On June 15, 2022, the Fourth DCA issued its opinion in Michael Grieco v. Daiho Sangyo., Inc., AW Distributing, Inc., and Wal-Mart Stores East, LP affirming entry of summary judgment in favor of the manufacturer, distributor and seller of an allegedly defective can of keyboard dusting spray.  In reaching its opinion, the court summarized Florida’s product liability law for both strict liability and negligence and held:

1. a manufacturer has no duty to design the safest possible product;
2. a manufacturer cannot be held liable for the misuse of a product;
3. there is no duty to warn of an obvious danger or a danger about which the user is aware;
4. a legally sufficient warning does not need to prevent a user from misusing a product; and
5. a product manufacturer, distributor or seller does not owe a duty to a third party who is injured as a result of a buyer’s use of a product for unintended purposes. 

Grieco was injured by an impaired driver (“Merrill”) who lost control of her vehicle after intentionally inhaling a compressed gas dusting spray designed to remove dust from keyboards.  The spray contained a hydrocarbon gas propellant that, when inhaled, is an intoxicant.  To discourage inhalation, the spray’s manufacturer used a bitter-tasting additive to make the product unpleasant for consumption. Additionally, the spray’s label warned against misuse of the product and stated “inhaling contents may be harmful or fatal.” Merrill, who was addicted to huffing the subject spray and similar products, testified that she was aware of and ignored the warnings and that she had become so accustomed to the bitterant to the point that the taste was no longer noticeable. 

After being struck by Merrill’s vehicle, Grieco sued the spray’s manufacturer, distributor and retailer and asserted strict liability claims based upon design and manufacturing defects (the bitterant was not properly mixed with the gas or did not effectively deter the inhalation) and failure to warn.  Grieco also asserted a claim for negligence.

With regard to strict liability, the court rejected Grieco’s argument that the trial court made an inappropriate factual determination that the defendants did not need to make the spray “safer.”  The court explained that a manufacturer is not required to design a product that is totally incapable of injuring those who foreseeably come in contact with it.  Instead, the court held that an alleged design defect must “cause unforeseeable dangers during normal – that is, intended – use of the product.” (quoting Cook v. MillerCoors, LLC, 829 F. Supp. 2d 1208, 1216 (M.D. Fla. 2011)).  The court also rejected Grieco’s design and manufacturing defect claims because the product warning explained that the duster employed a “bittering agent to discourage ingesting the product, not to guarantee deterrence or prevent misuse from occurring.” (emphasis in original).

The court further held that a warning does not need to prevent a user from misusing the product in order to be sufficient, but should “contain some wording directed to the significant dangers arising from failure to use the product in the prescribed manner, such as the risk of injury or death.”  (quoting Scheman-Gonzalez v. Saber Mfg. Co., 816 So.2d 1133, 1139 (Fla. 4th DCA 2002)).  The court further explained that there is no duty to warn a consumer of an obvious danger or a danger that he is aware of.  The Fourth DCA noted the significance of Merrill’s admission that she knew about the warnings, but her addiction led her to ignore them.

Additionally, the opinion expanded on the First DCA’s analysis of negligence in DZE Corp. v. Vickers, 299 So. 3d 538 (Fla. 1^st DCA 2020), reh’g denied (July 27, 2020), rev. denied, Sc20-1280, 2021 WL 1426782 (Fla. Apr. 15, 2021).  In DZE, the court found that the voluntary conduct of an individual using a product for an unintended use breaks the causation chain between the merchant and a third party who is injured as a result.  The DZE court granted summary judgment in favor of the merchant where it was alleged that a household product failed to warn the consumer of the dangerous effects of inhaling its contents, when the consumer voluntarily ingested the product’s dangerous chemicals, lost control of his vehicle and injured a third party. The Court concluded that [a]s a matter of law, [the consumer’s] conduct – not the [merchant’s] – was the accident’s sole superseding cause.”

In Greico, the Fourth DCA expanded upon DZE and recognized that, absent a special relationship, a merchant does not owe a duty to a third party who is injured as a result of a buyer’s use of a product for unintended purposes.  This ruling affirms and strengthens the well-settled Florida case law that a duty is not owed to the world at large but arises out of a relationship between the parties. See McCain v. Fla. Power Corp., 593 So. 2d 500, 504, (Fla. 1992); Grunow v. Valor Corp. of Fla., 904 So. 2d 551, 556 (Fla. 4^th DCA 2005).

While the principles and decisions underlying the Grieco opinion are not new, the Fourth DCA’s succinct summarization and explanation of Florida’s product liability law is important and useful for the defense of future claims.  The recognition that a manufacturer is not an insurer against all injuries that could occur and has no duty to design or manufacture the safest possible product is a key legal argument against defect claims for failing to equip a vehicle with emerging technologies. 

Likewise, the court’s recognition that a warning can be adequate, as a matter of law, if it is accurate, clear, and unambiguous or where the user was already aware of the danger or it was obvious will provide an avenue to defeat many failure to warn claims through summary judgment. 

Finally, the holdings that a manufacturer is not liable for the misuse of a product and that voluntary misuse of a product resulting in injury to another person breaks the chain of causation are key holdings against the proliferation of increasingly novel defect theories.  The Grieco analysis would apply equally to other claims based on misuse of any ordinary consumer product that causes injury or damage.  Examples of novel claims that should be foreclosed by the Grieco findings include:

• mobile phones/mobile apps that do not prevent vehicle drivers from texting, using apps, or watching videos while driving;
• motor vehicles that do not have a breath-alcohol interlock to prevent drunk driving;
• nail gun manufacturer liability to a person who is intentionally shot by a nail gun; or
• a firearm manufacturer being held liable for criminal use of the firearm[1]; and
• a wide array of other similar scenarios which are certainly not beyond imagination. 

[1] These claims are barred by the Federal Protection of Lawful Commerce in Arms Act, but even in the Act’s absence, Grieco’s holdings should preclude liability in Florida.