{ "id": 8520085, "name": "ROBERT ZIGLAR, Administrator of the Estate of LIZZIE IRENE ZIGLAR, deceased Plaintiff v. E. I. DU PONT DE NEMOURS AND COMPANY; STONEY VENABLE; MIDKIFF and CARSON HARDWARE COMPANY; BASIL G. GORDON; and A. B. CARSON, Defendants", "name_abbreviation": "Ziglar v. E. I. Du Pont De Nemours & Co.", "decision_date": "1981-07-21", "docket_number": "No. 8017SC730", "first_page": "147", "last_page": "161", "citations": [ { "type": "official", "cite": "53 N.C. App. 147" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "268 S.E. 2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564386 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0669-01" ] }, { "cite": "7 U.S.C. \u00a7 136", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(q)(2)(D)" } ], "opinion_index": 0 }, { "cite": "16 Wake Forest L. Rev. 171", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1980, "opinion_index": 0 }, { "cite": "256 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570953, 8570927, 8570804, 8570876, 8570845 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0452-05", "/nc/297/0452-04", "/nc/297/0452-01", "/nc/297/0452-03", "/nc/297/0452-02" ] }, { "cite": "252 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549364 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0202-01" ] }, { "cite": "250 S.E. 2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "258" } ], "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "year": 1979, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "210 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "292" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549724 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0204-01" ] }, { "cite": "56 N.C. L. Rev. 643", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1978, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "252 S.E. 2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550197 ], "year": 1979, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0301-01" ] }, { "cite": "157 S.E. 2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565083 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0485-01" ] }, { "cite": "93 S.E. 901", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "opinion_index": 0 }, { "cite": "174 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253728 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nc/174/0324-01" ] }, { "cite": "18 S.E. 2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "220 N.C. 782", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11309655 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/220/0782-01" ] }, { "cite": "190 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "year": 1972, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "283 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "affirming the dismissal of negligence claims against the distributors of a toxic substance" } ], "opinion_index": 0 }, { "cite": "301 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564967, 8565000, 8565070, 8565049, 8565023 ], "weight": 3, "year": 1980, "pin_cites": [ { "parenthetical": "affirming the dismissal of negligence claims against the distributors of a toxic substance" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0234-01", "/nc/301/0234-02", "/nc/301/0234-05", "/nc/301/0234-04", "/nc/301/0234-03" ] }, { "cite": "267 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "parenthetical": "affirming the dismissal of negligence claims against the distributors of a toxic substance" }, { "page": "359" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549115 ], "weight": 4, "year": 1980, "pin_cites": [ { "parenthetical": "affirming the dismissal of negligence claims against the distributors of a toxic substance" }, { "page": "245-46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0237-01" ] }, { "cite": "269 S.E. 2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "affirming the entry of summary judgment for the seller in a products liability case" } ], "opinion_index": 0 }, { "cite": "300 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560193, 8560231, 8560172, 8560211, 8560154 ], "year": 1980, "pin_cites": [ { "parenthetical": "affirming the entry of summary judgment for the seller in a products liability case" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0195-03", "/nc/300/0195-05", "/nc/300/0195-02", "/nc/300/0195-04", "/nc/300/0195-01" ] }, { "cite": "262 S.E. 2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "affirming the entry of summary judgment for the seller in a products liability case" }, { "page": "654" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554636 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "affirming the entry of summary judgment for the seller in a products liability case" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0615-01" ] }, { "cite": "189 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575366 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0506-01" ] }, { "cite": "76 A.L.R. 2d 9", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "133 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575236 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0459-01" ] }, { "cite": "117 S.E. 2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625319 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0355-01" ] }, { "cite": "268 