Petition — Riegel Textile Corp. v. Gryc ex rel. Gryc
Supreme Court brief1980
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upreme Court. U. S.
| ; Faw 2
80-279
AUG2 1 1980
No.
— | MigtAsh suns. JR., CLERK
IN THE ‘
Supreme Court of the Anited States
October Term, 1980
RIEGEL TEXTILE CORPORATION,
Petitioner,
VS.
LEE ANN GRYC, by her mother and natural guardian,
JACQUELYN GRYC, and JACQUELYN GRYC,
individually,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF MINNESOTA
JARDINE, LOGAN & O’BRIEN
Donald M. Jardine
Kent E. Charpentier
Attorneys for Petitioner on Appeal Only
1350 Northern Federal Building
St. Paul, Minnesota 55102
Phone: (612) 227-0601
1980—Northwest Brief Printing Co., 316 Chicago Avenue, Minneapolis 55415—338-5078
i
Questions Presented
1. Whether a state court is pre-empted from assess-
ing punitive damages against a fabric manufacturer when
the fabric claimed to have been defectively manufactured
admittedly complied with the safety standards contained
within the applicable United States Statute, Flammable
Fabrics Act of 1953, Ch. 164, §4, 67 Stat. 111, as amend-
ed, Ch. 833, 68 Stat. 770 (1954)?
2. Whether a state court is pre-empted from finding
that fabric is defective and unreasonably dangerous where
the fabric manufacturer admittedly complied with protec-
tive standards contained within the Flammable Fabrics
Act of 1953, Ch. 164, §4, 67 Stat. 111, as amended,
Ch. 833, 68 Stat. 770 (1954) and where under that stat-
ute the flammability of the fabric is classified as normal?
3. Whether a state court may refuse to apply a Fed-
eral statute because the state court finds the standard con-
tained within the Federal statute is invalid?
4. Whether an assessment, pursuant to a jury verdict,
of $1,000,000.00 in punitive damages against a fabric
manufacturer who has complied with. all applicable Fed-
eral statutes and regulations is a denial of due process
under the Fourteenth Amendment to the United States
Constitution?
1Petitioner considered an appeal under 28 U.S.C. §1257(1) based upon
the Minnesota Supreme Court’s express affirmance of the trial court’s
finding that the standard contained within the Flammable Fabrics Act
of 1953 is invalid. While petitioner still believes an appeal may be
appropriate, a Petition for Certiorari was made due to uncertainty as
to whether the declaration of invalidity by the Minnesota Supreme
Court was within the scope of 28 U.S.C. §1257(1).
11
5. Whether the trial court’s jury instruction gave
proper evidentiary weight to undisputed evidence that the
manufacturer complied with the Flammable Fabrics Act
of 1953, Ch. 164, §4, 67 Stat. 111, as amended, Ch. 833,
68 Stat. 770 (1954).?
2The pertinent portion of the instruction was as follows:
“Now, repeated reference has been made in this case to a test called
CS 191-53, which is a part of the Flammable Fabrics Act of 1953 as
amended, and it is contended by the defendant Riegel Textile Cor-
poration that the cotton flannelette manufactured by it was in com-
pliance with that test; however, since the Flammable Fabrics Act is a
criminal statute, compliance with that test is not the standard by
which the conduct of the defendant Riegel Textile Corporation is to
be measured.
As I told you before, the conduct of the defendant Riegel Textile is
to be measured by whether the cotton flannelette was in a defective
condition unreasonably dangerous to users, or consumers, at the time
it left the factory. In reaching our conclusion on that point, you will
consider, examine, and weigh with care all of the evidence in this
case, including the CS 191-53 test, to determine whether the cotton
flannelette failed to perform reasonably, adequately, and safely as
pajamas, or sleepwear, in a setting in which it might be accidentally
exposed to heat or flame.” [Tr. 2051]
iii
TABLE OF CONTENTS
Page
SED RONINOS 5: cle's 4 aV Slew se bane bao we waet i
SE I So oss hace 0 abn UD OO WRN nee Ol 1
Grounds Upon Which Jurisdiction is Invoked ...... 2
Statutes and Constitutional Clauses' Involved ....... 2
PE OG TD SD cc kere s hn estes ohne. eves 3
How Federal Question Was Presented ............ 5
Reasons for Granting the Writ ........ccccrecnes 6
RE Ce ee res yee re 13
APPENDIX INDEX
Opinion of Minnesota Supreme Court ............. A-1
Order Denying Petition for Rehearing ............ A-40
Order and Memorandum of the Trial Court ....... A-41
Jury Instructions Nos. 3 and 4 ............0.0ee- A-75
Transcript of Motion for Directed Verdict ........ A-75
Text of the Flammable Fabrics Act of 1953, as Amend-
ed in 1954, Prior to 1967 Amendment and Revision
16 C.F.R. §1610—Standard for the Flammability of
NE EMIS 55 4.6 b:w'aep Rk Mik lew tr Amb Ne A-81
Slip Opinion of Ralph Nader Connecticut Citizen Ac-
tion Group v. Allegheny Airlines, Inc. .......... A-89
Fourteenth Amendment to the United States Constitu-
SS EE hbk) d 60m bn bee ots ween baw anes A-102
Commerce Clause of the United States Constitution,
FE I hein oor Oe eRe dae A-103
Supremacy Clause of the United States Constitution,
pe a le GAP See rE a a Me ae FP A-103
Excerpts from Riegel Textile Corp.’s Post Trial Motions
SOP Ee ER LE PERT TOT TORT ELE TORT ETS A-104
Excerpts from Riegel Textile Corp.’s Briefs in Sup-
OOM Of POR TUG MIOUGR: vie cc secressccens A-106
iV
TABLE OF AUTHORITIES
Constitutional Provisions:
Fourteenth Amendment to the United States Constitu-
RS Be Oo ee tins palon es age eid 2
Commerce Clause of the United States Constitution,
PE Ce a ee Set Oh eee RVS a ORR DORKS pe
Supremacy Clause of the United States Constitution,
Se oe ha nde kn eh es Ck Mees when y Se
Statutes and Rules:
United States Code:
ee PEED bs bc b's Sakon a 08 hve ko eae o' 2
IE a 6 xn ds 6 EKER ORa dee 2
ee Pe Oe CP os a's V0.0 oes cea weeNs 2
Flammable Fabrics Act of 1953, Ch. 164, 67 Stat. 111,
Etienne Oe 4k eee 6 a, a Me Te Oe ee ee
en: WE oo oe ae Cae. 3
Cases:
Bellotte v. Zayre Corp., 531 F.2d 1100 (1st Cir. 1976) 11
Benson Coop. Creamery Assn. v. First Dist. Assn., 276
Minn. 520, 151 N.W.2d 422 (1967) ............ 9
Howard v. McCrory Corp., 601 F.2d 133 (4th Cir.
je RPGS Ree enter cag rr ate OTe rer ae 11-12
Jones v. Rath Packing Co., 430 U.S. 519 (1977) ..8, 9
Kirschbaum v. Lowrey, 165 Minn. 233, 206 N.W. 171
Ce ee we inte ee rk er de AA ly oie Te 9
Northern States Power Co. v. State of Minn., 447 F.2d
1143 (8th Cir. 1971) aff'd., 405 U.S. 1035 ...... 6
Ralph Nader Connecticut Citizen Action Group v. Al-
legheny Airlines, Inc. (U.S.C.A., D.C., filed May 16,
BE REED as Ov hep halos 0s bw ek Oe cee ah 10
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)...
EIT OPE rn Teer Lee ee EE EET EP ECS 6, 8, 9
Raymond v. Riegel Textile Corp., 484 F.2d 1025 (1st
ME) BAR Anes oe Pare etree 11
Simien v. S. S. Kresge Co., 566 F.2d 551 (Sth Cir.
SPER SONAR RCAEER ONES SARL EADE CEE UER ERS 11, 12
IN THE
Supreme Court of the Gnited States
October Term, 1980
No.
RIEGEL TEXTILE CORPORATION,
Petitioner,
vs.
LEE ANN GRYC, by her mother and natural guardian,
JACQUELYN GRYC, and JACQUELYN GRYC,
individually,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF MINNESOTA
Petitioner, Riegel Textile Corporation, prays that a Writ
of Certiorari issue to review the judgment and opinion
of the Supreme Court of the State of Minnesota, filed on
May 23, 1980.
Opinions Below
The Supreme Court of the State of Minnesota filed its
opinion on May 23, 1980. It has not yet been reported.
A copy is located in the Appendix at A-1. An Order
denying a Petition for Rehearing, dated July 10, 1980
and which is also unreported, appears at A-40. The Opin-
ion of May 23, 1980, affirmed a judgment entered in the
2
County of Ramsey in the Second Judicial District of the
State of Minnesota entered pursuant to an Order and
Memorandum of the trial court dated August 7, 1978.
The Order and Memorandum appear at A-41.
Grounds Upon Which Jurisdiction Is Invoked
The Opinion of the Supreme Court for the State of
Minnesota was filed on May 23, 1980. Rehearing was
denied on July 10, 1980. This Petition is timely in that
it is filed prior to the expiration of the 90-day period
allowed by 28 U.S.C. §2101(c). Jurisdiction of this Court
is invoked pursuant to 28 U.S.C. §1257(3) and Rule
17(1)(b) and (c) of the Rules of the Supreme Court
of the United States.
Statutes and Constitutional Clauses Involved
The questions presented in this Petition for Certiorari
involve the Flammable Fabrics Act of 1953, Ch. 164,
67 Stat. 111, as amended, Ch. 833, 68 Stat. 770 (1954).
The standard of flammability is contained within Sec. 4
of the Act. The entire act has been reproduced in the
Appendix at A-78. Sec. 4 incorporates by reference the
commercial standard promulgated by the Secretary of
Commerce effective January 30, 1953 and identified as
“Flammability of Clothing Textiles, Commercial Standard
191-53”. CS 191-53 as set out in 16 C.F.R. §1610, et
seq., and has been reproduced at A-81.
The questions presented also involve the Fourteenth
Amendment to the United States Constitution as well as
the Commerce Clause and the Supremacy Clause of the
United States Constitution. Art. 1, Sec. 8, Cl. 3 and Art.
3
VI, Cl. 2. These sections of the United States Constitu-
tion have been reproduced at A-102-3.
Statement of the Case
Plaintiff Jacquelyn Gryc initiated this product liability
action in Ramsey County District Court in the Second
Judicial District of the State of Minnesota to recover dam-
ages for burn injuries sustained by her minor daughter,
Lee Ann. The incident occurred on December 8, 1969,
when Lee Ann, then just short of five years of age, climbed
up on a chair or counter and reached over three operat-
ing burners on an electric kitchen range for the purpose
of turning off an overhead timer. Apparently while do-
ing this, her flannelette pajamas ignited. The flannelette
material was manufactured in August of 1967.
Plaintiff joined as defendants: appellant Riegel Textile
Corporation, the manufacturer of the cotton flannelette
cloth used in the pajamas; Style Undies, Inc., the designer
and manufacturer of the pajamas; Associated Merchan-
dising Corporation (AMC), the wholesaler of the pajamas;
and Dayton-Hudson Corporation, the retailer. All of the
defendants except for Riegel Textile Corporation settled
with plaintiff prior to trial.
The matter was tried before the Court and a six-member
jury in Ramsey County District Court. The jury found,
by a 5/6 verdict,*® that the cotton flannelette contained
in the pajamas worn by Lee Ann Gryc and manufactured
by petitioner Riegel was defective and that the defect was
a cause of the injuries sustained by Lee Ann. The jury
found that Riegel Textile Corporation was 90 percent
oe. the six jurors joined in the verdict as provided for in Minn. Stat.
01,
4
responsible and Lee Ann Gryc was 10 percent respon-
sible for her own injuries. The trial court subsequently
held as a matter of law that Lee Ann could not be re-
sponsible for her own injuries. Compensatory damages
were awarded in the amount of $750,000.00 and punitive
damages were assessed against Riegel in the amount of
$1,000,000.00. The judgment entered pursuant to the ver-
dict was affirmed in all matters by the Minnesota Su-
preme Court in its opinion of May 23, 1980.
It was undisputed that the flannelette material contained
in the subject pajamas complied with Commercial Stan-
dard 191-53, which is incorporated into and made a part
of the Flammable Fabrics Act of 1953, Ch. 164, §4, 67
Stat. 111, as amended, Ch. 833, 68 Stat. 770 (1954).
Under the Act, the flammability of the subject flannelette
is classified as normal. Flammable Fabrics Act of 1953,
Ch. 164, §4, 67 Stat. 111, as amended, Ch. 833, 68 Stat.
770 (1954); 16 C.F.R. §1610.3(a) (1) (ii).
The trial court v’ ‘mately ruled that compliance with
the Flammable Fabnivs Act and CS 191-53 did not pro-
vide a defense for Riegel since the CS 191-53 test was
an “invalid” test, (Order and Memorandum, A-52 and
68.) The Minnesota Supreme Court affirmed the trial
court’s finding that the CS 191-53 test was invalid. (Opin-
ion of May 23, 1978, A-14.) The Minnesota Supreme
Court further held the state court was not pre-empted by
the Flammable Fabrics Act and the Supremacy Clause
of the United States Constitution from awarding compen-
satory damages and assessing $1,000,000.00 in punitive
damages against a manufacturer whose product fully com-
plied with the Flammable Fabrics Act.
5
How Federal Question Was Presented
Based in part upon the fact that there was full com-
pliance with the Flammable Fabrics Act and the CS 191-53
test, motions for a directed verdict on both compensatory
and punitive damages were made by Riegel.*
Petitioner requested two jury instructions concerning
the weight to be given the undisputed compliance by the
manufacturer with the Flammable Fabrics Act.> Both
instructions were denied by the trial court.
The trial court’s instruction concerning the Flammable
Fabrics Act and specifically the CS 191-53 standard was
raised in Riegel’s post trial motions. The issue was also
extensively briefed at this point.° The trial court discussed
this issue in its Order and Memorardum denying the
post trial motions. A-49. The issue was again raised in
both Petitioner’s Appellate Brief and its Petition for Re-
hearing. The Minnesota Supreme Court was silent on this
issue.
The issue of whether the Flammable Fabrics Act pre-
empts the enforcement of any inconsistent state law or
court ruling was initially raised by Riegel’s Motion for a
Directed Verdict based, in part, upon its undisputed com-
pliance with the CS 191-53 standard of the Flammable
Fabrics Act.” The issue was again raised and extensively
briefed during the post trial motions® and in Petitioner’s
‘This appears at Pages 1705 and 1708-9 of the trial transcript which has
been reproduced at A-75.
5The requested jury instructions have been Sgro at A-75.
®Excerpts of the post trial motion and briefs in support of the post trial
motion have been reproduced at A-104.
TSee Pages 1705 and 1708-9 of the trial transcript reproduced at A-75.
SExcerpts from Riegel’s Post Trial Motion and supporting briefs have
been reproduced at A-104.
6
Appellate Brief. The Minnesota Supreme Court devoted
a significant portion of its opinion to this issue.
The due process issue was first raised as a separate
issue in the Petition for Rehearing. It was raised in re-
sponse to the Minnesota Supreme Court’s holding that the
Flammable Fabrics Act does not pre-empt the state court’s
imposition of punitive damages. The Court did not ad-
dress the issue in its Order denying the Petition for Re-
hearing.
Reasons for Granting the Writ
1. To decide an important Federal constitutional issue.
An analysis of the pre-emption issue in a case such as
this requires at the outset a determination as to whether
Congress intended to pre-empt the area, in this case, the
regulation of flammable fabrics. The intent of Congress
is revealed by the statutory scheme and its legislative his-
tory. Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978);
and Northern States Power Co. v. State of Minn., 447
F.2d 1143 (8th Cir. 1971) affirmed, 405 U.S. 1035. A
review of the statute and the legislative history of the
Flammable Fabrics Act of 1953, Ch. 164, 67 Stat. 111,
as amended, Ch. 833, 68 Stat. 770 (1954) clearly in-
dicates an intent by Congress to obtain a uniform stan-
dard and to pre-empt state action.®
%Senate report No. 400 demonstrates this intent. It states in part:
“Moreover, the committee was urgently requested to take prompt
action on this legislation. It was pointed out that if this legislation is
not enacted, a variety of State and local regulations lacking in uni-
formity might very well ensue. It seems obvious that uniformity of
regulation in this matter is necessary.” (emphasis added) 1953 U.S.
Code and Administrative News, 1722, 1724.
7
Given the clear intent of Congress to pre-empt state
action in order to obtain a uniform set of regulations for
fabric manufacturers, there should be no argument that
The danger of State regulation in this area is more clearly stated in
the testimony of Charles W. Dorn, Chairman of the Technical Com-
mittee of the National Retail Dry Goods Association, who appeared
before the Committee in support of the legislation. Mr. Dorn’s testi-
mony quoted in the Committee report was termed “another cogent
reason for its [Flammable Fabrics Act] enactment”. He testified in part:
“* * * The confusion which is bound to result if the several states
were to legislate individually on the subject is obvious, for in the
absence of a national standard, each state and local community
would provide for different guides or measurements. I can readily
testify that this is not an idle conclusion, for in the past months the
possibility of a Federal enactment has been the sole basis for post-
poning very unsatisfactory legislation in several States.
“Failure by this Con to act undoubtedly will cause a flood of
haphazard local legislation which will not only bring on an —
sible situation in the textile industries, but, more important, will deny
to many consumers the responsible protection contained in the pro-
posed bills.
