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Jackson v. Reliable Paste And Chem Co.

OPINION FILED SEPTEMBER 13, 1985.

JEFFREY JACKSON ET AL., PLAINTIFFS,

v.

RELIABLE PASTE AND CHEMICAL COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (TECHNICAL PETROLEUM COMPANY ET AL., THIRD-PARTY DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding. JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Jeffrey Jackson (Jackson) and Irving Zamost (Zamost), were injured on their job at the Midwest Glass Company (Midwest) by an explosion of shellac solvent used by Jackson to cut glass. *fn1 Midwest purchased the shellac solvent from N. Turek & Sons, a hardware store, which had purchased it from Reliable Paste and Chemical Company (Reliable). Reliable made the shellac solvent from methanol, which it purchased in bulk quantities from three suppliers, two of whom were defendants Technical Petroleum Company (Technical) and Ashland Chemical, Inc. (Ashland). *fn2

Jackson and Zamost filed an action in negligence and strict liability against Reliable and alleged that the can of Reliable shellac solvent was in an unreasonably dangerous condition and that the label on the can did not contain adequate warnings and instructions. Reliable filed an action against two of its bulk methanol suppliers, Technical and Ashland, for indemnification on the ground that they were strictly liable for their failure to warn Reliable of the dangerous explosive and flammable propensities of methanol.

Technical and Ashland filed motions for summary judgment in which they contended, inter alia, that they did not owe a duty to warn Reliable of the dangerous explosive and flammable propensities of methanol because Reliable was fully aware of the dangerous characteristics of methanol and because Reliable was responsible for packaging and properly labeling its own product. The trial court ruled that Technical and Ashland did not owe a duty to warn Reliable of the dangers of methanol and entered summary judgment in favor of Technical and Ashland. Reliable appeals. The record reveals the following uncontroverted facts.

On July 24, 1978, while at work at the Midwest Glass Company, plaintiff Jeffrey Jackson used a gallon can of Reliable shellac solvent to cut glass. Plaintiff Irving Zamost, another Midwest employee, was nearby. Midwest had instructed its employees on the procedure in using the Reliable shellac solvent. The solvent was poured on glass and ignited to soften the glass so that the glass could be broken. Jackson and his supervisor, John Gordon, poured the shellac solvent on a piece of glass and ignited it as Zamost watched. The ignited solvent flamed rapidly with a "poof noise," and the flames rose five to six inches. After the flames subsided, the glass was still not pliable enough to break. Jackson tilted the can of shellac solvent to pour more solvent on the hot glass. The solvent ignited and the solvent can exploded and burned Jackson and Zamost.

Midwest had purchased the prepackaged gallon can of shellac solvent from N. Turek & Sons, a hardware store. N. Turek & Sons purchased the can of shellac from Reliable, who packaged, labeled and marketed it. The shellac solvent contained methanol, a chemical purchased by Reliable in bulk quantities from three methanol suppliers, two of whom were Technical and Ashland. Methanol is fungible and there was no difference in the quality or characteristics of the methanol delivered to Reliable by its three suppliers.

The methanol was delivered to Reliable in tanker trucks and pumped into Reliable's underground storage tanks. Because methanol is flammable and explosive, Reliable took safety precautions and attached the tanker and hose to its grounding lines to eliminate the possibility of static electricity or sparks when the methanol was pumped from a tanker truck to Reliable's storage tanks. Also, in accordance with the fire code, Reliable packaged the methanol in a building constructed with explosion-proof electrical wiring.

Reliable used the methanol from its storage tanks to package shellac solvent in one-gallon cans. It was undisputed that Reliable's president, Oscar Stirn, knew of the dangerous flammable and explosive propensities of methanol and the shellac solvent and that he knew the danger of allowing the shellac solvent or its vapors to come in contact with heat, sparks, flames or other ignition sources. Stirn designed the warning labels for Reliable's shellac solvent cans. He had a "working knowledge" of chemistry and had studied treatises and industry reports concerning the behavior of methanol when it was placed near heat or flames. Before he designed the warning labels for the Reliable shellac solvent cans, Stirn familiarized himself with the National Paint and Coating Association Labeling Guide, the Uniform Hazardous Substances Act, the Federal Consumer Product Safety Act, labeling regulations of the Consumer Product Safety Commission, the Paint, Varnish and Lacquer Association Standards, and the Hazardous Products Labeling Act.

Reliable's warning label on the front of the shellac solvent can was as follows:

"DANGER POISON

MAY BE FATAL OR CAUSE BLINDNESS IF SWALLOWED. FLAMMABLE. VAPOR HARMFUL. CANNOT BE MADE NON-POISONOUS. CONTAINS METHANOL."

This front warning label had a picture of a skull and crossbones between the words "Danger" and "Poison."

The label on the back of the can stated:

"PRECAUTIONS

Flammable. Cannot be made non-poisonous. Vapor harmful. Contains Methanol. Keep away from heat, fire and open flame. USE ONLY WITH ADEQUATE VENTILATION. Keep container closed. Avoid prolonged or repeated breathing of vapor or skin contact ...


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