THORNBERRY, Circuit Judge:
This appeal is from a judgment of the United States District Court for the Northern District of Texas in favor of Appellee for personal injuries sustained while using a mixture of Appellants' cosmetics. Appellee, Marjorie Ann Pruitt, sustained third-degree chemical burns on her scalp and right ear resulting from the application to her hair of a mixture of two products designed for bleaching purposes — "Helene Curtis New Blue Bleach," manufactured by Appellant Helene Curtis, and "L'Oreal Creme Developer," manufactured by Cosmair. The products were purchased from a beauty parlor in Terrell, Oklahoma, by a friend, Mrs. Hendren, who applied them to Mrs. Pruitt's hair at Mrs. Hendren's home in Terrell.
In response to special issues, the jury found that the Blue Bleach and Cosmair mixture "contained ingredients that were not suitable and reasonably fit for the purpose for which said products were used when used in combination with the other," and that such ingredients were a proximate cause of the injury. Both products were found to have contained "corrosive substances" (defined as "any substance which in contact with living tissue will cause destruction of tissue with chemical action") which were a proximate cause of the injury. Mrs. Pruitt was found to have followed the directions which accompanied the products and was found not to have been negligent in mixing or applying them. A verdict was returned in favor of Appellee in the amount of $64,500.00.
Appellants allege several grounds of error: (1) That the trial judge erred in not granting the motion for a directed verdict or motion for judgment notwithstanding the verdict since the evidence was insufficient as a matter of law to establish a defect in the mixture; (2) that the trial judge erred in not granting a directed verdict or judgment notwithstanding the verdict since as a matter of law Mrs. Pruitt was without the class of persons who could invoke the doctrine of strict liability against Appellants; (3) that the trial judge erred in submitting the special issues on corrosiveness; and (4) that the verdict was excessive. We agree with Appellants that as a matter of law the jury could not have rationally inferred that
I. The Applicable Law
The mandate of Erie R.R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, once again plunges this Court into the vexing and revolutionary field of products liability. The multi-state nature of the transaction necessitates a choice-of-law analysis. It is well settled that a federal court uses the substantive law of the state in which it sits and that under Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, substantive law includes the conflict-of-law rules. Although most courts in tort problems are moving away from the vested rights and territorial approach, Texas still follows the traditional lex loci delictus rule. Marmon v. Mustang Aviation, Inc., 416 S.W.2d 58 (Tex.Civ. App. — Austin 1967, no writ). Here no injustice results from the application of this rule because there is no real conflict. George v. Douglas Aircraft, 2d Cir. 1964, 332 F.2d 73, 76; Comment, 78 Harv.L.Rev. 1452 (1965). Both Texas and Oklahoma recently extended the scope of strict liability to encompass all products that are unreasonably dangerous. The Texas Supreme Court, relying on the Restatement of Torts § 402A, adopted the tort theory of strict liability. Shamrock Fuel & Oil Sales Company, Inc. v. Tunks, 416 S.W.2d 779 (Tex. 1967); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), noted in 45 Texas L.Rev. 790 (1967). The basis for the Oklahoma decision, Marathon Battery Co. v. Kilpatrick, 418 P.2d 900 (Okl.1966), is not clear, but the decisions relied on justify the conclusion that Oklahoma will also adopt the theory of strict liability in tort.
The mere adoption of strict liability for all products, however, does little to facilitate a solution to the issues posed by this appeal. These issues are the nature and quantum of proof necessary to establish liability; a proper understanding of the concept of a defective product; and the scope of the maker's duty to the consumer. Thus, as in Putnam v. Erie City Manufacturing Company, 5th Cir. 1964, 338 F.2d 911, 917, we must consider "all the available data," including the restatements of law, treatises, law review commentary, and the majority rule.
