#### Ivy EDWARDS, Appellant, v. CALIFORNIA CHEMICAL COMPANY, a Delaware corporation, and Hector Supply Co., a Florida corporation, Appellees.

No. 69-695.

District Court of Appeal of Florida, Fourth District.

Feb. 19, 1971.

Rehearing Denied March 25, 1971.

*260Maurice Fixel of Meyer, Leben, Fixel & Gaines, Hollywood, for appellant.

Michael D. Sikes of Sherouse, Corlett, Merritt, Killian & Okell, Miami, for appel-lee-California Chemical.

Thomas J. Schulte and David L. Willing of Dean, Adams, George & Wood, Miami, for appellee-Hector Supply Co.

WALDEN, Judge.

This negligence case was terminated in the trial court by entry of summary judgment against the plaintiff. He appeals. We reverse because of the existence of genuine issues ^ of material fact that preclude summary disposition.1

A summary judgment review of the record 2 reveals that plaintiff, an illiterate, labored at the Boca Raton Hotel and Country Club taking care of the golf course grounds. He became ill from arsenic poisoning following use of Ortho Standard Lead Arsenate. This product was manufactured by the defendant, California Chemical Co., and was sold and distributed by the defendant, Hector Supply Co.

Lead arsenate is highly toxic. It can be absorbed into the body by inhalation, contact with unbroken skin and digestion. To safely use the product the user must wear protective clothing and employ a respirator.

The gravamen of plaintiff’s complaint and the crux of this appeal centers upon the defendant’s failure to warn the plaintiff of the necessity for a user to employ a respirator and protective rubber or neoprene clothing. More particularly, we must decide if the warning contained upon the product’s label was a sufficient warning as a matter of law so as to entitle defendants to summary judgment.

On one side of the bag containing the lead arsenate were printed lengthy and *261specific instructions for use as an insecticide as concerns its application to various agricultural crops including that of lawns and golf greens, as follows:

> "©ffiTIHO® SIAHBA1ID .ILffiAffi) AISEfflATE

> READ ENTIRE LABEL.USE STRICTLY IN ACCORDANCE WITH CAUTIONS, WARNINGS AND DIRECTIONS,AND WITH APPLICABLE STATE AND FEDERAL REGULATIONS.USES, TIMING AND DOSAGE MAY VARY AS A CONSEQUENCE OF LOCAL WEATHER OR CONDITIONSjWE RECOMMEND REFERENCE TO LOCAL AGRICULTURAL AUTHORITIES CONCERNING SPECIFIC USAGE.

> DIRECTIONS

> Official recommendations for the use and dosage of Lead Arsenate vary in different sections. Use ORTHO Standard Lead Arsenate according to the standard practices in your locality for the control of those insects against which Lead Arsenate is effective. The following general directions are suggested as a guide for the use of this material.

> APPLES, PEARS, QUINCES: Codling Moth, Leafrollers, Plum Curculio, Tent Caterpillars — Use 3 lbs. to 100 gals, water for Calyx and cover sprays. For -Apple Maggot-Use 2 lbs. per 100 gals. Consult your ORTHO Fieldman or your local Agricultural Authority in regard to the number and dates of applications. Californis Oak Moth, Red Humped Caterpillar and Tent Caterpillar-Use 3 to 4 lbs. to 100 gals, water when insects first attack foliage.

> CHERRIES (Eastern States):CherryMaggot--2 1/2 lbs. to 100 gals, water. Apply according to local recommendations.

> GRAPES: Achemon Sphinx Moth, Grape Root Worm, Grape Leaf Folder— Use 3 to 4 lbs. to 100 gals, water. (400 gals.diluted spray per acre) when insects first attack foliage. Do not apply after edible parts start to form.

> WALNUTS: Codling Moth (California) — 2 to 3 lbs. in 100 gals, water. (1500 gals.diluted spray per acre). Combine with 1/2 lb. safener, DELMO-Z Spray or ORTHO Spray Lime and 1/3 gal. ORTHOL-K Light Medium Flow-able Emulsion plus 1/2 lb. ORTHO DDT 50 Wettable for first bloom spray usually early May. Under severe conditions a second application may be needed during late June. Do not apply to walnuts after the husks open.

> POTATOES, TOMATOES: Colorado Potato Beetle, Armyworms, Tomato Fruitworm, Sphinx Moth — Use 4 to 6 lbs. either alone or with about 3 lbs. of ORTHO Spray Lime in 100 gals.water. Use no more than 200 gals.diluted spray per acre. For Small Quantity Dosage-Use 2 level teaspoonfuls to 1 qt. water (8 level teaspoonfuls (3 1/3 tablespoonfuls) to 1 gal. water). Tomato Fruitworm-Treat up to harvesting. For dusting Potatoes for above pests: Use this material as it comes from the package at the rate of 5 to 7 lbs. per acre,- or mixed with from 3 to 5 times as much ORTHO Spray Lime.