“The manufacturers of your respective States would have great dif-
ficulty in producing garments or fabrics which would comply with
the different requirements of two or twenty different state acts, to
say nothing of different local ordinances * * * 1953 U.S. Code and
Administrative News at 1727.
The Flammable Fabrics Act amended in 1967 to add an explicit
pre-emption provision:
“This Act is intended to supersede any law of any State or political
subdivision thereof inconsistent with its provisions.” Flammable Fab-
rics Act, Pub.L. No. 90-189, §16, 81 Stat. 568.
An explanation of this pre-emption provision was contained within
the Committee report on the Flammable Fabrics Act, 103 Congres-
sional Record 20328 (July 27, 1967):
“EFFECT ON STATE LAW
“The mass production, high volume, and national marketing char-
acter of the textile industry requires that flammability standards be
uniform throughout the country. Accordingly, the bill would pre-
empt any law of any state or political subdivision thereof which is
inconsistent with its provision.
“This bill would not affect the state’s ability to set more stringent
requirements for their own procurement and for state and local fire
building codes. However, it would avoid multiple regulation of
manufacturers covered by the federal law.” (Emphasis added.)
Minnesota would be precludea from enforcing legislation
imposing a $1,000,000.00 fine on textile manufacturers
whose products, while fully complying with the standards
set out in the Flammable Fabrics Act, did not comply
with Minnesota’s own safety standards. Ray v. Atlantic
Richfield Co., supra, and Jones v. Rath Packing Co., 430
U.S. 519 (1977).
The affront to Congress’ stated intent of uniformity is
even greater in the case of an ad hoc decision of five
randomly selected jurors than in the case of fifty differ-
ent state regulatory schemes throughout the nation. In
the case of the state regulatory schemes, the schemes
are enacted by the legislature or promulgated by a reg-
ulatory agency after notice and hearings complying with
certain due process requirements. Obviously, that is not
the case with an ad hoc decision of five jurors. Even
more importantly, in the case of the fifty state regula-
tory schemes, the fabric manufacturers would be aware
of the regulations and able to take actions to conform
with the regulations. In stark contrast, the fabrics manu-
facturers have little indication as to the criteria to be
used by randomly selected jurors who are given extremely
vague criteria in their instructions.
Upholding such punitive damage awards would have
an undue burden on interstate commerce and would have
a chilling effect on product manufacturers. In order to
safeguard itself from the imposition of punitive damages,
the manufacturer would be compelled to refrain from man-
ufacturing and marketing many useful and relatively in-
expensive products. Instead, the manufacturer would be
compelled to manufacture products, which while being
9
marginally safer, would likely be inferior in quality, less
useful and more expensive. Such a result may be a legiti-
mate policy decision, but such policy decisions are ex-
clusively within the province of Congress to make. Such
a decision was made at the time of the enactment of the
Flammable Fabrics Act of 1953. A jury of five should
not be able to replace the judgment of Congress with its own.
The assessment of a $1,000,000.00 penalty against pe-
titioner cannot be justified by calling the punitive dam-
age assessment a private remedy which is not provided
for in the Act. The purpose of punitive damages are not
to compensate the plaintiff for her injuries. Rather, puni-
tive damages are intended to punish the actor for his
malicious acis and deter others from performing similar
acts. Benson Coop. Creamery Assn. v. First Dist. Assn.,
276 Minn. 520, 151 N.W.2d 422 (1967); Kirschbaum
v. Lowrey, 165 Minn. 233, 206 N.W. 171 (1925).
Obviously, the injunctive relief and sanctions available
under the Flammable Fabrics Act are provided for the
same purpose. The doctrine of pre-emption precludes a
manufacturer from being punished by sanctions much
more severe than those available under the United States
statute when the actions being punished are in conformity
with applicable safety regulations contained within the
United States statute. Ray v. Atlantic Richfield Co., supra,
and Jones v. Rath Packing Co., supra.
10
2. The issue of whether a state is pre-empted from pun-
ishing a manufacturer of a fabric which substantially
exceeds applicable safety standards contained in a
United States statute has never been considered by a
United States Appellate Court.
Petitioner has been unable to locate any appellate de-
cision, save for the subject decision by the Minnesota
Supreme Court, which has considered the issue of wheth-
er punitive damages can be assessed when the subject
fabric undisputedly complies with the CS 191-53 standard
contained in the Flammable Fabrics Act of 1953. In fact,
petitioner has been unable to locate any appellate deci-
sion allowing punitive damages when a manufacturer has
complied with all Federal regulations.?°
This is an issue of great importance which will
arise again and again in the immediate future as
increasingly more jurisdictions allow punitive dam-
ages in products liability actions. Guidance from the
United States Supreme Court is imperative to settle
the issue as to whether compliance with an appli-
cable federal safety standard precludes the imposition
of punitive damages against the complying manufac-
turer.
10Reference should be made, however, to Ralph Nader Connecticut Citi-
zen Action Group v. Allegheny Airlines, Inc. (U.S.C.A. D.C., filed
May 16, 1980), reproduced at A-89. There, the Court held it was err
to assess punitive damages against an airlines for overbooking when
the airlines’ action “conformed to the standards set and the practices ap-
proved by the agency charged with the duty of regulating it—standards
and —— that the agency has found to be in the public interest.”
(A-97). The same can be said for the standards regulating fabric manu-
facturers contained in the Flammable Fabrics Act which was found by
Congress to be in the public interest.
11
3. Both the jury instruction concerning the evidentiary
weight fo be given Riegel’s undisputed compliance
with the CS 191-53 test of the Flammable Fabrics Act
and the trial court’s holding that the CS 191-53 was
invalid, conflict with circuit court decisions construing
and applying the Flammable Fabrics Act.
Riegel requested the trial court instruct the jury as
follows:
“You are instructed that ev.dence that the fabric
sold by defendant Riegel Textile passed the Federal
Flammable Fabrics Act test, CS 191-53, is evidence
that the fabric was not unreasonably dangerous at the
time of its sale.”
The request was denied.
The trial court determined that the CS 191-53 test con-
tained in Section 4 of the Flammable Fabrics Act was
invalid. (Order and Memorandum at A-52 and 68). Based
upon this finding, the trial court refused to give an instruc-
tion giving evidentiary weight to Riegel’s compliance with
the Act. In fact, Riegel’s compliance with the Act was
termed by the trial court to be “hid[ing] behind the invalid
CS 191-53 Flammability test” and a basis for an award of
punitive damages (Order and Memorandum A-64). The
Minnesota Supreme Court affirmed the finding that CS
191-53 was invalid. (Opinion of May 23, 1980, A-14.)
Circuit court decisions which have considered the issue
have held to the contrary. Simien v. S. S. Kresge Co., 566
F.2d 551 (Sth Cir. 1978); Bellotte v. Zayre Corp., 531
F.2d 1100 (1st Cir. 1976); Raymond v. Riegel Textile
Corp., 484 F.2d 1025 (1st Cir. 1973); and Howard v.
12
McCrory Corp., 601 F.2d 133 (4th Cir. 1979). While
the cases hold that compliance with the Flammable Fab-
rics Act and the CS 191-53 standard is not in itself con-
clusive evidence that the fabric is not unreasonably haz-
ardous, compliance with the Act and the standard have
been consistently held to be relevant evidence that the
subject fabric was not unreasonably hazardous. In fact,
in Simien v. S. S. Kresge Co., supra, the Court held that
an instruction that compliance with the Commercial Stan-
dard was evidence that the subject jacket was defective
was in and of itself grounds for reversal. Id. 566 F.2d
554-5. The Court further held that the erroneous instruc-
tion, when considered in light of the charge as a whole,
could at best be considered internally inconsistent. Since
this inconsistency may well have deprived Kresge of the
benefit of its persuasive evidence on the issue of liability,
a reversal was granted. Jd. 566 F.2d at 555. Exactly the
same can be said of the trial court’s instruction in this case.
The Minnesota State Court’s failure to give proper evi-
dentiary weight to compliance with the Federal Act and
Standard is an insult to the Federal system and a clear
violation of both the Commerce Clause and the Supremacy
Clause of the United States Constitution. (Art. I, Sec. 8,
Cl. 3 and Art. VI, Cl. 2.)
13
CONCLUSION
Petitioners respectfully request the Court to issue a writ
of certiorari to the Supreme Court of Minnesota.
Respectfully submitted,
JARDINE, LOGAN & O’BRIEN
/s/ DONALD M. JARDINE
/s/ KENT E. CHARPENTIER
1350 Northern Federal Building
St. Paul, MN 55102
Phone: (612) 227-0601
Attorneys for Petitioner on Appeal Only
A-1
APPENDIX
No. 4 Ramsey County Todd, J.
Lee Ann Gryc, by her mother and natural guardian, Jac-
quelyn Gryc, and Jacquelyn Gryc, individually,
Respondents,
vs.
Dayton-Hudson Corp., et al,
Defendants,
Riegel Textile Corp.,
Appellant.
Endorsed
Filed May 23, 1980
John McCarthy, Clerk
Minnesota Supreme Court
49334 and 49525
SYLLABUS
1. Punitive damages may properly be awarded in an
appropriate strict liability case.
2. Appellant’s compliance with an applicable federal
safety standard does not preclude a punitive damages
award as a matter of law.
3. The preemption provision of the federal Flammable
Fabrics Act and the Supremacy Clause of the United
States Constitution do not prohibit the imposition of puni-
tive damages on a defendant who has complied with that
Act.
A-2
4. Since appellant failed to object below to the trial
court’s instruction to the jury on the issue of punitive
damages, the instruction became the law of the case and is
not subject to review on appeal.
5. There was sufficient evidence to support the award
of punitive damages.
6. Policy considerations do not dictate against an
award of punitive damages in this case.
7. The award of $1,000,000 in punitive damages is
not clearly excessive as a matter of law.
8. There was sufficient evidence to support the find-
ing that appellant manufactured a defective product and
that respondents were not aware of the defect.
9. The jury verdict was not perverse when it found
appellant to have caused respondents’ injuries while at
the same time finding that the other defendants in the
stream of commerce did not cause those injuries.
10. Appel'ant was not prejudiced by the trial court’s
dismissal of appellant’s counterclaim against Jacquelyn
Gryc when the jury found that Jacquelyn Gryc was not at
fault.
11. The trial court did not err in finding that the 4-
year-old child, Lee Ann Gryc, could not be comparatively
at fault as a matter of law.
12. There is no merit to appel’ant’s contention that
the trial court committed cumulative errors and that re-
spondents’ counsel engaged in misconduct which denied
appellant a fair trial.
A-3
13. The award of $750,000 in compensatory damages
is not clearly excessive as a matter of law.
Affirmed.
Heard, considered, and decided by the court en banc.
OPINION
TODD, Justice.
On December 8, 1969, Lee Ann Gryc, ten 4 years of
age, was clothed in pajamas made from a cotton material
manufactured by defendant Riegel Textile Corporation
(Riegel). The material was commercially known as “flan-
nelette.” It was not treated but did meet the minimum
federal standards of product flammability. Lee Ann
reached across the electric stove in her home to shut off a
timer. Her pajamas were instantly ignited and she received
severe burns over her upper body. The jury found Riegel
liable for these injuries and awarded Lee Ann $750,000
in compensatory damages and $1,000,000 in punitive
damages. We affirm.
At the time of the incident, the Gryc family consisted of
Gerry Gryc, his wife Jacquelyn, and their two children,
Tammy, age 6, and Lee Ann, age 4. On the morning of
December 8, 1969, Jacquelyn Gryc, after sending Tam-
my to school, began doing housework around her home.
She was cooking various items on three burners of an elec-
tric stove. Just prior to the accident, she set a timer situated
above the stove and went down into the basement to do
some laundry. At that time, Lee Ann was watching televi-
sion in the living room. She was clothed in pajamas, the
fabric of which was 100 percent untreated cotton flannel-
A-4
ette manufactured by Riegel. Gerry Gryc had just risen
and was getting dressed in an upstairs bedroom.
It appears that, at approximately 9:30, the timer on the
stove went off, Lee Ann went into the kitchen, pulled a
chair over to the stove, climbed onto it, reached above the
stove, and turned off the timer. Her pajama top came in
contact with a lighted burner and ignited. Her parents
heard Lee Ann scream. Jacquelyn, who had been pro-
ceeding up the back stairway to turn off the timer, ran up
the stairs and saw Lee Ann standing near the top of the
stairs. Lee Ann’s pajama top was engulfed in flames.
Jacquelyn grabbed a towel, wrapped it around Lee Ann,
and extinguished the flames. It was estimated that the pa-
jama top burned for 8 to 12 seconds before it was extin-
guished. Gerry Gryc ran downstairs and immediately drove
Lee Ann to a nearby hospital.
Lee Ann remained in the hospital through January
1970. As a result of the incident, she suffered severe sec-
ond- and third-degree burns and resultant scars on 20 per-
cent of her body in the regions of her arms, chest, breasts,
stomach, back, neck, and chin. During her hospitalization,
Lee Ann underwent skin grafting procedures. Lee Ann
has additional scars on her thighs as a result of these pro-
cedures. Lee Ann’s scars are permanent—her appearance
cannot be improved through plastic surgery.
At trial, plaintiffs contended and presented evidence
which tended to prove that the fabric used in the Gryc
pajamas was defective. They claimed and their evidence
tended to show that: (1) the cotton flannelette was unrea-
sonably dangerous for use in children’s sleepwear because
of its highly flammable characteristics; (2) there were
A-5
commercially available durable flame retardant chemicals
which could have significantly increased the safety of the
product; (3) there were inherently flame retardant syn-
thetics which could have been used for children’s sleep-
wear instead of cotton flannelette; (4) garment manu-
factures, sellers, and consumers should have been warned
of the flammable characteristics of the cotton flanne'ette;
and (5) consumers should have been instructed of a simple
home remedy which could have been used to flame retard
the fabric after each washing.
Riegel defended the action by attempting to prove that
the cotton flannelette was not unreasonably dangerous be-
cause: (1) it complied with the federal Flammable Fab-
rics Act; (2) no warning was necessary since cotton flan-
nelette contained only normal and obvious hazards; and
(3) the state of the art during the relevant time period was
such that there were no chemical durable flame retardant
chemicals available for use on cotton flannelette which
would not negatively affect the fabric and make it unsale-
able, and there were no availab’e inherently retardant syn-
thetics for use in children’s sleepwear.
The pajamas worn by Lee Ann were two-piece, loose-
fitting, and the pajama top flared out at the waist. The
flannelette used in the pajamas was manufactured by Rie-
gel and distributed to defendant Style Undies, Inc., on or
before August 31, 1967. An employee of defendant As-
sociated Merchandising Corporation (AMC) contacted
Style Undies, Inc., about producing cotton flannelette
s'eepwear for children. The employee of AMC selected
the fabric and design of the pajamas. After Style Undies,
Inc., manufactured the pajamas, AMC distributed them
to its member store, defendant Dayton-Hudson Corpora-
A-6
tion. Jacquelyn Gryc bought the pajamas at a Dayton-
Hudson store in the summer or fall of 1969.
The flannelette used in Lee Ann’s pajamas was woven
material made from yarns spun from natural cotton fiber.
The fabric was brushed on one side which created a nap.
Flannelette is light weight, warm, and absorbent. It has
a soft feel or “hand”, breathes well, and is launderable and
durable. It is relatively inexpensive. Flannelette was very
popular during the relevant time period because of these
qualities and was the dominant fabric used in children’s
winter sleepwear.
The flannelette used in Lee Ann’s pajamas was not
treated with any flame retardant. Its flammable charac-
teristics were demonstrated by one of plaintiffs’ expert
witnesses, Dr. Robert Johnson, by film at trial. Dr. John-
son reconstructed Lee Ann’s accident by making a copy
of Lee Ann’s pajamas, placing them on a mannequin the
size of Lee Ann, and using an ignition source similar to the
Gryc electric burner. The film showed that the fabric
ignited instantaneously when the hem of the pajama top
was placed in contact with the ignition source. The front
of the pajama top burned from hem to neck in 4 to 5 sec-
onds. The same experiment was performed on a pair of
pajamas of the same design but constructed of newsprint.
The newsprint pajamas burned only slightly faster than
did the untreated flannelette pajamas.
Plaintiff's experts concluded that the untreated cotton
flannelette was unreasonably dangerous for use in child-
ren’s sleepwear because of the instantaneous manner in
which the fabric ignited, the speed at which it burned,
_ the amount of heat produced when it burned, and the dif-
ficulty of extinguishing the flames. Defendant’s experts
A-7
characterized these burning characteristics as “normal”
for the mass of the fabric and as a “natural” phenomenon
for cotton, the characteristics of which had not changed
for hundreds of years. They conc!uded, therefore, that the
fabric used in the Gryc pajamas was not defective.
The bulk of the testimony at trial concerned the state of
the art with respect to flame-retardant processes at the time
the fabric used in the Gryc pajamas was manufactured. It
was not seriously disputed at trial that there were products
available from the early 1950’s through 1967 which were
capable of being applied to lightweight cotton flannelette
which would flame retard the fabric and which were dur-
able, i. e., would remain on the fabric through 50 wash-
ings. These products were manufactured by various com-
panies and were identified at trial by various trade names
—Proban, Pyrovatix, Roxel, and Lynrus FR-1. All of
these products were made from the chemical tetrakis hy-
dromethyl phosphonium chlorida (THPC).
It was shown at trial that the safety of cotton flannelette
could be significantly increased by applying this type of
product to the fabric. Dr. Johnson, by film, demonstrated
the flammable characteristics of flame retarded cotton
flannelette. He created a pair of pajamas like those which
Lee Ann had worn, except that they were treated with a
flame-retardant process available in 1967. The pajamas
were placed against a heat source similar to an electric
burner for 30 seconds. The pajamas blackened, burned,
and charred but did not flame in an area 6 inches wide
and 8 inches Jong in that 30 seconds. When the fabric was
removed from the heat source, the blackening and char-
ring stopped.
