{ "id": 1896933, "name": "Raymond BUSHONG and Betty Bushong v. The GARMAN COMPANY and The Clorox Company Continental Casualty Co., Intervenor", "name_abbreviation": "Bushong v. Garman Co.", "decision_date": "1992-12-07", "docket_number": "92-436", "first_page": "228", "last_page": "247", "citations": [ { "type": "official", "cite": "311 Ark. 228" }, { "type": "parallel", "cite": "843 S.W.2d 807" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "310 Ark. 114", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898822 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0114-01" ] }, { "cite": "456 S.W.2d 673", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1597756 ], "weight": 6, "year": 1970, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/ark/248/1194-01" ] }, { "cite": "248 Ark. 1195", "category": "reporters:state", "reporter": "Ark.", "year": 1970, "opinion_index": 0 }, { "cite": "304 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881090 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "166" }, { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ark/304/0164-01" ] }, { "cite": "296 Ark. 543", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892734 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0543-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-116-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(4)" }, { "page": "(7)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 4-86-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "271 Ark. 783", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756109 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/271/0783-01" ] }, { "cite": "305 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916740 ], "weight": 5, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0033-01" ] }, { "cite": "666 F.2d 1223", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 468452 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/666/1223-01" ] }, { "cite": "515 So. 2d 655", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7570470 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/so2d/515/0655-01" ] }, { "cite": "723 P.2d 1322", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10420231 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/p2d/723/1322-01" ] }, { "cite": "685 P.2d 218", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10415613 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/p2d/685/0218-01" ] }, { "cite": "537 P.2d 682", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2842052 ], "year": 1975, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0074-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-410", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "722 F.2d 1517", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10620428 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1519" } ], "opinion_index": 1, "case_paths": [ "/f2d/722/1517-01" ] }, { "cite": "119 Ariz. 426", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 708259 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "280-281" } ], "opinion_index": 1, "case_paths": [ "/ariz/119/0426-01" ] }, { "cite": "528 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10937873 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "1163" } ], "opinion_index": 1, "case_paths": [ "/ne2d/528/1158-01" ] }, { "cite": "578 A.2d 1113", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7370952 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "1124" } ], "opinion_index": 1, "case_paths": [ "/a2d/578/1113-01" ] }, { "cite": "306 F.2d 79", "category": "reporters:federal", "reporter": "F.2d", "weight": 3, "year": 1962, "pin_cites": [ { "page": "86" }, { "page": "87" } ], "opinion_index": 1 }, { "cite": "666 F.2d 1223", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 468452 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/f2d/666/1223-01" ] }, { "cite": "515 So. 2d 655", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7570470 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/so2d/515/0655-01" ] } ], "analysis": { "cardinality": 1161, "char_count": 30169, "ocr_confidence": 0.909, "pagerank": { "raw": 5.2278333448093e-07, "percentile": 0.9409274440324513 }, "sha256": "6bfd55d20bedcedfc9368a0b7cdcde9344bc27441578f041f9e7de71b685b79c", "simhash": "1:f04a56b553379e91", "word_count": 5015 }, "last_updated": "2023-07-14T21:22:33.473421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., Newbern and Brown, JJ., dissent.", "Holt, C.J., and Newbern, J., join." ], "parties": [ "Raymond BUSHONG and Betty Bushong v. The GARMAN COMPANY and The Clorox Company Continental Casualty Co., Intervenor" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nOn May 12, 1988, appellant, Raymond Bushong, was cleaning a bathroom on the premises of Stewart Electric, his employer, in Jonesboro, Arkansas. Appellant