On June 15, 2022, the fourth DAC issued its opinion in Michael Grieco vs. Daiho Sangyo., Inc., AW Distributing, Inc. and Wal-Mart Stores East, LP affirming the entry of summary judgment in favor of the manufacturer, distributor and seller of an allegedly defective box of keyboard dust remover spray. In arriving at its opinion, the court summarized Florida product liability law for both strict liability and negligence and concluded:
- a manufacturer has no obligation to design the safest possible product;
- a manufacturer cannot be held responsible for the misuse of a product;
- there is no obligation to warn of an obvious danger or a danger of which the user is aware;
- a legally sufficient warning need not prevent a user from abusing a product; and
- a manufacturer, distributor or seller of products has no obligation to any third party who is harmed by the use of a product by a purchaser for purposes not intended.
Grieco was injured by an impaired driver (“Merrill”) who lost control of her vehicle after intentionally inhaling a compressed gas spray designed to remove dust from keyboards. The spray contained a hydrocarbon propellant which, when inhaled, is an intoxicant. To discourage inhalation, the spray manufacturer used a bitter-tasting additive to make the product unpleasant to drink. Additionally, the spray’s label warned against misuse of the product and stated that “inhaling contents may be harmful or fatal.” Merrill, who was addicted to inhaling the spray in question and similar products, testified that she was aware of and ignored the warnings and had grown so accustomed to the bitter to the point that the taste was no longer noticeable.
After being hit by Merrill’s vehicle, Grieco sued the manufacturer, distributor and retailer of the spray and asserted strict liability claims based on design and manufacturing defects (the bitter was not properly mixed with gas or did not effectively deter inhalation) and warning fault. Grieco also asserted a negligence claim.
On strict liability, the court rejected Grieco’s argument that the trial court made an improper factual determination that defendants did not need to make the spray “safer.” The court explained that a manufacturer is not required to design a product that is completely incapable of harming those who come into foreseeable contact with it. Instead, the court held that an alleged design defect must “cause unforeseeable hazards in the normal – that is, intended – use of the product.” (quoting Cook v. MillerCoors, LLC, 829 F. Sup. 2d 1208, 1216 (MD Fla. 2011)). The court also dismissed Grieco’s design and workmanship claims because the product warning explained that the duster employed a “bitter agent for to discourage ingestion of the product, not to ensure deterrence or prevent abuse from occurring. (emphasis in original).
The court further held that a warning need not prevent a user from misusing the product to be sufficient, but must “contain wording directed at significant dangers arising from non-use of 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 obligation to warn a consumer of an obvious danger or of a danger of which he is aware. The fourth DCA noted the significance of Merrill’s admission that she was aware of the warnings, but her addiction caused her to ignore them.
In addition, the opinion expanded on the first DAC’s analysis of negligence in DZE Corp. vs. Vickers, 299 So. 3d 538 (Fla. 1st DAC 2020), reh’g refused (July 27, 2020), round. refuse, Sc20-1280, 2021 WL 1426782 (Fla. 15 Apr 2021). In DZE, the court held that the voluntary behavior of an individual using a product for an unintended use breaks the causal chain between the merchant and a third party who suffers the damage. The DZE the court granted summary judgment in favor of the trader when 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 dangerous chemicals of the product, lost control of his vehicle and injured a third party. The Court concluded that [a]it is a question of law, [the consumer’s] conduct – not the [merchant’s] – was the only replacement cause of the accident.
In Grecothe fourth DCA developed DZE and recognized that in the absence of a special relationship, a merchant has no obligation to any third party who suffers damage as a result of a purchaser’s use of a product for an unintended purpose. This decision confirms and reinforces well-established Florida case law that an obligation is not owed to the world as a whole but arises out of a relationship between the parties. See McCain v. Fla. Power Corp., 593 So. 2d 500, 504, (Fla. 1992); Grunow vs. Valor Corp. from Florida, 904 So. 2d 551, 556 (Fla. 4e DAC 2005).
If the principles and decisions that underlie the Grieco is not new, the succinct summary and explanation of Florida Product Liability Law Fourth DCA is important and helpful in the defense of future claims. Recognition that a manufacturer is not an insurer against all injuries that may occur and that it has no obligation to design or manufacture the safest product possible is a key legal argument against claims for defect not having equipped a vehicle with emerging technologies.
Likewise, court recognition that a warning may be adequate, in law, if it is specific, clear and unambiguous or where the user was already aware of the danger or if it was obvious will provide a way to overcome numerous faults to warn claims by summary judgment.
Finally, arguments that a manufacturer is not responsible for the misuse of a product and that willful misuse of a product resulting in injury to another person breaks the chain of causation are key arguments against the proliferation of increasingly new defect theories. The Grieco the analysis would also apply to other claims based on the misuse of any ordinary consumer product that causes injury or damage. Examples of new claims that should be excluded by the Grieco findings include:
- cell phones/mobile apps that do not prevent vehicle drivers from texting, using apps or watching videos while driving;
- motor vehicles that are not equipped with an alcohol ignition interlock device to prevent drunk driving;
- the liability of the nail gun manufacturer to a person who is intentionally shot by a nail gun; Where
- a firearms manufacturer is held liable for the criminal use of the firearm; and
- a wide range of other similar scenarios that are certainly not beyond the imagination.
 These claims are prohibited by the federal Law for the Protection of the Lawful Arms Trade, but even in the absence of the law, Grieco’s assets should exclude liability in Florida.