A-8
The serious dispute between the experts concerned the
availability of flame-retardant processes during the rele-
vant time period which would not destroy the desirable
characteristics of cotton flannelette. Plaintiffs’ experts
testified that, as early as 1962, there were flame-retardant
processes which would be applied to the fabric without
adversely affecting its qualities enough to make it unsale-
able. Plaintiffs also showed that, in England, flannelette-
like sleepwear was required by law to be flame retarded
since the 1950's.
Defendant’s experts were of the opposite view. They
testified that there were no durable flame retardant chem-
icals which could be applied to the fabric without severely
reducing its tensile and tear strength, its soft feel, increas-
ing its weight and cost, and adversely affecting the color
of the fabric.
Plaintiffs’ witnesses admitted that there were no mills
producing flame retarded flannelette for public consump-
tion in any volume in 1967. However, both of plaintiffs’
experts testified that the flame retardant chemicals and the
process for applying them could have been made com-
mercially available as early as 1962-1966, if only the tex-
tile mills had so desired.
There was limited testimony concerning the availability
of inherently flame retardant synthetics for use in child-
ren’s sleepwear in 1967. Plaintiffs’ expert testified that
such products could have been made at that time. Defen-
dant’s experts testified that these products could not be
spun finely enough to make flannelette-type yarn, were
not soft, would shrink, and were unreasonably costly.
Defendant’s experts contended that no warning of the
flammable characteristics of cotton flannelette was nec-
A-9
essary on the Gryc pajamas because its burning character-
istics are obvious and natural for the mass of the fabric.
However, p’aintiffs introduced a great amount of testi-
mony tending to show that garment manufacturers, whole-
salers, retailers, and consumers were not aware of the
highly flammable characteristics of untreated cotton flan-
nelette. Their evidence tended to show that Riegel and
other garment manufacturers were uniquely aware of
these characteristics.
Defendant’s experts were also of the opinion that a
warning would not be feasible or practical because Riegel
could not be assured that such a warning wou'd get be-
yond the garment manufacturers. However, there was
testimony that for other purposes Riegel could and did use
tags which were sent through the chain of commerce and
did reach consumers.
Defendant’s experts were also of the opinion that a
warning would “stigmatize” Riegel’s flannelette and make
it unmarketable as compared with identical flannelette
from competitor mills.
Plaintiffs also claimed that defendant Riegel should
have instructed consumers of a home remedy which would
temporarily flame retard flannelette pajamas. This remedy,
a water base so'ution of boric acid and borax, would come
out in the wash, but could be simply sprinkled on cloth-
ing after each washing. Dr. Johnson conducted a test with
a pair of flannelette pajamas treated with such a solution.
The pajamas did not ignite when they were held against a
hot plate for 5 seconds.
The issues presented on this appeal are:
(1) Whether the award of punitive damages is an ap-
propriate remedy in a products liability case;
A-10
(2) Whether defendant’s compliance with an applica-
ble federal safety standard precludes a punitive damages
award;
(3) Whether the imposition of punitive damages on
a defendant who has complied with the federal Flam-
mable Fabrics Act is prohibited by the preemption provi-
sion of that Act or by the Supremacy Clause of the United
States Constitution;
(4) Whether the trial court applied the proper legal
standard in instructing the jury on the issue of punitive
damages;
(5) Whether there was sufficient evidence to support
the award of punitive damages in this case;
(6) Whether policy considerations dictate against an
award of punitive damages in this case;
(7) Whether the award of $1,000,000 in punitive
damages is excessive;
(8) Whether there was sufficient evidence to support
a finding that defendant manufactured a defective product
and that plaintiffs were not aware of the defect;
(9) Whether the jury verdict was perverse when it
found defendant Riegel to have caused plaintiffs’ injuries
while at the same time finding that the other defendants
in the stream of commerce did not cause those injuries;
(10) Whether defendant was prejudiced by the trial
court’s dismissal of defendant’s counterclaim against Jac-
quelyn Gryc when the jury found that Jacquelyn Gryc was
not at fault;
A-11
(11) Whether the trial court erred in finding that the
4-year-old child, Lee Ann Gryc, could not be comparatively
at fault as a matter of law;
(12) Whether the trial court committed cumulative
errors and plaintiffs’ counsel ensaged in misconduct which
denied defendant a fair trial;
(13) Whether the award of $750,000 in compensa-
tory damages is excessive.
1. This case presents the question, not heretofore
considered by this court, of whether punitive damages
may be appropriately awarded in the context of a strict
liability action. There is ample authority from many juris-
dictions approving this remedy in strict liability cases.’
An exhaustive article, Owen, Punitive Damages in Prod-
ucts Liability Litigation, 74 Mich. L. Rev. 1258 (1976),
discusses the pros and cons of allowing such an award.
The author concludes that punitive damages are an ap-
propriate remedy in such cases based on the following
rationale:
Manufacturers have a powerful hold over the means
for discovering and correcting product hazards.
Through the processes of design, testing, inspection
1See Hoffman v. Sterling Drug, Inc., 485 F, 2d 132 (3rd Cir. 1973);
Gillham vy. Admiral Corp., 523 F. 2d 102 (6th Cir. 1975), cert. de-
nied, 424 U.S. 913 (1976); Boehm v. Fox, 473 F. 2d 445 (10th Cir.
1973); Maxey v. Freightliner Corp., 450 F. Supp. 955 (N. D. Tex.
1978); Drake v. Wham-O Mfg. Co., 373 F. Supp. 608 (E. D. Wis.
1974); Sturm, Ruger & Co. v. Day, 594 P. 2d 38 (Alaska 1979); Toole
v. Richardson-Merrell, Inc., 251 Cal. App. 2d 689, 60 Cal. Rptr. 398
(1967); Moore v. Jewel Tea Co., 116 Ill. App. 2d 109, 253 N. E. 2d
636 (1969), aff'd, 46 Ill. 2d 288, 263 N. E. 2d 103 (1970); Rinker
v. Ford Motor Co., 567 S. W. 2d 655 (Mo. Ct. App. 1978). But see
Roginsky v. Richardson-Merrell, Inc., 378 F. 2d 832 (2nd Cir. 1967).
A-12
and collection of data on product safety performance
in the field, the manufacturer has virtua'ly exclusive
access to much of the information necessary for ef-
fective control of dangers facing product consum-
ers. 9 © ©
Most manufacturers, both from a desire to avoid
liability and from a generalized sense of social re-
sponsibility, prudently use their resources to prevent
excessively hazardous products from reaching or
staying on the market. On occasion, however, man-
ufacturers abuse their control over safety information
and market defective products in flagrant disregard
of the public safety. * * * A legal tool is needed
that will help to expose this type of gross miscon-
duct, punish those manufacturers guilty of such
flagrant misbehavior, and deter all manufacturers
from acting with similar disregard for the public wel-
fare. The punitive damages remedy is such a tool.
Id. at 1258-60.
Based on this rationale, we recognize today that puni-
tive damages, in an appropriate case, may properly be
awarded in a strict liability action.
2. The Flammable Fabrics Act of 1953, Chap. 164,
§ 4, 67 Stat. 111, as amended, Chap. 833, 68 Stat. 770
(1954), in effect at the time this cause of action arose,’
applied to fabrics sold in interstate commerce for wearing
apparel. This statute sets forth a test to determine whether
a fabric is dangerous when used in clothing. This test,
?The Flammable Fabrics Act was subsequently amended to provide for
more stringent regulation of fabric used for children’s sleepwear. How-
ever, these revisions are inapplicable to this cause of action.
A-13
termed CS 191-53, requires that sample fabrics be dried
out and cut into 2-inch by 6-inch lengths. The samples
are mounted in an enclosed testing box at a 45° angle.
The sample is then impinged with a standard 5/8 inch
flame at the top of the fabric for 1 second. If the fabric
ignites, the number of seconds it takes the flame to
burn 5 inches is measured. A napped fabric which does
not ignite in 1 second or which ignites and burns 5 inches
in more than 4 seconds is considered to be of intermediate
flammability, passes the test, and may be used in wearing
apparel. See 16 C.F.R. §§ 1610.3(2), 1610.4 (1977).
The fabric in the Gryc pajamas passed the CS 191-53
test. The fabric did not ignite in 1 second and when a
forced ignition test was used, the fabric ignited in an av-
erage time of 1.8 seconds and the average burning time
was 9.8 seconds. Therefore, under the Flammab'e Fab-
rics Act, the Riegel ‘lannelette was properly saleable in
interstate commerce.
Riegel argues that its compliance with the federal Act
precludes, as a matter of law, a finding of that guilty
state of mind which is a necessary prerequisite to a puni-
tive damages award. It argues that it was justified in rely-
ing on the Act in determining which fabrics were safe for
dissemination in the marketplace. The trial! court addressed
this issue in its post-trial memorandum and found:
The difficulty with [Riegel’s] argument is that it
does not assess the validity of the test. It was proven
almost conclusively at trial that this test did not and
could not properly determine the flammability of
fabrics such as cotton flannelette. Moreover, it was
almost conclusively established, in addition, that de-
A-14
fendant Riegel knew not only that the test was in-
valid but that it could not evaluate the flammability
of its products * * *. Knowing full well at all times
after the passage of the Flammable Fabrics Act that
CS 191-53 was unreliable, the defendant cannot to-
day say that punitive damages should not be al-
lowed simply because its cotton flannellette passed
an unreliable test. Riegel’s argument that it had a
right to act on the basis of the legislation * * * is a
specious one, because such actions were not taken in
good faith and must be viewed in the context of the
knowledge that Riegel had that its cotton flannelette
was extreme'y dangerous to the public because of
its racing flammability.
On reviewing the record, we have determined that the
trial court’s findings are supported by the evidence and
that its conclusions are correct. There was substantial evi-
dence at trial which established that the CS 191-53 test
was not a valid indicator of the flammable characteristics
of fabrics and did not take into account the uses to which
a fabric would be put in determining its safety.* It was
shown that newspaper passed the CS 191-53 test with a
48-percent margin of safety.
It was also shown that the original intent of Congress
in passing the CS 191-53 test into law was primarily to
3The commentators have agreed. See Swartz, Product Liahility: The Torch
Cases, 76 Case & Comment, No. 1, p. 3 (1971); Comment, Dressed
to Kill: The Flammable Fabrics Act of 1953, 4 Cum.-Sam. L. Rev.
358 (1973); Note, The Human Torch—An Exegesis About the Clothes
We Wear, 23 S. S.C. L. Rev. 787 (1971); Note, Flammahle Fabrics
Act Protection: Fire Resistants v. Industry Resistance, 39 Geo. Wash.
L. Rev. 608 (1971); Campbell & Vargo, The Flammable Fabrics Act
and Strict Liability in Tort, 9 Ind. L. Rev. 395 (1976).
A-15
protect the public against certain highly flammable syn-
thetic products, not all unreasonably dangerous clothing.
1953 U.S. Code Cong. & Ad. News 1723.*
Furthermore, there was evidence that the test was
adopted as a result of industry influence and, therefore,
served to protect the textile industry rather than the pub-
lic. It was the textile industry which originally formulated
the test, and in 1960 one of Riegel’s vice presidents stated:
The AATCC [American Association of Textile
Chemists and Colorists] not only developed an ade-
quate testing mechanism, but was instrumental in
guiding the government toward drawing up regula-
tions and specifications. [Emphasis added. ]
The evidence established that Riegel knew of the in-
validity of the CS 191-53 test and was aware that unrea-
sonably dangerous fabrics passed the test. Rigel’s head
of research, Linton C. Reynolds, knew that newspaper
‘In 1967, the Consumer Subcommittee of the Senate Committee on Com-
merce, in discussing the need for amendments to the federal Flam-
mability Act, noted:
Congress enacted the Flammable Fabrics Act (which became ef-
fective on July 1, 1954) to protect the public from newly introduced
highly flammable clothing, including “torch sweaters” and certain
children’s cowhoy chaps. Congress set the level of protection by
incorporating fixed standards of flammability into the Act. These
fixed standards were stringent enough to halt the marketing of the
highly flammable articles of clothing noted above, but did not af-
fect the marketing of most materials and articles of clothing that
were then—and are still nov—commonly in use.
Therefore, while the Act has been successful in preventing the
marketing of newer highly flammable materials, theerby preventing a
likely increase in clothing fire injury and death rates, it has not re-
duced those rates—they remain unabated.
To Amend the Flammable Fatrics Act: Hearings on S.1003 before
Consumer Subcomm. of the Senate Comm. on Commerce, 90th Cong.,
Ist Sess. 7 (1967).
A-16
and 19 other samples of paper passed the CS 191-53
test and communicated this to a Riegel top official. In
addition, Riegel knew that persons were suffering severe
burn injuries when Riegel’s flannelette ignited. In 1956,
one of Riegel’s top officials wrote in a memorandum, “We
are always sitting on somewhat of a powder keg as re-
gards our flannelette being so infiammable.” The memo-
randum was entitled “Flammability—Liability.”
Several courts have addressed the issue of whether com-
pliance with the CS 191-53 test precludes liability for
compensatory damages as a matter of law and have con-
cluded that it does not. See Raymond v. Riegel Textile
Corporation, 484 F. 2d 1025 (1st Cir. 1973); LaGorga v.
Kroger Co., 275 F. Supp. 373 (W. D. Pa. 1967), affd,
407 F. 2d 671 (3rd Cir. 1969); Howard v. McCrory
Corp., 601 F. 2d 133 (4th Cir. 1979); Sherman v. M.
Lowenstein & Sons, Inc., 28 App. Div. 2d 922, 282 N.Y.S.
2d 142 (1967). These courts reasoned that since it was
shown that the test was invalid, compliance with that
test did not preclude a finding that a product was unrea-
sonably dangerous. For the same reason, we conclude
that while compliance with this test may be relevant to
the issue of punitive damages, it does not preclude
such an award as a matter of law.
3. In 1967, the Flammable Fabrics Act was amended
to include the following preemption provision:
This Act is intended to supersede any law of any
State or political subdivision thereof inconsistent with
its provisions.
A-17
Flammable Fabrics Act, Pub. L. No. 90-189, § 16, 81
Stat. 568. Riegel contends that the imposition of punitive
damages on the defendant who has complied with the
Flammable Fabrics Act constitutes an inconsistent state
law which is preempted by the Act. Riegel argues, there-
fore, that the punitive damages award in this case is vio-
lative of the Act and the Supremacy Clause of the United
States Constitution.
In the case of Northern States Power Co. v. Minnesota,
447 F. 2d 1143, 1146-47 (8th Cir. 1971), aff'd, 405
U.S. 1035 (1972), the Eighth Circuit succinct'y stated the
general trramework of analysis to be applied in determin-
ing whether a particular state law is preempted by federal
legislation:
Once it is ascertained that the federal government
possesses the power to regulate in a given area, the
question is whether Congress has exercised its power
of legislation in such a manner as to exclude the
states from asserting concurrent jurisdiction over the
same subject matter.
First, as the Supreme Court noted in Florida Lime
& Avocado Growers, Inc. v. Paul, 373 U.S. 132,
142-143, 83 S. Ct. 1210, 1217, 10 L. Ed. 2d 248
(1963), “[a] holding of federal exclusion of state law
is inescapable and requires no inquiry into congres-
sional design where compliance with both federal
and state regulations is a physical impossibility * * *.
[Citations omitted. ]
Second, absent inevitable collision between the two
schemes of regulation it must be determined whether
Congress manifested an intent to displace coincident
A-18
state regulation in a given area. Where Congress has
unequivocally and expressly declared that the author-
ity conferred by it shall be exclusive, then there is no
doubt but that states cannot exert concomitant or sup-
plementary regulatory authority over the identical ac-
tivity. [Citations omitted. ]
Third, even where Congress has not expressly pro-
hibited dual regulation nor unequivocally declared
its exclusionary exercise of authority over a particular
subject matter, federal preemption may be implied.
[Citations omitted.] Key factors in the determina-
tion of whether Congress has, by implication, pre-
empted a particular area so as to preclude state at-
tempts at dual regulation include, inter alia: (1) the
aim and intent of Congress as revealed by the statute
itself and its legislative history [Citations omitted];
(2) the pervasiveness of the federal regulatory
scheme as authorized and directed by the legislation
and as carried into effect by the federal administra-
tive agency, [Citations omitted]; (3) the nature of
the subject matter regulated and whether it is one
which demands “exclusive federal regulation in order
to achieve uniformity vital to national interests.” [Ci-
tations omitted]; and ultimately (4) “whether, under
the circumstances of (a) particular case (state) law
stands as an obstacle to the accomplishment and ex-
ecution of the full purposes and objectives of Con-
gress.” [Citations omitted.]
It is evident that Congress properly promulgated the
Flammable Fabrics Act pursuant to the Commerce Clause
A-19
power granted to it by the United States Constitution.
Therefore, we must first determine whether Congress ex-
pressly intended, by the Act’s preemption provision, to pre-
clude the state private remedy of punitive damages.