> LAWNS AND GOLF GREENS: Sod Webworm, Lawn Moth, Cutworms, White Grubs, Earthworms (Night Crawlers)-Use in accordance with the recommendations of local Agricultural Authorities. 5 lbs. per 1000 sq.ft, of turf is the usual rate of application. Japanese Beetle Larvae (Eastern States)— Use 10 lbs.per 1000 sq.ft. Keep children and pets off treated areas until this material has been washed into the soil.

> TO MIX: Put water in spray tank slightly above agitator. Start the agitator. Slowly shake the required quantity of ORTHO Standard Lead Arsenate into the water, agitate until a uniform mixture is made, then fill tank with water. Keep the solution constantly agitated while spraying. When combining with ORTHO oil sprays, follow mixing directions on labels.

> NOTE: When using on plants having tender foliage, always add from 8 to 10 lbs. ORTHO Spray Lime to each 100 gals, diluted spray. When used alone on plants with hardy, or reasonably hardy, foliage, the addition of Chemically Hydrated Lime in this way is a good practice also.

> NOTICE ON CONDITIONS OF SALE: 1. Chevron Chemical Company (manufacturer) warrants that this material conforms to the chemical description on the label and is reasonably fit-for use as directed hereon. Manufacturer neither makes, nor authorizes any agent or-representative to make, any other warranty, guarantee or representation, express or implied, concerning this material.

> *2622. Because critical, .unforeseeable factors beyond the manufacturer's control prevent it from eliminating all risks in connection with the use of chemicals even though reasonably fit.for such use, buyer and user acknowledge and assume all risks and liability (except those assumed by the manufacturer under 1 above) resulting from handling, storage, and use of this material. These risks include, but are not limited.to, damage to plants, crops and animals to which the material is applied, failure to control pests, damage caused by drift to other plants or crops, and personal injury. Buyer and user accept and use this material on these conditions, whether or not such use is in accordance with directions. FORM 6158-D" CA3841:

The product was labeled on the other side, as concerns its warning of danger, as follows:

COLORED

SOLD AS AN INSECTICIDE

Active Ingredient By Wt.

Standard Lead Arsenate (PbHAs04.95%

Inert Ingredients.5%

Lead expressed as Metallic.56.7%

Arsenic expressed as Metallic.20.5%

Water soluble Arsenic expressed as Metallic, not more than.. 0.5%

CA363S3

ANTIDOTE: For Arsenic--Give a tablespoonful of salt in a glass of warm water and repeat until vomit fluid is clear. Then give two tablespoonfuls of Epsom Salt or Milk of Magnesia in water and plenty of milk and water. Have victim lie down and keep quiet. CALL A PHYSICIAN IMMEDIATELY. DANGER:

KEEP OUT OF REACH OF CHILDREN

DO NOT INHALE

DO NOT GET ON SKIN

DO NOT TAKE INTERNALLY

WARNING: Poisonous if swallowed. Avoid breathing dust or spray mist. Avoid contact with skin, eyes, or clothing. Wash thoroughly after using. Do not apply to fruits and vegetables except Tomatoes within 30 days of harvest unless otherwise specified. Wash sprayed fruit and vegetables at harvest. Avoid contamination of forage crops and pasture. Do not apply under conditions involving possible drift to food, forage or other plantings *263that might be damaged or the crops thereof rendered unfit for sale, use or consumption.

DIRECTIONS ON BACK

NET WEIGHT 4 POUNDS

Completely empty bag and dispose of waste pesticide by burying. Burn bag immediately and stay out of smoke. Residue and ashes from burned bags must also be buried.

CA3636]

As can be seen — this without dispute— there was no warning or indication upon the label that a respirator and protective clothing were required for safe use.

It is clear that manufacturers and sellers of inherently dangerous products have a duty to give users a fair and adequate warning of its dangerous potentialities.3 And clearly plaintiff was within a class who would foreseeably use the product and be harmed in the absence of adequate warning.

Turning to the warning label and the question of its adequacy, we believe that the outcome of this appeal is controlled by the cases of Tampa Drug Co. v. Wait, supra, note 3, and Williams v. Caterpillar Tractor Co.,4 where the adequacy of a label warning was deemed to be a question of fact properly to be decided by the jury.

In the Wait case, it was contended that the trial court should have decided that a warning label upon a container of carbon tetrachloride was a sufficient warning as a matter of law. The Supreme Court of Florida held that the adequacy of the warning was a jury question and stated:

> “The measure of the duty of the distributor of an inherently dangerous commodity is now well established to be the reasonable foreseeability of injury that might result from the use of the commodity. The care exercised in fulfilling this duty is in turn measured by the dangerous potentialities of the commodity as well as the foreseeable uses to which it might be put. When a distributor of an inherently dangerous commodity places it in the channels of trade, then by the very nature of his business he assumes the duty of conveying to those who might use the product a fair and adequate warning of its dangerous potentialities to the end that the user by the exercise of reasonable care on his own part shall have a fair and adequate notice of the possible consequences of use or even misuse.”

