for both failure to warn and negligent design. The trial court granted summary judgment to Hedwin on these issues. On the failure to warn argument, the Court of Appeals found that “there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known.” It is both obvious and generally known, according to the Court, that a poorly capped container placed on its side will spill large amounts of liquid regardless of design, and it is undisputed that the spill occurred because a hospital employee failed to properly replace or install the spigot.

With regard to the negligent design claim, the Court employed a balancing test whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product. Mr. Kelly submitted an Affidavit from an expert who opined that a container used to dispense a hazardous liquid should not be of a design where there is a “potential to spill all the contents in a very short time if the valve were to come off.” The Court was not impressed with this testimony. Because Hedwin did not manufacture, design, or label the outer cardboard packaging of the formaldehyde product shipped to the hospital and Hedwin did not choose the dispensing method (the spigot), Hedwin’s design was appropriate and was not defective. Also, the fact that an improperly capped container left on its side will readily spill its contents is an obvious danger of which any hospital employee should have been aware and which could have been avoided.

This case should, along with the prior decisions relied on by the Court, support the argument in product liability cases that open and obvious dangers associated with products, even in spite of adverse expert testimony, do not require consideration by a jury.

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Michael

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