Grieco v. Daiho Sangyo, Inc.

344 So.3d 11

Michael GRIECO, Appellant,

v.DAIHO SANGYO, INC., AW Distributing, Inc., and Wal-Mart Stores East, LP, Appellees.

Nos. 4D20-2294

4D20-2557

District Court of Appeal of Florida, Fourth District.

[June 15, 2022]

Sean C. Domnick, Matthew T. Christ, and Lindsey E. Gale of Domnick, Cunningham & Whalen, Palm Beach Gardens, and Andrew A. Harris and Grace Mackey Streicher of Harris Appeals, P.A., Palm Beach Gardens, for appellant.

Agnieszka N. Chiapperini of Gaebe, Mullen, Antonelli & DiMatteo, West Palm Beach, for appellee Daiho Sangyo, Inc.

Lissette Gonzalez of Cole, Scott & Kissane, Miami, for appellee AW Distributing, Inc.

Sharon C. Degnan of Kubicki Draper, Orlando, for appellee Wal-Mart.

Klingensmith, C.J.

Appellant Michael Grieco appeals the trial court's entry of final summary judgment in favor of appellees Daiho Sangyo, Inc. ("Daiho"), AW Distributing, Inc. ("AW"), and Wal-Mart Stores East, LP ("Wal-Mart"). Appellant alleges the trial court erred in granting summary judgment in favor of the appellees in his personal injury lawsuit for damages allegedly caused by a driver's ("Merrill") misuse of a product. For the reasons set forth below, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

The product in question, known as Ultra Duster, is a compressed gas dusting spray that is not particularly distinct from other compressed gas dusters referred to as "keyboard cleaners," "compressed air," or "dust removers." Ultra Duster is manufactured by Daiho, distributed by AW, and retailed in several stores, including Wal-Mart. The product is designed to remove dust, dirt, and debris from computer keyboards and other electronic devices using pressurized air released from a hand-held canister. This product and other dust removers typically contain a pressurized volatile—fluorinated hydrocarbon gas called 1.1-difluoroethane ("DFE")—which is used in many aerosol propellant consumer products, including solvent-based products (e.g., alcohol, gasoline, paint thinners, hair spray, nail polish removers, and glue), and aerosol products that provide a propellant with or without a solvent (e.g., hair sprays, anti-perspirants, dust removers, spray paints, and spray varnishes).

DFE is a central nervous system depressant that can produce a short "high" akin to being impaired when inhaled. Inhaling DFE can also cause feelings of euphoria, dizziness, drowsiness, delusions, and hallucinations. DFE has long been associated with substance abuse in part because products containing DFE are inexpensive and widely available at retail locations. Getting high from inhaling DFE is informally referred to as "dusting" or "huffing." To discourage inhalant abuse, most manufacturers, including Daiho, use an additive called a "bitterant" designed to make the product unpleasant for human consumption. Ultra Duster's label specifically warns against misuse of the product by stating that "inhaling contents may be harmful or fatal" and notifying the consumer that the product "contains a bitterant to help discourage inhalant abuse."

To a large extent, such additives are successful. For a drug addict, the need to self-medicate and become both physically and emotionally numb is a relentless, persistent hunger that fuels each breath. For many of these addicts, relief is just a pill, a bottle, or a needle away. Others, however, get their "fixes" in more unconventional ways by employing commonly used and easily sourced household products like Ultra Duster. And, unfortunately, for some individuals, no warning and no chemical deterrent will dissuade them from a relentless quest to feed their addiction, no matter the risks. So it was with Amy Merrill.

According to the evidence presented to the trial court, Merrill was so addicted to getting high from DFE that the bitterant—which she called "that nasty taste"—did not deter her from inhaling Ultra Duster and many other similar products. Merrill said that while the aerosols which she used all contained bitterants, she found that the "nasty taste" would get "milder and milder every time [she] did it. And eventually [she] wouldn't even taste it anymore." Once she became addicted to DFE, Merrill said she was "so far past the bitterant that [she] was used to [it] and [she] just didn't care." As a long-time daily aerosol user, Merrill was familiar with and had read Ultra Duster's warning label as well as labels on similar products, yet she nonetheless continued to misuse it. Though she understood from reading the warning label that inhaling the product was dangerous, Merrill said she felt she was "invincible" and that "nothing's going to happen to me, because I can do it."