II. Policy Considerations
Initially, we review the policy considerations behind strict liability. With the technological revolution and modern marketing practices of this Century, Americans now enjoy the conveniences of many modern and beneficial products. These benefits to the many, however, have come at a high cost to a few. To combat the serious injuries
The particular market involved in this case is the cosmetics industry. In no other way can one glean a better conception of our "consumer perspective" than by considering the advertisements which constantly encourage women to beautify themselves. See 3 Frumer & Friedman, Products Liability § 2901 (1965); Cahn, Law in the Consumer Perspective, 112 U.Pa.L.Rev. 1 (1963). It is therefore understandable that courts have imposed strict liability on the cosmetics manufacturer who has bombarded the consumer with his impersonal merchandising techniques. Cowan, Some Policy Basis of Products Liability, 17 Stan.L.Rev. 1077 (1965). The mere imposition of strict liability on cosmetics makers does not, however, as the trial court's charge assumed, mean that the maker is liable for any harm to anybody under any circumstances. In fact, the ambit of responsibility is more circumscribed. The maker is not an absolute insurer who is responsible for all physical hurts occurring in the course of using the product. Traynor, The Ways and Meaning of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363 (1965); Freedman, "Defect" in the Product: The Necessary Basis for Products Liability, in Tort and in Warranty, 33 Tenn. L.Rev. 323 (1966). The question facing courts today is what doctrine will replace fault as a means of delimiting liability. The chief limitation (which was accepted by the Oklahoma Supreme Court in Marathon) is the requirement that the product be defective for its intended use. The Restatement of Torts § 402A provides a lucid definition: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer * * * is subject to liability
Demanding that the defect render the product unreasonably dangerous reflects a realization that many products, such as cosmetics, have both utility and danger. James, Products Liability, Texas L.Rev. 114 (1955). Since, in the instant case, there was no evidence of any miscarriage in the production and no foreign substance was found in either product, we are confronted with what has been termed a design problem: The product was exactly as intended and yet harm still occurred. See Wade, supra.
III. Federal Test for the Sufficiency of the Evidence
It should be evident from the foregoing definition of a defect that the test for the sufficiency of the evidence is of paramount importance. This Court recently reaffirmed in Planters Manufacturing Co. v. Protection Mutual Insurance Co., 5th Cir. 1967, 380 F.2d 869, the principle that although state law governs the elements of a cause of action, the sufficiency of the evidence is a matter of federal law.
The test employed by the Fifth Circuit is that a fact issue must be submitted to the jury if reasonable men could differ on the conclusions to be reached from the evidence presented. Isaacs v. American Petrofina, 5th Cir., 1966, 368 F.2d 193; Wells v. Warren, 5th Cir. 1964, 328 F.2d 666. We must view the evidence and all reasonable inferences most favorably to the party against whom the motion is made. Moreover, only the evidence and the reasonable inferences which support Appellee's theory may be considered. Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Berry v. United States, 1941, 312 U..S 450, 61 S.Ct. 637, 85 L.Ed. 945. Indeed after Planters our sole function is to ascertain if there is a rational basis in the record for the jury's verdict. The Planters
In deciding how much the jury can speculate it is well settled that an appellate court cannot weigh the evidence or the credibility of the witnesses. Wells v. Warren, supra. The line of demarcation which we are required to walk is ephemeral: We must conclude that an inference is unreasonable without falling into the trap of weighing all the evidence and deciding that while the jury's inference is reasonable, the evidence shows that another inference is just as reasonable, if not more so. 2B Barron & Holtzoff, supra at 392. It is only to that limited extent that all the evidence is considered.
IV. Proof Required for Recovery Under Strict Liability
The doctrine of strict liability only removes the requirement of privity of contract; it does not prove Appellee's case. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 840 (1966). Since there was no direct evidence of an identifiable defect, we must decide the meaning of a rational inference in a products liability case which rests entirely on circumstantial evidence. The breach of duty which the jury would have had to infer was that the New Blue Bleach and L'Oreal were unreasonably dangerous for their intended use. As stated, in order to justify that finding the jury must have concluded that the products were so dangerous that a prudent maker would never have marketed the products had he known of their condition. Such a conclusion would be reasonable only if the jury could have concluded that the mixture was defective; that the products were intended to be mixed; that the application by Mrs. Hendren comported with professional standards; and, finally, that Appellee's scalp was not hypersensitive. We have not considered the issue urged by Mrs. Pruitt that she was inadequately warned of danger. The jury found that the warnings to Appellee for use were inadequate, but that this failure was not the proximate cause of the injuries. Since Appellee failed to move for a directed verdict in the trial court, she cannot now challenge the sufficiency of the evidence. See 2B Barron & Holtzoff, supra at 424.
