Opinion
B315399
07-25-2023
HELEN BERNAL, LLC, et al., Plaintiffs and Appellants, v. WALGREENS CO., et al., Defendants and Respondents.
Dodge Law Firm and Terrence L. Butler for Plaintiffs and Appellants. Callahan, Thompson, Sherman &Caudill, Lee A. Sherman and Randy Hy for Defendants and Respondents
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV04320 Jon R. Takasugi, Judge. Affirmed.
Dodge Law Firm and Terrence L. Butler for Plaintiffs and Appellants.
Callahan, Thompson, Sherman &Caudill, Lee A. Sherman and Randy Hy for Defendants and Respondents
RUBIN, P. J.
Plaintiff Helen Bernal suffered burn injuries when a bottle of 91 percent isopropyl alcohol "exploded" as she poured the alcohol directly into a metal can containing lit matches, more isopropyl alcohol, and chili peppers, which she was attempting to roast. Defendant Walgreens Co. sold and defendant P&L Development LLC (defendants) manufactured the isopropyl alcohol bottle, which expressly warned that the contents were flammable and inedible. Following the incident, Bernal sued defendants for strict products liability, breach of implied warranty, and negligence. In the same complaint, Bernal's son, who witnessed the explosion and his mother's injuries, sued defendants for negligent infliction of emotional distress. The trial court granted defendants' motion for summary judgment, concluding that Bernal's misuse of the product was not foreseeable and the bottle had legally sufficient warning labels.
On appeal, plaintiffs argue, among other things, that Bernal's use of the alcohol bottle was foreseeable and not the sole cause of her harm. We affirm because Bernal's misuse of the isopropyl alcohol bottle was so unforeseeable that it was, as a matter of law, the superseding cause of her injury.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Isopropyl Alcohol Bottle
Defendants distributed and sold the 32-ounce, 91 percent isopropyl alcohol bottle Bernal used during the accident. The bottle's predominantly blue front label stated it was "91% Isopropyl Alcohol" "First Aid Antiseptic." In a red rounded rectangle with contrasting white font, the front label warned: "WARNING FLAMMABLE" and "Keep away from heat, spark, electrical, fire or flame."
The back label of the bottle stated "Uses first aid to help prevent the risk of infection in minor cuts, scrapes, and burns." The back label also read:
"Warnings
For external use only.
■ if taken internally, serious gastric disturbances will result
Flammable, keep away from fire or flame.
■ use only in a well-ventilated area; fumes may be toxic."
The label also stated: "Keep out of reach of children. In case of ingestion, get medical help or contact a Poison Control Center right away (1-800-222-1222)."
2. Bernal's Accident and Injuries
At the time of the accident, Bernal and her then-five-year-old son lived in a one-room apartment with no kitchen. Wanting to roast chilies to make a sauce, Bernal searched the internet for information on how to roast chilies without an oven or stove. Two or three days before the explosion, she found and watched two or three YouTube videos instructing on how to use 91 percent isopropyl alcohol as cooking fuel. Bernal stated in her declaration opposing summary judgment that, during the search, she learned isopropyl alcohol was flammable.
On the day of the accident, Bernal did not follow any videos or instructions as she attempted to the cook the chilies. She placed an empty metal tomato sauce can in her bathroom sink and stood in front of the sink. She added three chili peppers to the can. Despite knowing isopropyl alcohol could not be ingested, she poured isopropyl alcohol into the can with the chilies. Bernal then lit the alcohol on fire by tossing a lit match into the can. The contents visibly burned for approximately 10 to 15 seconds before the flame appeared to extinguish.
We say "appeared to extinguish" because, according to plaintiffs' expert, "The flame of Isopropyl alcohol is nearly invisible in typical room light."
Bernal then added five or six unlit matches and dropped another lit match into the can. The contents of the can burned for about another nine or ten seconds. Bernal repeated this process of adding several unlit matches and a single lit match to the can. Each time, the mixture visibly burned for several seconds before appearing to extinguish.
Because adding matches to the mixture did not keep the mixture visibly lit, Bernal added more isopropyl alcohol to the can multiple times. When Bernal added the alcohol, she held the alcohol bottle one to two inches immediately above the can and dispensed the alcohol in a stream. She then dropped a lit match into the mixture. Each time, the mixture stayed visibly lit for approximately 10 or 11 seconds. Bernal then added another five or six unlit matches to the can and dropped another lit match into the can. Again, the mixture would visibly ignite but then appear to extinguish after 10 to 11 seconds. Appellant repeated the process of adding isopropyl alcohol and matches to the mixture three more times. In total, Bernal dropped approximately 25 matches into the can. On the fourth time she added isopropyl alcohol to the can, the alcohol bottle exploded and a serious fire occurred.