was trying to remove grease from the bathroom floor and had used almost an entire gallon of undiluted Clorox without success when a co-employee, Greg Rollins, suggested he try using Vapco Brite\u2019 Alum, an air conditioner coil cleaner. Greg Rollins poured approximately one-half (1/2) a cup of the Vapco Brite\u2019 Alum on the floor directly on top of the Clorox Bleach which was already there. Vapco Brite\u2019 Alum is a product sold to refrigeration and air conditioning wholesalers to clean condenser coils and refrigeration and air conditioning units. It is intended for use by professional refrigeration and air conditioning service personnel. Neither appellant nor Greg Rollins are professional refrigeration or air conditioning service personnel, although their employer, Stewart Electric, employed such people. Neither appellant nor Greg Rollins read the labels of either the Clorox Bleach or the Vapco Brite\u2019 Alum. Appellant had never read the labels of any of the products he used in cleaning. At the time of the accident, appellant was a warehouseman who also did some cleaning for Stewart Electric and Greg Rollins was an estimator for Stewart Electric. Neither appellant nor Greg Rollins had ever used Vapco Brite\u2019 Alum before, but both were aware it was used in cleaning air conditioners. After the Vapco Brite\u2019 Alum was poured onto the floor, appellant continued to clean the floor in the bathroom, which was approximately four (4) feet by four (4) feet. Soon after, the mixture started to foam and a white fog vapor was coming up from the floor which appellant inhaled. Appellant claims the inhalation of these vapors caused him personal injury.\nAppellant filed a complaint on April 5, 1990, against The Clorox Company, the manufacturer of Clorox Bleach, The Garman Company, the manufacturer of Vapco Brite\u2019 Alum, and Greg Rollins. As to the Clorox Company and The Garman Company, appellant alleged they:\nnegligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [the irrespective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by [appellant] causing him great damages and injuries ....\n. . . expressly and impliedly warranted that [their respective products] were fit for the purpose for which they were intended. . . .\n... are absolutely or strictly liable in that they manufactured and marketed [their respective products] and failed to issue proper and necessary warnings when [they] knew or should have known that the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas.\nAppellant alleged Greg Rollins\nwas negligent in that he failed to use that degree of care exercised by ordinary and prudent persons under the same or similar circumstances and further, he knew or ought to have known by the exercise of ordinary care that the mixing of the aforementioned two chemicals would cause a cloud of fumes which would be harmful to Plaintiff.\nContinental Casualty Company, appellant\u2019s employer\u2019s insurance carrier at the time of the accident, moved to intervene pursuant to Ark. R. Civ. P. 24 and Ark. Code Ann. \u00a7 11-9-410 (1987) of the Arkansas Workers\u2019 Compensation Act. The order allowing the intervention was filed on July 25, 1990.\nOn October 9, 1991, appellee Clorox Company moved for summary judgment. On October 22, 1991, appellant filed an amended complaint re-alleging the same causes of action, but expanding the absolute or strict liability claim to allege:\n[t]he defendants, Garman and Clorox, are absolutely or strictly liable in that they manufactured and marketed the products herein and failed to issue proper and necessary warnings when the said Defendants knew or should have known the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas. The Defendants are also strictly liable in tort inasmuch as both produced a defective product. The Clorox product was defective in the fact that it contained sodium hypochlorite the brite alum was defective in that it contained hydrofluoric acid. Either chemical in combination with other chemicals could release a poisonous gas and were dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics. Both products would fail to perform as safely as an ordinary consumer would expect them to perform when used in an an intended or reasonably foreseeable manner. Further the benefits of the products do not outweigh the risks of danger inherent in their design.\nOn November 12, 1991, appellee Garman Company also moved for summary judgment.