A. Appellee's proof about the mixture.
First, we consider the proof offered by Appellee on the dangerous qualities of the mixture. Appellee elicited testimony that the directions accompanying the Helene Curtis bleach were followed.
Appellee also obtained the statement from Mr. Dieter, a cosmetic chemist for Helene, that in order to produce such a burn the products either had to be defective or the directions not followed. Dr. Majors, Appellee's personal physician, testified that in his opinion the burn happened suddenly. By this statement he meant about fifteen minutes. It was shown that the solution was on Mrs. Pruitt's head about fifteen to twenty minutes before the burning started. Dr. Majors also testified that he did not believe a cut could produce this burn. His subsequent testimony is the most interesting. He stated that he thought one of two things happened: There was either some mislabeling of one of the bottles so that the solution or the powder was not what was usually in the products, or the directions were not followed properly. He concluded that it was his opinion that this "chemical burn was produced by the application of the bleaching substance she told me she used on her scalp."
On the basis of this testimony, Appellee asserts that the defect in the mixture speaks for itself. Although the trend has certainly been to allow more and more circumstantial evidence to serve as the basis for liability, we believe that in this instance a finding of a defect was unwarranted. The evidence about the character of the mixture and its propensities for harm does not suggest a defect. The cornerstone rule in products liability is that proof of mere injury furnishes no rational basis for inferring that the product was defective for its intended use.
We agree with Appellants' assertion that when circumstantial evidence is the only proof, courts have infrequently inferred negligence (here a defect) simply from the accident and proof of careful conduct by the plaintiff, and then only in instances where the accident is the type which, standing alone, points an accusing finger at the maker. Furthermore, in all these cases the chance of mishandling is improbable.
In the instant case Appellee has failed to prove that it was the toxicity of the products which caused the injury rather than the other factors just enumerated. The testimony about the burning quality of the products is patently inadequate. This burning quality resulted from the oxidation process which occurred when the bleach and peroxide were mixed. No liability can be based on this burning potentiality since the very process of bleaching hair involves a chemical reaction or oxidation process by which the color in the hair is destroyed. It takes a powerful chemical to accomplish the decolorization. As one court observed, the sale as a bleaching fluid of a product that did not bleach would itself constitute a breach of warranty. Thus
The other proof on the character of the mixture is just as equivocal. See e. g., Rexall Drug Co. v. Nihill, 9th Cir. 1960, 276 F.2d 637; Benavides v. Stop & Shop, Inc., 346 Mass. 154, 190 N.E.2d 894 (1963). The two statements that the products were either defective or misapplied do nothing to exclude each other. Dr. Major's statement that the "application of the bleaching solution" caused the burn is the most interesting. In Zampino v. Colgate-Palmolive Peet Co., 8 A.D.2d 304, 187 N.Y.S.2d 25 (1959), the plaintiff obtained a similar statement from a doctor to show that the aluminum sulfate in Veto deodorant was harmful. The court held that the statement amounted to no evidence of the fact that some ingredient in the product was harmful. Of course the application of the bleaching solution in the instant case caused the injury. The only circumstance in which this statement could conceivably support recovery would be one in which res ipsa loquitur was applicable. Here, however, it provides no basis for the inference that it was the nature of the mixture rather than the method of the applier which caused the burn. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955).
Nor do all the statements stand alone. We present the following discussion as additional support for our holding that as a matter of law these products were not in a defective condition which was unreasonably dangerous for their intended use. Appellee's problem is that she has not presented enough facts to constitute a cause of action in strict liability. Cf. Fidelity and Casualty Co. of New York v. Funel, 5th Cir. 1967, 383 F.2d 42. In all the other cases considered, the proof presented by the plaintiff was sufficient to make out a cause of action, despite conflicting evidence. Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed. 2d 935; Berry v. United States, 1941, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945. Our approach does not weigh the evidence or the credibility of the witnesses; we simply assert that the evidence about the characteristics of the mixture is not sufficient to constitute a cause of action in strict liability.