Plaintiffs' expert explained that "The invisible flame followed the alcohol fuel vapors into the bottle causing the vapors of the Isopropyl alcohol fuel to explode, rupturing the bottle from the inside."
Bernal suffered second and third degree burns to her torso, arms, neck, face and head. Her son witnessed the explosion and fire and Bernal's extensive burn injuries.
3. The Complaint
On February 6, 2019, plaintiffs sued defendants and the owner of the apartment where the accident occurred. We do not discuss claims against the property owner as they are not relevant to this appeal. Plaintiffs alleged five causes of action against defendants: (1) strict products liability, (2) breach of implied warranty, (3) breach of duty to provide adequate warnings, (4) negligence, and (5) negligent infliction of emotional distress.
The first cause of action for strict products liability alleged the bottle was defective and unsafe for its intended use because it did not have a flame arrestor, which would prevent flammable vapors from entering the bottle, and the bottle failed to warn about the lack of a flame arrestor. The breach of implied warranty second cause of action alleged the bottle was not fit for its intended purpose because of its concealed danger of exploding. The third cause of action alleged the bottle lacked adequate warnings that it could explode when exposed to a potential ignition source or fire. The fourth cause of action for negligence alleged defendants breached their duty of care by placing the bottle into the stream of commerce without a flame arrester cap or proper warnings. Lastly, plaintiffs alleged defendants negligently inflicted emotional distress on Bernal's son because he witnessed the incident.
4. Motion for Summary Judgment
On March 26, 2021, defendants filed a motion for summary judgment and supporting documents. The moving papers set out the facts we have just described.
Defendants argued Bernal's misuse was unforeseeable and excused liability based on the bottle's labels, which stated the contents were an antiseptic and warned that (1) it was flammable and should be kept away from heat, fire, and flame, (2) isopropyl alcohol would cause serious gastric disturbances if taken internally, and (3) in case of ingestion get medical help or call poison control center immediately. "In light of that strong cautionary language, it was not reasonably foreseeable that a consumer would soak chilis, which were intended for eating, in isopropyl alcohol. This is amplified by the fact that Bernal knew isopropyl alcohol could not be consumed or ingested."
Defendants also asserted that even if it were foreseeable that the isopropyl alcohol in some settings could be used as a cooking fuel, "Bernal's completely improvised cooking method would nevertheless not be reasonably foreseeable. Although Bernal claims she discovered the idea to make a home stove from unidentified online videos, she admitted she did not follow any steps or instructions in those videos or otherwise. She cannot even remember if the videos instructed that the isopropyl alcohol be kept in a different container or apart from the food item. Her only recollection is the videos somehow involved the use of isopropyl alcohol, matches, and a can, and she apparently made up the steps as she went. It was not reasonably foreseeable that a consumer, who has no prior experience creating home stoves, would completely fabricate her own cooking method, which included mixing chilis, isopropyl alcohol, and matches together in the same metal can on her bathroom sink, and repeatedly adding isopropyl alcohol and matches to the concoction."
Defendants also made other arguments about federal preemption and adequacy of the bottle's warnings, which we do not discuss in detail as they are not relevant to our analysis.
5. Opposition to Summary Judgment
Plaintiffs opposed the motion, asserting that it was "highly foreseeable" the isopropyl alcohol would be used near a flame. They argued that isopropyl alcohol is used in stoves and produced a declaration from mechanical engineer Glen Stevick, that cited uses of alcohol in camping or backpacking stoves. Stevick attested that "Alcohol fueled stoves using denatured alcohol are described by retailers such as REI as being 'The most ultralight stove type' and 'The most affordable stove option.'[ ] An alcohol fuel stove recommendation is provided,[ ] as well as instructions on how to make an alcohol fuel stove from a soda can." Stevick provided three links to REI's website, two which discuss different camping stove fuel sources and provide advice on selecting a camping/backpacking stove. The third link described in detail how to make a "penny alcohol stove" using two soda cans. One can serves as the top and the other as the bottom of the fuel reservoir; the two pieces are held together by epoxy to become a single enclosed unit. In the top piece of this do-it-yourself alcohol stove, one is instructed to drill burner holes and a hole for a fuel port. In the bottom, a piece of fiberglass pipe insulation is added as a wick for the alcohol. REI's instructions include using a ring of metal mesh for the pot containing the food to sit atop and hover over the alcohol stove's flame.