\nOn November 19,1991, the trial court found \u201cthe warnings on the labels for Clorox and Brite\u2019 Alum, the respective products of Clorox Company and Garman Company, are adequate under the facts of this case and that Raymond Bushong and Greg Rollins failed to read the labels\u201d and for that reason granted partial summary judgment in favor of Clorox Company and Garman Company on all allegations of failure to warn and improper labeling. Summary judgment was also granted on the breach of warranty issues upon appellant\u2019s admission that they did not have a case for breach of express or implied warranties. On December 3, 1991, Clorox Company, filed a supplemental motion for summary judgment on the product defect and negligent manufacture issues. On January 8, 1992, the trial court granted the supplemental motion for summary judgment and found \u201call claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice.\u201d Appellant\u2019s and intervenor\u2019s, Continental Casualty Company\u2019s, claim against Greg Rollins was dismissed without prejudice pursuant to plaintiffs oral motion in open court for a voluntary nonsuit against Greg Rollins. This appeal followed. Since this case presents questions in the law of torts, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(o).\nOn appeal, appellant cites four points of error in the trial court\u2019s granting of summary judgment to appellees The Clorox Company and The Garman Company. They are (1) the warning on the labels for Clorox and Brite\u2019 Alum are not adequate as a matter of law; (2) the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings; (3) there are material issues of fact to be determined in this cause; and (4) the trial court erred in refusing to require separate appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite\u2019 Alum, before ruling on the motion for summary judgment.\nI. ADEQUACY OF THE WARNINGS\nFor his first point of error, appellant alleges the trial court erred in finding the warnings on the labels for Clorox and Brite\u2019 Alum were adequate as a matter of law under the facts of this case. We need not reach this issue since we uphold the trial court\u2019s granting of summary judgment on the failure to warn and improper labeling issues based on appellant\u2019s failure to read the labels. We do note, however, that adequacy of a warning is generally a question of fact for the jury. See First Nat\u2019l Bk., Albuquerque v. Nor-Am Agric. Prod., Inc., 537 P.2d 682 (N.M. Ct. App. 1975) (and cases cited therein), cert. denied; Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo. Ct. App. 1984), aff'd en banc 723 P.2d 1322 (Colo. 1986).\nII. FAILURE TO READ WARNINGS\nFor his second point of error, appellant alleges the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings and it was error for the trial court to grant summary judgment on this basis. We have not previously addressed this issue.\nThe parties have cited cases from various jurisdictions which hold both that failure to read the label precludes a claim of inadequate warning and that it does not. We think the better rule is that failure to read the label does not automatically preclude a claim for inadequate warning. We find the rule applied in Safeco Ins. Co. v. Baker, 515 So. 2d 655 (La. Ct. App. 1987) particularly persuasive and we adopt the reasoning therein. Safeco holds the plaintiff originally has the burden of proving the warnings or instructions provided were inadequate. Once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded adequate warnings or instructions. This presumption may be rebutted by evidence \u201cwhich persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances.\u201d Safeco Ins. Co., 515 So. 2d 655, 657 (La. Ct. App. 1987); See also Johnson v. Niagara, 666 F.2d 1223 (8th Cir. 1981). In this case, appellant himself admitted that he had never read a label on a cleaning product during the three years he worked at Stewart Electric. Given this, we cannot say the trial court erred in finding appellant\u2019s failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.\nIII. NEGLIGENCE AND DEFECTIVE PRODUCT CLAIMS\nAppellant\u2019s third point of error alleges it was error for the trial court to grant summary judgment on Counts V and VI, the negligent manufacture and the defective product claims. Appellant contends there were material issues of fact to be decided as to these claims and it was, therefore, improper for the trial court to grant summary judgment on these claims. In addressing this issue, there are two sub-issues which must be addressed: (1) was summary judgment proper as to the negligence claims; (2) were there material issues of fact to be decided as to the defective product claims against Clorox or Garman.\nThe negligent manufacture claims alleged\nGarman and Clorox, by and through their agents and employees negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [their respective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by the Plaintiff, Raymond Bushong causing him great damages and injuries as set out hereinafter.\nThe trial court dismissed this claim on summary judgment stating \u201call claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice.\u201d\nAs we said in West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991), \u201c We sustain a trial court\u2019s ruling if it reached the right result, even though it announced the wrong reason.\u201d Summary judgment was proper, but dismissal of the claim with prejudice was not. Summary judgment should have been granted because this allegation is insufficient under Arkansas law. Arkansas is a fact pleading state and appellant\u2019s negligence claim does not state facts upon which relief can be granted. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Appellant\u2019s complaint does not allege any facts which tend to prove appellees Clorox and Garman \u201cnegligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected their products.\u201d As we explained in Searle, summary judgment based upon failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts, which is the failure to have a claim. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608. When summary judgment is granted because of failure to state a claim, the dismissal should be without prejudice in order to afford the plaintiff-appellant a chance to plead further. Id. Therefore, the summary judgment for The Garman Company and The Clorox Company on the negligence issue is modified to be without prejudice.\nThe next sub-issue which must be addressed is whether there was any material issue of fact regarding whether Clorox or Brite\u2019 Alum was defective. Appellant alleged Clorox was defective because it contained sodium hypochlorite which, \u201cin combination with other chemicals could release a poisonous gas and [was] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics\u201d and \u201cwould fail to perform as safely as an ordinary consumer would expect [it] to perform when used in an intended or reasonably foreseeable manner [such that] the benefits of the product[] do not outweigh the risks of danger inherent in [its] design.\u201d Appellant alleged Brite\u2019 Alum was defective because it contained hydrofluoric acid, which \u201cin combination with other chemicals could release a poisonous gas and [was] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics\u201d and \u201cwould fail to perform as safely as an ordinary consumer would expect [it] to perform when used in an intended or reasonably foreseeable manner [such that] the benefits of the product [] do not outweigh the risks of danger inherent in [its] design.\u201d\nIn order to prevail in a products liability claim, appellant must prove\n(1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product;\n(2) The product was supplied by him in a defective condition which rendered it unreasonably dangerous; and\n(3) The defective condition was a proximate cause of the harm to person or to property.\nArk. Code Ann. \u00a7 4-86-102(a) (1987). \u201c \u2018Defective condition\u2019 means a condition of a product that renders it unsafe for reasonable foreseeable use and consumption.\u201d Ark. Code Ann. \u00a7 16-116-102(4) (1987).\n\u201cUnreasonably Dangerous\u201d means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer, or user who acquires or uses the product, assuming the ordinary knowledge of the community or of similar buyers, users, or consumers as to its characteristics, propensities, risks, dangers, and proper and improper uses, as well as any special knowledge, training, or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess.\nArk. Code Ann. \u00a7 16-116-102(7) (1987).\nSummary judgment is an extreme remedy which is only proper when it is clear there are no issues of fact to be litigated. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). \u201cOnce the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact.\u201d Anderson v. First Nat\u2019l Bank, 304 Ark. 164, 166, 801 S.W.2d 273, 274 (1990). An affidavit stating only conclusions is not sufficient. Miskimins v. The City Nat\u2019l Bank, 248 Ark. 1195, 456 S.W.2d 673 (1970). \u201cThe response and supporting material must set forth specific facts showing that there is a genuine issue for trial.\u201d Id. at 1205, 456 S.W.2d at 679.\nIn its motion for summary judgment and supplemental motion for summary judgment, The Clorox Company supplied the affidavits and depositions of several witnesses. None of these supporting materials contained any proof that Clorox was supplied in a defective condition which rendered it unreasonably dangerous. The Garman Company supplied interrogatories and depositions in support of its motion for summary judgment. None of the supporting material provided by Garman indicated Brite\u2019 Alum was supplied in a defective condition which rendered it unreasonably dangerous. In order to prove the existence of a material issue of fact as to the defective condition of Clorox and Brite\u2019 Alum, appellant offered the affidavits of Dr. Ronald Wise, a biochemist, and Mrs. Carolyn Wise, stating that:\nOn giving my deposition on the 8th day of March, 1991, an inquiry was made as to whether or not the product, Clorox or Brite\u2019 Alum, was defective. My answer to that was no if \u201cdefective\u201d meant whether or not the products were defectively formulated. In essence I was stating that the product as constituted did not deviate from the norm.