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "300 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564292 ], "year": 1980, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0651-01" ] }, { "cite": "275 S.E. 2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646449 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0057-01" ] }, { "cite": "251 S.E. 2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567655 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0467-01" ] }, { "cite": "261 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575106 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0360-01" ] }, { "cite": "270 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] } ], "analysis": { "cardinality": 1428, "char_count": 35088, "ocr_confidence": 0.807, "pagerank": { "raw": 5.341081487937916e-07, "percentile": 0.9432227515967148 }, "sha256": "44e285aa662c50d400c0b0aa73f41296f8d6892fc49b80f43ff3092ce3110a3e", "simhash": "1:4348767a9437806e", "word_count": 5772 }, "last_updated": "2023-07-14T21:33:41.579477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and Becton concur." ], "parties": [ "ROBERT ZIGLAR, Administrator of the Estate of LIZZIE IRENE ZIGLAR, deceased Plaintiff v. E. I. DU PONT DE NEMOURS AND COMPANY; STONEY VENABLE; MIDKIFF and CARSON HARDWARE COMPANY; BASIL G. GORDON; and A. B. CARSON, Defendants" ], "opinions": [ { "text": "VAUGHN, Judge.\nThough this appeal is interlocutory because the judgment entered did not adjudicate all of the claims in the case or dispose of the cause as to all of the parties, Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980), we have elected, in our discretion, to treat the \u201cappeal\u201d as a petition for a writ of certiorari and shall proceed to address the merits of the case. G.S. 7A-32(c); App. R. 21(a).\nThe sole issue is whether the manufacturer and retail seller of an inherently dangerous toxic substance were entitled to summary judgment on plaintiff\u2019s products liability claims.\nIt is elemental that it is usually the jury\u2019s perogative to apply the standard of reasonable care in a negligence action, and summary judgment is, therefore, appropriate only in exceptional cases where the movant shows that one or more of the essential elements of the claim do not appear in the pleadings or proof at the discovery stage of the proceedings. Ragland v. Moore, 299 N.C. 360, 261 S.E. 2d 666 (1980). See, e.g., Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979); Strickland v. Dri-Spray Division Development, 51 N.C. App. 57, 275 S.E. 2d 503 (1981). Consequently, when defendants moved for summary judgment in the instant case, they assumed the task of demonstrating that plaintiff would be unable to prove at trial sufficient facts to establish the following essential elements of a products liability action sounding in tort: \u201c(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances; (2) breach of that standard of care; (3) injury caused directly or proximately by the breach, and; (4) loss because of the injury.\u201d City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E. 2d 190, 194 (1980) [citing Prosser, Handbook of the Law of Torts \u00a7 30 (4th ed. 1971)]. We hold that the defendant retail seller of the insecticide, Midkiff and Carson Hardware Store, has met this burden with respect to plaintiff\u2019s negligence claim against it and affirm the summary judgment entered in its favor. Nonetheless, we reverse the order of summary judgment for the defendant manufacturer because plaintiff did establish, by a forecast of his own evidence, the necessary elements of a products liability claim against Du Pont on several theories.\nThe sum and substance of plaintiff\u2019s claim against the defendant Hardware is that it was negligent due to its \u201cabject failure to give any warning whatsoever\u201d to the purchaser, farmer Venable, about \u201cthe dangers inherent in using a poison which appears like water in a plastic beverage jug.\u201d We disagree.\nIt is indeed true that a retail seller must exercise reasonable care in the sale of a dangerous product and that the performance of due care necessarily requires him to warn the purchaser of any hazard attendant to the product\u2019s use. Restatement (Second) of Torts \u00a7 401 (1965). See Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E. 2d 21 (1960). The supplier\u2019s duty to admonish, with respect to products manufactured by another, however, only arises if two circumstances simultaneously exist: (1) the supplier has actual or constructive knowledge of a particular threatening characteristic of the product and (2) the supplier has reason to know that the purchaser will not realize the product\u2019s menacing propensities for himself. Stegall v. Oil Co., 260 N.C. 459, 133 S.E. 2d 138 (1963); Restatement, supra, \u00a7 388. See generally Annot., \u201cManufacturer\u2019s or seller\u2019s duty to give warning regarding product as affecting his liability for product-caused injury,\u201d 76 A.L.R. 2d 9 (1961). Neither circumstance appears on this record for the following reasons.