Lewis v. American Cyanamid Co.

HANDLER, J.,

concurring in part and dissenting in part.

The Court forces defendants between Scylla and Charybdis. It accepts plaintiffs assertion that United Industries’s product, the Combat Room Fogger, may have been defective because it was flammable. It also accepts plaintiffs proposal that a jury should determine whether United Industries should have designed its fogger to contain P-22, a known ozone depleter and a suspected teratogen. By its ruling, the Court, in effect, is telling manufacturers to pick their poison. That kind of judicial admonition cannot be the law.

Following the enactment of the Clean Air Act Amendments of 1990, the federal government, attempting to preserve the ozone layer, banned P-22. As a matter of public policy and fairness, a manufacturer should not have the duty to design a product with a substance that has subsequently been outlawed so long as the factual basis for that ban was known or knowable to the manufacturing community when it made or marketed the product. Otherwise, a manufacturer would face the Catch-22 of being liable for either creating a product that does not contain an unsafe, subsequently banned substance or for exposing people to the unsafe, subsequently banned substance and causing the harms that prompted the prohibition.

*578 I agree that plaintiffs failure-to-warn claim was correctly dismissed. However, I depart from the majority in its disposition of plaintiffs design-defect claim. In my opinion, as a matter of law, defendants owed plaintiff no duty to design or sell a fogger with P-22 because the substance has been banned and defendants knew or should have known the reason for the proscription. Accordingly, I would reverse the Appellate Division’s reversal of the trial court’s granting defendants’ motion for judgment notwithstanding the verdict. Because plaintiff cannot establish that defendants owed him a duty, the issues of plaintiffs comparative negligence and the trial court’s erroneous, instructions are rendered moot.

I

“The issue whether a defendant owes a legal duty is generally a question of law for the court to decide.” Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 , 694 A.2d 1017 (1997); accord Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 , 675 A.2d 209 (1996); Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 , 638 A.2d 1288 (1994); Wang v. Allstate Ins. Co., 125 N.J. 2, 15 , 592 A.2d 527 (1991); Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529 , 538 A.2d 346 (1988). “Ultimately, the determination of the existence of a duty is a question of fairness and public policy.” Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515 , 688 A.2d 1018 (1997); accord Clohesy, supra, 149 N.J. at 502-03 , 694 A.2d 1017 ; Snyder v. American Ass’n of Blood Banks, 144 N.J. 269, 292 , 676 A.2d 1036 (1996); Carvalho, supra, 143 N.J. at 572 , 675 A.2d 209 ; Crawn v. Campo, 136 N.J. 494, 503 , 643 A.2d 600 (1994); Dunphy v. Gregor, 136 N.J. 99, 108 , 642 A.2d 372 (1994); Carter Lincoln-Mercury, supra, 135 N.J. at 194-95 , 638 A.2d 1288 ; Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 , 625 A.2d 1110 (1993); Wang, supra, 125 N.J. at 15 , 592 A.2d 527 ; Strachan, supra, 109 N.J. at 523 , 538 A.2d 346 ; Weinberg v. Dinger, 106 N.J. 469, 485 , 524 A.2d 366 (1987); Kelly v. Gwinnell, 96 N.J. 538, 544 , 476 A.2d 1219 (1984). *579 That determination depends, in part, on “the public interest in the proposed solution.” Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 , 186 A.2d 291 (1962); accord Steele v. Kerrigan, 148 N.J. 1, 23 , 689 A.2d 685 (1997); Del Tufo v. Township of Old Bridge, 147 N.J. 90, 113 , 685 A.2d 1267 (1996); Carvalho,. supra, 143 N.J. at 573 , 675 A.2d 209 ; Contey v. New Jersey Bell Tel. Co., 136 N.J. 582, 587 , 643 A.2d 1005 (1994); Carter Lincoln-Mercury, supra, 135 N.J. at 194 , 638 A.2d 1288 ; Hopkins, supra, 132 N.J. at 439 , 625 A.2d 1110 ; Kelly, supra, 96 N.J. at 544 , 476 A.2d 1219 ; Portee v. Jaffee, 84 N.J. 88, 101 , 417 A.2d 521 (1980).

These principles pertaining to duty in tort law have been imported into our strict liability jurisprudence.

[I]t is the function of the court to decide whether the manufacturer has the duty and obligation imposed by the strict liability principle. As in tort law generally, determination of existence of a duty depends on balancing the nature of the risk, the public interest and the relationship of the parties____ The question is ultimately one of public policy, the answer being dependent upon a consideration of all relevant factors to decide what is fair and just.

[Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 172 , 406 A.2d 140 (1979).]

Thus, the court, rather than the jury, has the responsibility to determine whether defendants owed plaintiff a duty in this case.

In my opinion, imposing a duty on defendants to manufacture or sell a fogger with P-22, a subsequently banned substance known to deplete the ozone layer, would be contrary to public policy, unfair, and would disserve the public interest. The Clean Air Act Amendments of 1990 phased out the use of P-22. Public L. No. 101-549, §§ 602(a), 605, 104 Stat. 2399 , 2651, 2658-59 (1990) (codified at 42 U.S.C.A. §§ 7671a, 7671d). In so doing, Congress and President Bush concluded that P-22, which is also called hydroehlorofluorocarbon-22 (HCFC-22), should ultimately be banned because it is an ozone depleter. The determination that P-22 is unfit for use in this country is a reflection of this nation’s public policy of protecting the environment from ozone depleters. Implementing the Clear Air Act Amendments, the Environmental Protection Agency (EPA) in 1993 prohibited the use of P-22, designated a class II substance by the Clean Air Act, in foggers. *580 58 Fed.Reg. 69672 (1993) (codified at 40 C.F.R. § 82.70 ). By banning nonessential products containing P-22, the EPA accelerated swiftly the prohibition of the ozone depleter. The promulgation of the rule reflected a federal public policy to eliminate rapidly P-22 from nonessential products such as foggers.

Federal law can comprise this State’s public policy. See Mehlman v. Mobil Oil Corp. 153 N.J. 163, 190-91 , 707 A.2d 1000 (1998) (finding, under Conscientious Employee Protection Act, a clear mandate of public policy based, in part, on federal regulations); D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516, 528 , 628 A.2d 305 (1993) (holding, under CEPA, “[flederal law and policy can constitute New Jersey’s clear mandate of public policy”). This State shares the federal government’s interest in protecting the environment. Accordingly, this State and the federal government have the common goal of preserving the ozone layer. Consequently, this State’s tort law should incorporate the federal government’s ozone protection policies, including the prohibition of foggers containing P-22. Our State’s tort law should be at least as protective of the ozone layer as federal law. Cf. Feldman v. Lederle Labs., 97 N.J. 429, 461 , 479 A.2d 374 (1984) (holding federal regulations are minimal standards that this State’s tort law may exceed).

Although foggers containing P-22 were legal at the time defendants manufactured and sold the Combat Room Fogger that injured plaintiff, as a matter of public policy defendants should not have a duty to design or sell a fogger with P-22. Despite its legality at the time, the basis for the ban existed in 1988 and 1989, when the fogger in this case was manufáctured and sold. At that time P-22 was known to deplete the ozone layer, and the chemical’s detrimental effect on the environment was sufficiently serious to warrant P-22’s current ban from foggers and other pressurized dispensers and aerosols. In fact, in 1987 the international community agreed to limit and reduce the use of P-22 and other ozone-depleting substances. See Montreal Protocol on Substances That *581 Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550 (entered into force Jan. 1,1989).

The available information on P-22’s ozone-depleting qualities should be imputed to defendants. In Feldman, supra, 97 N.J. at 453 , 479 A.2d 374 , this Court, held that available scientific knowledge of the deleterious effects of Declomycin, a tetracycline, should be imputed to a drug manufacturer. We wrote that “in some fields ... a manufacturer may be expected to be informed and affirmatively to seek out information concerning the public’s use of its own product.” Ibid. We added: “Furthermore, a reasonably prudent manufacturer will be deemed to know of rehable information generally available or reasonably obtainable in the industry or in the particular field involved.” Ibid. Our law should be symmetrical. If a manufacturer may be charged with available information, it should also be credited with such information. Thus, in this ease, defendants should be credited with being aware of P-22’s ozone-depleting qualities, which was widely known in the scientific and manufacturing community and the subject of an international agreement. In view of defendants’ knowledge, imputed or actual, that P-22 depleted the ozone layer, defendants should benefit from the subsequent ban of the substance and be shielded from the imposition of a duty to manufacture or -sell a fogger comprising P-22.

Due to its well-known ozone-depleting qualities, the inclusion of P-22 in foggers, whether in 1988 or 1998, is contrary to. this State’s public policy. Consequently, for the same public policy reason, defendants should not have a duty to manufacture or sell foggers with P-22, even when doing so was not proscribed.

