Human Resource Selection 9th Edition by Marianne Jennings

Exercise 30

"Towing" the Line with an Eye on Warnings
FACTS
Ginger Smith (Plaintiff)was a passenger on Ronald Smith's boat on West Point Lake, Alabama. Ronald Smith (no relation to Ginger)was operating the boat, which was towing Ms. Smith's son, Shane McClellan, on an inflatable inner tube behind the boat. Shane McClellan weighed 150 pounds at the time and the tube itself weighed 5 to 10 pounds. The inner tube was tied to the boat by a 50-foot Model 51650 polypropylene line that was manufactured by Lehigh Consumer Products, LLC, but carried the label of The Coleman Company (Defendants)pursuant to a licensing arrangement, and was purchased at a nearby Wal-Mart store. While Shane McClellan was being towed on the inner tube, the line snapped, and the end connected to the boat flew back toward the boat and hit Ms. Smith in the eye, causing the loss of that eye.
The packaging of the line contained several statements. A paper insert identifies it as a "50 ft × 5 / 16 in UTILITY LINE." Just below that appears the phrase "Ideal for use on boat or dock." Still farther down the insert, and in an all-caps font smaller than that used in the first statement, appears, divided over two lines, "175 LBS WORKING LOAD LIMIT / STAYS AFLOAT." A longer cautionary message appears at the bottom of the insert. It states:
Avoid using a knot, splicing is preferable. Knots reduce the strength of the rope up to 40%. Do not use this product where personal safety could be endangered. Never stand in line with a rope under tension. Such a rope, particularly nylon rope, may recoil (snap back). Misuse can result in serious injury or death.
There was a warning label printed on the inner tube itself, a portion of which advised boaters to "[u]se a tow rope of at least 1500 lbs average tensile strength for pulling a single person.…" The overall size of this warning label is 8" × 9", and its text complies with the warning label recommended by the Water Sports Industry Association for use on inflatable tubes.
Ms. Smith filed suit against Coleman, Wal-Mart, and Ronald Smith. (Wal-Mart and Smith were dismissed from the case). Coleman argued that its package warned against using the line for towing and moved for summary judgment.
JUDICIAL OPINION
WATKINS, District Judge
A manufacturer has a duty "to warn users of the dangerous propensities of a product only when such products are dangerous when put to their intended use." "[A] manufacturer is under no duty to warn a user of every danger which may exist during the use of the product, especially when such danger is open and obvious." "... the warning need only be one that is reasonable under the circumstances and it need not be the best possible warning."
It is a defense to a negligent failure to warn claim that there is no evidence "that the allegedly inadequate warning would have been read and heeded and would have kept the accident from occurring." In this case, Defendants point to the deposition testimony of Ronald Smith, who purchased the line and attached it to the boat and inner tube. Mr. Smith's testimony was that he did not recall reading "any other part of the warnings on the package other than the poundage." He specifically answered a question in the negative about whether he had read the warning against tying knots in the line. According to Defendants, Mr. Smith's use of the line violated three parts of the warnings given on the package insert, which he confessed having not read: (1)the warning against tying knots in the line; (2)the warning against using the line where per sonal safety could be endangered; and (3)the warning against standing in line "with a rope under tension."
The court pauses to contemplate an issue not discussed by either party, but which seems so fundamental to the cause of action asserted by Ms. Smith that it is difficult to adequately address the failure-to-warn claim without touching on it. That issue is how a negligent failure-to-warn claim is affected by the plaintiff not having been the purchaser, or even the "user," of the item at issue. Both parties proceed as if the relevant inquiry is whether Mr. Smith, or perhaps either Mr. or Ms. Smith, read and followed the warnings on the package. It is undisputed that Mr. Smith purchased the rope and is the person who tied it to the boat and inner tube. Given the disposable nature of the package on which the warnings appeared, it is unclear whether Ms. Smith even had the opportunity to read the warnings-and so, in the summary judgment posture, this court must assume that she did not, if that factual question is relevant to the outcome.
Conceding that Mr. Smith did not recall reading the relevant warnings, Plaintiff's argument seems to be that the phrase "warning" has a particular, technical meaning, such that the statements on the package here were not "warnings" for the purposes of the Alabama case law. The contours of this view are not very well fleshed out, but the argument is perhaps that because the statements on the packaging did not actually contain the word "WARNING," with accompanying symbols such as an exclamation mark within a triangle, they were not actually warnings at all, but merely "safety information."