\nFirst, plaintiff did not present any specific facts, as opposed to mere general allegations, in response to defendant\u2019s motion for summary judgment, which tended to show that the Hardware knew or should have known that the manufacturer\u2019s written warnings on the product\u2019s label were inadequate to warn others, who could be expected to come into contact with the Vydate L, of its poisonous character. For example, plaintiff might have asserted the Hardware\u2019s actual or constructive knowledge about the defective nature of the manufacturer\u2019s warnings by showing that other customers had complained about Vydate L\u2019s dangerous propensity for being confused with water, that it had received special instructions from the manufacturer regarding this danger, or that the manufacturer had notified it that Vydate L was now' available in a safer form, with amber coloration. See, e.g., Wilson v. Chemical Co., 281 N.C. 506, 189 S.E. 2d 221 (1972). In the absence of facts similar to these, we must conclude that any insufficiency in the manufacturer\u2019s warnings, in light of the poison\u2019s colorless form and packaging in a translucent container, constituted a hidden defect which the Hardware had no duty to detect or remedy. For, it is well-established that a seller of a product made by a reputable manufacturer, wher\u00e9 he acts as a \u201cmere conduit,\u201d \u201cis under no affirmative duty to inspect or test for a latent defect, and therefore, liability cannot be based on a failure to inspect or test in order to discover such defect and warn against it.\u201d 2 Frumer and Friedman, Products Liability \u00a7 18.03[1][a] (1979); Cockerham v. Ward, 44 N.C. App. 615, 262 S.E. 2d 651, review denied, 300 N.C. 195, 269 S.E. 2d 622 (1980) (affirming the entry of summary judgment for the seller in a products liability case). See Restatement (Second) of Torts \u00a7 402, Comment d (1965), which explains that \u201c[t]he burden on the seller of requiring him to inspect chattels which he reasonably believes to be free from hidden danger outweighs the magnitude of the risk that a particular chattel may be dangerously defective.\u201d This rule is particularly sound where, as here, the product is sold by the supplier in its original, sealed container. See Davis v. Siloo, Inc., 47 N.C. App. 237, 267 S.E. 2d 354, review denied, 301 N.C. 234, 283 S.E. 2d 131 (1980) (affirming the dismissal of negligence claims against the distributors of a toxic substance); 63 Am. Jur. 2d Products Liability \u00a7 40, at 51 (1972). See also G.S. 99B-2(a). Thus, plaintiff has failed to show the first prerequisite to a retail seller\u2019s duty to warn: that the Hardware had reason to know about, or a legal duty to discover by the exercise of reasonable care, the product-connected danger complained of.\nSecond, plaintiff has also not demonstrated that the Hardware should have known that the purchaser, Venable, would not appreciate the possible harm involved in using a toxic pesticide which was packaged in a clear, plastic container and looked like water. In the instant case, Venable testified that he frequently administered toxic chemicals in his professional pursuit of farming \u201cto make it pay off.\u201d At a minimum then, he should have been generally aware of the dangers involved in using pesticides and the special need to store such substances carefully. In addition, however, Venable also had reason to know of the peculiar dangers associated with Vydate L, for he said that when he purchased the second container of the poison on 7 May 1974, he had previously read the manufacturer\u2019s label and warnings, had also read about the product in an agricultural bulletin and understood it was an experimental pesticide. These facts persuade us that any tendency of Vydate L to be mistaken for harmless water should have been plainly observable to Venable, a professional user of toxic substances, which thereby obviated any obligation of the Hardware to warn him further. It is manifest that a retail seller has no duty to warn of an obvious hazardous condition which a \u201cmere casual looking over will disclose.\u201d Restatement (Second) of Torts \u00a7 388, Comment k (1965); Annot., supra, 76 A.L.R. 2d 9, 28 (1961). Moreover, there is simply no compelling reason to require a seller \u201cto warn a person who in his occupation or profession regularly uses the product against any risk that should be known to such a regular user.\u201d 63 Am. Jur. 2d Products Liability \u00a7 51, at 61 (1972).\nWe thus hold that no legal duty of the retail seller to warn the purchaser was triggered in this case as a matter of law. In sum, the Hardware did not violate any standard of reasonable care by failing to give verbal warnings, about the myriad circumstances in which Vydate L might be confused with drinking water, in addition to the general warnings provided by Du Pont on the sealed container\u2019s label. In this situation then, the Hardware has plainly shown that an essential element of plaintiff\u2019s negligence claim is missing \u2014 defendant\u2019s breach of due care, the absence of which properly authorized the judge to enter summary judgment in its favor.\nOn the other hand, however, the defendant manufacturer, Du Pont, did not successfully negate the existence of an essential element of plaintiffs negligence claim against it. Viewing all the evidence in this record in the light most favorable to plaintiff with the benefit of every reasonable inference arising therefrom, Page v. Sloan, 281 N.C. 697, 706, 190 S.E. 2d 189, 194 (1972), we hold that genuine issues of material fact, concerning the reasonableness of Du Pont\u2019s conduct, were raised on three bases.