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Pavlik v. Lane Ltd./Tobacco Exporters Intern.

February 04, 1998

GEORGE PAVLIK, ADMINISTRATOR OF THE ESTATE OF STEPHEN MICHAEL PAVLIK; GEORGE PAVLIK, IN HIS OWN RIGHT
v.
LANE LIMITED/TOBACCO EXPORTERS INTERNATIONAL, THIRD-PARTY PLAINTIFF
v.
KEEN (WORLD MARKETING) LIMITED; GEORGE PAVLIK; REGINA PAVLIK, H/W, THIRD-PARTY DEFENDANTS GEORGE PAVLIK, ADMINISTRATOR OF THE ESTATE OF MICHAEL PAVLIK AND GEORGE PAVLIK, IN HIS OWN RIGHT, APPELLANT IN NO. 97-1121 (D.C. CIV. NO. 95-CV-04582) GEORGE PAVLIK, ADMINISTRATOR OF THE ESTATE OF STEPHEN MICHAEL PAVLIK, IN HIS OWN RIGHT, APPELLANT IN NO. 97-1199
v.
KEEN (WORLD MARKETING) LIMITED (D.C. CIV. NO. 96-CV-02221)



On Appeal From the United States District Court For the Eastern District of Pennsylvania Argued: September 22, 1997

Before: Becker, Chief Judge,* Scirica, and McKEE, Circuit Judges.

The opinion of the court was delivered by: Becker, Chief Judge.

(Filed February 4, 1998)

OPINION OF THE COURT

This is an appeal in a strict product liability case brought by plaintiff George Pavlik, administrator of the estate of Stephen Pavlik, a 20 year old man who died as the result of self-administered butane inhalation. The district court granted summary judgment in favor of the defendants, Keen (World Marketing) Ltd. ("Keen") and Lane Limited/Tobacco Exporters International ("Lane"), the manufacturer and distributor respectively of "Zeus" brand butane fuel, the product that was close-at-hand when Stephen collapsed, and which plaintiff alleges to be the cause of Stephen's death. The butane was sold in 5.3 ounce cans, primarily as fuel for cigarette lighters. The only relevant warning, printed on the back panel of the can, reads "DO NOT BREATHE SPRAY". The gravamen of the plaintiff's claim is that the Zeus brand can is defective because this warning inadequately warns potential users like Stephen Pavlik of the extreme hazards of butane inhalation.

The district court held that the plaintiff's failure to warn claim fails for two reasons. First, the court determined that there was insufficient evidence in the record to prove that Stephen actually inhaled from the Zeus can on the night of his death, as opposed to the "Clipper" brand butane cans subsequently found buried in his bureau drawer. Alternatively, the court concluded that Stephen was already aware of the dangers of serious bodily injury associated with inhaling butane, and that a more specific warning would not have affected his conduct. The court reasoned that the alleged inadequate warning was therefore not the proximate cause of Stephen's injury. The court based this latter Conclusion primarily on the fact that Stephen had also purchased and used cans of Clipper brand butane and therefore was presumed to have had notice of Clipper's more detailed warning.

We believe that both of these Conclusions are flawed. First, there is scientific evidence in the record that the onset of Stephen's ultimately fatal reaction to the butane fumes could have been quite sudden, which, combined with evidence that only the Zeus can was in close proximity to him at the time the injury occurred, would permit a jury to infer that Stephen had in fact inhaled from the Zeus can. Second, we conclude that plaintiff has raised genuine issues of material fact on the defendant's proximate cause challenge.

Under Petree v. Victor Fluid Power, Inc., 831 F.2d 1191 (3d Cir. 1987), to succeed in their causation defense, defendants must demonstrate that Stephen was fully aware of the risk of bodily injury posed by Zeus butane prior to the accident. Plaintiff, however, has successfully undermined defendants' claim that the text of the Zeus and Clipper warnings provided sufficient notice to break the causal chain, and he has identified genuine issues of fact concerning alleged warnings given by Stephen's mother, the other evidence on which defendants' rely. In the absence of direct evidence about Stephen's knowledge of the serious consequences of butane inhalation, and given the inconclusiveness of what Stephen's mother is purported to have told him, there is a genuine issue of material fact on the causation issue, and hence we will reverse and remand with respect to the product liability claim.