Imposing a duty on manufacturers to create a product with a subsequently banned substance would create inimical incentives. Influencing the behavior of persons or entities through incentives is one of the fundamental purposes of tort law. See Gantes v. Kason Corp., 145 N.J. 478, 489-90 , 679 A.2d 106 (1996) (recognizing importance of deterrence goal of torts in strict products liability); W. Page Keeton et ah, Prosser and Keeton on the Law *582 of Torts (5th ed.1984) § 4, at 25-26 (discussing tort law’s goals of preventing future harm and punishing tortfeasors). Putting a duty on defendants in this case fails to discourage sufficiently manufacturers from creating products with ingredients that are fundamentally flawed and prone to proscription. Knowledge of the reasons for the ban exists long before the promulgation of the prohibition. Though creating a product with a banned substance prior to its prohibition obviously is permissible, doing so should be discouraged.

By placing a duty on defendants, the majority encourages the manufacture or sale of products known to be unsafe. That conflicts our well-established strict liability jurisprudence. Accordingly, the Court’s holding generates discord and confusion, rather than harmony, in our law. See Vega v. Piedilato, 154 N.J. 496, 510-11 , 713 A.2d 442 (1998) (Handler, J., concurring) (recognizing need to harmonize the law).

Besides, placing a duty on defendants to create or sell foggers with P-22 cannot shape their future behavior. The deterrence goal of tort law is well-grounded in our jurisprudence. See Gantes, supra, 145 N.J. at 489-90 , 679 A.2d 106 (emphasizing this State’s strict products liability law’s goal to discourage manufacture and distribution of harmful products). Of course, today United Industries cannot begin to put P-22, rather than the purportedly more flammable hydrocarbon propellant, in the Combat Room Fogger because doing so would be illegal. Therefore, imposing a duty on defendants in this case does not advance the deterrence goal of tort law.

In addition, imposing a duty on a manufacturer to design a product that has been prohibited contradicts the expectations the ban engenders. A manufacturer that did not design products with a subsequently banned substance known to be flawed would expect to be applauded for choosing not to use the substance prior to its proscription. By imposing a duty on defendants to have used P-22 in the foggers they created or sold, the court penalizes, rather than praises, defendants for creating or selling a product *583 that did not deplete the ozone layer. The unanticipated imposition of a duty on defendants is unfair because defendants had no opportunity to conform their behavior in accordance with the unexpected duty.

Lastly, imposing a duty on defendants puts both the manufacturer and seller in a quandary. If defendants had designed or sold foggers with P-22, a known ozone-depleter and a suspected teratogen, they would be subject to liability for the harms P-22 would have caused. By imposing a duty on defendants in this case, the majority is subjecting defendants to potential liability for using an alternative to P-22. Placing defendants in a bind from which they cannot escape the threat of liability is unfair. Instead, defendants should be immune from liability for manufacturing or selling a product that was known to have the undesirable effects that caused its subsequent ban.

The Court is misguided in converting this issue into a factual matter to be determined by a jury. In strict products liability cases, juries are enjoined to determine on the basis of a risk-utility analysis whether a product’s lack of safety outweighs its usefulness. See Freund v. Cellofilm Properties, Inc., 87 N.J. 229 , 238 n. 1, 432 A.2d 925 (1981) (explaining the risk-utility analysis). Plaintiffs theory of liability in this case requires a comparison of the risks of two distinct product designs. A jury ought not, in this context, be called upon to engage in a risk-risk analysis to determine which risk ultimately must be counterbalanced with the products’ utility. In permitting a jury to do so, the Court delegates its own nondelegable responsibility for determining as a matter of law whether a duty may appropriately be placed on a manufacturer.

II

Defendants should not be dutybound to design or sell a fogger that contained P-22, a substance that has been banned for depleting the ozone layer. At the time the fogger was manufactured or sold, there was information available to the manufacturers suffi *584 cient to impute knowledge to defendants that P-22 was an ozone depleter. The imposition of a duty contravenes this State’s public policy of preserving the environment, creates detrimental incentives, fails to deter defendants, and unfairly places defendants in an untenable position from which they cannot avoid liability. Imposing a duty in these circumstances disserves the public interest.

Because the majority believes that a jury should determine whether the Combat Room Fogger should have been designed to include P-22, I dissent from that aspect of the Court’s judgment.

Chief Justice PORITZ and Justice GARIBALDI join in this opinion.

For affirmance as modified — Justices POLLOCK, O’HERN, STEIN, and COLEMAN — 4.

Concur in part; dissent in part — Chief Justice PORITZ and Justices HANDLER and GARIBALDI — 8.