The stated purpose of this preemption provision was
to preclude the multiple regulation of textile manufacturers
by providing a “uniform” federal regulation. Report of
the Senate Commerce Committee, 113 Cong. Rec. 20328
(1967). Riegel argues that the punitive damages remedy
serves to frustrate this stated purpose by imposing a higher .
duty on a textile manufacturer than is required by the
federal Act. The punitive damages remedy serves to pun-
ish a textile manufacturer for and deter that manufacturer
from willfully, wantonly, or maliciously marketing a fabric
which is unreasonably dangerous under state law. As
such, it does place a higher duty on a manufacturer by
requiring it to forbear from se'ling such a fabric even
though that fabric is in compliance with the Flammable
Fabrics Act. However, we have determined upon review-
ing the federal statute and its legislative history that the
punitive damages remedy is not the type of inconsistent
state law which Congress expressly intended to preempt.
It is clear that the imposition of punitive damages on a
manufacturer who has complied with the Act is not in-
consistent with that Act in the sense that it would be im-
possible for a textile manufacturer to comply with the
state-established duty and at the same time comp’y with
the federal Act. The punitive damages remedy merely
serves to impose a higher duty on that manufacturer.
It appears that the preemption provision of the Act, as
originally drawn, was given varying interpretations. Some
viewed the Act as merely establishing minimum safety
A-20
standards while others viewed it as establishing a manda-
tory national requirement. 1976 U.S. Code Cong. & Ad.
News 1003-4. In response to this confusion, Congress en-
acted an amendment to the 1967 preemption provision
which was intended to clarify it and was designed to meet
the competing interests of those who viewed the Act as
setting mere minimum requirements and those who opted
for a uniform requirement. Jd. The 1976 amendment to
the preemption provision, Flammable Fabrics Act, 15
U.S.C.A. § 1203 (West, 1979), provides in part:
(a) Except as provided in subsections (b) and (c)
of this section, whenever a flammability standard or
other regulation for a fabric * * * is in effect under
this chapter, no State or political subdivision of a
State may establish or continue in effect a flamma-
bility standard or other regulation for such fabric
* * * if the standard or other regulation is designed
to protect against the same risk of occurrence of fire
with respect to which the standard or other regula-
tion under this chapter is in effect unless the State
or political subdivision standard or other regulation is
identical to the Federal standard or other regula-
tion.
* * * * *
(c)(1) Upon application of a State or political sub-
division of a State, the Commission may * * * ex-
empt from subsection (a) * * * any flammability
standard or other regluation of such State or political
subdivision applicable to a fabric * * * subject to a
standard or other regulation in effect under <his chap-
ter, if—
A-21
(A) compliance with the State * * * requirement
would not cause the fabric * * * to be in violation
of the standard or other regulation in effect under
this chapter, and
(B) the State * * * standard * * * (1) provides
a significantly higher degree of protection from the
risk of occurrence of fire * * *, and (ii) does not
unduly burden interstate commerce,
The original 1967 preemption provision is ambiguous in
that it does not expressly state which types of state action
are preempted by the Act. It merely states that all in-
consistent state laws are preempted. However, the 1976
amendment clarifies this ambiguity by replacing the term
“law” with “flammability standard or regulation.” This
suggests that Congress merely intended to preempt incon-
sistent state statutory enactments rather than all state laws.
This conclusion is bolstered by the legislative history un-
der both the 1967 and 1976 preemption amendments.
This legislative history indicates that Congress only in-
tended to preclude inconsistent state statutory law which
sought to establish specific regulations in the area of flam-
mab'e fabrics. To Amend the Flammable Fabrics Act:
Hearings on §.1003 before the Consumer Subcomm. of the
Senate Comm. on Commerce, 90th Cong., 1st Sess. 157
(1967); 1976 U.S. Code Cong. & Ad. News 1009-10.
Therefore, we find that Congress did not expressly intend
to preempt state private civil remedies by its preemption
provision.
However, this does not end our inquiry. We must also
determine whether preemption of the punitive damages
A-22
ren. Jy may be implied from the federal Act. There is
some indication that Congress specifically did not intend
to preempt any private civil remedies. First, 15 U.S.C.A.
§ 1199 (West, 1974), a subdivision of the Flammable Fab-
rics Act, provides in part.
The provisions of this chapter shall be held in ad-
dition to, and not in substitution for or limitation of,
the provisions of any other law.
It is arguable that this provision seeks to leave intact any
state law which is not expressly precluded by the pre-
emption provision. See generally American Apparel Man-
ufacturers Ass'n v. Sargent, 384 F. Supp. 289, 290-91, n.
4 (D. Mass. 1974).
Furthermore, another federal act, although not directly
applicable to the instant matter, is helpful in giving an
indication of congressional intent in this area. In 1972,
Congress enacted the Consumer Product Safety Act, 15
U.S.C.A. § 2051 et seq. (West, 1974). Congress made this
Act applicable to the Flammable Fabrics Act by delegat-
ing the function of promulgating rules and regulations un-
der the Flammable Fabrics Act to the Consumer Product
Safety Commission, 15 U.S.C.A. § 2079. Section 2074(a)
of that Act, entitled “Private Remedies,” explicitly leaves
intact liability at common law:
Compliance with consumer product safety rules or
other rules or orders under this chapter shall not re-
lieve any person from liability at common law or un-
der State statutory law to any other person.
This section makes it clear that for any action arising after
the promulgation of this Act, there is no preemption of
A-23
private remedies, either compensatory or punitive. It also
indicates that Congress never intended to preempt any pri-
vated remedies.
The United States Supreme Court has stated that where
a challenged state law concerns the vital state interest of
protecting its citizens from injury, it cannot be inferred that
Congress deprived the states of the power to act in the
absence of compelled congressional direction. San Diego
Building Trades Council v. Garmon, 359 U. S. 236
(1959); see Maurer v. Hamilton, 309 U. S. 598 (1940)
(state law protecting the safety of its citizens upheld al-
though it arguably conflicted with federal law); UAW v.
Fussell, 356 U. S. 634 (1958) (state cause of action for
“onipensatory and punitive damages for wrongful inter-
icrence with lawful occupation deemed not preempted by
the National Labor Relations Act); Linn v. United Plant
Guard Workers, 383 U. S. 53 (1966) (state cause of ac-
tion for compensatory and punitive damages for defama-
tion uphe'd as not preempted by National Labor Rela-
tions Act). In Russell and Linn, the Supreme Court noted
taf the federal law’s inability to provide for private relief,
when state law was able to, vitiated the ordinary arguments
for preemption, In Linn, the Court also stated that the
federal law’s inability to provide for relief aggravated the
state’s concern since a failure to redress an otherwise ac-
tionable wrong would create disrespect for the law.
In this case, the state punitive damages remedy con-
cerns the vital state interest of protecting persons against
personal injury. It seeks to protect state citizens from the
willful, wanton, and reckless manufacture of a danger-
ously flammable fabric for use in children’s sleepwear. The
1953 Flammable Fabrics Act did not seek to protect per-
A-24
sons from this particular risk. As stated earlier, the purpose
underlying the original Act was primarily to prohibit the
sale of highly flammable synthetic materials, not all un-
reasonably dangerous fabrics.
Furthermore, the 1953 Act did not provide private re-
lief for personal injuries. In Raymond y. Riegel Textile
Corp., 484 F. 2d 1025 (1st Cir. 1973), the First Circuit
determined that the imposition of compensatory damages
on a defendant who had complied with the CS 191-53
test was not inconsistent with or preempted by the federal
Act. The court reasoned:
The Flammable Fabrics Act provides for inspection,
seizure of materials, and criminal penalties, for vio-
lation of flammability standards promulgated by the
Secretary of Commerce pursuant to 15 U.S.C.A. §§
1193 and 1201. The Act makes no provision for
private relief for those harmed in accidents invol-
ving flammable fabrics.
* * KK &
Since the Flammable Fabrics Act did not provide
private civil remedies and does not preclude state de-
velopment of such remedies, the states are not limited
to applying the federal criminal and regulatory stan-
dards in civil cases involving burns from ignited
fabrics. »
484 F. 2d at 1026-28. Although this case dealt with the
preemption of the remedy of compensatory damages, its
reasoning is nevertheless applicable to the punitive dam-
ages remedy.
The case of Northern States Power Co. v. Minnesota,
A-25
447 F. 2d 1143 (8th Cir. 1971), aff'd, 405 U. S. 1035
(1972), is distinguishable. In that case, the court deter-
mined that a state law was preempted even though the
state claimed that its law protected a vital interest in hu-
man safety. However, that case is unlike the instant matter
because there the court determined that the federal gov-
ernment had an overriding concern in the regulation of
nuclear activity. Furthermore, the federal regulation there-
in considered was pervasive and detailed. Additionally,
the relevant federal agency had specifically sought to deal
with the subject matter that the state was attempting to
regulate through the issuance of a federal permit. The
federal Flammable Fabrics Act of 1953 is different in na-
ture. It does not deal with an area of traditional federal
concern. Furthermore, the federal regulation is general in
nature. It originally sought to prohibit the marketing of
only a limited number of fabrics. Additionally, there were
never any specific regulations promulgated under this fed-
eral law. Thus, this act is unlike the federal law addressed
in the Northern States Power case which was all-encom-
passing and adequately sought to deal with the safety
problems surrounding nuclear activity. |
Since there is no clear congressional] intent to preempt
the private state remedy of punitive damages, we find that
such preemption cannot be implied. We, therefore, reject
Riegel’s preemption arguments.
4. Riegel also contends that the trial court, in instruct-
ing the jury on the issue of punitive damages, applied an
A-26
incorrect legal standard and burden of proof.’ Riegel
argues that a “reckless disregard” standard was improperly
applied and that the burden of proof on this issue should
have been one of “clear and convincing evidence” rather
than a “preponderance of the evidence.” Riegel presents
these arguments for the first time on appeal. These argu-
ments were not raised at trial or in Riegel’s post-trial mo-
tions.
In Baldwin v. Chicago & N. W. Ry. Co.. 285 Minn. 15,
20, 171 N. W. 2d 89, 92 (1969), this court cited with ap-
proval Cole v. Lacey, 252 Minn. 423, 433, 90 N. W. 2d
314, 322 (1958), in which we stated the following prin-
ciple:
[D]espite errors of fundamental law or controlling
principle a trial court’s charge to the jury becomes
the law of the case and is not subject to attack or re-
view on appeal when such fundamental errors have
not been * * * called to the attention of the trial court
* * * or have not, as a minimum requirement, been
assigned for the first time as errors in motion for a
new trial.
In accordance with this principle, we hold that the trial
court’s instructions cannot now be attacked by Riegel. The
instructions constitute the law of the case and Riegel’s
‘The trial court partially instructed the jury as follows:
[I]f you find that any of these defendants acted either maliciously
or in a wilful or wanton manner, you may * * * award * * * exem-
plary or punitive damages * * *,
A “wanton” act is one which is done in a reckless disregard of
the rights of others, evincing reckless indifference to consequences
to the life or limb or health of another * * *.
_ The trial court used a preponderance of the evidence standard in
instructing the jury on this issue.
A-27
subsequent arguments will be reviewed on the basis of the
legal standard imposed by the trial court.°
5. In instructing the jury on the issue on punitive dam-
ages, the court listed several factors which the jury was
to take into account in determining whether Riegel had
acted in willful or reckless disregard of plaintiffs’ rights:
1. The existence and magnitude of the product
danger to the public;
2. The cost or feasibility of reducing the danger
to an acceptable level:
3. The manufacturer’s awareness of the danger,
the magnitude of the danger, and the availability of a
feasible remedy;
4. The nature and duration of, and the reasons
for the manufacturer’s failure to act appropriately to
discover or reduce the danger;
5. The extent to which the manufacturer pur-
posefully created the danger;
6. The extent to which the defendants are sub-
ject to federal safety regulation;
7. The probability that compensatory damages
might be awarded against defendants in other cases;
and, finally,
8. The amount of time which has passed since
the actions sought to be deterred.
*We note that 1978 Minn. Laws, c. 738, § 4, which subsequently changed
the law with respect to the legal standard for punitive damages, is not
applicable in this case.
A-28
We have reviewed the entire record and, after taking
into consideration the above-listed factors, have concluded
that there was sufficient, in fact substantial, evidence for
the jury to find that Riegel acted in willful, wanton and/or
malicious disregard of the rights of others in marketing its
flannelette.
The Danger
Plaintiffs introduced substantial evidence to show that
thousands of people were dying or being seriously injured
from cothing fires involving highly flammable fabrics each
year. It was shown that the young and the very old were
the most susceptible to these injuries. Furthermore, Dr.
Johnson, at trial, demonstrated the instantaneous ignition
and rapid burning rate of the untreated cotton flannelette
manufactured by Riegel.
The Feasibility of Reducing the Hazard
As previously indicated, plaintiffs introduced a !arge
amount of evidence showing that flame retardant products
could have been applied to cotton flannelette well before
Riegel manufactured the flannelette used in Lee Ann’s
pajamas. Of course, there was contrary evidence pre-
sented on this point by Riegel’s witnesses, but plaintiffs’
experts provided credible evidence.
However, even if such evidence had not been sufficient,
there was sufficient evidence from which the jury could
conclude that Riegel was strictly liable for its failure to
warn.
Under Minnesota law, a manufacturer has a duty to
warn users of its products of all dangers associated
A-29 -
with those products of which it has actual or con-
structive knowledge. Failure to provide such warn-
ings will render the product unreasonably dangerous
and will subject the manufacturer to liability for
damages under strict liability in tort.
Karjala v. Johns-Manville Products Corp., 523 F. 2d 155,
158 (8th Cir. 1975); see Magnuson v. Rupp Manufactur-
ing, Inc., 285 Minn. 32, 38, 171 N. W. 2d 201, 205
(1969). The high flammability of Riegel’s cotton flannel-
ette is itself evidence of its duty in this regard. Furthermore,
there was substantial evidence that Riegel was uniquely
aware of these flammable characteristics.
Riegel did not seriously argue at trial that it was unable
to provide a warning to the consumer, nor could it be-
cause plaintiffs introduced evidence that Riegel was able
to send advertising information concerning the positive at-
tributes of its product through the chain of commerce.
Riegel mainly argued at trial and argues here on appeal
that it was not feasible to warn consumers because such a
warning would “stigmatize” its product, thereby seemingly
admitting that it was protecting the marketing of a pro-
duct consumers might deem unreasonably hazardous.
Riegel’s Knowledge
Riegel’s knowledge of the hazard involved and its rea-
son for not taking feasible measures to reduce this hazard
was demonstrated at trial. In 1956, one of Riegel’s top
Officials sent to the Riegel head of research a memoran-
dum listing a number of clothing fires and consequent in-
juries which occurred to persons wearing Riegel flannel-
A-30
ette garments. This memorandum stated that the com-
pany was sitting on a “powder keg” with respect to the
flammability of their flannelette. It was also proven at
trial that between 1960 and 1967, Riegel was on notice
that approximately 6 lawsuits were brought against it for
accidents involving its cotton flannelette.
Riegel introduced a great amount of evidence showing
its communications with several chemical companies con-
cerning the availability of flame retardant products and
the application of these products to its cotton flannelette.
Riegel apparently introduced these items in an effort to
show its good faith in attemting to find and apply a viable
flame retardant to its cotton flannelette. However,, one of
Riegel’s own letters evidences the reason for its failure in
this area. In April 1968, a letter from an official of Riegel
explained that satisfactory runs were made with flame-
retarded flannelette using various chemicals, but that Rie-
gel was not going to use these products until federal law so
required because of the cost factor. Plaintiffs’ witnesses
testified that the cost of flame-retardant fabrics would not
make them unmarketable. Thus, it may be inferred from
this letter that the decision not to use flame-retardant cot-
ton flannelette was merely an economic one for the benefit
of Riegel.
Plaintiffs’ evidence also tended to prove that while Rie-
gel conducted some surveillance of developments in the
flame-retardant field, its efforts were minimal. Plaintiffs
introduced evidence that prior to 1965, Riegel kept no
record on its research and development of nonflammable
products and fabrics. Furthermore, from 1967 to 1969,
$140,000 was spent on research in this area while the en-
tire research and deve'opment spending of the company
amounted to $1,831,731.
A-31
6. Riegel contends that various policy considerations
dictate against an award of punitive damages in this case.
It argues that, in products liability cases where there is a
potential for multiple plaintiffs, over-severe admonition
and severe economic harship may result if punitive dam-
ages awards are allowed. This same criticism was made
by Judge Friendly in the case of Roginsky v. Richardson-
Merrell, Inc., 378 F. 2d 832, 838-9 (2nd Cir. 1967).
However, this argument has been consistently rejected by
other courts and commentators who have considered
this issue.’ Owen discusses this point as follows:
[A] contrary conclusion can be drawn from the
MER/29 litigation, the only mass disaster products
liability litigation that has run its course. While some
1,500 claims were fi'ed against the manufacturer in
that case, only eleven were tried to a jury verdict.
Out of these only seven were decided for the plaintiff,
and only three of these included awards for punitive
damages, one of which was reversed on appeal. No
doubt many claims were settled out of court. Yet
if this is an example of the most crushing punishment
that will befall a manufacturer guilty of flagrant mar-
keting misbehavior—and it is difficult to imagine a
more extreme case of such misbehavior than that of
Richardson-Merrell in marketing MER/29—then
the threat of bankrupting a manufacturer with puni-
TSee Drake v. Wham-O Mfg. Co., 373 F. Supp. 608 (E. D. Wis. 1974):
Sturm, Ruger & Co. v. Day, 594 P. 2d 38 (Alaska 1979); Toole v.
Richardson-Merrell, Inc., 251 Cal. App. 2d 689, 60 Cal. Rptr. 398
(1967); Rinker v. Ford Motor Co., 567 S. W. 2d 655 (Mo. Ct. App.
1978); Owen, Punitive Damages in Products Liability Litigation, 74
Mich. L. Rev. 1257 (1976).