\nIf defective were to mean that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner then my answer would have been that it was, in fact, defective.\nThese affidavits are conclusory in nature and do not set forth any specific facts tending to prove either Clorox or Brite\u2019 Alum was supplied in a defective condition which rendered it unreasonably dangerous. Miskimins, 248 Ark. 1194, 456 S.W.2d 673. Therefore, appellant did not present proof of a material element of his claim. Summary judgment is proper when an appellant fails to present proof of a material element of his claim. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992). Thus, we affirm the trial court\u2019s granting of summary judgment as to the defective product claims.\nIV. MATERIAL SAFETY DATA SHEET\nFor his fourth point of error, appellant alleges it was error for the trial court to grant summary judgment before requiring appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite\u2019 Alum. Even if the M.S.D.S. had been supplied, summary judgment was properly granted as to appellant\u2019s claim against Garman. In order to withstand a summary judgment motion as to the defective product claims, appellant was required to produce proof that the product was supplied in a defective condition which rendered it unreasonably dangerous. Appellant claims he needed the M.S.D.S. to prove that Brite\u2019 Alum was supplied in a defective condition. However, since appellant failed to supply proof sufficient to prove Brite\u2019 Alum was unreasonably dangerous, Garman\u2019s summary judgment motion was properly granted. Proof that Brite\u2019 Alum was supplied in a defective condition would not cure appellant\u2019s failure to supply proof Brite\u2019 Alum was unreasonably dangerous. Appellant did not supply any proof of the\nordinary knowledge of the community or of similar buyers, users, or consumers as to [the] characteristics, propensities, risks, dangers, and proper or improper uses, [or] any special knowledge, training or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess.\nAs was noted previously, an affidavit stating only conclusions, but failing to set forth specific facts is insufficient to show there is a material issue of fact. Miskimins, 248 Ark. 1194, 456 S.W.2d 673. Since appellant failed to prove this element of his proof, he could not withstand a summary judgment motion even had the M.S.D.S. revealed chemical elements which would have allowed appellant\u2019s expert to determine the product was supplied in a defective condition.\nAffirmed in part; modified in part.\nHolt, C.J., Newbern and Brown, JJ., dissent.", "type": "majority", "author": "Donald L. Corbin, Justice." }, { "text": "Robert L. Brown, Justice,\ndissenting. The issue in this case is whether the warning on the Clorox container about hazardous toxic gases was conspicuous enough to draw a user\u2019s attention \u2014 not whether Bushong actually read the label. If the warning on the label had been sufficiently eye-catching and had sounded some mental alarm, arguably the user would have read it. In any case, that is a question for the jury to decide. It is not a matter of law for the trial court on summary judgment. By holding as the majority does today, no matter how hidden or inconspicuous a notice of danger in the future may be, if the user fails to read a label in toto, he is foreclosed from recovery. I disagree that that is the law.\nWe have not reviewed a summary judgment couched on failure to read a warning until this case. Other jurisdictions, however, have refused to hold that failure to read a warning in and of itself is determinative of the warning\u2019s adequacy. See, e.g., Spruill v. Boyle-Midway, Inc., 306 F.2d 79 (4th Cir. 1962); East Penn Manufacturing Co. v. Pineda, 578 A.2d 1113 (D.C. App. 1990); Jarrell v. Monsanto Co., 528 N.E.2d 1158 (Ind. App. 2 Dist. 1988); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 581 P.2d 271 (1978).