Allergies & Peculiar Susceptibility: Implied & Express Warranties
August 11, 2009
Many people suffer product-related injuries because they are allergic to ingredients in the products they use. Where the product or an ingredient in the product would not cause injury to most normal people, the manufacturer, middleman, or retailer being sued may raise as a defense that the user’s peculiar susceptibility to the product or one of its ingredients was the cause of the user’s injury, and that the product itself cannot properly be characterized as having caused the injury. The success of this defense may depend on the circumstances surrounding the product’s manufacturing, marketing, and use.
According to the majority of courts, there is no breach of the implied warranties of merchantability or fitness for a particular purpose where a product user sustains an injury due to an unusual allergic reaction or susceptibility to the product that is not common to normal users of the product. In a case where the plaintiff claimed to have suffered a serious allergic reaction to a liquid soap, leading to her skin being covered with inflamed and bleeding blotches, the court held that there was no evidence from which a jury reasonably could have inferred that the product would not pass without objection in the trade. Nor did the plaintiff offer proof to show that the product was not of fair average quality or fit for the ordinary purpose of cleaning.
On similar reasoning, liability was denied in a case where a plaintiff had a photosensitivity reaction to perfume, and the evidence showed that out of some 270,000 sales of the perfume in one year there were only twenty-five complaints. The court held that the plaintiff was one of a very small group that suffered an unfortunate result from the perfume. It concluded, however, that with a product such as perfume which is widely sold and easily purchased, that the fact than an infinitesimal number experienced a discomforting reaction is not sufficient to establish that the product was not fit for the purpose intended.
Some cases denying liability to the allergic user seem to stress the lack of knowledge of danger to such a user. Although standard warranty doctrine does not require that a defendant have such knowledge in order for a plaintiff to be entitled to recovery , there is a minority view that the seller is not absolved of warranty-based liability simply because only a small percentage of users are harmed by the product.
This controversy is partly explained by an uncritical absorption of negligence concepts into warranty cases. Some courts have referred approvingly to a treatise comment that in the case of warranty, it should be sufficient to impose liability that there has been a breach of warranty. In many cases, the breach of warranty consists of the presence of a defect. In other cases, the breach consists merely of failing to conform to the contract’s standard.
The dichotomy of the two views is highlighted in the Connecticut case of Crotty v. Shartenberg’s-New Haven, Inc., involving a plaintiff who suffered an allergic reaction to a hair remover. The instructions accompanying the product advised the user with super-sensitive skin to make a test before using the product. The plaintiff made such a test and experienced no reaction. It was not until a few hours after the plaintiff had applied the hair remover to her upper lip that she suffered an allergic reaction. The court set aside a verdict in favor of the seller and granted a new trial, analyzing the two views of warranty-based relief for unusual allergic reactions. It stated that in cases denying liability for breach of warranty, none of the injured users were one of an appreciable class of like persons.
The court therefore held that “the determination of the question whether goods are reasonably fitted for the purpose for which the are required cannot be fixed arbitrarily in advance by limiting the application of the term “reasonable fitness” to a predetermined class or group of buyers designated as normal persons. To establish a breach of warranty, the plaintiff must show (1) that the product contains a substance or ingredient which has a tendency to affect injuriously an appreciable number of people, though fewer in number than the number of normal buyers, and (2) that he has, in fact, been injured or harmed by use of the product.
The Crotty court then noted that the lower court, in directing a verdict for the defendant had adopted the rule that there is no breach of implied warranty where the product can be used by a normal person without inquiry. It then modified that doctrine, holding that when a manufacturer sells a product containing an ingredient known to have deleterious qualities and a tendency to harm an appreciable number of users, the manufacturer, and not the seller, should shoulder the risk of injurious consequences. The same risk, the court stated, should be borne by the retailer who, as in the actual case before the court, sells an article to a prospective user who relies on the retailer, and is entitled to believe that the article is reasonably fit for the purpose for which it is sold.
Furthermore, the Crotty decision seems to suggest that the cleavage in the two views concerning liability to the allergic user based on breach of implied warranty is not as broad or irreconcilable as might first be thought, because of other factual distinctions in many cases. As the court said in Esborg v. Bailey Drug Co.,  a critical analysis of the lines of decision referred to in the Crotty case, leads us to the conclusion, not infrequently expressed by other writers in the field, that the so-called majority and minority views are, upon their facts, at least reconcilable. The first cited cases, representative of the majority and minority views are, upon their facts, at least, reconcilable. The first cited cases, representative of the majority, arrive at their denial of liability upon the factual premise that the plaintiff before them was, under the evidence presented, peculiarly unique in susceptibility to the content of the product involved, and was not representative of any definable or significant group of consumers. The second line of cited authorities accord liability, upon the basis of the facts before them indicating the complainant to be a member of an identifiable and significant class or number of consumers, composed of the innocently allergic.