B. The Intended Use Doctrine: The Illegal Mixture.
In the first place, Mrs. Pruitt has not established a cause of action because she has not shown that the mixture of these products was intended. This fact had to be established because a product is not defective unless injury occurred during an intended use. Lartigue v. R. J. Reynolds Tobacco Co., 5th Cir. 1963, 317 F.2d 19; Spruille v. Boyle-Midway, Inc., 4th Cir. 1962, 308 F.2d 79. The directions on each package suggest that the mixture was not intended. The "New Blue Bleach" said: "Do not mix Helene Curtis New Blue Bleach with anything except Helene Curtis Creme Developer (or a good-grade or fresh 20 volume hydrogen peroxide)." It is undisputed that Cosmair peroxide is a cream rather than hydrogen peroxide. The label on the Cosmair bottle said: "For tinting or bleaching, use Oreor exactly as you would use 20-volume peroxide with Imedia Petite, Imedia Petite Excellence, Imedia Creme, Super Blue Creme Oil Lightener."
Mr. Dieter, the cosmetic chemist for Helene, compared the peroxides. He stated that hydrogen peroxide has the viscosity of water while the cream peroxide is similar to hand lotion. The cream peroxide contains additives which thicken the product and also provide some emollients or conditioning actions when used on the hair. He stated further that there was definitely a physical difference between the products, but his company had no way of ascertaining the chemical differences since the formula for the Cosmair product was a trade secret. Because of the uniqueness of cream peroxide, Mr. Dieter stated that Helene recommended that a hydrogen peroxide be used when Helene's own Cream Developer was not used, since there is nothing unique about a hydrogen peroxide. Cosmair's expert agreed that the trade secrets made it impossible to know about the products' compatibility; that the directions were meant to be followed; and that he did not recommend that the products be used together. Appellee has suggested that these directions serve both commercial and safety ends. Although they may have a dual nature, the decisions demonstrate that a failure to follow directions cannot support a finding of a defect. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 824 (1966). Indeed, instructions accompanying cosmetics are an integral part of the warranty and are to be strictly followed. E. I. DuPont De Nemours & Co. v. Baridon, 8th Cir. 1934, 73 F.2d 26. This principle is particularly applicable to a bleaching product which has the inherent danger of burning the scalp or hair if misapplied in any way. Furthermore, directions become more important when products are to be mixed. All the relevant decisions presented evince a hesitancy to hold the maker responsible when mixtures are involved. No doubt many of the plaintiffs' problems in these cases stem from the requirement that the other possible causes be negated by a preponderance of the evidence. But aside from the preponderance-of-the-evidence approach, which we have rejected, these decisions reflect the valid policy concern for the potential abuses of jury speculation when mixtures are the cause of injury. What these decisions justifiably demand is that there be a rational basis in the record from which the jury can make a selective choice between the products before the manufacturer can be held responsible for the harm caused by his product or the mixture. See Bathory v. Procter & Gamble Distributing Co., 6th Cir. 1962, 306 F.2d 22; Sheptur v. Procter & Gamble Distributing Co., 6th Cir. 1958, 261 F.2d 221; Harrod et al. v. Edward E. Tower Co., 346 Mass. 532, 194 N.E.2d 392 (1963). This requirement is all the more warranted when the products involved were never meant to be used together. Unlike the case of Ozark v. Wichita Manor, Inc., 5th Cir. 1958, 252 F.2d 671, in which component parts were used to produce a final product, it is clear in the instant case that the products involved were not marketed for that purpose.
Nor can it be said that Appellants should have foreseen the mixture, since the trade secrets of one maker prevented any safety tests on the product of the other. Manufacturers cannot be responsible for a combination which they did not recommend and which they had no way of guarding against at the manufacturing stage. Lartigue v. R. J. Reynolds Tobacco Co., 5th Cir. 1963, 317 F.2d 19. Moreover, the mixing of these products amounted to an abnormal handling or substantial alteration which, because it was uintended and unforeseen, excuses the makers from responsibility for any harm. Noel, Manufacturers Negligence of Design or Directions for Use of a Product, 71 Yale L. J. 816 (1962); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966).