\nThe first basis of plaintiff\u2019s products liability claim is that Du Pont did not exercise the required degree of due care in its general manufacture and packaging of Vydate L. A manufacturer must execute the \u201chighest\u201d or \u201cutmost\u201d caution, commensurate with the risks of serious harm involved, in the production of a dangerous instrumentality or substance. See Davis v. Siloo, Inc., 47 N.C. App. 237, 267 S.E. 2d 354, review denied, 301 N.C. 234, 283 S.E. 2d 131 (1980); see also Luttrell v. Mineral Co., 220 N.C. 782, 18 S.E. 2d 412 (1942). Here, a jury question was raised about whether Du Pont was sufficiently cautious in the production of Vydate L by plaintiff\u2019s prima facie showing that: (a) Du Pont knew that the insecticide was a dangerous substance; (b) Du Pont manufactured the highly toxic chemical as a colorless liquid and packaged it in clear plastic jugs; and (c) Vydate L, in this form, could be easily mistaken for water in its appearance. See Restatement (Second) of Torts \u00a7 388 (1965). In this regard, the relevant facts are as follows.\nDu Pont noted, in its own information bulletin about the product, that Vydate formulations were highly toxic and that its exposure to humans should be avoided. Du Pont also admitted, in its answers to plaintiff\u2019s interrogatories, that the insecticide was a clear liquid in a translucent container during its experimental marketing in 1973 and 1974, and Venable said he purchased the product in this form in May 1974. Dr. Modesto Scharyj, an expert witness in pathology, testified that Vydate L was a \u201ccompletely colorless chemical; and for that reason it was easy for [him] to understand how [decedent] could possibly confuse that chemical with water,\u201d at least while the container was sealed. The affidavits of decedent\u2019s fellow laborers, as well as the deposition of her employer, moreover, all tend to support the conclusion that she drank the poisonous chemical intending to refresh her thirst, with some water, as she had previously been advised.\nThe law requires a manufacturer to eliminate the dangerous character of goods to the extent that the exercise of reasonable care, considering all of the circumstances, enables him to do so. See Cashwell v. Bottling Works, 174 N.C. 324, 93 S.E. 901 (1917). It is not without significance, therefore, that Du Pont began bottling Vydate L in gray, opaque containers, on 24 May 1974, shortly after this tragic accident occurred, as requested by the State of North Carolina, and that it added amber coloration to the colorless poison in January 1975. Thus, on this record, a critical factual issue, and one not susceptible to disposition by summary judgment, was whether Du Pont was negligent in manufacturing an inherently dangerous toxic substance without taking reasonable precautions to decrease the risk of its lethal confusion with ordinary, harmless drinking water.\nAnother basis of plaintiff\u2019s claim is that Du Pont did not provide the kinds of warnings on the product\u2019s label which were reasonably necessary to notify persons of Vydate L\u2019s poisonous character, especially in light of the chemical\u2019s marked resemblance to water. It is well-established that a product is defective if it is not accompanied by adequate warnings of the dangers associated with its use and that these warnings must be sufficiently intelligible and prominent to reach and protect all those who may reasonably be expected to come into contact with it. Prosser, Handbook of the Law of Torts \u00a7\u00a7 96, 99 (4th ed. 1971); see Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E. 2d 98 (1967). The manufacturer\u2019s duty to warn unquestionably requires him to be particularly careful in labeling poisons so they may be properly identified and used. See Fowler v. General Electric Co., 40 N.C. App. 301, 307, 252 S.E. 2d 862, 866 (1979); Epstein, Products Liability: The Search for the Middle Ground, 56 N.C. L. Rev. 643, 653 (1978). While it is true that Du Pont fulfilled the applicable statutory requirements for the labeling of a poisonous insecticide (see note 3, supra) and that Vydate L had a \u201cslight sulfurous\u201d odor, we cannot say that such warnings were entirely adequate as a matter of law. Rather, such facts were but a part of the total circumstances to be weighed and considered. Indeed, the following facts tended to show that Du Pont had not taken every reasonable precaution to admonish against the risk of confusion of the chemical with a drinkable beverage: (1) again, the insecticide was distinctly similar to water in appearance; (2) there was no evidence that decedent could read or write; and (3) the skull and crossbones symbols on the label were small \u2014 only 4/17 of an inch in height and 4/17 of an inch in width. Further, we would note that it should not have been unforeseeable to Du Pont that Vydate L would be used in close proximity to farm laborers, who might be illiterate, since it intended the insecticide \u201cto be used mainly as a spray or transplant water treatment\u201d on tobacco, which is generally known to be a labor-intensive crop.