We do, however, affirm the district court's grant of summary judgment on plaintiff's intentional infliction of emotional distress claim. We agree with the district court that there is insufficient evidence in the record to support a Conclusion that defendants' conduct in this matter has been extreme and outrageous, the standard under Pennsylvania law for establishing that tort.

I. Background Facts and Procedural History

On April 10, 1994, at about 2:30 a.m., plaintiff George Pavlik was asleep on his sofa when he was awakened by the sound of his twenty-year-old son, Stephen, arriving home after having spent the evening with his sister and friends. Shortly thereafter, Mr. Pavlik heard a loud"thud" coming from an upstairs room. When he investigated this unusual sound, Pavlik found Stephen lying on thefloor of his bedroom, gasping for breath. Pavlik immediately called the police and began to perform CPR. Paramedics soon arrived and unsuccessfully attempted to revive Stephen. He was pronounced dead later that morning.

The coroner listed the cause of Stephen's death as cardiac dysrhythmia complicating abusive hydrocarbon inhalation. It is uncontroverted that this was the result of Stephen's intentional inhalation of butane gas. At the time

of his death, a canister of Zeus brand butane was found atop Stephen's bedroom bureau. Warning language on the front of the Zeus can reads:

DANGER CONTENTS EXTREMELY FLAMMABLE READ CAREFULLY OTHER CAUTIONS ON THE BACK judges

The warning label on the back panel of the can reads:

PRESSURIZED CONTAINER: PROTECT FROM SUNLIGHT AND DO NOT EXPOSE TO TEMPERATURE EXCEEDING 120F. DO NOT PIERCE OR BURN, EVEN AFTER USE. DO NOT SPRAY ON A NAKED FLAME OR ANY INCANDESCENT MATERIAL. DO NOT USE NEAR FIRE OR FLAME OR WHILST SMOKING. DO NOT BREATHE SPRAY KEEP OUT OF REACH OF CHILDREN

Shortly after Stephen's death, Mr. and Mrs. Pavlik searched their son's room and found seven more cans of butane hidden under Stephen's underwear in a drawer of the bureau. Five of these cans were Zeus brand butane, and the other two bore the Clipper brand name. The back panel of the Clipper can warns:

CAUTION: PRESSURIZED CONTAINER. PROTECT FROM SUNLIGHT AND DO NOT EXPOSE TEMPERATURE EXCEEDING 50C. DO NOT PIERCE OR BURN, EVEN AFTER USE. DO NOT SPRAY ONTO A NAKED FLAME OR ANY INCANDESCENT MATERIAL.

USE ONLY DIRECT FILLING

AEROSOL PRODUCT UN 1950 LIGHTER REFILL CONTAINS BUTANE

FLAMMABLE KEEP AWAY FROM SOURCES OF IGNITION-NO SMOKING. KEEP OUT OF REACH OF CHILDREN DELIBERATELY INHALING THE CONTENTS MAY BE HARMFUL OR EVEN FATAL.

In contrast to the Zeus can, the Clipper front panel contains no additional warning or language directing the user to consult the back panel.

Plaintiff filed the present lawsuit against Lane, the United States distributor of Zeus brand butane, alleging strict product liability for failure to warn and intentional infliction of emotional distress. Lane joined Keen as a third-party defendant. The manufacturer of Clipper brand butane is not a party to this lawsuit.

Following discovery, defendants moved for summary judgment. According to the defendants, Stephen's allegedly fatal inhalation was not his first attempt at inhaling butane. Rather, they characterize Stephen's conduct as an attempt to "get high" in deliberate disregard of all warnings. They contend that, on at least two prior occasions, Stephen had been caught in the act by his mother, and that on both occasions she had warned him that his abuse of butane was dangerous. Additionally, they contend that Mrs. Pavlik had threatened Stephen in 1992 that he would be thrown out of the family home if he continued his butane abuse. Accordingly, defendants argued that plaintiff could not establish that the alleged inadequate warning was the cause-in-fact and proximate cause of Stephen's death. Defendants further claimed that their conduct in allegedly failing to provide an adequate warning was not sufficiently extreme and outrageous to permit recovery for intentional infliction of emotional distress.