A-32
tive damage awards in mass disaster litigation ap-
pears to be more theoretical than real.
74 Mich. L. Rev. at 1324-25.
Moreover, since Riegel’s wealth or poverty and the de-
gree to which it has already been punished was relevant
in this case and will be relevant in future actions against
it, Riegel is adequately protected against being overly pun-
ished for its misconduct.
Riegel also argues that there is no need for the deter-
rent of punitive damages in this case. Riegel contends that
compensatory damages and loss of sales and reputation
act as an adequate deterrent. Riegel also posits that since
it no longer manufactures cotton flannelette and since
the Flammable Fabrics Act presently has more stringent
standards for children’s sleepwear, no deterrent is needed.
This argument ignores the fact that Riegel was shown to
have acted in reckless disregard of the public for purely
economic reasons in the past. A punitive damages award
serves to deter Riegel from acting in a similar manner
with respect to other products manufactured by it in the
future. Furthermore, since the potential of compensatory
damages awards and loss of sales and reputation did not
serve to deter Riegel in the past, Riegel cannot now ar-
gue that these considerations act as an adequate deter-
rent.
Riegel also overlooks the fact that one of the functions
of a punitive damages award is to punish past miscon-
duct. This function is well served by a punitive damages
award in this case.
7. Riegel contends that the punitive damages award of
$1,000,000 was clearly excessive. This court has stated
A-33
that it will not disturb a punitive damages award unless it
appears that the award was actuated by passion and prej-
udice and is so excessive as to be deemed unreasonable.
Hammerstein v. Reiling, 262 Minn. 200, 115 N.W. 2d 259
(1962). We have reviewed the record in this case and
find that the punitive damages award is not unreasonable
in light of the evidence presented.
The evidence shows that Riegel created a substantial
danger to the public by marketing its highly flammable
cotton flanne'ette. Riegel continued to market this prod-
uct even though there were economically feasible measures
which could have been taken to reduce this danger to a
fairly acceptable level. The evidence also showed that Rie-
gel was aware of the danger and the means for reducing
this danger. Furthermore, Riegel is a multi-million do'lar
corporation which reaped substantial profits through the
sale of its highly flammable cotton flannelette. We, there-
fore, do not find that the punitive damages award was
excessive as a matter of law.
8. Riegel argues that, under the principle of Magnuson
v. Rupp Manufacturing, Inc., 285 Minn. 32, 171 N.W. 2d
201 (1969), Riegel cannot be he'd strictly liable in this
case. In Magnuson, this court held that, in a strict liability
case, a “plaintiff must not be aware of the defect in order
ro recover.” 285 Minn. at 40, 171 N.W. 2d at 207. Riegel
claims that since Jacquelyn admitted at trial that she was
aware that fabric burns, and since cotton fabric is a “nat-
ural,” commonly-used product which everyone knows will
burn, liability is prec!uded.
The argument misconstrues the nature of the claimed
defect in this case. Plaintiffs claimed that Riegel’s un-
treated cotton flannelette was defective not simply because
A-34
it burned but because it was of such a construction that it
ignited instantaneously and burned at an amazing degree
of rapidity and at an extremely high temperature. They
presented evidence tending to establish that the consum-
ing public was unaware of these extremely flammable
characteristics. It is certainly inferrable that the consuming
public was not aware that Riegel’s flannelette had substan-
tially similar burning characteristics to newspaper. Thus,
the jury was justified in finding that Riegel manufactured
a defective product and that the defect was unknown to
plaintiffs and the consuming public.
9. In a special interrogatory, the jury was asked
whether the cotton flannelette was defective when it left
the possession of Riegel and whether that defect caused
the injuries to Lee Ann. In subsequent interrogatories, the
jury was asked whether the cotton flannelette pajamas
were defective when they left the control of the settling
deferdants—the garment manufacturer (Style Undies,
Inc.), the wholesaler (Associated Merchandising Corpora-
tion [AMC]), and the retailer (Dayton-Hudson Corpora-
tion.)* The jury found that the flannelette was defective
when it left the control of Riegel and that this defect
caused Lee Ann’s injuries. It also found that the flannelette
pajamas were defective when they left the control of the
settling defendants, but that this defect did not cause the
injuries.
Riegel argues that these jury findings are inconsistent
because the defect which the jury found not to have caused
SDefendants Style Undies, Inc., AMC, and Dayton-Hudson Corporation
all settled with plaintiffs prior to trial and Perringer releases were
given. Therefore, special interrogatories were asked of the jury con-
cerning those defendants so that each defendant's fault could be com-
pared
A-35
the injuries with respect to the settling defendants must
have been the same defect which the jury found to have
caused the injuries with respect to Riegel.
The trial court, in its post-trial! memorandum, explained
why the opposite findings on the cause question are con-
sistent in this case:
The defendant Riegel was found to be strictly liable
for producing a defective material which caused the
injuries to Lee Ann Gryc. The liability of Riegel was
on the basis of the fabric alone. The Court changed
the questions for the defendants Dayton —, AMC,
and Style Undies so that the jury would have an op-
portunity to determine whether there might be some
liability on the part of these defendants for having
changed the fabric in some way, or for the manner
in which they moved it through the stream of com-
merce, which might have caused the injury to Lee
Ann, The Court was careful to change the questions
relating to the settling defendants from cotton flan-
nelette which left the possession of Riegel to cotton
flannelette pajamas which left the possession of the
various other defendants, thus giving the jury the op-
portunity to determine whether design features in the
pajamas or anything else may have caused the injury
to Lee Ann. The jury, with unusual discernment, re-
alized that the cotton flannelette moved through the
stream of commerce, but that it was the cotton flan-
nelette in its highly flammable state which caused the
injury, not the movement through the stream of com-
merce. It also recognized that the design of the pa-
jamas had nothing to do with causing the injury to
A-36
Lee Ann, and, consequently, it correctly answered
Questions 3, 5, and 7 Yes, thus finding that the pa-
jamas were in a defective condition unreasonably
dangerous to consumers because of the condition of
the fabric alone, and also correctly answered Ques-
tions 4, 6, and 8 No, thus finding that nothing the
other defendants had done was a cause of the injury
to Lee Ann.
The trial court’s findings are consistent with the evidence
adduced at trial. The jury verdict will not, therefore, be
' disturbed.
10. During the trial, the trial court ruled as a matter
of law that Jacquelyn Gryc could not be comparatively at
fault for the claimed injuries to her daughter, Lee Ann.
It based this ruling on the doctrine of parent-child tort
immunity. The court, therefore, dismissed Riegel’s coun-
terclaim against Jacquelyn Gryc with respect to Lee Ann’s
claim. However, the question of Jacquelyn’s comparative
fault was submitted to the jury with respect to Jacquelyn’s
individual claim. The jury found Jacquelyn not to be at
fault and awarded her $1,000 in damages.
Riegel claims that the trial court erroneously determined
that Jacquelyn Gryc was immune from fault for her daugh-
ter’s claim. The question of Jacquelyn’s comparative fault
was submitted to the jury even though in the context of
another claim. The jury found her to be free from fault.
It would have been inconsistent if the jury had found
Jacquelyn comparatively at fault in the context of one claim
but not the other. Therefore, the jury’s finding of nonfault
is equally applicable to both claims and there could not
be harmful error in the dismissal of the counterclaim.
A-37
11. Prior to the conclusion of the trial, the trial court
directed a verdict in favor of Lee Ann on the issue of her
comparative fault. The court, however, submitted the
question of Lee Ann’s fault to the jury so that the need for
a retrial would be obviated in the event that this court
reversed the trial court on this point. The jury returned a
verdict finding Lee Ann 10-percent :t fault. In light of
its prior ruling, the trial court found Riegel to be 100
percent at fault.
The trial court ruled that Lee Ann could not be at fault
as a matter of law on the basis of Toetschinger v. Ihnot,
312 Minn. 59, 250 N.W. 2d 204 (1977). In Toetschinger,
this court held, in a 5-4 decision, that the plaintiff, a boy
of approximately 5 1/2 years, could be found to be 80-
percent negligent for darting out into the street in front
of a moving vehicle. In so holding, the majority refused
to adopt the “Illinois Rule” that a child of less than 7
years in age could not be contributorily negligent as a
matter of law. However, the couri limited its holding by
the following statement:
The trial judge, who has the opportunity of observ-
ing the situation firsthand, can direct that the child
involved, because of tender years, inexperience, or
the subtleties of the danger to be apprehended, can-
not be held to be contributorily negligent under the
circumstances of the given case.
312 Minn. at 69, 250 N.W. 2d at 210.
Riegel argues that the facts of this case are analogous to
those of Toetschinger. In Toetschinger, the majority based
its holding on the finding that a 5 1/2-year-old child had
the capacity to appreciate and avoid the risks of moving
A-38
traffic. Riegel argues that in this case, Lee Ann, a child of
4 years, 10 1/2 months, was capable of understanding
the danger incident to being near or on a stove. However,
the relevant danger in this case is not simply the dan-
ger of being néar a stove. The danger to be comprehended
was the highly flammable nature of the cotton flannelette
pajamas worn by Lee Ann. It was within the sound discre-
tion of the trial court to determine that Lee Ann was in-
capable of appreciating the risks attendant upon her ac-
tions; namely, that her pajamas would ignite immediately
and burn rapidly when they came in contact with the
electric burner. Therefore, we uphold the trial court’s de-
termination that Lee Ann was not comparatively at fault
as a matter of law.
12. Riegel claims that the trial court committed nu-
merous other errors at trial. Riegel also contends that
plaintiffs’ counsel engaged in many acts of misconduct
which served to deny Riegel a fair trial. We have reviewed
these contentions carefully and find that Riegel’s argu-
ments are without merit.
13. Riegel argues that the compensatory damages
award of $750,000 is excessive as a matter of law. How-
ever, we find the award is not so excessive as to be
deemed unreasonable in light of the evidence presented.
As a result of the incident, Lee Ann suffered second
and third-degree burns over a 20-percent area of her body.
Lee Ann was hospitalized for her injuries and went through
painful skin grafting procedures. She underwent other
treatment procedures which continued for 2 months after
she was released from the hospital. During the early treat-
ment, Lee Ann required morphine injections for her se-
vere pain.
A-39
Lee Ann’s scars are permanent. The scar tissue is dif-
ferent from normal skin in that it is less elastic and of a
different color. The skin is about one-half the thickness
of normal skin and has no hair follicles, lubricating and
sweat glands, or sensory apparatus. There is a distinct
asymmetry in the development of Lee Ann’s breasts as a
result of her scars. The right breast is significantly smaller
than the other and there is particular destruction of the
tight nipple. Lee Ann will require at least six episodes of
surgery in her adult life because there will be future
breakdowns in the scar tissue and because there is a
possibility of future ulcerations and other benign or ma-
lignant growths.
The testimony indicated that this permanent disfigure-
ment may adversely affect Lee Ann’s psychological make-
up, and her employment and matrimonial opportunities.
The evidence also showed that Lee Ann is presently a
constricted girl who has a low self-image and is unable to
deal with the emotional problems caused by her burns.
Lee Ann’s nicknames at school are “Kentucky Fried Chick-
en” and “burnt toast.”
Plaintiffs’ testimony indicated that the sum total of Lee
Ann’s future medical costs relating to her injuries would
be in the area of $8,500. Therefore, we are not unmind-
ful of the fact that a large portion of the jury award is
attributable to pain and suffering damages. However,
when this award is viewed in the context of the severe
disfigurement which Lee Ann will have to live with for the
test of her life, this award cannot be found to be ex-
cessive as a matter of law.
The judgment is, therefore, affirmed.
Affirmed.
A-40
(PETITION DENIED)
STATE OF MINNESOTA
OFFICE OF CLERK OF SUPREME COURT
ST. PAUL, MINN.
LEE ANN GRYC, by her mother and natural guardian,
JACQUELYN GRYC, and JACQUELYN GRYC, in-
dividually,
Respondents,
vs.
DAYTON-HUDSON CORP.., et al,
Defendants,
RIEGEL TESTILE CORP.,
_ Appellant.
July 10, 1980
49334 and 49525
SIR:
You will take notice that on this date the following order
was entered in the above entitled cause:
ORDERED, that the petition for reargument herein be
and the same hereby is denied and stay vacated.
Yours respectfully,
JOHN McCARTHY
Clerk Supreme Court
A-41
STATE OF MINNESOTA DISTRICT COURT
County of Ramsey Second Judicial District
LEE ANN GRYC, by her mother and natural guardian,
JACQUELYN GRYC, and JACQUELYN GRYC, in-
dividually,
Plaintiffs,
vs.
DAYTON-HUDSON CORPORATION, a Minnesota
corporation; STYLE UNDIES, INC., RIEGEL TES-
TILE CORPORATION; and ASSOCIATED MER-
CHANDISING CORPORATION,
Defendants.
ORDER & MEMORANDUM
File No. 407340
This matter was heard by the undersigned on July 25,
1978, and July 24, 1978, pursuant to a motion by the de-
fendant Riegel Texitle Corp. for an order setting aside
the Findings of Fact of the Jury and Conclusions of Law
and Order for Judgment and granting judgment to the
defendant Riegel n.o.v., or, alternatively, for an order
amending the Findings of Fact, Conclusions of Law, and
Order for Judgment, or for a new trial on all issues. On
July 5, 1978, the moving party was represented by Robert
C. Holtze,.Esq., and Todd Henshaw, Esq.; plaintiffs ap-
peared by Richard Baldwin, Esq., and James R. Tschida,
Esq.; also present, as observers and auditors, were John
M. Kennedy, Esq., James S. Simonson, Esq., Jeffrey
A-42 ©
R. Brooke, Esq., and Charles Stewart, Esq.; on July 24,
1978, the moving party appeared by Robert C. Holtze,
Esq., Todd Henshaw, Esq., and Donald M. Jardine, Esq.;
plaintiffs appeared by Richard Baldwin, Esq., and James
R. Tschida, Esq.; also present, as observers and auditors,
were James S. Simonson, Esq., and Charles Stewart, Esq.;
and the Court, having heard the arguments of counsel,
and having read all of the extensive briefs, articles, and
appendices provided by counsel, and being duly advised in
the premises, now makes the following order:
IT IS ORDERED that the motion of the defendant Rie-
gel Textile Corp. is hereby in all things denied.
IT IS FURTHER ORDERED that, there being no just
reason for additional delay in the entry of judgment, no
further stay of entry of judgment shall be granted and
final judgment may be entered forthwith.
The Memorandum attached hereto is made a part of
this Order.
Dated: August 7, 1978.
/s/ HYAM SEGELL
Judge of District Court.
MEMORANDUM
This matter is before the Court pursuant to a motion by
the defendant Riegel Textile Corporation for an order set-
ting aside the Findings of Fact, Conclusions of Law, and
Order for Judgment heretofore entered and granting judg-
ment to defendant Riegel notwithstanding the verdict, or,
alternatively, for an Order for Amended Findings of Fact,
Conc'usions of Law, and Order for Judgment, or for a new
trial on all issues. Defendant has recited a multiplicity of
A-43
grounds in support of the motion. In a case that was very
clearly tried, with very few serious objections directed to
the admissibility of evidence, broad and sweeping claims
of error attributed to the Court and plaintiffs counsel can-
only be characterized as microscopic captiousness upon the
part of counsel for the defendant who finds himse’f star-
ing into the wrong end of a $1,750,000.00 verdict. A
careful examination of the grounds in support of the mo-
tion reveals that they are generally without substance or
merit. Because of the importance of the case to both sides
and the likelihood of appeal, the Court feels that it is
incumbent upon it to make certain observations concern-
ing a few of the claims made by the defendant in its mo-
tion. The presentation of these items is not necessarily in
the order of their importance.
I
STATEMENT OF FACTS
By way of introduction, a brief statement of the facts is
probably in order. On December 9, 1969, Lee Ann Gryc,
who was then just shy of five years old, was watching
television in her living room during the early daytime
morning hours. She was attired at the time in cotton flan-
nelette pajamas. Her father was still in an upstairs bed-
room, and her mother was in the basement preparing to do
some laundry. An electric stove in the kitchen was on be-
cause the mother was cooking some food for the evening
dinner; a timer which was located above the stove had
been previously set by the mother. When Lee Ann Gryc
heard the timer start to buzz, she went into the kitchen and
apparently climbed upon a chair to turn the timer off;
A-44
at that time her pajama was ignited, burned very rapid’y,
and caused severe burns over the upper half of her body,
horrible disfigurement, and deep psychological trauma,
which is still evident today. There were no witnesses to the
accident, and the plaintiff Lee Ann Gryc was unable to de-
scribed it because at the time of the trial, nine years later,
she had very little memory of the events of that day. There
was no negligence on the part of either parent in con-
nection with the accident. One fact was made brutally
clear, however, and that is that there was an instantaneous
ignition of the pajama and a rapidity of burning which
was almost beyond comprehension. The case was sub-
mitted to the jury upon the issue of strict liability under
Section 402A, Restatement of the Law of Torts, 2nd Edi-
tion, and upon the issue of punitive damages, since the
evidence disclosed that the defendant Riegel Textile
Corporation had acted in reckless disregard of the rights
of the consuming public in continuously producing a cot-
ton flannelette which was unreasonably dangerous to the
public, known by it to be dangerous, and for which danger
there was a known feasible remedy.