C. The Intended Use Doctrine: The Intended User.
Appellee has argued that she did not know the difference between hydrogen and cream peroxide. This
Appellee's counter argument reveals the final fallacy in her position. Mrs. Pruitt asserts that a professional beautician in Terrell had mixed these two products and that the professional beautician who testified had done the same. Before these facts can become important, Appellee must show that Mrs. Hendren's method of application met professional standards. Our requirement that Appellee prove that Mrs. Hendren applied the mixture as a professional is justified by the conclusion that these were not over-the-counter products, nor was Mrs. Pruitt the intended user. Accordingly, evidence which shows that harm was suffered when the products were used by a layman does not necessarily demonstrate that the products would have been defective if applied by a professional. Parker v. State, 201 Misc. 416, 105 N.Y.S.2d 735, 741 (1959). This proposition is valid since it is well settled that a product cannot be deemed defective if proper application would eliminate the possible dangers.
Mrs. Hendren had seen the "FOR PROFESSIONAL USE ONLY — NOT FOR PUBLIC SALE" language on the Helene bleach. Her understanding of this language was that if you did not know how to use these products you had better leave them alone. (R. 184) She admitted that she had no professional training. However, she had once lived near a beautician student and had used her books and practiced on her. She said she had used the mixture in question on two previous occasions. She related the following events concerning the accident: Before applying the solution she had checked the scalp and found no cuts or abrasions. She admitted that the solution touched the ears but contended there was no way to avoid the contact. Furthermore, she had tried to wipe off the solution whenever it touched the skin. The solution was first applied to the outer parts of the hair. At that time she tested the hair and decided it was not bleaching very fast, so she went to fix some iced tea. Mrs. Hendren finished her tea and then proceeded to apply the solution down to an inch of the scalp. It was during this final application that Mrs. Pruitt complained of a burning sensation. Mrs. Hendren immediately washed off the solution and called Dr. Majors.
On the basis of this testimony, the jury concluded that Appellee and Mrs. Hendren followed the directions contained on the products when mixing and applying them. The uncontradicted testimony of a professional beautician, however, was that a professional would have taken precautions in addition to those prescribed by directions. This evidence was elicited from Mrs. Nickerson, an instructor at Bud's Hall Beauty College. This witness' conception of a "professional application" is far different from the picture drawn by Mrs. Hendren of two friends reading the directions from only the Helene package and drinking iced tea as the solution was applied. In order to acquire a license, a beautician must complete a course of one thousand hours, 475 of which are related to the process of bleaching hair. According to the professional witness, burning is the most common danger and one must therefore take precautions against leaving the solution on too long. A professional never depends on the customer's complaints and constantly surveys the hair to detect burning. This burning can be detected by holding the hand over the head. Burning can also be seen when the solution starts to move away from the scalp or bubble. The professional would also have taken a strand test every five minutes
These additional safety precautions would have materially lessened the chance of injury. It is this uncontradicted testimony which nullifies the statements that the products were either defective or misapplied. Moreover, these additional safety precautions illustrate that written directions do not give all of the safety procedures which the intended user would have applied. Appellants were justified in anticipating these professional methods, since it is well settled that a manufacturer has the right to expect that his product will be used in the normal and customary fashion. McCready v. United Iron & Steel Co., 10th Cir. 1959, 272 F.2d 700; Bennett v. Pilot Products Co., 120 Utah. 474, 235 P.2d 525 (1951). When these products were marketed, the makers could only foresee that they would be applied by a trained beautician. Therefore, the directions had to be adequate only for the professional's use. Taylor v. Jacobson, 336 Mass. 709, 147 N.E.2d 770, 775, 76 A.L.R. 2d 1 (1958). It is also clear that the maker must give directions which will be adequate in light of the intended users' training, Patterson v. George H. Weyer, Inc., 189 Kan. 301, 370 P.2d 116 (1962), and does not have to warn against dangers which are generally known. Jamieson v. Woodward & Lothrop, 1957, 101 U.S.App.D.C. 32, 247 F.2d 23; Parker v. State, 201 Misc. 416, 105 N.Y.S.2d 741 (1951). Thus, Mrs. Hendren's methods amount to the conduct of an atypical user and render the finding of a defect in the products irrational. This abnormal handling could not have been foreseen, and it was a substantial alteration of the method of application.