\nIn East Penn Manufacturing v. Pineda, supra, the issue involved an exploding battery and an injured mechanic who was an experienced user. The jury found for the mechanic, and the manufacturing company moved for judgment n.o.v. on failure-to-read grounds which the trial court denied. On appeal, the District of Columbia Court of Appeals first noted that it had previously rejected the argument that adequacy of a warning label could be resolved as a matter of law. It then went on to discuss the mechanic\u2019s failure to read the warning label on the battery, which was the size of a business card:\nIn the failure to warn context, it is first necessary to distinguish between (1) failure to take adequate steps to ensure the warning was communicated to the ultimate user \u2014 issues involving the prominence and location of the label \u2014 and (2) failure to provide a warning that, if communicated to the user, would have been adequate to warn of risks \u2014 which involves the content of the warning. When the failure to warn is based upon the steps taken to communicate the warning, the fact that the plaintiff never read the warning is itself evidence that the label was inadequate, and should not bar recovery. See Rhodes v. Interstate Battery Systems of Am., 722 F.2d 1517, 1519 (11th Cir. 1984). But when the cause of action is predicated on the content of the warning, as in this case, the plaintiffs own failure to read it will be contributory negligence in some jurisdictions. Id.\n578 A.2d at 1124. Concluding that failure to read the label was ot itself fatal, the court affirmed the jury\u2019s verdict on failure to warn.\nIn Shell Oil Co. v. Guiterrez, supra, a supposedly empty metal drum which had contained liquid xylene exploded because of welding work done within a few feet of the \u201cempty\u201d drum. Two men were injured. Neither had read the warning on top of the metal drum. In affirming the jury verdict in favor of the two men, Arizona Court of Appeals said:\nThat the party who is injured might not have read or heeded warning is not always sufficient to disprove the existence of a causal relationship between the injury and the defect. Adequate warning could have actuated a policy in handling \u201cempties\u201d which would have prevented the accident. ...\nFurthermore, the adequacy of a warning label is not determined solely by reference to the words on the label but also by reference to the physical aspects of the warning, such as conspicuousness, prominence, and relative size of print. All of these physical aspects must be adequate to alert the reasonably prudent person. (Citing authority.) Here, the only label attached to the barrel was small in size, approximately 4\u201d x 4\u201d. The jury could have determined that the physical aspects of this label were inadequate in light of the foreseeable risk of injury, and that if a larger and more conspicuous label was attached, it would have been seen, read and heeded.\nThere was substantial evidence from which the jury could have concluded that the failure of the defendants to provide an adequate warning was a factor in producing the injuries. Cause in fact was an issue for the jury. Prosser, The Law of Torts, Sec. 41 (4th ed. 1971).\n581 P.2d at 280-281.\nIn a third case, the Indiana appellate court reversed summary judgment which had been entered in favor of a sulphur manufacturing firm. Jarrell v. Monsanto Co., supra. There, the injured user poured two fifty pound bags of sulphur into a storage bin which then exploded and burned the user. The worker had not read the warning label on the bags that sulphur dust in air ignites easily. Using this fact as well as others, the trial court entered summary judgment. The Indiana Court of Appeals reversed and said in part:\nIn this case, [the user] admitted that warning labels appeared on the bags of sulphur but claims that he did not see any such warnings and did not read the labels. However, we cannot say as a matter law that the warnings on these labels, \u201cWARNING!,\u201d \u201cSULPHUR DUST SUSPENDED IN AIR IGNITES EASILY!\u201d and \u201cAvoid creating dust in handling!,\u201d sufficiently convey to a reasonable user the nature of the danger or the extent of the potential harm.\n528 N.E.2d at 1163.\nFinally, in Spruill v. Boyle-Midway, Inc., supra, the Fourth Circuit Court of Appeals affirmed a jury verdict in favor of the estate of a deceased 14-month-old child who died of chemical pneumonia after ingesting a small quantity of furniture polish. The Fourth Circuit described the labelling:\nOn the front part of the label appear the words \u201cOld English Brand Red Oil Furniture Polish\u201d in large letters; beneath this in small letters \u201cAn all purpose polish for furniture, woodwork, pianos, floors\u201d. The reverse side of the label, the background of which is white, contains the following printed matter: at the top in red letters about 1 /8th of an inch in height all in capitals, \u201cCAUTION COMBUSTIBLE MIXTURE\u201d. Immediately beneath this in red letters 1 /16th of an inch high \u201cDo not use near fire or flame\u201d; several lines down, again in letters 1 /16th of an inch in height, in brown ink, all in capitals, the word \u201cDIRECTIONS\u201d; then follow seven lines of directions printed in brown ink in letters about 1 /32nd of an inch in height. On the eighth line in letters 1 /16th of an inch high in brown ink appear the words \u201cSafety Note\u201d; following this in letters approximately l/32nd of an inch in height:\nContains refined petroleum distillates. May be harmful if swallowed, especially by children.