> jjt >Jc *%*‡ ‡

> “This duty simply is to take reasonable precautions to supply users with an adequate warning notice that would place *264them on their guard against the harmful consequences that might result from use of the commodity.”

> * * * * *

> “The drug company was therefore thoroughly familiar with the uses to which the commodity might be put. With this knowledge the appellant, which had been in business for many years, through its officers and agents certainly must have realized that the chemical would be used for the purpose for which it was employed by Mr. Wait. We think that with this knowledge the appellant was charged with the burden of forewarning potential users of the inherently dangerous nature of the commodity.”

> # # }}i # *% %*

> *“Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise for his own safety the caution commensurate with the potential danger.*It is the failure to exercise such a degree of caution after proper warning that constitutes contributory negligence in a case such as this.” (Emphasis supplied.)

The Williams case was based, among other things, upon the theory that the manufacturer was negligent in failing to adequately warn concerning the danger of an inherently dangerous mechanism, a hydraulic tread adjuster. The warning in issue there stated:

> “WARNING: High pressure cylinder. Do not open vent valve more than *1/2*turn or remove fitting until pressure is relieved.”

The trial court entered summary judgment for the defendant, manufacturer. The appellate court reversed and remanded the case for trial, saying:

> “An apparent question of fact remaining unresolved by the depositions is whether or not the warning sign was adequate to warn of the potential danger inherent in the mechanism. See Tampa Drug Co. v. Wait, Fla.1958, 103 So.2d 603, 75 A.L.R.2d 765. *In other words, was the degree of warning commensurately proportionate to the potential danger of which the manufacturer was aware, or, in the exercise of reasonable care, should have been awaref”*(Emphasis supplied.)

In the instant case the labelings present an anomalous situation when viewed by a potential user. He is told how to use it as an insecticide but he is not told how to use it with safety.

On one side of the container the label tells him that the product may be used as an insecticide. He is furnished with a careful catalog of twenty-three insects that are controllable by the product. Ten crops are itemized as being amenable to treatment. He is given the exact proportion of arsenate and water that must be blended depending upon the particular insect to be eradicated. He is told with exactness at what stage of growth applications are to be made, depending upon the crop. Additives are prescribed in certain circumstances. He is told the amount of the product to be applied to a given area. He is given the amount of arsenate to be employed per 1000 square feet to be used for certain insects. He is instructed in detail as to how to mix, maintain in suspension, and spray the mixture. In sum, he is told with extreme particularity *how, where, when*and *for what purpose*to use the product as an insecticide.

On the other hand and side, we have the label warning of danger. It is red, and reflects a skull and cross-bones together with a large word, “Poison.” The exact label is set forth above. Primarily it admonishes that the product is not to be inhaled, touched to the skin or taken internally. There is a total failure or omission of the defendants to tell or instruct the user as to *how*the product may be safely used. It does not prescribe, as earlier noted, that a respirator and protective clothing must be used.

*265As a matter of reason and everyday-common sense the jury would be authorized, in light of these two labels, to believe that it would be difficult if not impossible, for a user to use the product in the fashions detailed by defendants without in some measure inhaling, touching or ingesting some of the product.

In light of the specific instructions in one area and the failure in the other and more important area to prescribe protective clothing and a respirator and to tell the user *how to safely use the product,*the jury would be warranted in believing that the label warning was inadequate. It could be inferred from the omission that the product was not sufficiently dangerous and virulent to require protective devices or else the ' label would have so stated and warned. In other words, the jury could determine that the duty to warn under these circumstances could only be fulfilled by putting the user on specific notice as to how the product might be. safely used, in addition to its advices as to how it might be efficiently used.

From our survey we feel that only a jury could determine if plaintiff had been fairly and adequately warned. It would have to decide in the language of the Wait case, supra, if the defendants here fulfilled their duty to warn “ * * * with a degree of intensity that would cause a reasonable man to exercise for his own safety the caution commensurate with the potential danger.” And in the language of the Williams case, supra, “ * * * was the degree of warning commensurately proportionate to the potential danger * * * ?”

Having considered the complete appellate treatment and discussed the matters that we deem deserving, we reverse and remand for further proceedings consistent herewith.

Reversed and remanded.

REED, J., and WILLIAMS, ROBERT L., Associate Judge, concur.

1

. Fla.R.Civ.Proc. 1.510(c), 31 F.S.A.

2

. See 30 Fla.Jur., Summary Judgment, § 22.

3

. 76 A.L.R.2d 16; Tampa Drug Co. v. Wait, Fla.1958, 103 So.2d 603.

4

. Tampa Drug Co. v. Wait, Fla.1958, 103 So.2d 603; Williams v. Caterpillar Tractor Co., Fla.App.1963, 149 So.2d 898.