Summary of a Recent
Judicial Development in
Environmental Law

Manufacturer's Potential Liability Does Not Extend to the Product's Demolition

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Hunt v. Unknown Chemical Manufacturer Number One, No. IP02-389CMS, 2003 WL 23101798 (S.D. Ind. Nov. 5, 2003), the United States District Court for the Southern District of Indiana granted summary judgment in favor of the defendants on all claims. The plaintiffs sued the defendants for failure to warn and breach of implied warranty stemming from the plaintiffs' exposure to arsenic in the defendants' chromium copper arsenate (CCA) treated wood. The court held that the plaintiffs' failure-to-warn claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the plaintiffs' breach of implied warranty claim failed for lack of privity with the defendants.

Background

In 1986, plaintiff Andrew Hunt's father constructed a wood deck on a residence owned by his father, but later owned by the plaintiffs. Id. at *1. Hunt's father purchased the treated wood used to build the deck from Defendant Furrow Building Materials (Furrow). Id. The rest of the wood was stored in a storage barn. Id. Prior to being sold to Furrow, the wood was treated with CCA, a pesticide registered with the Environmental Protection Agency (EPA). Id. The plaintiffs purchased the residence from Hunt's father, and shortly after purchasing, the plaintiffs tore down the deck, burned the treated wood in their backyard, and used the ashes to fertilize their garden. Id. After scattering the ashes on the garden, plaintiff Andrea Hunt learned about the dangers of exposure to CCA treated wood. Id. The plaintiffs had the ashes and soil tested for arsenic, which revealed elevated levels of arsenic in the soil. Id. In response, the plaintiffs filed suit. Id.

Arguments

The plaintiffs brought this action against the defendants for property damages based on theories of strict liability failure-to-warn, negligent failure-to-warn, and breach of implied warranty. Id. at *2.

The defendants motioned for summary judgment asserting that the plaintiffs' claims were expressly pre-empted by FIFRA, 7 U.S.C. § 136(a), and in the alternative, the defendants claimed that the plaintiffs failed to state a claim under the Indiana Product Liability Act (IPLA). Id. at *2-3. Additionally, the defendants claimed that the manufacturer's liability did not extend to demolition of its product because demolition was not a foreseeable use. Id. at *3. In response, the plaintiffs argued that their claims were not preempted by FIFRA and that they presented sufficient evidence to overcome the defendants' motions for summary judgment. Id.

Analysis and Holdings

The court first addressed whether FIFRA preempted the plaintiffs' failure-to-warn claims. Id. at *7. The plaintiffs argued that FIFRA was irrelevant to their claims because they were "challenging the warnings (or the lack thereof) on the treated wood itself, not the EPA-approved warnings on the CCA tanker trucks or other CCA receptacles." Id. The court found the plaintiffs' theory to be untenable, because "[a]llowing plaintiffs' state failure-to-warn claim to proceed on this theory would effectively hold the defendants to a different standard than [was] required by federal law, impose additional requirements for the labeling of CCA products, and compromise the Congressional goal of uniformity in pesticide labeling and packaging requirements." Id. at *8. Therefore, the court concluded that the plaintiffs' state law failure-to-warn claim was pre-empted by FIFRA. Id.

Next, the court addressed whether the plaintiffs' breach of implied warranty of fitness for a particular purpose claim was also preempted by FIFRA. Id. Because it was "difficult to determine whether the plaintiffs' warranty claim [was] based on allegations of inadequate labeling," and thus preempted by FIFRA, the court deferred ruling on this preemption issue and "consider[ed] whether defendants [were] entitled to summary judgment on [their] claim under Indiana law." Id. at *9. The defendants argued that the manufacturer's liability did not extend to demolition of the treated wood because demolition was not a foreseeable use. Id. at *3. The court held that destruction of the wood and post-destruction use of the wood as fertilizer were not foreseeable uses. Id. at *11. For this reason, even if the plaintiffs' failure-to-warn claims were not preempted by FIFRA, the defendants were nonetheless entitled to summary judgment because "'a manufacturer's potential liability for products placed in the stream of commerce does not extend to the demolition of the product.'" Id.

Finally, the court held that the plaintiffs' breach of implied warranty claim also failed because they were not in privity of contract with the defendants. Id. at *12. The court held that "a plaintiff bringing a breach of implied warranty of fitness for a particular purpose claim under [Ind. Code] § 26-1-2-315 must show privity of contract." Id.

The case was decided on November 5, 2003.