The district court granted the summary judgment motion on both counts. Plaintiff's motion for reconsideration was denied, and this timely appeal followed. The district court had jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction over a final order of the district court pursuant to 28 U.S.C. § 1291. We set forth our familiar plenary standard of review of a grant of summary judgment in the margin.*fn1 We explain the facts bearing on the present motion in greater detail infra. II. The Failure to Warn Claim

A. Section 402A

The Pennsylvania Supreme Court, whose law we are bound to follow as a court exercising diversity jurisdiction, has adopted § 402A of the Restatement (Second) of Torts, which imposes strict liability on the purveyor of a product in a defective condition "unreasonably dangerous to the user or consumer." See Webb v. Zern, 220 A.2d 853 (Pa. 1966). Under § 402A, an otherwise properly designed product may still be unreasonably dangerous (and therefore "defective") for strict liability purposes if the product is distributed without sufficient warnings to apprise the ultimate user of the latent dangers in the product. See Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997).

To recover under § 402A, a plaintiff must establish: (1) that the product was defective; (2) that the defect was a proximate cause of the plaintiff's injuries; and (3) that the defect causing the injury existed at the time the product left the seller's hands. See id. (citing Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 899 (Pa. 1975)). In the context of a failure to warn case, to satisfy the second prong, the plaintiff must establish that it was the total lack or insufficiency of a warning that was both a cause-in-fact and the proximate cause of the injuries. See Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976); Conti v. Ford Motor Co., 743 F.2d 195, 197 (3d Cir. 1984). While the question of causation in Pennsylvania is normally for the jury, "if the relevant facts are not in dispute and the remoteness of the causal connection between the defendant's negligence and the plaintiff's injury clearly appears, the question becomes one of law." Conti, 743 F.2d at 197-98 (quoting Liney v. Chestnut Motors, Inc., 218 A.2d 336, 338 (Pa. 1966)).

To reach a jury on a failure to warn theory of liability, the evidence must be such as to support a reasonable inference, rather than a guess, that the existence of an adequate warning might have prevented the injury. See id. at 197. As we develop infra, the plaintiff enjoys the benefit of a rebuttable presumption that an adequate warning would have been heeded if it had been provided; however, one way the defendant can rebut this presumption is by demonstrating that the plaintiff was previously fully aware of the risk of bodily injury posed by the product. The district court agreed with defendants that such a prior awareness did exist in this case and that there was insufficient evidence in the record to support a reasonable inference that an adequate warning on the Zeus can might have prevented Stephen Pavlik's death. Additionally, the court held that plaintiff's § 402A claim fails for lack of causation because there was insufficient evidence demonstrating that Stephen even inhaled from the Zeus can on the morning of April 10, 1994. We consider both arguments below.

B. Did Stephen Inhale from the Zeus Can?

The district court held that summary judgment was appropriate because a jury would have to speculate that it was the Zeus can (as opposed to a Clipper can) from which Stephen inhaled on the night of his death. The court found that the only evidence in the record indicating that Stephen inhaled Zeus butane was the fact that a Zeus can was found on his bureau, while all the Clipper cans (plus other Zeus cans) were found buried in his bureau drawer, and that this alone was insufficient to create a genuine jury question. We disagree.

Plaintiff points out that the onset of Stephen Pavlik's fatal reaction had to have been sudden, and thus it was more likely than not that he would neither have had the time nor the wherewithal to bury the can that he actually had used in his bureau drawer. Thus, plaintiff reasons that Stephen must have inhaled from the Zeus can. As noted supra, we

must grant all reasonable inferences from the evidence in favor of the non-moving party; moreover there is evidence in the record that buttresses plaintiff's claim. For example, an article attached to the affidavit of Earl Siegel, Pharm.D., describes the potential for "sudden sniffing death" caused by butane abuse.*fn2 See App. at 359-60. In addition, the report prepared by Thomas J. Wallace, Ph.D., states that "efendants are well aware of the negative consequences of Butane abuse and the fact that it can cause instant death." App. at 353. Although this evidence might not persuade a jury that Stephen's death was caused by the Zeus can, the inference plaintiff would have us draw is both logical and reasonable. One could reasonably (and easily) infer from these reports that it is more likely than not that it was the nearby Zeus can that triggered Stephen's death. Therefore, the district court should not have granted summary judgment on this ground.

C. Would a Better Zeus Warning Have ...


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