‘Tl
THE PRETRIAL CONFERENCE
Since this case appeared to involve some complex legal
and technical issues, an informal pretrial conference was
conducted on Tuesday, April 25, the date of trial. In-
formally—and that word should be emphasized—certain
ground rules were laid for the introduction of evidence,
discussion was had as to the time frame,to which the intro-
duction of evidence would be limited, and, to the recollec-
A-45
tion of the Court, it was generally agreed by both sides
that evidence of events before the accident and to the date
thereof would be admissible and evidence of events taking
place thereafter would be inadmissible; since this was a
“state of the art” case, such a time frame would be bene-
ficial to both sides. For example, plaintiffs benefited by
such » time frame since it foreclosed the introduction of
evidence concerning an additive known as “Tris,” which
recent investigation proved to a cancer-causing agent
and which, incidentally, would have been outside the scope
of the issues cf this lawsuit. The defendant benefited by
such a time frame because it was able to limit to the date
of the accident the number of additional cases that had
been brought against it; thus, when a stipulation was
finally reached concerning the introduction of other inci-
dents of the same kind, the defendant was ab'e to eliminate
numerous cases which had been served and filed after the
date of the incident here in issue. The Court did allow
some spillover on the part of the defendant beyond the
December 9, 1969, accident date in instances where an
activity had been generated prior to that date and con-
tinued beyond it; the Court also allowed the defendant
to refute the fire statistics which were available prior to
December 9, 1969, in order to show what it claimed was
the exaggeration and invalidity of those statistics; how-
ever, generally, the December 9, 1969, date was adhered
to.
No formal requests were made on behalf of defendant
Riegel on the record that the Court use the term “product
liability” as opposed to “strict liability.” The Court agreed
informally not to use the term “strict liability,” but that
A-4€
ended the matter on an informal basis. No formal motion
was made, moreover, to refer to defendant Dayton-Hud-
son Corp., Style Undies, Inc., and Associated Merchan-
dising Corp. as “the settling defendants,” although some
informal discussion was had in regard to that. A court
reporter was available at all times, as Mr. Holtze suggests
in his affidavit; however, no request for his services was
made and no recording was made of the informal dis-
cussion setting down the ground rules for the trial, even
though defense counsel went, on the record in many cham-
bers discussions thereafter. Some discussion was had con-
cerning experimentation, and the Court concluded that ex-
perimentation should be in a controlled setting; however,
late in the trial, the Court relented and, upon assurance
by all counsel that any experiments involving fire
would not endanger the courtroom, did permit both sides
to conduct experiments. The ruling on the videotaped ex-
periment by the defendant had nothing to do with the in-
formal discussion relating to experiments in controlled
settings, because the defendant had violated Ruk 26.02,
M.R.C.P., and it was for that reason that the videotaped
experiment of Mr. Lund was declared inadmissib’e. The
point was that defense counsel simply had not seen fit to
notify plaintiffs’ counsel that he proposed to conduct an
experiment outside of the courtroom, during the latter
stages of the trial, for use in the courtroom, which experi-
ment was conducted by an expert witness. Trial by sur-
prise was abandoned in Minnesota on January 1, 1952,
and this Court will not permit it, especially where it ap-
pears to be an intentional and blatant violation of
M.R.C.P. However, if there was any prejudice in refusing
to allow this experiment, it was obviated by the fact that
A-47
the Court did permit a similar experiment to be conducted
in the courtroom by a lawyer using a hot plate.
Il
MISCONDUCT OF PLAINTIFFS’ COUNSEL
Defendant makes numerous references to plaintiffs’
closing argument in its motion and memorandum cover-
ing misconduct. The difficulty with the defendant’s posi-
tion in this regard is that there were only two occasions in
which the defendant interrupted plaintiffs’ counsel. The
first appears at page 34 of the transcript of Mr. Tschida’s
argument, where Tschida referred to burns that he had
viewed during the time of the Korean War when he was
in Texas in a Burn Unit. Mr. Holtze, defense counsel,
objected upon the grounds that it was getting “outside the
scope of this case,” and the Court indicated that it was.
The second interruption came at page 37 of Tschida’s
argument, where defense counsel objected to a reference
that a breast removal was one of the greatest catastrophic
emotional experiences for a woman. That was objected to
as being “beyond the scope of the testimony,” and while
there had been testimony relative to the possibility of can-
cer where most of the skin tissues had been burned away,
the Court did sustain the objection. Neither of these items
could be said to be seriously improper in argument, nor
prejudicial to the defendant, and no request was made by
the defendant for any corrective instruction.
As was said in United States v. Socony-Vacuum Oil
Co., 310 U.S. 150, 243:
“If every remark made by counsel outside of the
testimony were grounds for a reversal, comparatively
A-48
few verdicts would stand.”
Today counsel has numerous other complaints about
the plaintiffs’ argument; however, at no time did he com-
plain about them at trial. No other interruptions were made
of plaintiffs’ closing argument, no exceptions were taken
at the conclusion of plaintiffs’ argument, and no corrective
instructions were sought following it. Thus, the claim of
misconduct is not subject to review at this point. No in-
temperate language was used by plaintiffs’ counsel and
no appeal to passion and prejudice was made. It is the
conclusion of the Court that the defendant simply could
not be prejudiced by the argument. After all, an argument
is just that. The Court carefully cautioned the jury about
any misstatements of fact or misstatments of law and has
a right to assume that the jury followed those instructions.
Moreover, the instructions of the Court were given
orally and in writing, so that if there was anything that
the jury did not understand during the course of oral in-
struction, it had an opportunity in the jury room to review
the instructions to determine their applicability to the
facts and the case as a whole. It might be noted also that
the submission of the charge in writing was through stip-
ulation of both counsel.
The claim of prejudice arising from the withdrawal of
the mother’s claim for medical expenses is treated in the
Miscellaneous portion of this Memorandum.
The claim of defendant that there was misconduct of
plaintiffs’ counsel during interrogation of witnesses at
trial is utterly without merit.
A-49
IV
THE COURT’S CHARGE
A. REQUESTED INSTRUCTION.
The defendant requested that the Court give an instruc-
tion on superseding cause. As it turned out, with the jury
finding that the mother was not negligent, no prejudice
could accrue from the failure to give such an instruction.
In any event, however, the Court is satisfied that an in-
struction on superseding cause was not app'icable to this
case. At best, if the mother had been negligent, such neg-
ligence could only have been a concurring cause in the
accident which occurred on December 9. That cause
could only have concurred with the cause of the defect in
the material, rather than superseded that cause, and both
would then have produced the accident. But the question
is moot since the jury found that the mother was not neg-
ligent.
B. THECS 191-53 INSTRUCTION.
The defendant contends at page 4 of its memorandum
relating to the Court’s charge and at page 6 of its mem-
orandum relating to punitive damages that the Court
failed to charge that compliance with the Flammable
Fabrics Act and the CS 191-53 test could be considered
by the jury as evidence that the cloth was not defective.
In the punitive damages memorandum, the defendant
omits the key portion of the cnarge which recited the
precise statement which it now claims the Court failed to
give. If the whole instruction on the CS 191-53 test is ex-
amined, it will be seen that the Court correctly charged
A-50
the jury that the test could be considered in determining
whether the cotton flannelette was in a defective condition
unreasonably dangerous to users, or consumers. That in-
struction reads as follows:
“Now, repeated reference has been made in this
case to a test called CS 191-53, which is part of the
Flammable Fabrics Act of 1953 as amended, and
it is contended by the defendant Riegel Textile Cor-
poration that the cotton flannelette manufactured by
it was in compliance with that test; however, since
the Flammaole Fabrics Act is a criminal statute,
compliance with that test is not the standard by
which the conduct of the defendant Riegel Textile
Corporation is to be measured.
“As I told you before, the conduct of the defen-
dant Riegel Textile is to be measured by whether the
cotton flannelette was in a defective condition unrea-
sonably dangerous to users, or consumers, at the
time it left the factory. In reaching your conclusion on
that point, you will consider, examine, and weigh with
care all of the evidence in the case, including the
CS 191-53 test, to determine whether the cotton
flannelette failed to perform reasonably, adequately,
and safely as pajamas, or sleepwear, in a setting in
which it might be accidentally exposed to heat or
flame.” [Emphasis supplied] [Transcript of the
Jury Charge, page 20]
The interesting part about the defendant Riegel’s pres-
ent position about the Court’s charge is that most of the
things about which it now complains were not even re-
vs A-51
vt
quested by it prior to the charge to the jury. Moreover—
and this is crucial—defense counsel had no complaints
about the Court’s charge immediately following it, and
that charge became the law of the case; hence, his present
complaints, except for those which were protected by a
prior requested instruction, are totally without substance
and are not subject to review.
Vv
RULINGS OF THE TRIAL COURT
A. FLAME RETARDANT TREATMENTS.
Evidence was introduced by the plaintiffs that there
were flame retardant treatments which were both feasible
and commercially available during the time frame. De-
fendant now contends that because of the time frame it
was precluded from offering evidence that neither of the
commercially available products were used up to the date
of trial by any manufacturer. However, it offered no evi-
dence in that regard and made no offer of proof that it had
such evidence, so far as the Court recollects. Had such
evidence been offered or an offer of proof been made, the
Court almost certainly would have excluded it on the basis
of the time frame ruling. However, as the Court presently
views it, evidence of this kind, had it been introduced,
might very well have increased the punitive damages, be-
cause the jury wou'd then have known that the company
had continued to refuse to employ a commerically avail-
able flame retardant down to the date of trial. Such fact,
if known to the jury, might very well have proved to be
more prejudicial than beneficial.
A-52
B. CS 191-53 TEST.
The defense of this case was based almost solely upon
the defendant’s compliance with the federal Flammable
Fabrics Act of 1953. Pursuant to that act, a test was pro-
mulgated known as CS 191-53 for testing the flammabil-
ity of various fabrics. The record is replete with various
descnptions of the test by all of the experts, and because
the defendant obviously placed such reliance on this test,
plaintiffs were properly permitted to attempt to demon-
strate the invalidity of that test. No one who sat through
the trial could believe anything else than that the test
served no useful purpose in determining flammability of
cotton flannelette. The evidence so overwhelmingly estab-
lished this fact as to make it almost conclusive; moreover,
it was equally plain from the evidence that the defendant
knew the test was invalid; that was clear from an inter-
departmental memorandum dated May 2, 1956, some
three years following the passage of the Flammable Fab-
rics Act and use of CS 191-53, in which it was said by
the writer:
“We are always sitting on somewhat of a powder
keg as regards our Flannelette being so inflam-
mable.” [Pl]. Exh. AO]
That memorandum was largely responsible for heavy
punitive damages in this case, since it was a key factor in
demonstrating knowledge on the part of the defendant
that, notwithstanding the fact that its flannelette met the
standards of CS 191-53, it was dangerously flammable
and represented a severe hazard to the public.
A-53
C. LIMITATIONS ON LUND TESTIMONY.
The Court refused to permit the witness Lund to testify
concerning the kind of burns that might have resulted if
the plaintiff had been wearing a pajama treated with a
commercially available flame retardant. There was, of
course, no foundation for this testimony, nor could the
defendant supply any, and the background of the witness,
which was non-medical, precluded him from testifying as
to what might have happened had the plaintiff been
burned wearing such a fabric. There was simply no way
that the witness could qualify for such testimony, and it
would have been the sheerest speculation on his part to
testify as to the effect of the burns on a child similarly
situated to the plaintiff. Aside from its speculative aspect
it would have been based solely upon hearsay as well.
VI
LIABILITY AND COMPENSATORY DAMAGES
A. LIABILITY OF RIEGEL.
No useful purpose would be served by further enu-
merating the facts of this case. Suffice it to say that the
plaintiff Lee Ann Gryc was seriously burned in the ac-
cident that took place on December 8, 1969, was left with
horribly disfiguring scars, and that the accident was clear-
ly caused by defendant’s fault. A few things stand out in
the Court’s mind concerning the issue of liability. The first
is the astonishing rapidity with which the cotton flannel-
ette from which Lee Ann’s pajamas were made, burned.
The second is the fact that the defendant Riegel Textile
Corporation had full knowledge of the dangerous aspect
A-54
of this cotton flannelette and continued to manufacture it
in increasing millions of yards; the evidence that fully sup-
ports such knowledge lies in the “powder keg” memo pre-
viously mentioned; in fact, that memo, when coupled with
the Johnson movie, is probably the key item of evidence
in establishing the liability of Riegal for both compensa-
tory and punitive damages in this case. Third is the fact
that Riegel hid behind the CS 191-53 test in contending
its fabric was safe, indulging in the false pretense that this
test had validity in testing flammability of fabrics know-
ing that pretense to be false. The evidence clearly disclosed
that the CS 191-53 test served no useful purpose in testing
the flammability of fabrics. As a matter of fact, burning
newspaper would pass the test. There is no doubt in the
Court’s mind that the defendant Riegel Textile Corpo-
ration acted in reckless disregard of the rights of the pub-
lic in producing this product and was clearly strictly liable
within the purview of Section 402(a) of the Restatement
of Torts. The powder keg memo and an examination of
the movie prepared by Professor Johnson would, without
more, suffice to establish that conclusion. This Court has
tried numerous product liability cases, but has to say that
the evidence in this case established the most overwhelming
case of liability this Court has heard, and the defense of-
fered no credible evidence to the contrary.
B. LIABILITY OF OTHER DEFENDANTS.
Because of the overwhelming case of liability against
Riegel, the answers of the jury as to the other defendants,
Dayton-Hudson Corporation, Associated Merchandising
Corporation, and Style Undies, Inc., are completely con-
A-55
sistent with the evidence. The defendant Riegel was
found to be strictly liable for producing a defective ma-
terial which caused the injuries to Lee Ann Gryc. The li-
ability of Riegel was on the basis of the fabric alone.
The Court changed the questions for the defendants Day-
ton’s, AMC, and Style Undies so that the jury would
have an opportunity to determine whether there might be
some liability on the part of these defendants for having
changed the fabric in some way, or for the manner in
which they moved it through the stream of commerce,
which might have caused the injury to Lee Ann. The
Court was careful to change the questions relating to the
settling defendants from cotton flannelette which left the
possession of Riegel to cotton flannelette pajamas which
left the possession of the various other defendants, thus
giving the jury the opportunity to determine whether de-
sign features in the pajamas or anything else may have
caused the injury to Lee Ann. The jury, with unusual dis-
cernment, realized that the cotton flannelette moved
through the stream of commerce, but that it was the cot-
ton flannelette in its highly flammable state which caused
the injury, not the movement through the stream of com-
merce. It also recognized that the design of the pajamas
had nothing to do with causing the injury to Lee Ann,
and, consequently, it correctly answered Questions 3, 5,
and 7 Yes, thus finding that the pajamas were in a defec-
tive condition unreasonably dangerous to consumers, be-
cause of the condition of the fabric alone, and also cor-
rectly answered Questions 4, 6, and 8 No, thus finding
that nothing the other defendants had done was a cause
of the injury to Lee Ann. This was completely consistent
with the testimony adduced at the trial. A'l other ques-
A-56
tions submitted to the jury on issues of liability resulted
in answers consistent with the testimony, with the sole
exception of the question relating to Lee Ann’s negligence.
The Court had previously determined that Lee Ann could
not be negligent as a matter of law, but submitted that
question solely for appe'late purposes and to avoid the
prospect of a new trial if there were a reversal. The an-
swer of the jury that the mother of Lee Ann Gryc was
not negligent was completely consistent with the testimony.
The deposition testimony of Mrs. Gryc’s former husband,
who was an alcoholic, simply was not credible on the
point of whether she had told Lee Ann to turn off the
timer on the stove. No one sitting in the courtroom could
have believed that testimony, and the jury also recognized
its incredibility.
C. COMPENSATORY DAMAGES.
Defendant complains that the compensatory damages
awarded to Lee Ann Gryc were excessive.
On page 3 of defendant’s memorandum on excessive
damages, reference is made to settlement negotiations,
which the Court views as a highly improper reference in
an argument on excessive damages. The Court had no
knowledge of any settlement negotiations as set forth in
that statement, except a statement on the record by the
plaintiffs at the outset of the trial that the demand was
$307,500.00, and since such references do not bear on the
issue of whether the damages are excessive, they should
not be included in an argument on excessiveness.
There is no question but what Lee Ann suffered enor-
mous injuries and indescribable pain in the treatment of
A-57
those injuries. Third degree burns leave litt'e on the body
except bones and some muscle, and the terrible conse-
quences of these injuries have left Lee Ann with two
permanent disabilities: one, the hideously disfiguring
scars which she will bear for the rest of her life, which,
incidentally, afford her little protection from the elements
and the risk of cancer, and, two, the psycho'ogical dam-
age, which was evident from her testimony and the ex-
pert testimony of members of the medical profession,
which also will continue for the balance of her life. This,
in the Court’s judgment, is the element which probably
received the most attention from the jury. A young lady,
and even an adult woman, whose breasts are deformed
and scarred is going to suffer psychological trauma that
is almost inconceivable and beyond measurement. Who
is to say that the damages awarded in this case are ex-
cessive? While the compensatory award may be generous,
it cannot be said to be so unfair or unreasonable that it
should be cut back; nor was it rendered by reason of
passion or prejudice. This Court has observed on many
occasions that too often trial and appellate judges play
the role of super jury. This is an unwarranted incursion
into the role of the jury and a pasttime in which this
Court will not indulge. The compensatory award of the
jury, accordingly, must stand.
In allowing the jury verdict to stand, the Court is mina-
ful of the fact that the primary basis for that award was
for past and future pain and suffering and permanent
disability, there being little evidence regarding the plain-
tiff Lee Ann’s loss of future earning capacity. Thus, the
principles enunciated in Busch v. Busch Construction,
Inc., — Minn. —, 262 N.W.2d 377, are particularly ap-
A-58
plicable to this case. That case expressly overruled Hal-
lada v. G. N. Ry. Co., 244 Minn. 81, 69 N.W.2d 673.