\nTwo decisions of this Court are particularly instructive here: Davis v. Siloo, Inc., 47 N.C. App. 237, 267 S.E. 2d 354, review denied, 301 N.C. 234, \u2014 S.E. 2d \u2014 (1980), and Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E. 2d 289 (1974). In Davis, the decedent was killed by aplastic anemia resulting from exposure to Petisol 202 in the course of his employment. The plaintiff ad-ministratrix filed a negligence claim against the manufacturer, alleging, among other things, that the label on the product\u2019s container inadequately admonished the user to avoid prolonged skin contact with the chemical. The Court affirmed the denial of defendant\u2019s motion to dismiss the negligence claim and held, in pertinent part, that:\n\u201cthe manufacturer of the dangerous substance will be subject to liability under a negligence theory for damages which proximately result from the failure to provide adequate warnings as to the product\u2019s dangerous propensities which are known or which by the exercise of care commensurate with the danger should be known by the manufacturer, or from the failure to provide adequate directions for the foreseeable user as to how the dangerous product should or should not be used with respect to foreseeable uses.\u201d\n47 N.C. App. at 245-46, 267 S.E. 2d at 359. In Whitley, the plaintiff s intestate also died from aplastic anemia after the administration of a certain drug duly prescribed by her physician. Two of the bases of the administrator\u2019s claim against the drug manufacturer were that it improperly marketed and over-promoted the drug and failed to provide sufficient warnings about the drug\u2019s dangerous tendencies to the medical profession, as well as consumers thereof. This Court held that such allegations raised genuine factual issues and therefore reversed the trial judge\u2019s order of summary judgment for the defendant manufacturer. Significantly, the Court further stated:\n\u201cThat Parke, Davis may have fully complied with all applicable Federal laws in its marketing and labeling Chloromycetin would not in itself free it of liability for harm caused by use of the drug if it were shown that such use and resulting harm was caused by the company\u2019s negligent acts in over-promoting the drug, the dangerous properties of which it was aware or in the exercise of due care should have been aware.\u201d\n24 N.C. App. at 207, 210 S.E. 2d at 292. These two cases provide authoritative support for our holding that plaintiff\u2019s allegations regarding the inadequacy of Du Pont\u2019s warnings raised factual issues, legally sufficient to withstand a motion for summary judgment, because defendant did not come forward with \u201cuncontra-dicted evidentiary material to show that it was not negligent\u201d in this respect. Whitley, supra. We likewise do not believe that Du Pont\u2019s compliance with all statutory labeling requirements would necessarily exonerate it from liability for its possibly negligent acts in failing to take greater steps, ie., using more prominent written warnings and symbols on the product\u2019s label, to prevent this toxic colorless liquid from being mistaken for water.\nPlaintiff presented ample evidence to support its negligence claim on another competent ground: that the product\u2019s label was further deficient because the first-aid instructions listed thereon were not clear or complete. Those instructions provided, in part, as follows: \u201cIf swallowed, give a tablespoon of salt in a glass of warm water and repeat until vomit fluid is clear.\u201d Stoney Venable testified that, almost immediately after decedent drank some of the poison, he read the label on the jug and noted the foregoing advice. He then got decedent to accompany him in his truck to go to his house to get some warm salt water. This took approximately eight minutes. Decedent became unconscious a short while later. Plaintiff contends that Du Pont\u2019s emphasis on the use of warm salt water was misleading because it incorrectly focused attention \u201con obtaining salt water rather than on inducing regurgitation\u201d and that this improper focus on the actual remedy to be pursued \u201cprecipitated a time-consuming rush in search of salt water and caused the quick induction of vomiting to be overlooked altogether.\u201d This contention is well-supported by the following facts. First, Du Pont admitted, in its own answers to interrogatories, that it was \u201cdesirable to induce vomiting by whatever means is immediately available in order to remove as much of the substance as possible from the body.\u201d In addition, Du Pont clearly stated in its information about Vydate L which was sent to poison control centers across the country that the first-aid treatment for ingestion was to \u201c[ijnduce emesis or perform gastric lavage.\u201d Moreover, Du Pont advised, in a 1977 publication of information for physicians regarding the symptomatology and treatment of cases involving Vydate L, that an appropriate first-aid step to be taken before the arrival of a physician was to \u201cdrink 1 or 2 glasses of water and induce vomiting by touching back of throat with finger or blunt object.\u201d We believe that such facts raised a substantial question as to whether Du Pont was negligent in not instructing more plainly, on the product\u2019s label itself, that, in cases of accidental ingestion, vomiting should be immediately induced by whatever means available.