The only basis for this distinction is a statement made by one of Defendants' experts that "warnings can change behavior, but it is difficult to change behavior with safety information." Perhaps there is a technical distinction, recognized by experts in product labeling or in regulations, between the two concepts, and perhaps, under that distinction, the package insert here is "safety information" rather than a "warning," although it is far from clear from the deposition excerpts before the court that this is what the expert meant. Regardless, the argument misses the point that the court must apply the word "warning" as it has been used in the Alabama case law, which governs this diversity case. The cases cited give no indication of limiting the word "warning" to a narrow, technical meaning. Certainly, the common use of the word "warning" does not limit the concept to statements appearing under the word "WARNING," accompanied by particular symbols, or colored in bright orange. The statements appearing on the utility line's package are cautionary in nature, designed to warn, in the ordinary sense of the term, users of the product about potential dangers of usage.
Thus, the court concludes that the statements on the package were warnings for purposes of Alabama law. As stated above, it is conceded that Mr. Smith did not read the warnings, except for the weight limitation. The only remaining question is whether failure to heed the warnings caused the accident. The court is reluctant to conclude that the warning against uses "where personal safety could be endangered" can suffice for this purpose; it is so vague as to be essentially meaningless. Any use, no matter how seemingly safe or appropriate, that actually resulted in injury could be said after the fact to have endangered personal safety. The other two warnings, however, are quite specific, and both were violated by Mr. Smith. Mr. Smith tied knots in the rope in order to attach it to the boat and the inner tube. Both Mr. Smith and Plaintiff were on board the open boat towing the inner tube behind it; in the ordinary use of language, they were both standing "in line with a rope under tension."
Indeed, it is difficult to conceive how the rope could ever be used for towing someone behind an open boat without both the person being towed and persons on board the boat violating the warning against standing in line with a rope under tension. While Plaintiff's expert prevaricates somewhat over whether Plaintiff was herself "in line" with the rope at the time it broke, heeding this warning still would have prevented the accident altogether, as there would have been no way to tow Plaintiff's son on the inner tube without putting him in line with the rope under tension.
Finally, the court does not base its ruling on Defendants' argument that towing a 150-pound child (plus a five to ten pound inner tube)would have produced a dynamic load far in excess of the 175-pound limitation on the rope, so Plaintiff's argument that there was no way for Mr. Smith or Plaintiff to be aware of the difference between static and dynamic loads is irrelevant. The court also does not base its decision on arguments concerning the warning label on the inner tube itself. Because there is no evidence that the allegedly inadequate warning was read and heeded, or that, if it had been read and heeded, the accident would have occurred anyway, the motion for summary judgment on the negligent-failure-to-warn claim is due to be granted.
With respect to the express warranty claim, Plaintiff's claim is that the statement that the line was "ideal for use on boat or dock" constitutes an express warranty. Statements "that are mere sales talk or 'puffery' do not give rise to express warranties," while "representations of fact" may give rise to such warranties. While the word "ideal" seems closer to the description of an item as "in good shape" that Alabama courts have found to constitute "puffery," Scoggin v Listerhill Employees Credit Union, 658 So.2d 376, 377 (Al a.1995), arguably the reference to use on a boat or dock could constitute a more specific assurance in some circumstances. Regardless, the phrase "ideal for use on boat or dock" is not the equivalent of "ideal for towing behind a boat," especially when, as explained in the previous section, the specific warnings on the package make it essentially impossible to use the utility line for towing in compliance with the packaging. There is no evidence that any express warranty was breached, and summary judgment is due to be granted on this claim.
To the extent that Plaintiff makes a claim for breach of an implied warranty of merchantability, she does not explain how that claim fits the requirements of the statute, and the claim fails for essentially the same reason as the express warranty claim. A use excluded by warning labels cannot be an "ordinary purpose [ ] for which such goods are used."
The final warranty claim is for breach of an implied warranty of fitness for a particular purpose. Plaintiff has done no more than assert that Defendants had "reason to know" that the line would be used to tow persons behind a boat; regardless, Plaintiff clearly did not "rely on the seller's skill or judgment to select or furnish suitable goods." Rather, Mr. Smith selected and purchased the utility line for himself at a Wal-Mart store. Summary judgment is due to be granted on the warranty claims.
The court need not reach Defendants' argument that Coleman is entitled to summary judgment because its only role in producing the utility line was to license its name to Lehigh.
Summary judgment for Defendants.
What point does the court make about Ms. Smith not actually being the purchaser of the line?