The first two websites listed in Stevick's declaration are: <https://www.rei.com/learn/expert-advice/best-backpacking-stoves.html#Stove-Choice-Based-on-Fuel-Source> [as of July 18, 2023], archived at <https://perma.cc/F83B-P45T> and <https://www.rei.com/learn/expert-advice/best-backpacking-stoves.html#TOAKS-Titanium-Siphon> [as of July 18, 2023], archived at <https://perma.cc/JT8Q-QNZQ>. Stevick listed the following website for the do-it-yourself alcohol stove directions: <https://www.rei.com/blog/camp/diy-how-to-make-an-alcohol-stove-from-soda-cans> [as of July 18, 2023], archived at <https://perma.cc/JSR7-GTAG>.
Bernal offered no evidence that her tomato can was used in the manner described in any of the online articles mentioned by Stevick.
Stevick stated "numerous internet sites compare 91 percent PROPANOL with other fuels for campfire cooking," and listed the names of five other websites: "PROVIDENT PREPPER"; "thecampstove.com"; "flatcargear.com"; "greenbelly.co"; and "Thru-Hiker.com." Stevick stated: "It is also my opinion that Plaintiff cannot be said to be 'misusing' the product by 'using the fuel bottle near an open flame' if, as in this case, the flame is invisible, and Plaintiff does not know she is using in close proximity to an open flame." Citing testimony from a Walgreens representative, the opposition papers pointed out defendants had admitted they had not researched uses for their product other than as an antiseptic. Plaintiffs argued defendants should have known of its use as fuel in camping stoves.
6. Defendants' Reply
Defendants filed a reply, asserting: "Plaintiffs do not claim that any of the online sources instructed Bernal to do what she did (i.e., to soak food that is to be eaten directly in inedible [isopropyl alcohol] and repeatedly add matches and [isopropyl alcohol] to the concoction). In other words, the online sources are irrelevant because Bernal did not follow the online sources' instructions and instead totally and dangerously improvised her own method." Defendants also opined that "Additional warnings would not have made any difference because Bernal did not read the warnings already on the bottle. [Case citation.] If Bernal had read and followed the warnings, the incident would not have occurred; Bernal's misuse was the sole cause of the incident."
7. The Court Grants Summary Judgment
At the hearing on the motion, the court stated Bernal's use of the product exceeded what is foreseeable. The court stated, "there are websites . . . very reputable ones that do talk about using isopropyl alcohol as a fuel for camp stoves. But within a camp stove . . . [¶] And those all have their respective safety devices built in. I don't know how we get from assuming defendant had that information, that its product could be foreseeably used as a fuel, to . . . what we have, here, that is, . . . pouring alcohol in it and dropping lit matches into it. [¶] And when the flame goes down or the alcohol is . . . consumed and exhausted, pouring more alcohol into that heated cylinder or the heated can."
In its minute order, the trial court stated:
"[H]ere, the subject bottle, which warned that its ingredients must be kept away from heat and flames and must not be ingested, was obviously not intended as a fuel source in the manner used by Plaintiff, and there is no evidence that the subject bottle was unsafe in any way for its intended use (i.e., as a topical first aid). Plaintiff Bernal's unintended use of a topical first aid as a fuel source to cook chilis in a metal can over an open flame on a bathroom sink posed the hazard to Plaintiff Bernal, and Defendants cannot be held responsible for this unanticipated use of the isopropyl alcohol contained in the subject bottle. [Citation.]
"To show that the manner in which Plaintiff used 91 [percent] isopropyl alcohol was reasonably foreseeable, Plaintiff provided a declaration from Glen Stevick, Ph.D., P.E. In his declaration, Stevick cites to five camping-centered websites which compare different types of isopropyl alcohol as fuel sources, and an REI article providing instructions on how to make an alcohol fuel stove from a soda can. (Stevick Decl., ¶¶ 22, 23.) However, the websites cited to refer[] to isopropyl alcohol as fuel source for stoves and directly contemplate the use of pots and/or mugs to be placed over the stove. For example, in the Provider Prepper article referenced by Mr. Stevick, one of the identified disadvantages of cooking with isopropyl alcohol is that it is 'messy to clean off pots.' (... ¶ 23a.) Similarly, campstove.com provides that isopropyl rubbing alcohol can be used as an 'alternate fuel source for alcohol stoves.' (. ¶ 23b, emphasis added.) Flatcargear.com discusses a stove that comes 'with [an] integrated pot/mug stand.' (... ¶ 23c.) As such, the camping sites provide instruction on how to use isopropyl alcohol to fuel a stove unit, which can then be cooked over with a separate container, thereby mimicking a conventional stove top cooking arrangement. Mr. Stevick did not cite to a single website wherein isopropyl alcohol of any concentration was recommended or used as a fuel source for open flame cooking in the manner employed by Plaintiff.
