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VILLARI v. TERMINIX INTL.

June 24, 1987

Leonard Villari and Annette Villari, individually and on behalf of their minor children Marnie, Leonard, Heidi, Heather, Joshua and Annette Villari
v.
Terminix International, Inc



The opinion of the court was delivered by: POLLAK

 POLLAK, J.

 This diversity action was brought by Leonard and Annette Villari, individually and on behalf of their minor children, against Terminix International, Inc. ("Terminix"), a corporation in the business of pest control. Plaintiffs allege that Terminix contaminated their home with a hazardous termiticide in 1983. Their complaint is in multiple counts, and raises a number of distinct legal theories. Terminix has moved for partial summary judgment.

 Pursuant to a contract with Leonard Villari, Terminix treated the Villari family home at 911 Moore Street, Philadelphia, with various chemicals used for termite control over a period of years. The method of termite control employed by Terminix is to apply chemicals in such a way as to create a chemical barrier between the house and the soil on which it rests. The contract provided for annual reinspections and additional treatments when necessary to maintain the chemical barrier.

 On October 17, 1983, a Terminix employee performed an additional treatment using a termiticide known as Aldrin. Aldrin, a chlorinated hydrocarbon, was approved by the federal Environmental Protection Agency for subsurface ground insertion for termite control. Federal scientific research agencies conducted studies of Aldrin in response to documentation of Aldrin contamination of military housing. *fn1" The National Academy of Sciences set an interim airborne level for Aldrin of one microgram per cubic foot of air. A toxicologist at Region III of the Environmental Protection Agency has concluded that although there is no proof that Aldrin is carcinogenic in humans, "prudent public health policy and reasonable scientific consideration enables me to conclude that aldrin should be considered a cancer causing chemical in man." Plaintiffs' Exhibit 17. The state of New York has banned Aldrin for residential use, and Terminix no longer uses Aldrin.

 In the course of treating the Villari residence, for reasons that are disputed, a quantity of Aldrin spilled into the Villaris' basement. The Terminix employee made efforts to remove the puddle of Aldrin from the basement floor. Annette Villari testified that the employee used the family's household mops and rags, which were later used by Annette Villari elsewhere in the house.

 Annette Villari testified that all members of the family suffered headaches, nausea, dizziness and general malaise in the month after the spill, but did not at the time connect their symptoms with the spill. The Villaris did, however, become concerned about the consequences of the spill for the bottles of homemade wine that were fermenting in their basement, and asked Terminix to test the wine. Several weeks later, the Villaris contacted state and federal environmental agencies; the agencies suggested that the Villaris arrange to have the air in their home tested as well. The Villaris commissioned air sampling tests, and informed Terminix that tests revealed a level of 8.7 micrograms of Aldrin per cubic meter of air.

 A month after the spill, Terminix relocated the Villari family to two hotel rooms to permit Terminix to decontaminate the house pursuant to an agreement to reduce the Aldrin contamination to specified levels. Four months later, in April 1984, the Villaris were informed by Terminix's insurance carrier that the clean-up was substantially complete and that their hotel expenses would no longer be paid. The Villaris had further tests performed in May 1984, and were not satisfied with the results of the clean-up. The Pennsylvania Department of Agriculture instructed Terminix by letter that, because the Villaris use their basement as a play area for their children, further clean-up was needed. For reasons that are disputed, the work was not performed.

 The Villaris testified that these events placed considerable strain on family life. Crowded conditions in the hotel, and loss of the additional space their basement had provided, caused the family to decide that the two oldest children should live away from home. These circumstances, along with general fears of future medical problems due to Aldrin exposure, caused Mrs. Villari in particular to feel inadequate as a parent.

 Terminix's motion for partial summary judgment is based in part on questions of law and in part on challenges to the factual record after discovery. The motion shall be granted in part and denied in part.

 I. Strict Products Liability

 Count VII of the complaint states a claim for strict liability under section 402A of the Restatement (Second) of Torts. The Villaris allege that Terminix sold or distributed unreasonably dangerous insecticides and failed to warn the Villaris of the danger.

 Terminix argues that this claim must fail because the Villaris cannot demonstrate that Aldrin is a defective product. We disagree. Under section 402A, a product may be defective because it fails to carry warnings concerning the risks of foreseeable improper uses. The Villaris have, in our view, presented sufficient evidence to permit a reasonable jury to infer that Aldrin is hazardous if inhaled, that Aldrin was introduced into their home without proper warnings as to that danger, and that Aldrin is defective as a product in the absence of proper warnings.

 Terminix also argues that the Villaris have failed to produce sufficient evidence that they suffered physical harm as a result of their exposure to Aldrin. In her deposition testimony, Annette Villari stated that members of the Villari family suffered headaches, nausea, dizziness, and general malaise in the month after the spill. Dr. G. John DiGregorio, whose qualifications as an expert are unchallenged, issued a report in which he concluded that the symptoms suffered by the Villaris are consistent with the effects of exposure to Aldrin. We conclude that this evidence -- although admittedly not as strong as contemporaneous diagnosis by a treating physician -- is sufficient to permit a reasonable jury to conclude that the Villaris suffered physical harm as a result of Aldrin exposure.

 Terminix also argues that it cannot be held liable under section 402A because it provided a service rather than a product. There is no doubt that Terminix supplied the termiticides it applied to the Villari residence. Indeed, the evidence reveals that Terminix, under contract with the manufacturer of Aldrin, was at the time of the spill the sole supplier of Aldrin in the United States. Put more precisely, then, Terminix's argument is that one who supplies a product in the course of performing a service cannot be held liable under Restatement (Second) of Torts § 402A for defects in the product. Although the question is an unsettled one under Pennsylvania law, we conclude that the courts of Pennsylvania would, when faced with the issue, find liability in such circumstances under section 402A.

 In Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), the Supreme Court of Pennsylvania explained that "the law of products liability developed in response to changing societal concerns over the relationship between the consumer and the seller of a product." 337 A.2d at 898. Consistent with those concerns, the court explained that the term "seller" must, for purposes of section 402A, be interpreted broadly

 
to include all suppliers of products who, because they are engaged in the business of selling or supplying a product, may be said to have "undertaken and assumed a special responsibility" toward the consuming public and are in a position to spread the risk of defective products. Restatement (Second) of Torts § 402A, comment c. The actual form of the transactions of such suppliers, whether by sale, lease, or bailment, should not alter their obligations.

 Id. at n.3.

 Although the Pennsylvania Supreme Court has yet to address the question of whether one who supplies a product in the course of performing a service may be held liable as a seller under section 402A, the Supreme Court of New Jersey has, out of concerns quite similar to those expressed by the Pennsylvania Supreme Court in Berkebile, answered that question in the affirmative. In Newmark v. Gimbel's Inc., 54 N.J. 585, 258 A.2d 697 (1969), the Supreme Court of New Jersey held that a beauty salon which supplied and applied a defective permanent wave solution was subject to strict tort liability for defects in the product. To hold otherwise, the court held, would "put[] excessive emphasis on form and downgrade[] the overall substance of the transaction." 258 A.2d at 701. The court explained:

 
A beauty parlor operator in soliciting patronage assures the public that he or she possesses adequate knowledge and skill to do the things and to apply the solution necessary to produce the permanent wave in the hair of the customer. When a patron responds to the solicitation she does so confident that any product used in the shop has come from a reliable origin and can be trusted not to injure her. She places herself in the hands of the operator relying upon his or her expertise both in the selection of the products to be used on her and in the method of using them. ...

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