Hallada suggested that injury awards must be tested by
determining “what the total amount of damages awarded
by the jury will accomplish for [plaintiff] if conserved
and used with ordinary prudence.” That concept was
express'y rejected in Busch when the court said:
“... An award for pain and suffering is a separate
and distinct item of damage. The purpose of giving
damages for pain and suffering is to compensate the
injured party for his loss, not to reimburse him for
his future expenses.”
That statement distinctly and clearly enunciates the
principle that damage awards are not to be tested on the
basis of what financial benefits they might reap when in-
vested at normal rates of interest.
The court went on to say in Busch that awards for
general damages, including those for pain and suffering,
are “generally left to the discretion of the jury and trial
court.”
Additionally it said:
“The judicial function of determining the amount
of a verdict in a personal injury case has been his-
torically reserved to the jury. In this case the trial
judge did not reduce the award for pain and suffer-
ing . . . [and] Appellate courts are not prone to in-
terfere unless it clearly appears that there has been
an abuse of judicial discretion.”
Applying these principles to the case at hand, it is
clearly seen that the jury award of compensatory damages
A-59
cannot be disturbed. See also Anunti, et al v. Payette, —
Minn. —, — N.W. 2d —,
Filed June 9, 1978.
VII
MISCELLANEOUS
A. ADJUSTMENT OF JUDGMENT.
Defendant contends that it is entitled to an adjustment
of the judgment because of prior settlement by other de-
fendants under M.S.A. 604.01[5]. That section is not ap-
plicable to it because Riegel has not paid any prior settle-
ments or payments or advance payments for which it
would be entitled to an adjustment. Anunti, et al v. Pay-
ette, supra.
B. ANIMUS.
There was a lot of personal animosity in this case
throughout the trial, primarily because counsel on both
sides refused to treat each other with professional courtesy
and in some cases the defendant efused to abide by the
Rules of Civil Procedure for Minnesota. A good ex-
ample of this was the surprise videotape of the witness
Geoffrey Lund, and at least on one occasion refusing to
make documentary discovery, necessitating plaintiffs’
lawyers looking for documents in the office of another
lawyer in California. Even after the documents were dis-
covered in California, there was quibbling about founda-
tion for their introduction. See Transcript of Dale W.
Kern, pages 83-95. Some of that animosity still prevails
in this motion, in statements that are made about plain-
A-60
tiffs’ counsel. This Court has not particularly appreciated
the personal attacks that have been made by both sides
against each other and has dismissed a lot of the material
in defendant’s memoranda because it is not legal justifica-
tion for a new trial, but simply a personal attack upon
counsel.
C. WITHDRAWAL OF MOTHER’S CLAIM.
One of the claims of defendant is that it was prejudiced
by the argument of plaintiffs’ counsel when the mother’s
claim for her daughter’s medical expense was withdrawn.
[Tschida Final Argument, page 3] This came as a com-
plete surprise to the Court and to defendant’s counsel, and
while the Court was deeply distressed by what appeared
to be an utter lack of professional sensitivity, and ex-
pressed its displeasure to counsel following his argument,
it is quite clear that the contention of the defendant
that it was prejudiced is without foundation and without
merit. What was really distressing to the Court was the
fact that it had spent all three weekends of the weeks of
trial preparing the Findings and its charge covering those
issues that had been tried and upon which there was agree-
ment for submission, and all of the lawyers and the Court
had spent several hours discussing these proposed Find-
ings and charge, all of which would have required sub-
stantial revision if the claim were actually withdrawn. It
was not a matter that was apparently troubling to defense
counsel, because it was the Court sua sponte that raised
the issue in chambers following plaintiffs’ argument. Only
after that did defense counsel express his displeasure on
the record and make a statement which indicated that it
A-61
was an attempt to avoid the comparison of causal fault
of the mother with other defendants. [Tschida Final Ar-
ment, page 55] The Court thereafter determined that it
would not permit plaintiffs’ counsel to withdraw the claim
and prepared a corrective instruction which was given
without objection by the defendant. As a matter of
fact, the defendant concurred in the idea that such an in-
struction should be given. [Tschida Final Argument, page
53] However, it is a fact that the defendant failed to ob-
ject to the instruction as given, which forecloses it at
this time from contending that it was prejudiced, If there
was prejudice, the totality of it must be measured by the
jury’s award of $1,000.00 to the mother. That sum is so
miniscule when compared to the sums awarded to the
daughter, and it would seem to the Court that it would be
difficult to make a serious contention that the withdrawal
of the mother’s claim could in any way affect the awards
made to the child, except for the possibility that the
child’s awards were reduced by $1,000.00. By refusing to
allow withdrawal of the claim, the Court also avoided de-
fendant’s claim that the comparison of fault, with the
mother included, would be eliminated. Since that compari-
son was made, there was no prejudice to defendant.
Vill
PUNITIVE DAMAGES
A. HISTORY IN MINNESOTA.
Minnesota has long recognized awards for punitive
damages where wrongful conduct has been done wilfully,
wantonly, or maliciously. Dun. Dig. [3rd Edition] Section
A-62
2540. An award of punitive damages is left solely to the
discretion of the jury, Ibid. Section 2548, and such
awards are not to be disturbed unless they are so exces-
sive as to indicate that the jurors were actuated by pas-
sion or prejudice, Ibid. Section 2552. In Hammersten v.
Reilling, 262 Minn. 200, 115 N.W. 2d 259, the same
idea was expressed this way:
“Determination of the amount of an award for
such damages rests almost exclusively within the
province of the jury and its action therein will not be
disturbed on appeal, except where the amount
awarded is so excessive as to be deemed unreason-
able.”
There is a split of authority on the question of whether
punitive damages may be awarded against a corporation
in the absence of proof that the management of the com-
pany participated in, authorized, or ratified the wrongful
act, or whether the doctrine of respondeat superior applies
to these damages as it does to compensatory damages.
Minnesota follows the majority view in this country and
allows punitive damages under the doctrine of respon-
deat superior. Ibid. Section 2553. This is of no great mo-
ment in this case, because the wrongful conduct was au-
thorized or ratified by high echelon personnel. These
prefatory remarks are made because in only two in-
stances to this Court’s knowledge have there been sub-
missions of punitive damages to a jury in a products li-
ability case, and our Supreme Court has not yet had an
opportunity to review either one of these. Only in this case
and in the case tried by the Honorable Daniel F. Foley,
A-63
Third Judicial District Judge in Freeborn County, in an
action entitled Oakhurst, Inc. v. Tasco, Inc., et al, Fi'e
No. 27015, has there been such a submission to a jury,
and it is rather likely that the instant case wi'l be reviewed
first by the Supreme Court if there is an appeal because
of the lengthy trial before Judge Foley and the necessity
for transcribing approximately 20,000 pages of evidence.
B. FACTS SUPPORTING PUNITIVE DAMAGES
AWARD.
This Court feels that some brief recitation of the facts
might be useful insofar as they pertain to the punitive
damages submission:
This accident occurred in 1969. By 1954, the defen-
dant company was fully cognizant of the continuous
problem with clothing fires resulting from cotton flan-
nelette, and particularly those involving children. In 1956,
defendant recognized that it was sitting on a powder keg
because of the inflammability of its flannelette. By 1956,
also, the defendant was fully aware that there were com-
mercially feasible flame retardant processes on the mar-
ket [Henry Franklyn’s Lynrus FR-1 was an example]
and was fully conscious of its liability if it continued to
produce cotton flannelette without applying a flame re-
tardant. The cotton flannelette was ultra-hazardous and
was known so to be by the defendant at all times perti-
nent to this case. By 1960, defendant had been sued for
apparel fires on a number of occasions, and a great ma-
jority of these lawsuits pertained to the burning of cot-
ton flannelette. At no time during the period between
1954 and the date of this accident in 1969 did the de-
A-64
fendant attach any kind of warning to its product which
would be passed on to the consumer to warn them of the
ultra-hazardous nature of its product. These brief facts
illustrate in a general way that Riegel was fully aware
of the ultra-hazardous nature of its product; concealed
that knowledge from the public; consciously and purpose-
fully continued to manufacture the defective product by
millions of yards; and hid behind the invalid CS 191-53
Flammability Test, fully aware that the test was invalid.
They also illustrate clearly why the Court submitted the
issue of punitive damages to the jury. There is no doubt
in the Court’s mind that Riegel] knew that the production
of cotton flannelette for children’s and adult sleepwear,
but particularly children’s sleepwear, posed a grave dan-
ger to the lives of those customers using it for that pur-
pose, and its failure to warn and its failure to incorporate
a flame retardant which was available for fifteen years
prior to this accident must be viewed as conduct so in-
tentional, reckless, wanton, and wilful as to support a
very substantial award for punitive damages.
C. PUNITIVE DAMAGES IN PRODUCTS. LI-
ABILITY CASES.
While this was one of the first cases in Minnesota in
which the issue of punitive damages was submitted, and
will be a case of first impression in our Minnesota Su-
preme Court, there is ample authority throughout the
country for the submission of punitive damages in a prod-
ucts liability context. The leading cases on this subject
are Toole v. Richardson-Merrell, Inc., 251 Cal. App. 2d
689, 60 Ca’. Rptr. 398, 29 A.L.R.3rd 988; Gillham v.
A-65
The Admiral Corporation, 523 F.2d 102; Moore v.
Jewel Tea Co., 116 Ill. App.2d 109, 253 N.E.2d 636,
Aff'd, 46 Ill.2d 288, 263 N.E.2d 103; Hoffman v. Sterling
Drug, Inc., 485 F.2d 132; Drake v. Wham-O Mfg. Co.,
373 F.Supp. 608. Interestingly, the Hoffman case holds
that it is reversible error not to submit the issue of puni-
tive damages where there is a failure to warn, as there
was in this case, and that failure endangers public health
and safety.
In any discussion of the submission of punitive damages
in products liability cases, one cannot overlook the very
definitive article written by Professor David G. Owen in
1976 entitled “Punitive Damages in Products Liability Lit-
igation,” 74 Michigan Law Review 1257 [hereafter
Owen], because he gives precise reasons why such a
submission should be made in strict liability cases. There
is no difficulty in the strict liability case of awarding com-
pensatory damages to a person injured as a result of a
defective product where the manufacturer has innocently
marketed that product and has, in fact, exercised due
care. The difficulty, as Owen points out, is at the other
end of the “culpability scale,” because there injury re-
sults not simply because the manufacturer markets its
product, but because he does so in intentional or reckless
disregard of consumer safety. He concludes, therefore, that
punitive damages are probably appropriate and may be
usefully awarded in the cases involving high culpability.
An injured plaintiff would thus be entitled to damages
not only for the wrongful conduct of the manufacturer in
disseminating its defective product on the market, but for
doing so intentionally, maliciously, or in reckless disre-
gard of the rights of consumers.
A-66
In determining whether a manufacturer’s conduct re-
flects a flagrant indifference to public safety, Owen points
to five factors which may be considered:
“1. The existence and magnitude in the product
of a danger to the public;
“2. The cost and feasibility of reducing the dan-
ger to an acceptable level;
“3. The manufacturer’s awareness of the danger,
of the magnitude of the danger, and of the avail-
ability of a feasible remedy;
“4. The nature and duration of, and the reasons
for, the manufacturer’s failure to act appropriately
to discover or to reduce the danger; and
“5. The extent to which the manufacturer pur-
posefully created the danger.”
Applying these standards to the case at hand, it is evi-
dent from the testimony that the defendant Riegel Textile
was aware of the existence of approximately 155,000
burn cases annually at one point of time prior to the ac-
cident in question, and that a great bulk of these cases
involved children in sleepwear; that Riegel was also fully
aware of the ultra-hazardous nature of its flannelette; that
at reasonable cost it was feasible to reduce the danger of
ultra-hazardous sleepwear by applying a flame retardant
which had been on the market for approximately fifteen
years and defendant knew this; that it failed to act for
many, many years, for reasons best known to itself, but
which, in the view of the Court, related solely to the ques-
tion of profitability, and failed to warn the public of the
danger.
A-67
Owen points out that where manufacturers are 1) ac-
tually aware of a serious product hazard, and 2) refuse to
adopt a feasible corrective measure, where it is well
known that substantial risk of harm is presented if they
do not, and 3) deliberately conceal the danger of their
product to enhance its marketability, punitive damages
are called for. That is precisely what happened in this
case. Substantial evidence supports that conclusion, and
it was for this reason that the issue of punitive damages
was submitted to the jury. Moreover, this Court believes
that punitive damages are the wave of the future in Min-
nesota, because, in its most recent session, the Legisla-
ture enacted Chapter 738, Laws of Minnesota, Section 4,
which provides for the allowance of punitive damages in
civil actions for «ll causes of action arising after April
15, 1978. That section will become M.S.A. 549.20, and
would allow such damages against a corporation on a
respondeat superior basis.
The defendant argues that because the Court charged
that a wilful act was one which is done “intentionally,
knowingly, and purposely, without justifiable excuse,”
that the jury could have found defendant Riegel liable for
punitive damages simply because it manufactured and
sold a standard product—namely, cotton flannelette—for
use in children’s sleepwear. This is a rather interesting
way of understating the Court’s charge and taking terms
out of context. The fact is that the Court had charged the
jury that they could not consider punitive damages until
1) they had determined that the defendant had committed
wrongful conduct by disseminating the defective product
onto the market and 2) that the wrongful conduct had
caused the plaintiff's injury. Only after it had made these
A-68
findings could the jury then consider whether that wrong-
ful conduct was intentionally, knowingly, and purposely
done. The argument is somewhat sophistic and merits no
further discussion. Defendant argues that because it com-
plied with the Flammable Fabrics Act, in that its cotton
flannelette passed the CS 191-53 test under that Act, the
imposition of punitive damages is precluded, on the the-
ory that the defendant has complied with the law. The
difficulty with that argument is that it does not assess
the validity of the test. It was proven almost conclusively
at trial that this test did not and could not properly deter-
mine the flammability of fabrics such as cotton flannelette.
Moreover, it was almost conclusively established, in ad-
dition, that defendant Riegel knew not only that the test
was invalid but that it could not evaluate the flammabil-
ity of its products. While it hid behind the skirts of the
test in order to make its claim that it was not acting in
reckless disregard of the rights of the public, its evidence
in this regard was not very persuasive. Knowing full well
at all times after the passage of the Flammable Fabrics
Act that CS 191-53 was unreliable, the defendant can-
not today say that punitive damages should not be al-
lowed simp'y because its cotton flannelette passed an un-
reliable test. Riegel’s argument that it has a right to act
on the basis of the legislation that promulgated that test
is a specious one, because such actions were not taken in
good faith and must be viewed in the context of the
knowledge that Riegel had that its cotton flannelette was
extremely dangerous to the public because of its racing
flammability.
A-69
D. EXCESSIVENESS OF PUNITIVE DAMAGES.
One of the claims of the defendant is that the punitive
damage verdict was excessive, having been rendered by
reason of passion and prejudice on the part of the jury.
The Court has taken great pains to examine that claim,
because, of course, the award was very substantial. More-
over, it was for this reason that separate briefs and sep-
arate oral argument were permitted. Since the jury is giv-
en full discretion in making its award of punitive dam-
ages under Minnesota law, a trial court cannot change
that award unless it is excessive as a matter of law.
Some courts have said that punitive damages must bear
a reasonable relationship to the amount of compensatory
damages awarded in order to guard against excesses.
Thompson v. Swank, 317 Pa. 158, 176 A. 211 [1934], is
one of those cases, and it was pointed out in Thompson
that punitive damages must not be grossly disproportion-
ate to the real damage inflicted. The real damage in-
flicted in this case produced a verdict of $750,000.00.
Thus, the ratio between the punitive damages and the
compensatory damages is 1 1/3 to 1.
In the largest single plaintiff's personal injury jury ver-
dict rendered in a products liability case, in which $125,-
000,000.00 in punitive damages was awarded by a jury
[Richard Grimshaw v. Ford Motor Co., Superior Court,
Santa Ana, California, February 6, 1978] the trial court
reduced the punitive damage award to $3,500,000.00.
The compensatory damage award in that case was $2,-
500,000.00, and thus the ratio between the punitive dam-
ages and compensatory damages, which the trial court fe!t
was appropriate in Grimshaw, was 1 2/5 to 1.
A-70
In Gillham yv. The Admiral Corp., supra, the jury
awarded compensatory damages of $125,000.00, punitive
damages of $100,000.00, and attorneys’ fees of $50,-
000.00, which, in this Court’s judgment, must be viewed
as a part of the punitive damage award. [See Owen, page
1356, Footnote 478] In that case a motion for judgment
n.o.v. was granted by the trial court, setting aside the
award of punitive damages and attorneys’ fees. However,
the United States Court of Appeals for the Sixth Circuit
reversed that judgment and restored the awards of puni-
tive damages and attorneys’ fees. If the attorneys’ fees are
viewed, as previously suggested, as a part of the punitive
damages award, the ratio in that case would be 1 1/5 to
1. In Toole v. Richardson Merrell, Inc., supra, the jury
awarded the plaintiff $175,000.00 compensatory damages
and $500,000.00 punitive damages. The trial court in that
case remitted $250,000.00 of the punitive damage award,
and this was upheld on appeal. The ratio in that case was
slightly over 1 2/5 to 1.