\nPlaintiff\u2019s evidence challenging the completeness of the label\u2019s antidote information was as follows. The label advised: \u201cAtropine sulfate should be used for treatment. Administer repeated doses, 1.2 to 2.0 mg intravenously every 10 to 30 minutes until full atropinization is achieved.\u201d In its 1977 information bulletin to physicians about Vydate L poisoning, however, Du Pont distinguished between the procedures to be followed in cases of mild or severe intoxication. The directions in the bulletin for mild intoxication were the same as those printed on the product\u2019s label in 1974, but a different treatment was advised for severe intoxication: an initial intravenous dosage of 2 to 4 mg to be repeated every three to ten minutes. Du Pont offered no evidence showing why it did not provide the additional antidote information for cases of severe poisoning, or why it was not negligence for it to fail to do so, on the product\u2019s label during its experimental marketing. Du Pont thus failed to negate plaintiff\u2019s claim that it was negligent for only providing adequate antidote instructions for cases of mild poisoning alone. Moreover, the following facts clearly demonstrate that plaintiff\u2019s claim was well-substantiated. Venable testified that, after attempting the warm salt water treatment at his house, he drove decedent to a physician\u2019s office, and when they arrived there, she was already unconscious and \u201cslumped over\u201d in the back of his truck. Venable took the Vydate L jug into the office and explained what had happened. The doctor then went out to the truck and gave her a shot. The rescue squad was called, and she was taken to the hospital, which was some twenty to twenty-five minutes away. From these facts, it would be reasonable to infer: (1) the doctor read the antidote information on the jug\u2019s label and administered one injection of atropine in the amount suggested, which was only sufficient for mild intoxication; (2) that decedent was suffering from severe intoxication of the chemical when the antidote was given since she was unconscious at the time; (3) that if the physician had read about the different treatment for severe poisoning on the label, he would have administered greater quantities of atropine and instructed the rescue squad team to give her additional shots every three to ten minutes during the twenty-five minute trip to the hospital; and (4) that decedent\u2019s death might have been prevented if she had received larger amounts of atropine.\nPlaintiff also alleged that Du Pont was negligent because it did not exercise reasonable care in disseminating medical information about Vydate L to poison control centers from the outset of the product\u2019s experimental marketing in 1973 and 1974. The record indicates that an index card, including treatment information for Vydate L poisoning, was not filed with the National Clearinghouse for Poison Control Centers until August 1974, three months after this fatal accident occurred. These facts, standing alone, would not, however, support plaintiff\u2019s products liability claim because, even if Du Pont did not exercise due care in disseminating this information earlier, there is no evidence anywhere in this record tending to establish a causal connection between such an omission of care and the resulting injury.\nIn sum, we hold that plaintiff substantiated a products liability claim against the defendant manufacturer on three grounds: (1) its negligent manufacture and packaging of Vydate L; (2) its failure to provide adequate warnings on the product\u2019s label to notify others of its toxicity; and (3) its negligent provision of ambiguous and incomplete first-aid instructions on the label. We further hold that the defense of contributory negligence was not established in this case as a matter of law. \u201cjPJroximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.\u201d Prosser, Handbook of the Law of Torts \u00a7 45, at 290 (4th ed. 1971); see Williams v. Power & Light Co., 296 N.C. 400, 403, 250 S.E. 2d 255, 258 (1979). Though it may be true, as Du Pont contends, that decedent should have known that this poisonous liquid was not water in a beverage jug because she first had to \u00a1break the seal of the container, and the liquid had a distinct odor like rotten eggs, such factual occurrences were merely a part of the total circumstances to be considered by a jury in deciding whether decedent\u2019s death was caused by her omission of due care for her own safety or by the manufacturer\u2019s failure to exercise reasonable care in the production of an inherently dangerous substance. See Hale v. Power Co., 40 N.C. App. 202, 252 S.E. 2d 265, review denied, 297 N.C. 452, 256 S.E. 2d 805 (1979).\nPlaintiff also assigned as error the trial court\u2019s refusal to permit the introduction of two affidavits on the day of the hearing on defendants\u2019 motions for summary judgment. Rule 56 of the Rules of Civil Procedure plainly provides that, on a motion for summary judgment, the adverse party may serve opposing affidavits \u201cprior to the day of hearing.