"In the REI article cited by Stevick, a soda can is used to create a pseudo-stove burner, a pot stand is placed around the burner, and a cooking vessel is then placed on the pot stand over the flame. This set up, of course, not only creates a contained flame/heat source, but keeps the food from being contaminated by the alcohol which cannot be digested. Here, by contrast, Plaintiff poured isopropyl alcohol into a can on her bathroom sink, placed the chilis directly into isopropyl alcohol, repeatedly dropped lit matches into the isopropyl alcohol-filled can to cook them, and poured more isopropyl alcohol into the hot metal can or onto an open flame to keep the fire going.
"Thus, even among the resources specifically cited by Stevick, Plaintiff's use of 91 [percent] isopropyl alcohol as a fuel source was extraordinary. (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 681.)"
The trial court concluded that "Plaintiff's misuse of the product was so unforeseeable that it should be deemed the sole or superseding cause of Plaintiff's injury as a matter of law."
On July 20, 2021, the court entered judgment in favor of defendants.
DISCUSSION
1. Standard of Review
Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant satisfies its "burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).)
The moving party must support the motion with evidence, e.g. affidavits, declarations, depositions, admissions, and matters subject to judicial notice, and the opposing party must oppose the motion with the like. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); § 437c, subd. (b).) When ruling on the motion, the court must consider all the evidence and all inferences reasonably drawn from it in the light most favorable to the opposing party. (Aguilar, at p. 843; § 437c, subd. (c).)
"We review the trial court's grant of summary judgment de novo, applying the same statutory procedure followed in the trial court." (Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 574.)
2. Bernal's Unforeseeable Misuse Is A Complete Defense to Liability
Plaintiffs' strict liability, breach of implied warranty and negligence (for both Bernal's injuries and her son's emotional distress) causes of action all required plaintiffs to prove causation, i.e. that the product defect caused plaintiff's injury. (Trejo v. Johnson &Johnson (2017) 13 Cal.App.5th 110, 125 [explaining the difference between strict liability and negligence theories is that negligence requires one additional element to be proven by plaintiff: defendant failed to use reasonable care]; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 145 ["To recover on a breach of warranty cause of action, the plaintiff must show the breach caused the plaintiff to' "suffer injury, damage, loss or harm[.]"' "]; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [negligent infliction of emotional distress is not an independent tort but the tort of negligence, which requires causation].)
In moving for summary judgment, defendants asserted unforeseeable product misuse as a complete defense to plaintiff's complaint. "Product misuse, an affirmative defense, is a superseding cause of injury that absolves a tortfeasor of his or her own wrongful conduct only when the misuse was' "so highly extraordinary as to be unforeseeable."' [Citations.] 'However, foreseeability is a question for the jury unless undisputed facts leave no room for a reasonable difference of opinion.'" (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308; Perez v. VAS S.p.A., supra, 188 Cal.App.4th at p. 685 ["product misuse may serve as a complete defense when the misuse 'was so unforeseeable that it should be deemed the sole or superseding cause' "]; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9 [defense of superseding cause absolves tortfeasor of liability].) In their motion, defendants had the burden to demonstrate "this 'misuse'-rather than some other factor-was the proximate cause of the injury." (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.)
Here, on undisputed facts, we agree with the trial court that defendant presented uncontradicted evidence that Bernal misused the isopropyl alcohol in such an extraordinary and unforeseeable manner that it was the superseding cause of the accident and her injuries. This superseding cause absolved defendants of any liability.
The bottle expressly warned that the contents were flammable and to be kept away from fire. The bottle also stated the isopropyl alcohol was not to be consumed and that if ingested, poison control should be contacted or medical help sought. Bernal herself acknowledged that she knew she could not consume the alcohol. Despite these warnings, Bernal soaked the chilis in isopropyl alcohol in an empty tomato sauce can, while dropping in lit matches. Her actions were inexplicably far afield from the bottle's stated use as an antiseptic.
Even when considered in light of plaintiffs' expert Stevick's discussion about camping stoves, there remained no triable issue of fact that Bernal's actions were foreseeable. As the trial court pointed out, the alcohol stove literature presented to the court involved a dedicated container for alcohol to be used as a fuel heating a pot or pan suspended above it. Safety precautions were described for outdoor cooking. In contrast to the alcohol-fueled camping stoves, Bernal soaked her food in the alcohol, dropped matches both lit and unlit into the alcohol, and added additional alcohol four times to the concoction. Following no instructions or videos, Bernal took extreme measures to ignite and keep the alcohol visibly lit. No manufacturer or seller would reasonably anticipate such extraordinary and dangerous misuse.
DISPOSITION
The judgment is affirmed. Defendants Walgreens Co. and P&L Development LLC are awarded costs on appeal.
WE CONCUR: MOOR, J. KIM, J.