Finally, the problem of allergic users and hypersensitive people is a recurring one in the area of strict liability for cosmetics. As one commentator has asserted, products which involve chemical reaction never have any tests which can guarantee absolute safety to all the consuming public. Whitemore, Allergies and Other Reactions Due to Drugs and Cosmetics, 19 Sw.L.J. 76 (1965). Oklahoma law indicates that an allergic plaintiff cannot invoke strict liability. Merrill v. Beaute Vues Corporation, 10th Cir. 1956, 235 F.2d 893; John A. Brown Co. v. Shelton, 391 P.2d 259 (Okl.1964). Appellee has attempted to show that her skin is normal. None of her evidence was connected to the prior use of these products. Some courts indulge in a presumption that the skin is normal. Jacquot v. Wm. Filene's Sons Co., 337 Mass. 312, 149 N.E.2d 635 (1958). Although this presumption would usually be reasonable, it cannot apply here. As admitted by Dr. Majors, the only way of ascertaining whether Mrs. Pruitt was allergic to this particular mixture would be a test using these products. This is the function of the patch test which the professional would have performed. In such a situation, to presume that the skin is normal would be contrary to common sense. This conclusion is reinforced by the additional factors that the products were mixed contrary to directions and applied by a novice. Therefore, it cannot be said that Appellee has established any rational basis for excluding the possibility of a hypersensitive reaction.
On the basis of the foregoing factors, we hold that Appellee has established no legitimate basis from which the jury could rationally infer that Mrs. Pruitt negated the other possible causes of injury. Bronson v. J. L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388 (1965); John A. Brown Co. v. Shelton, 391 P.2d 259 (Okl.1964). A federal court does not function as a mere automaton in protecting seventh-amendment rights.
V. The Scope of the Duty Imposed by Strict Liability
The favored policy of jury trials in federal courts compels articulation of the other basis for our holding that Appellee should take nothing. Even if the jury could have properly found the mixture defective, there are additional obstacles to recovery. Specifically, the question presented is whether Appellants are responsible for the sale by the beauty shop to Appellee. What must therefore be decided is whether Mrs. Pruitt was a foreseeable user and whether the sale by the shop was foreseeable.
There is no "true rule" which will prevent the prostitution of the doctrine of strict liability into a form of absolute liability under which the maker is liable for all accidents resulting from unknown causes. Indeed, whether the ambit of responsibility will be the same as it is in negligence cases is still unsettled. Courts have attempted to answer this problem by again resorting to the intended use doctrine. This doctrine is composed of two factros: The marketing scheme of the maker and foreseeability of harm. Courts have defined foreseeability as the kinds of risks which the enterprise is likely to create, Lartigue v. R. J. Reynolds Tobacco Co., 5th Cir. 1963, 317 F.2d 19, or those risks which are inherent in the proper use of the products for the purposes for which they were intended. Spruille v. Boyle Midway, Inc., 4th Cir. 1962, 308 F.2d 79. It is these normal consequences which are a cost of doing business.
The dual concept of appropriate use and foreseeability of harm is traceable to Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960). The court asserted that the interests of the person who could reasonably be contemplated to use the product demanded that society remove the doctrine of privity as a defense. This decision rested on the policy that it would be unjust to allow the maker to create a demand for the product by mass advertising and then evade liability with the shield of privity. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942).