\u201d G.S. 1A-1, Rule 56(c). Thus, it would seem that the judge did not abuse his discretion in denying plaintiffs request to introduce the affidavits; however, for purposes of this case, it suffices to say that plaintiff has suffered no prejudice from the omission of this material from the record for two reasons. First, neither affidavit contained facts which would further support the existence of a duty to warn by the retail seller, and, thus, even if such evidence should have been admitted and considered, it would not alter our affirmance of the judgment entered in the defendant Hardware\u2019s favor. Second, while the evidence in these affidavits did tend to enhance plaintiffs negligence claim against the defendant manufacturer, any consideration of the propriety of the judge\u2019s exclusion thereof, is rendered unnecessary by our decision reversing the judgment entered for Du Pont on the record as it now stands. Plaintiff will presumably have, therefore, the opportunity to present and develop this evidence, as he wishes, at the full trial of the matter.\nThe order of summary judgment entered for Midkiff and Carson Hardware Store is affirmed.\nThe order of summary judgment entered for E. I. Du Pont De Nemours and Company is reversed.\nAffirmed in part; reversed in part.\nJudges WELLS and Becton concur.\n. We note at the outset that this litigation was pending prior to 1 October 1979, the effective date of the new products liability act in Chapter 99B of the General Statutes. The statute does not, therefore, apply to the instant case, and we express no opinion as to whether its provisions might require a different analysis or result than that rendered herein. See generally Blanchard and Abrams, North Carolina\u2019s New Products Liability Act: A Critical Analysis, 16 Wake Forest L. Rev. 171 (1980).\n. Plaintiff also alleged in the complaint that the Hardware was negligent because it sold the poison: (a) in a clear liquid form when it should have known that it was available in an amber color and (b) in a container which had no safety devices to prevent ingestion by humans. In his brief, however, plaintiff has relied on a single basis to show defendant\u2019s negligence: its failure to warn Venable verbally about the dangerous possibility that someone might mistakenly drink Vydate L as water. Accordingly, that is the sole issue we address in determining whether the trial court properly entered summary judgment for the hardware store.\n. The manufacturer\u2019s compliance with the minimum statutory labeling requirements for toxic pesticides under federal and state law further supports the conclusion, that in these circumstances, any deficiency in the written warnings on the Vydate L label was not reasonably discoverable by the retail seller. See 7 U.S.C. \u00a7 136(q)(2)(D) and G.S. 143-443(a)(3) (mandating the use of skull and crossbones, the display of the word \u201cpoison\u201d prominently in red on a contrasting background, and the inclusion of antidote information).\n. There is no evidence in this record that the defendant Hardware did anything more than simply serve as a \u201cmiddleman\u201d between the manufacturer and a willing purchaser in an ordinary commercial sale.\n. This standard of care is not to be confused with strict liability which is not recognized in this State in products liability cases. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E. 2d 504 (1980). Simply put, even though a negligence standard is applied, a manufacturer must be more careful in the manufacture of dangerous articles for his conduct to be deemed reasonable than would otherwise be necessary in the manufacture of products with less dangerous propensities. See also Cockerham v. Ward, 44 N.C. App. 615, 619, 262 S.E. 2d 651, 654 (1980), where the Court explained: \u201ca manufacturer is not an insurer of the safety of products designed and manufactured by him, but is under an obligation to those who use his product to exercise that degree of care in its design and manufacture which a reasonable prudent man would use in similar circumstances.\u201d\n. We agree with plaintiff that at least a question of fact is raised as \u201cto whether or not an odor [of the insecticide] in an open tobacco field on a hot and muggy day suffices as a warning of a dangerous poison to a farm worker who has labored and sweated under the hot sun for several hours.\u201d\n. Many situations could arise where, as here, a glass of warm salt water is not instantly obtainable as compared with the almost constant availability of a finger or two.\n. Plaintiff might have established the essential causal link of such a claim by showing, for example, that either the initial treating physician, or the hospital physicians, had attempted, in their efforts to revive decedent, to locate this medical information by contacting the nearest poison control center.\n. Though the statute does not apply to this litigation, see note 1, supra, we would comment that our holding is consistent with the tenor of the new products liability act which recognizes claims for personal injury or death resulting from \u201cthe manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging or labeling of any product.