Merrill often purchased Ultra Duster and similar products from various retailers, including Wal-Mart, intending to inhale the product to "get high." She had knowledge of both the immediacy and intensity of DFE's effects, knew those effects typically lasted between thirty and forty-five seconds, and knew that she was sometimes affected in different ways, later explaining that while she would usually just get a high from "dusting," it would sometimes cause her to pass out. Merrill also admitted that while she usually dusted at home and sometimes waited until the effects of DFE wore off before driving, she would also occasionally get or stay behind the wheel while under its influence.

The events leading to the accident in February 2012 are undisputed. Merrill drove to Wal-Mart and purchased one can of Ultra Duster along with a sports drink to divert any suspicion about her intended use of the canned aerosol. No Wal-Mart employee was aware that Merrill was addicted to huffing canned air. She never ingested aerosols on Wal-Mart property or in the presence of any employee, and no one at Wal-Mart was aware when she purchased the product that she planned to misuse it.

During her drive after leaving Wal-Mart, Merrill inhaled Ultra Duster while stopped at a red light. This time the inhalation caused her to lose consciousness. When the light turned green Merrill did not move her car, but she awakened when another driver honked his horn. Because of her altered mental state, she lost control of the car after hitting the gas, drove off the road, and smashed into two vehicles parked in appellant's driveway. Appellant, who was standing in the driveway at the time, was pinned under one of the vehicles and suffered severe injuries from the crash.¹

Soon after, appellant filed a civil suit against appellees as the companies involved in the manufacture, distribution, and retail sale of Ultra Duster for the following claims: Count I – Strict Liability for Defective Design; Count II – Strict Liability for Failure to Warn; and Count III – Negligence.² As the factual basis for his suit, appellant asserted appellees knew: (1) consumers used products like Ultra Duster to get high; (2) the added bitterant was not evenly distributed throughout the product to deter misuse; and (3) the canister's warning label was not adequate to prevent Merrill and others from misusing the product.

Appellees filed motions for summary judgment in 2015 and 2017, but the trial court denied both motions. In the first denial, the judge simply referred to the existence of unspecified material issues of fact. In response to the second motion, appellant presented information that the inhalation of compressed air products, like Ultra Duster, was "an emerging public health threat" and submitted multiple news articles to the court involving car accidents resulting from DFE inhalation. Appellant also submitted evidence that Wal-Mart—as well as AW and Daiho—had been notified that the bitterant added to Ultra Duster did not properly disperse throughout the can. The judge presiding over that hearing denied the second motion, stating it was "undeniable ... that misuse of the instant product by some individuals for huffing or improper inhaling is foreseeable .... Whether it was foreseeable that Ms. Merrill would misuse the product she purchased and cause the damage she caused in this instance is a jury question."

After the First District Court of Appeal issued its opinion in DZE Corp. v. Vickers , 299 So. 3d 538 (Fla. 1st DCA 2020), reh'g denied (July 27, 2020), rev. denied , SC20-1280, 2021 WL 1426782 (Fla. Apr. 15, 2021), appellees moved a third time for summary judgment. Those motions were considered by a different judge. This court said it was not only persuaded by, but also bound by, DZE's rationale, and therefore granted all appellees’ motions for summary judgment, finding that Merrill's voluntary conduct of driving while impaired broke the causation chain so that appellees had no liability to appellant as a third party.

Appellant now appeals these final judgments, which have been consolidated before us.

STANDARD OF REVIEW

"The standard of review of the entry of summary judgment is de novo ." Craven v. TRG-Boynton Beach, Ltd. , 925 So. 2d 476, 479 (Fla. 4th DCA 2006). "Summary judgment is proper if there are no genuine issues of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach. L.P. , 760 So. 2d 126, 130 (Fla. 2000). "[S]ummary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact ...." The Fla. Bar v. Greene , 926 So. 2d 1195, 1200 (Fla. 2006).

STRICT LIABILITY GENERALLY

"Florida tort law provides that the manufacturer of a defective product may be subject to liability under two theories: negligence and strict liability. ... In order to prevail under either theory, the plaintiff must establish that the product was defective or unreasonably dangerous." Small v. Amgen, Inc. , 134 F. Supp. 3d 1358, 1366 (M.D. Fla. 2015). "[P]roof of a defect determines a breach of duty under a negligence theory and the presence of an unreasonably dangerous condition under a strict liability theory." O'Bryan v. Ford Motor Co. , 18 F. Supp. 3d...