\u201d\n308 F.2d at 82. The mother of the child testified that she had read the large colored letters \u201cCAUTION COMBUSTIBLE\u201d but not the directions because she knew how to use furniture polish.\nThe court discussed the inadequacy of the warning relating to children:\nThe notice here given was not printed on the label in such a manner as to assure that a user\u2019s attention would be attracted thereto. Indeed, we think one might reasonably conclude that it was placed so as to conceal it from all but the most cautious users. It is located in the midst of a body of print of the same size and color, with nothing to attract special attention to it except the words \u201cSafety Note\u201d.\nFurther, even if the user should happen to discover the warning it states only \u201ccontains refined petroleum distillates. May be harmful if swallowed especially by children.\u201d The first sentence could hardly be taken to convey any conception of the dangerous character of this product to the average user. The second sentence could be taken to indicate to the average person that harm is not certain but merely possible. The expert medical evidence in this case shows that \u201charm\u201d will not be contingent but rather inevitable, to young and old alike. Moreover, the 1st phrase of the sentence hardly conveys the thought that very small quantity of the polish is lethal to children.\n306 F.2d at 86. The court then went on to conclude:\n[H]ad the warning been in a form calculated to attract the user\u2019s attention, due to its position, size, and the coloring if its lettering and had the words used therein been reasonable calculated to convey a conception of the true nature of the danger, this other might not have left the product in the presence of her child.\n306 F.2d at 87.\nThe majority cites two cases to support its affirmance. Safeco Ins. Co. v. Baker, 515 So.2d 655 (La. Ct. App. 1987); Johnson v. Niagara, 666 F.2d 1223 (8th Cir. 1981). Both cases are distinguishable. In Johnson, the Eighth Circuit Court of Appeals affirmed a directed verdict in favor of the manufacturer of a . punch press due to the user\u2019s failure to read the warning. Johnson v. Niagara Mach. & Tool Works, 666 F.2d 1223 (8th Cir. 1981). In affirming the district court\u2019s decision, however, the Court observed in a footnote that the district court had found that the warning on the press was conspicuous and that the case did not involve an inadequate warning. The trial court in the case before us did not make similar findings on adequacy or conspicuousness.\nIn Safeco Ins. Co., the user had failed to install a prefabricated fireplace correctly because he did not read all the pages in an installation booklet, and a fire to the home resulted. The Louisiana Court of Appeals reversed a jury verdict in favor of the installer for fire damage to his home on causation grounds. In that case no hazardous substance was involved; nor did the appellate court have before it the issue of whether a warning label was conspicuous.\nA jury should decide if the warning on the Clorox bottle was in a form calculated to attract Bushong\u2019s attention and if conspicuous, was the wording of the warning adequate. Larger letters in color or a logo indicating toxicity like a skull-and-bones might well have averted injury in this case. At least, this was a question for the jury to consider. While failure to read a label with what is arguably an inadequate warning of a hazard might have surface appeal for disposing of this case, it really does not stand up under scrutiny. I would reverse the summary judgment and remand for trial.\nHolt, C.J., and Newbern, J., join.", "type": "dissent", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Murrey L. Grider and Ponder & Jarboe, by: Dick Jarboe, for appellants.", "Barrett, Wheatley, Smith & Deacon, by: John V. Phelps, for appellee Clorox Co.", "Mixon & McCauley, by: Don Mixon, for appellee Garman Co.", "Snellgrove, Laser, Langley, & Lovett, for intervenors." ], "corrections": "", "head_matter": "Raymond BUSHONG and Betty Bushong v. The GARMAN COMPANY and The Clorox Company Continental Casualty Co., Intervenor\n92-436\n843 S.W.2d 807\nSupreme Court of Arkansas\nOpinion delivered December 7, 1992\nMurrey L. Grider and Ponder & Jarboe, by: Dick Jarboe, for appellants.\nBarrett, Wheatley, Smith & Deacon, by: John V. Phelps, for appellee Clorox Co.\nMixon & McCauley, by: Don Mixon, for appellee Garman Co.\nSnellgrove, Laser, Langley, & Lovett, for intervenors." }, "file_name": "0228-01", "first_page_order": 252, "last_page_order": 271 }