Ellsworth v. Sherne Lingerie, Inc. - 303 Md. 581, 495 A.2d 348 (1985)

Rule:

Misuse may embrace the concept of mishandling. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling makes it harmful by the time it is consumed. The burden of proof is upon the plaintiff to show that the product was in a defective condition when it left the hands of the seller. It is apparent that questions of misuse of the product are involved in the determination of whether the product was defective, and whether a defect was the proximate cause of the injury. Because defectiveness and causation are elements which must be proved by the plaintiff, the Court of appeals of Maryland concludes that misuse is not an affirmative defense. Misuse, therefore, is a "defense" only in the sense that proof of misuse negates one or more essential elements of a plaintiff's case, and may thereby defeat recovery.

Facts:

On the morning of February 25, 1980 plaintiff Elizabeth Horton Ellsworth (“Ellsworth”) wore a lady's nightgown designed, manufactured and sold by Sherne Lingerie, Inc. (“Sherne”) into the kitchen to make coffee. She admitted that she was wearing the nightgown inside out and as a result the two pockets at the sides were flapping or protruding. In the kitchen, Ellsworth placed a tea kettle on the left front small burner of the electric range and turned the burner on "high." The kettle only partially covered the burner and approximately 1/16 to 1/2 inch of the burner's perimeter was exposed. Ellsworth reached above the stove to obtain a coffee filter from one of the cupboards, and as she was reaching her gown came very close to or in contact with the exposed portion of the burner, which ignited. As a result of the burns, Ellsworth suffered severe and permanent injuries. The subject nightgown was made of a blend of 87-1/2% cotton and 12-1/2% polyester. Cone Mills sold the fabric for the nightgown to Sherne in 1977, and included in the shipping invoice the following warning: “This fabric is not intended for use in children's sleepwear or robes in sizes 14 and under. Flammable. Does not meet standards for flammability in children's sleepwear, FF5-74 and U.S. Department of Commerce Standard BOCFF3-71. Should not be worn near source of fire.” The language in the invoice was understood by Sherne to be a warning but Sherne made no attempt to convey the warning to consumers. In her liability action, Ellsworth advanced three principal theories of liability and sought punitive and compensatory damages. The trial court entered a verdict in favor of Sherne et al. The court of appeals affirmed.

Issue:

Did Ellsworth’s actions constitute misuse of Sherne’s products?

Answer:

No.

Conclusion:

Clearly, and concededly, Ellsworth was using the nightgown for a reasonably foreseeable purpose. Her manner of use of the nightgown, though possibly careless, was reasonably foreseeable as a matter of law. It certainly might be foreseeable that wearing apparel, such as nightgowns and robes, will occasionally be worn inside out. It was also foreseeable that a loosely fitting gown will come into contact with sources of ignition in the environment where it may be expected to be worn, and particularly when worn in the kitchen and near a stove. Momentary inattention or carelessness on the part of the user, while it may constitute contributory negligence, did not add up to misuse of the product under these circumstances.