\u201d G.S. 99B-K3).", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "David B. Hough, for plaintiff appellant.", "Smith, Moore, Smith, Schell and Hunter, by J. Donald Cowan, Jr., for defendant appellee, E. I. Du Pont De Nemours and Company.", "William G. Reid, for defendant appellees, Midkiff and Carson Hardware Store, Basil G. Gordon and A. B. Carson." ], "corrections": "", "head_matter": "ROBERT ZIGLAR, Administrator of the Estate of LIZZIE IRENE ZIGLAR, deceased Plaintiff v. E. I. DU PONT DE NEMOURS AND COMPANY; STONEY VENABLE; MIDKIFF and CARSON HARDWARE COMPANY; BASIL G. GORDON; and A. B. CARSON, Defendants\nNo. 8017SC730\n(Filed 21 July 1981)\n1. Sales \u00a7 24\u2014 toxic pesticide \u2014no negligence of seller\nIn plaintiffs action to recover for the wrongful death of a farm worker who died shortly after drinking poisonous pesticide, the trial court properly entered summary judgment for the seller of the insecticide where plaintiff did not present any specific facts tending to show that the seller knew or should have known that the manufacturer\u2019s written warnings on the product\u2019s label were inadequate to warn others who could be expected to come into contact with the insecticide of its poisonous character nor did plaintiff demonstrate that the seller should have known that the purchaser would not appreciate the possible harm involved in using a toxic pesticide which was packaged in a clear plastic container and looked like water.\n2. Sales \u00a7 24\u2014 toxic pesticide \u2014negligence of manufacturer\nIn plaintiffs action to recover for the wrongful death of a farm laborer who drank a toxic pesticide, the trial court erred in entering summary judgment for the manufacturer of the pesticide where plaintiffs evidence raised questions for the jury as to whether the manufacturer exercised the required degree of due care in its general manufacture and packaging of the pesticide, whether the manufacturer failed to provide adequate warnings on the product\u2019s label to notify others of its toxicity, and whether the manufacturer\u2019s first aid instructions on the product\u2019s label were ambiguous and incomplete.\nAPPEAL by plaintiff from Albright, Judge. Judgment entered 29 April 1980 in Superior Court, SURRY County. Heard in the Court of Appeals 12 February 1981.\nPlaintiff, as administrator, filed a negligence claim against defendants for the wrongful death of Mrs. Lizzie Irene Ziglar, who died shortly after she drank some poisonous insecticide. The court entered summary judgment for two of the defendants, the manufacturer and the retail seller of the insecticide.\nThe essential facts, as gleaned from the pleadings, interrogatories, depositions and affidavits, are these. In May 1974, Stoney Venable, a tobacco farmer, was using an experimental pesticide, \u201cVydate L Oxamyl Insecticide/Nematicide,\u201d in his tobacco plant beds. Du Pont manufactured the highly toxic chemical, which was, at that time, a clear liquid, with \u201ca terrific odor \u2014 like rotten eggs,\u201d packaged in a translucent one-gallon container, similar to a plastic milk jug. The warning \u201cDanger \u2014 Poison\u201d was printed in red bold-face letters that were approximately 3/17 of an inch in height, on the front panel of the label on the Vydate L container. This warning included the symbol of a red skull and crossbones which was about 4/17 of an inch in height and 4/17 of an inch in width. The back panel of the label provided antidote and first-aid information and again emphasized the words \u201cDanger\u201d and \u201cPoison\u201d in red, bold-face type and included two additional red skulls and crossbones.\nOn 7 May 1974, Venable purchased another sealed container of Vydate L from a clerk at Midkiff and Carson Hardware Store. The employee who sold the product to Venable did not caution him in any way about the use of the product around humans. Venable placed the chemical in the back of his pickup truck under some old coveralls to keep it from falling over. Later that same day, he put a blue mason jar of iced water and paper cups in the back of his truck, for the refreshment of his field hands and drove to where they were pulling tobacco plants.\nUpon arriving there, Venable offered the water to the workers and poured himself a cup from the mason jar. A short while later, Mrs. Ziglar, a laborer, walked over to the truck to get a drink of water. She did not, however, pour from the mason jar; instead, she opened the container of Vydate L, which was located on the same side of the truck as the carton of paper cups, and drank some of the poison. She immediately commented, \u201c[t]his tastes bitter,\u201d whereupon Venable jumped up and told her not to drink any more. After some discussion with Mrs. Ziglar, Venable drove her to his house where he gave her some warm salt water, in accordance with the instructions on the Vydate L label. A local doctor administered injections of the antidote to her, but she died shortly after she was admitted to a hospital. Her death was caused by a combination of the ingestion of the poisonous chemical and sickle cell disease in crisis.\nPlaintiff now appeals from the entry of summary judgment on his negligence claims against Du Pont and the hardware store.\nDavid B. Hough, for plaintiff appellant.\nSmith, Moore, Smith, Schell and Hunter, by J. Donald Cowan, Jr., for defendant appellee, E. I. Du Pont De Nemours and Company.\nWilliam G. Reid, for defendant appellees, Midkiff and Carson Hardware Store, Basil G. Gordon and A. B. Carson." }, "file_name": "0147-01", "first_page_order": 175, "last_page_order": 189 }