The scope of responsibility envisioned by Henningsen is still in conflict. The battle has been waged around the rights of the innocent bystander who is neither a consumer nor user of the products. Some courts have focused on the advertising and marketing rationales of strict liability to deny the bystander recovery. These courts reason that since the bystander is not in the distribution chain he has no reason to expect protection from harm caused by the product. To them privity has been abandoned only in the marketing sense and there must still be some nexus between the maker and the injured party besides the injury. Comment, Products Liability — Proceeding Apace, 33 Tenn.L.Rev. 341 (1966). The essential nexus is that the maker by his advertisements must have attempted to induce the injured person to purchase the product. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966). In support of this position, it has also been argued that the warranty of fitness does not extend to the public in general. Hahn v. Ford Motor Co., 256 Iowa 27, 126 N.W.2d 350 (1964). However, in Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129 (1965), the implied warranty was extended to cover a bystander who was hurt when the gun
The intended marketing scheme is one basis for deciding which users can be foreseen. In the instant case the uncontradicted testimony shows that these products were not marketed for use by the ordinary consumer. The bleach was sold through the Beauty Division of Helene Curtis which sells directly or through distributors only to beauty shops. The Cosmair expert also stated that the cream peroxide was sold solely to beauty shops. Mr. Thompson, the manager of the beauty shop supply house for the Terrell area, confirmed the validity of these company policies. He is the sole Helene Curtis distributor in the Terrell area and has only one competitor for the Cosmair products. The professional beautician was also uncontradicted in her testimony that these products were not for public sale. It is this scheme which made the professional the foreseeable user and, as stated previously, it was only to this professional that directions about proper use had to be given. Hubbard-Hall Chemical Co. v. Silverman, 1st Cir. 1965, 340 F.2d 402, 404.
Appellee has confused the doctrines of adequate directions and adequate warnings. Directions tell how to use the product efficiently while warnings tell the dangers involved. Dillard & Hart, Products Liability: Directions for Use and the Duty to Warn, 41 Va. L.Rev. 145, 147 (1955). Here, the directions on both products, including the technical terms referring to the peroxides, were adequate for the professional. It is only in relation to the professional that the adequacy of directions must be judged since a manufacturer does not have to give directions for use to a consumer when he has not employed his advertising to induce this consumer to make a purchase. E. I. DuPont De Nemours & Co. v. Baridon, 8th Cir. 1934, 73 F.2d 26; Dillard & Hart, supra, at 161. Consequently, Appellants were not required to give directions which would allow Mrs. Pruitt to use the products safely. Indeed, they could confine their products to beauty shops, and incur liability only if a consumer were injured when the solutions were applied there. Cf. Stottlemire v. Cawood, D.C. 1963, 213 F.Supp. 897. Beyond that context they could not foresee any other use, unless it were determined that they could foresee the resale by the beauty shop. Even then the only additional duty would be to give adequate warnings that the product was not for use by a non-professional beautician.
Two decisions provide further support for holding that Appellee was not a foreseeable user. In Harper v. Remington Arms Co., 156 Misc. 53, 280 N.Y.S. 862 (Sup.Ct. 1935) the manufacturer sold shells which were made solely for testing guns. The shells were sold to the plaintiff, who did not realize that the words "Proof Load" meant that the shells had an abnormal explosive force. The court found no liability, reasoning that the manufacturer was required to foresee only that class of persons who in the usual course of business would come within the orbit of danger. It could not foresee resale of the shells by the dealers to anyone except an arms manufacturer. In Kaspirowitz v. Schering Corp., 70 N.J.Super. 397, 175 A.2d 658 (1961), the plaintiff purchased from a druggist a dandruff control product which was intended to be sold only by prescription. Although the druggist assured the plaintiff that there was no danger, harm still occurred. The plaintiff contended that it was reasonably foreseeable that the product would be used on the consumer market despite the warning to the druggist. The court disagreed, holding that the warning did not run to the plaintiff since the manufacturer had not promoted his product through advertising to the public. See Stottlemire v. Cawood, D.C. 1963, 213 F.Supp. 897.
Harper and Kaspirowitz suggest that a warning to the beauty shop terminated the makers' responsibility for the future sale of the product. While it is certain that appropriate words of caution are a part of the obligations incurred in producing and selling commodities, Wright v. Carter Products, 2d Cir. 1957, 244 F.2d 53, the warning need only be reasonably calculated to reach and be understood by the person likely to use the product. James, Products Liability, 34 Texas L.Rev. 45 (1955). These words of caution have to be placed so as to catch the attention of the user and give a fair indication of the danger. Spruill v. Boyle-Midway, Inc., 4th Cir. 1962, 308 F.2d 79. The only beautician who testified knew that the products were not for public sale. The double warning on both sides of the Helene Curtis container imports this fact beyond any dispute: "FOR PROFESSIONAL USE ONLY — NOT FOR PUBLIC SALE." This was the only warning read by the parties before use. Both Mrs. Hendren and Dr. Majors testified that they understood the labels meant that the products were not for one unskilled in beauty applications. The Cosmair label contained the warning on the front: "FOR PROFESSIONAL USE." These words were sufficient, in light of the beautician's training and status as an expert, to apprise any beautician that the products were not for amateurs and thus not for resale.