On this basis, the Esborg court held that the plaintiff, who sustained injuries due to an allergic reaction to a hair tint, could recover if the product contained an ingredient which was harmful to a reasonably foreseeable and appreciable class or number of potential users of the product. The court then remanded the case to determine the issue of whether the product was harmful to such an appreciable class.
In Robbins v Aberto-Culver, Co., the court discussed the Crotty and Esborg decisions, and held that the common thread of foreseeability lies at the core of a good many cases where allergic reactions are involved. That is, the Robbins court believed that the concept of foreseeability was the key to determining the liability of a manufacturer or seller of a product which causes an allergic reaction in a person who is susceptible to it. Thus, in an action against the manufacturer of a dandruff control treatment by a plaintiff who suffered contact dermatitis from using the product, the Robbins court reversed judgment against the manufacturer and remanded the case for a new trial on the issue of whether the receipt of some ninety-nine complaints within a few years was sufficient for the defendant manufacturer to apprehend that its product would harm an appreciable class of people.
The Supreme Court of Alabama dealt with this problem in a case involving an allergic reaction to a topical analgesic, responding to a certified question: “Does Alabama law impose liability under any theory … on the manufacturer of an over-the-counter drug for injuries resulting from an uncommon allergic reaction of a hypersensitive user when the manufacturer was not aware nor, with the exercise of reasonable diligence, could have been aware that its product might cause such a reaction? It held that the implied warranty of merchantability is satisfied if a drug is fit for use by a normal person. Describing Crotty, the Alabama court said that it is the case that goes the farthest in imposing warranty liability for unknown and highly rare allergic reactions, but that “[e]ven this case would require that an appreciable number of people rather than the presumably larger group of ‘normal’ persons would be affected.”
An Illinois court has permitted recovery on a warranty theory to an idiosyncratically sensitive plaintiff, but it relied partly on a characterization of the warranty as more specific than a usual implied warranty, because of additional statements by salespeople.
Generally, decisions that deny recovery to the allergic user for breach of implied warranty make no distinction between implied or express warranties. However, even though liability may not exist in favor of the allergic user on the basis of implied warranty, some cases have held that liability may be imposed for breach of express warranty where the warranty in effect states that the product will be safe for anyone who uses it. These principles are illustrated in a case involving injury to the plaintiff’s fingernails as a result of use of a product sold by the defendant. The trial court erred in refusing to charge that if the jury found that the defendant had expressly warranted that the product was safe for anyone who purchased it, then the existence of an allergic reaction to it was no defense. It was further held that while the defense of allergic reaction is proper as to a cause of action based on implied warranty, it cannot apply if an express warranty is found, such as may be found to have been created by representations that a product is “completely safe,” “used by millions,” and “easy to use: safe.”
An application of these principles that produced an opposite result involved an allergic reaction to an aerosol deodorant product. Its label contained phrases such a “checks problem perspiration better” and “made for people with more of a perspiration problem than others,” and was alleged to have created express warranties of safety. The court held that its language did not have that effect, since it stated: “if rash continues discontinue use.”
 See Zager v. F.W. Woolworth Co., 30 Cal. App. 2d 324, 86 P.2d 389 (1939). The plaintiff suffered dermatitis, allegedly from a product known as freckle cream purchased from the defendant retailer. No liability could be imposed on warranty grounds, because the dermatitis was caused by the plaintiff’s physical and bodily condition.
 See Thomas v. Amway Corp., 488 A.2d 716 (R.I. 1985). The court held that there was no proof that the plaintiff’s condition was in any way related to her use of the product.
 See Hafner v. Guerlain, Inc., 34 A.D.2d 162, 310 N.Y.S.2d 141 (1970).
 See, e.g., Ray v. J.C. Penney Co., 274 F.2d 519 (10 th Cir. 1959), applying Kansas law. The court approved a jury instruction in a warranty case that excused the defendant from liability to a plaintiff who suffered irritation from gloves if the jury believed that the seller had no way of identifying those few individuals who might be hurt by the product.