The Court has chosen to recite these examples of
awards of punitive damages and their relationship to the
awards of compensatory damages because there are no
standards to guide a court in determining whether an
award of punitive damages is excessive, and that is par-
ticularly true in products liability cases, because punitive
damages in those cases are in a state of current develop-
ment. It is even more true in Minnesota where punitive
damages have not been awarded until this case and the
Oakhurst case. Even counsel, when asked by the Court
at oral argument what criteria they thought the Court
could employ in determining whether an award of dam-
A-71
ages was reasonable, could offer no suggestions, The
Court does believe that looking at the ratio between puni-
tive and compensatory damages, if the ratio is reasonable,
is one method that may be used as a guideline in deter-
mining whether the punitive damage award is excessive.
In Minnesota, we also have some treble damage stat-
utes that cover certain intentional torts. M.S.A. Section
548.05 and M.S.A. 561.04. These statutes might also
serve as some kind of guideline, because they are, in ef-
fect, punitive damage statutes and allow a ratio of 2 to 1
between the punitive aspect and the general damage as-
pect.
In its memorandum on punitive damages, Riegel makes
one or two other points which hardly bear discussion, be-
cause they have very little merit to them. The first is that
the Court failed to advise the jury that they could consid-
er the fact that the cotton flannelette conformed to CS
191-53 in considering the question of punitive damages.
No request for such an instruction was made, of course;
however, the Court did charge the jury that in considering
whether the defendant acted in disregard of the plain-
tiffs rights wilfully and recklessly, it could consider,
among other things, the fo!lowing factors: the reasons for
the manufacturer’s failure to act appropriately to reduce
the danger and the extent to which the defendants are
subject to Federal Safety Regulation.
Riegel also asserts that the Court failed to instruct the
jury on the question of the mother’s duty, insofar as
that may have been an intervening cause of the plaintiff's
injuries. What that could possibly have to do with puni-
tive damages is beyond this Court’s comprehension, but,
in any event, the Court did charge the jury on the ques-
A-72
tion of the mother’s negligence, the jury returned a ver-
dict in which they concluded there was an absence of any
negligence on the mother’s part, and thus the causation
question became moot.
Finally counsel argues that there was misconduct on
the part of plaintiffs’ counsel during the trial and in his
final argument. As previously pointed out, there were only
two objections to the final argument, neither of which
suggested any impropriety on the part of counsel. Nothing
that plaintiffs’ counsel did during the course of the trial,
nor in his argument, could be classified as misconduct
as that word is used in the case law in Minnesota. While
the Court, as previously noted, was concerned with the
personal animus that existed between counsel during the
course of the trial, none of this rose to the level of mis-
conduct and was really more lack of professional courtesy
than anything else and technical failures to comply with
the Rules of Civil Procedure.
This Court is mindful of the fact that a $1,000,000.00
punitive damage award is very substantial and generous.
However, when that award is viewed in light of the mag-
nitude of the danger to the public, which the defendant,
a major corporation, created and persisted in extending,
when viewed in light of the fact that it was economically
feasible to reduce the danger to a fairly acceptable level
for about fifteen years, when viewed in light of the de-
fendant’s knowledge that it was “sitting on a powder
keg” all through this period, when viewed in light of the
fact that the defendant presented no credible defense to
this lawsuit and that its principal witnesses, Lund and
Buck, gave completely implausible testimony to a jury,
A-73
and when viewed in light of the obvious wealth of a New
York Stock Exchange listed corporation, it cannot be said
that the award was excessive as a matter of law.
IX.
CONCLUSION
Nothing that occurred during the course of the trial
and nothing that has been raised by defendant in its var-
ious memoranda suggests that there has been jury mistake,
improper motive, bias, or caprice in this trial. No injustice
has been done to the defendant. The injustice that was
done to the plaintiff Lee Ann Gryc has been rectified by
the jury verdict. A trial court is not free to set aside a
jury verdict “whenever it is displeased or dissatisfied with
the result of the jury’s deliberations.” And certainly would
not be in a position to do so when it is neither displeased
nor dissatisfied. Koenig v. Ludowese, 308 Minn. 380, 243
N.W.2d 29.
What was said in Koenig by Chief Justice Sheran is
particularly appropriate here and bears repeating:
“As early as 1882, in Rheiner v. Stillwater St. Ry.
& T. Co., 29 Minn. 147, 150, 12 N.W. 499, 451,
Mr. Justice Mitchell noted that a trial court ‘ought
to exercise not merely a cautious, but a strict and
sure, judgment before setting aside a verdict’ ren-
dered by a jury, for ‘the general rule is that a ver-
dict will not be set aside unless clearly and palpably
against the evidence.’ The reasons supporting this
view of Mr. Justice Mitchell apply even more strong-
ly today. The likelihood of unjust jury verdicts re-
sulting from poor preparation or surprise has been
A-74
reduced, if not elim'nated, by the wide-ranging modes
of discovery permitted under the Rules of Civil Pro-
cedure first adopted in 1951. Jurors, when selected
in compliance with the relevant statutes and special
acts, are generally equipped by experience and edu-
cation to assess evidence and decide the questions
referred to them for decision. These factors should
enhance the reliability of jury verdicts and increase
judicial confidence in the soundness of their deci-
sions.
“Finally, our courts, already strained to meet the
burdens of increasing litigation, should not compli-
cate the allocation of judicial manpower and re-
sources by granting motions for new trial pursuant to
Rule 59.01[7], Rules of Civil Procedure, in cases
where the preponderance of the evidenc z fails to sug-
gest clearly jury mistake, improper motive, bias, or
caprice.
“In summary, trial judges should exercise the au-
thority granted in Rule 59.01 [7] with reluctance
and caution, particularly in cases where there are no
expressed and articulable reasons, based upon de-
monstrable circumstances or events, which support a
conclusion that injustice has been done . . .” [Em-
phasis supplied]
As previously pointed out, no injustice has been done
here, except the one to the plaintiff Lee Ann Gryc, and
that has been rectified by the jury verdict. Accordingly,
the jury verdict must stand.
/s/ 1. S., Judge
A-75
REQUESTED JURY INSTRUCTION #3
You are instructed that a fabric which passes the test
promulgated by the Federal Flammable Fabrics Act and
in force at the time of the sale of this cloth, CS191-53, is
normally flammable.
Federal Flammable Fabrics Act, 15 U.S.C. Sec. 1191, et
Seq.,
Bellotte v. Zayre Corp., 531 F.2d 1100, 1103 (1976).
REQUESTED JURY INSTRUCTION #4
You are instructed that evidence that the fabric sold
by defendant Riegel Textiles passed the Federal Flam-
mable Fabrics Act test, CS191-53, is evidence that the
fabric was not unreasonably dangerous at the time of its
sale.
Federal Flammable Fabrics Act, 15 U.S.C. Sec. 1191, et
seq.,
Bellotte v. Zayre Corp., 531 F. 2d 1100, 1103 (1976).
TRANSCRIPT OF MOTION FOR
DIRECTED VERDICT
[1705] Mr. Holtze: If that is the case, then, the de-
fendant moves the Court for a directed verdict on the
ground that the plaintiffs have failed to maintain a bur-
den of proof in proving that the product involved herein—
that is, 100 percent cotton flannelette—was defective in
manufacture or design, in that it is not unreasonably dan-
gerous or unreasonably flammable, has passed the CS
191-53 and admitted so by the plaintiffs that it passe
this test and that it burns in a normal manner.
The Court: That motion will be denied.
* * *
A-76
[1708] Mr. Henshaw: Well, make that two motions.
Defendant moves the Court for a directed verdict on the
question of punitive damages, the reason being that there
has been no showing of the necessary wilfulness, wanton-
ness, or maliciousness by the plaintiffs, and as I under-
stand Minnesota law, something on the order of an
[1709] intentional tort is necessary to support an
award of punitive damages.
I think the evidence shows—as long as we are summa-
rizing here—that defendant was making all efforts to
test and develop a flame retardant treatment for cotton
flannelette that would be commercially successful and
that they were not in a position to do the basic chemical
research themselves. The evidence further shows that that
basic chemical research was being conducted on a large
scale in a number of places, the large chemical com-
panies, the U.S. government in its Southern Regional Re-
search Lab, and, as I am sure plaintiffs will point out,
Mr. Franklyn’s factory.
I think that the evidence submitted by the defendant
shows that the article sold was normally flammable, was
no different than it had been for however long cotton
flannelette had been made in regard to its flammability
characteristics, and that basically no actions supporting
an award of punitive damages have been proven by the
plaintiffs.
The Court: That motion will be denied.
* * *
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16
Commercial
Practices
PART 1000 TO END
Revised as of Jonvary 1, 1980
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1980
With Ancillarivs
Published by
the Office of the Federo! Register
National Archives avd Records Serve
General Services Administration
as o Special Edition of
the Federal Register
A-78
Chapter tl—Consumer Product Safety Commission
the act that the act, the Government,
or any branch thereof, guarantees, io
any manner that such product, fabric,
or related material conforms to a
flammability standard in effect undcr
the act,
PART 1609-—TEXT OF THE LAMMA-
BLE FABRICS ACT OF 1953, AS
AMENDED IN 1954, PRIOR TO 1967
AMENDMENT AND REVISION
§ 1609.1 Text of the Flammable Fabrics
Act of 1953, ax amended in 1954.
The following is the text of the
Flammable Fabrics Act of 1953, ch,
164, 67 Stat. 111, as amended, ch, 833,
68 Stat. 770 (1954):
AN Act
To prohibit the introduction or movement
in interstate commerce of articles of weir
ing apparel) and fabrics which are so
highl’ flammable as to be dangerous
when worn by individuals, and for other
purposes,
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled,
Suorr Tiree
Suction 1, This Act may be cited as tie
“Flammable Fabries Act.”
DerFriNiTIONS
See, 2. As used in this Act—
(a) The term “person” means an individu:
al, partnership, corporation, association, or
any other form of business enterprise.
(ob) The term “commerce” means com
merce among the several States or with for
cizn nations, or in any Terriiory of the
United States or in the Distriet of Colim
bia, or between any such Territory and in
other, or between any such Territory and
any State or foreign nation, or between the
District of Columbia and any State or Terri
tory or foreign nation.
«) The term “Territory” Includes the in
sular possessions of the United States snd
also Any Territory of the United States.
(d) The term “article of wearing apparel"
means ty costume or article of cloth ny
worn or Intended to be worn by individuals
except hats, gloves, and footwear: Provided
however, That such hats do not constitute
or form part of a covering for the neck, face.
or shoulders when worn by individuals: Pro
vided further, That such gloves are not
more than fourteen inches in length are are
not affixed to or do not form an integral
part of another garmert: And provided fur
ther, That such footwcar does not consist ot
§ 1609.1
hosters in whole or tn part and ts not af
fixed to or foes not form an integral part of
another garment,
(o) The term “fabric means any material
‘other than fiber, (lament, or yarn) woven,
knitted, felted, or otherwise produced from
or in combination with any natural or syn-
thetic fiber, film, or substitute therefor
whieh is Intended or sold for use in wearing
'poare) exeept that onterlining fabries when
tented or seld for use in wearing apparel
hall not be subject to this Aet,
a) ‘The term interlining’ means anv
tabrie whieh js intended for neorporation
mio aun article of wearing apparel as a layer
between an ouler Shell and an cnmer bit
‘g) The term “Comission” means the
Pederal Trade Commission,
th) The term “Federal Trade Comausston
Art’ ineans the Act of Congress entittea
“An Act to ereate a Federal Trade Commu.
on, to detine its powers and duties, and tor
Ober purposes.” approved Seuteaiuer 26.
lols, as amended,
PROntarith TRANSACTIONS
Sree. 3. ta) The manufacture for sale, the
site or the offering for sale. in comme ree,
ae the importation into the United States,
or the introduction, delivery for introdue-.
flon, Transportation or causing to be trans:
ported in commerce or for the purpose of
sale or delivery after sale ip commerce, of
any article of wearing apparel whiel, vader
the provisions of section 4 0° this Aet is so
badly flammable as to be dunperaus wher
worn by tndividuals, shall be intiwfal one
shall be an untair method of competition
and an unfair and deceptive act or praction
in conumerce under the Federal Trade Com.
mission Act,
(b) The sale or the offering for sale, in
commerce, or the importation unto the
United States, or the introduction, delivery
for introduction, LCransportaion or causing
to be Uransported in commerce or for the
purpose of sale or delivery afier sale in com
merece, Of ane fabric whieh Under the provi
sions Of section 4 of this Act is se hietly
fiammable as to be Cangerous when worn by
individuals, shall be unlawful and shall be
an unfair method of competition and an
unfair and deceptive act or practice incom
toerce under the Pederal Trade Commission
Acl
(©) The manutecture for sale, the sale or
the offering for saie, of any article of wour.
(M8 Apparel mace of fabric whieh under see.
hon 4 is so highly flammable as to be dan-
rerous When worn by individuals and whieh
has been shipped or received in conmnmerce
shall be unlawful and shall be an unfair
method of competition and an untaw and
deceptive act or practice in commerce under
the Pederal Trade Commuasion Act
417
A-79
§ 1609.1
STANDARD OF FLAMMABILITY
Src. 4. (a) Any fabric or article of wearink
apparel shall be deemed so highly flamma.
ble within the meaning of section 3 of this
Act as to be dangerous when worn b; Indi:
viduals if such fabrics or any uncove: ed or
exposed part of such article of wearli« ap-
pare) exhibits rapid and intense burning
when tested under the conditions and n the
manner prescribed in the Commercial
Standard promulgated by the Secretary of
Commerce effective January 30, 1953, and
identified as “Flammability of Clothing
Textiles, Commercial Standard 191-53. or
exhibits a rate of burning in excess of (hat
specified in paragraph 3.11 of the Commer
cial Standard promulgated by the Secretary
of Commerce effective May 22, 1953. and
identified as “General Purpose Viny! Plastic
Film, Commercial Standard 192-53." For
the purposes of this Act, such Cemmerci |
Standard 191-53 shall apply with respect to
the hats, gloves, and footwear covered by
section 2(d) of this Act, notwithstanding
any exception contained In such Conner
cial Standard with respect to hats, ) loves
and foo.wear.
(b) If at any time the Secretary of Con,
merece finds that the Commercial Standart.
referred vo in subsection (a) of this section
are inadequate for the protection of the
public interest, he shall submit to the Con
gress a report setting forth his findings to. ~
acther with such proposals for legislation as
he deems appropriate.
(ce) Notwithstanding the provisions of
paragraph 3.1 Commercial Standard 191.53,
textiles free from nap, pile, tufting, Nock or
other type of raised fiber surface when
tested as described in said standard siiall be
classified as class 1, normal flammability,
when the time of flame spread is three and
one-half seconds or more, and as cas 4,
rapid and intense burning when the tune of
flame spread is less than three and o1 ¢ hall
seconds. (Approved August 23, 1954.)
AOMINISTRATION AND ENFORCEME! T
Sec. 5. (a) Except as otherwise specifically
provided herein, sections 3, 5, 6, and 4b) of
this Act shall be enforced by the Commis:
sion under rules, regulations and prov cedure
provided for in the Federa) Trade Comin
sion Act.
(b) The Commission is authorized and di
rected to prevent any person from viola ine
the provisions of Section 3 of this Act tn th:
same manner, by the same means ai! with
the same jurisdictivn, powers and duties as
though all applicable terms and proj tsions
of the Federal Trade Commission Act were
incorporated into and made a part of (his
Act. and any such person violating any pro
vision of section 3 of this Act shall be sub
ject to the penalties and entitled © thy
privileges and imimun.cies provided oo aid
Title 16—Commercial Practices
Federal Trade Cominission Act as though
the applicable terms and provisions of the
said Federal Trade Commission Act were in.
corporated Into and made a part of this Act,
(¢) The Commission is authorized and di.
rected to preseribe such rules and regula.
tions as may be necessary and proper for
purposes of administration and enforcement
of this Act
(d) The Commission is authorized to--
(1) cause inspections, analyses, tests, ang
examinations to be made of any article of
wearing apparel or fabric which it hag
reason to believe falls within the prohibi.
tions of this Act; and
(2) cooperate on matters related to the
purposes of this Act with any department or
agency of the Government, with any State,
Territory, or possession or with the District
of Colum a, or with any department,
agency, or Political subdivision thereof; or
with any person
INJUNCTION AND CONDEMNATION PROCEEDINGS
Sec. 6. Ga) Whenever the Commission has
reason to believe that any person ts violat.
ing or is about lo violate section & of Unig
Act, and that it would be in the public inter.
est tocenjoin such violation until complaint
voder the Federal Trade Commission Act ix
issued and choalssed by the Common or
until order to cease and desist. made thereon
by the Commission bas become final within
the meaning of the Pederal ‘Trade Comrnix
sion Aet or is set aside by the court on
review, the Commission may bring sult in
the district court of the United States or jn
the United States court of any Territory for
the district or Territory in which sueh
person resides or transacts business, t&}
enjoin such violation and upon proper show.
ing A temporary injunction or restraining
order shall be granted without bond.
(b) Whenever the Commission has reason
to believe that any article of wearing appar
el has been manufactured or introduced
into commerce or any fabric has been intro.
duced in commerce in violation of section 3
of this Act, it may institute proceedings po:
process of libel for the seizure and confisea
tion of such article of wearing appare) op
fabre in any district court of the Uniteg
States within the jurisdiction of which sueh
article of Wearing appare! or fabric ts fonng
Proccedings i cases instituted under the
authority of this section shall conform as
nearly as may be to proceedings in rem jp
admiralty, except that on demand of either
party and in the discretion of the court, any
wssue of fact shall be tried by jury, When
ever such proceedings involving ldentica) ay
Licles of wearing apparel or
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