Although the foregoing considerations are sufficient to deny Appellee recovery, there are even more compelling reasons for our holding. These additional considerations grow out of the doctrine of foreseeability of harm. That doctrine is a judicial explanation of the social policies which limit liability. Pease v. Sinclair Refining Co., 2d Cir. 1939, 104 F.2d 183, 123 A.L.R. 933. Once fault is removed as a limitation on liability, these policy considerations should be candidly explained. Until Americans have a comprehensive scheme of social insurance, courts must resolve by a balancing process the head-on collision between the need for adequate recovery and viable enterprises. Wilson, Products Liability, 43 Calif.L.Rev. 809 (1955). This balancing task should be approached with a realization that the basic consideration involves a determination of the most just allocation of the risk of loss between the members of the marketing chain.
It has been argued that the manufacturer should absorb the "typical risks" of marketing his product. Wilson, Products Liability, 43 Calif.L.Rev. 809 (1955). Is the chance that a non-professional would use the product a typical risk? Several factors are pertinent: The nature of the ultimate transaction; the methods employed in distributing the product; and the type of activity in which the user was engaged when harm occurred. Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965). In the instant case the products were marketed through distributors to innumerable beauty shops all over the country. The distributor in the Terrell area was clear that the products were to be sold only to beauty shops. The warnings on the packages supported this testimony. Indeed, the advertisements used by Helene to induce the purchase by the beauty shops stated: "YOU'LL SEE THE DIFFERENCE * * * YOUR PATRONS WILL FEEL THE DIFFERENCE WITH HELENE CURTIS NEW BLUE BLEACH." In this type of market, it would be impossible to police the prohibited reselling by trade agreements. Nor can the single sale by a beauty shop in Terrell, Oklahoma be indicative of such a widespread practice in the industry that we can hold that the makers knew or should have known of the practice and should have taken additional precautionary steps. Noel, Manufacturers Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816 (1962). With only one injury since 1960, it would appear that reliance on the distributor to sell exclusively to beauty shops, the training of the beauticians, and the warnings on the package is adequate to prevent the mishandling of the products. James, Products Liability, 34 Texas L.Rev. 45, 48 (1955).
The type of activity in which the user was engaged when harm occurred also cuts against the makers' responsibility.
The paramount reasons for denial of recovery in this case are the principles which have been traditionally employed to invoke the doctrine of strict liability. These policies compel our holding that the imposition of strict liability on these Appellants simply because they are the best-risk-bearers would be an undue impediment to business and an intolerable injustice. The policy that the maker has the greatest capacity to distribute the risks of loss is not such a blanket rule that it applies even though justice demands that another member of the marketing chain take the risk of loss for the injury. Confining the makers' responsibility to harm incurred by use of the products in a beauty shop is not a revival of the doctrine of privity of contract. It is simply an attempt to confine the scope of liability to the zone of danger which could reasonably have been foreseen before these products were sold. Even the decisions which give the broadest definitions of the intended-use doctrine do not go as far as Appellee urges. The decisions have expanded the doctrine of intended use to include the environment in which the product is used and the incidental and attendant consequences that accompany normal use. Spruille v. Boyle-Midway, Inc., 4th Cir. 1962, 308 F.2d 79; Boyl v. California Chemical Co., D.Or.1963, 221 F.Supp. 669; Hardman v. Helene Curtis Industries, Inc., 48 Ill.App.2d 42, 198 N.E.2d 681, 12 A.L.R.3d 1033 (1964); Haberley v. Reardon Co., 319 S.W.2d 859 (Mo.1958). The environment of the products in this case is a beauty shop. Their attendant use and incidental consequences do not include resale by the beauty shop, a mixture contrary to directions, and application by a
If the beauty operators had any doubt about the policy they could have simply asked Mr. Thompson, the distributor, who would have advised them the labels were meant to be heeded.