Leaky Can of Insecticide Befouls NYC Apt.: Which of Several Parties Was Responsible? Under What Law?

This was originally published on the SGR Blog.

Much of civil litigation involves finger-pointing, blame-shifting, or culprit-finding—with the concomitant shoe-horning of a set of unique facts into the various cause of action templates. And, as a recent case involving an imploding can of insecticide illustrates, the Court may have to meticulously navigate both the facts and State (GOL) and Federal (FIFRA) statutes.

John Pankow and Kristine Pankow are apartment residents. Plant Shed Inc. sells a variety of plants, floral, botanical, and gardening products, including pesticides, insecticides, rodenticides, and disease control products for plants. Bonide Products, Inc. manufactures, designs, engineers, tests, distributes, markets, imports, and sells a variety of garden products, including Bonide Systems Insect Control.

Kristine Pankow kept and maintained indoor houseplants in an apartment, most of which were purchased at Plant Shed. Sometime in 2014, she visited Plant Shed and spoke to a store clerk about a white residue she found on her plants and asked for a product to treat the problem. The clerk recommended Bonide Insecticide and brought her to its display, where the bottle stood alongside other pesticides. Pankow bought a bottle and took it home. After reading the instructions on the bottle of Bonide Insecticide, she felt intimidated by what she read and decided not to use it. Instead, she placed the unopened bottle under the kitchen sink in a storage container with other cleaners.

Approximately two years later (November 2016), the Pankow’s returned to their apartment after an extended trip. Upon returning, they were informed by a friend that he smelled an odor coming from underneath their kitchen sink. And they discovered a greasy substance on the bottles of the storage bins and a stain from the substance on the wood floor of the sink cabinet. That smell intensified over the next few days, and they began to experience nausea, lightheadedness, and dizziness.

The Pankows discovered the source of the odor when they found that the Bonide Insecticide bottle was empty, despite never being opened. The seal on the bottle was intact, but the bottle was “puffed out” with air pressure, as though gas had escaped. Upon concluding that the bottle was the source of the smell, they called Poison Control on November 18, 2016. After several phone conversations with Poison Control and Hillman Consulting, an environmental control company, the Pankows cleaned the spill and discarded porous and semi-porous materials in the apartment. The bottle was not preserved and was discarded.

The Pankows sued for personal injuries related to inhaling and touching the liquid and for property damage related to the loss of the discarded materials in their apartment. The complaint alleged six causes of action: Count One was against Bonide for strict liability alleging manufacturing defect, design defect, and failure to provide proper instructions and warnings. Count Two asserted a negligence claim against Bonide alleging that breach of its duty of due care by failing to manufacture, design, and test its product in a proper manner, by failing to provide proper instructions and warnings on its product, and by failing to properly package its product. Counts Three, Four, Five, and Six of the complaint were brought against Plant Shed alleging, respectively, strict liability, negligence, breach of warranty, and violation of section 349 of the General Business Law for alleged deceptive practices in a consumer-oriented transaction.

Plant Shed moved to dismiss the sixth cause of action for violation of the GBL on the ground of failure to state a cause of action. To plead a cause of action for deceptive trade practices, plaintiffs must allege a deceptive “consumer-oriented practice” that was misleading in a material respect and injuries resulting from the deceptive and misleading acts.

The Pankows alleged that a clerk at Plant Shed misrepresented that the Bonide Insecticide was safe for use and storage indoors, when in fact, it was suitable only for outdoor use. They also asserted that the Bonide Insecticide was on display in close proximity to indoor houseplants also displayed for sale, which allegedly further gave the impression that the Bonide Insecticide was safe for indoor use.

Even if the representations by the clerk regarding the safe indoor use of the Bonide Insecticide were “misleading in a material respect” as required by the statute, the Pankows failed to allege a consumer-oriented transaction that has a broader impact on consumers. Rather, the complaint described a “single-shot transaction” between Kristine Pankow and a store clerk who recommended the Bonide Insecticide for indoor use, which had no impact on consumers in general. And the Court declined to infer a deceptive and misleading trade practice with a broad impact on consumers at large based on the proximity within the store between the insecticide display (which included insecticides for outdoor use) and houseplants that were also for sale. It was also not clear from the complaint what specific misrepresentations were made regarding storage, as the statements attributed to the store clerk appeared to relate solely to usage, and the product was never used. Accordingly, the sixth cause of action was dismissed.

Bonide moved for dismissal of the two causes of action, sounding in strict liability and negligence. On the ground of federal preemption based on the Supremacy Clause of the United States Constitution, which provides that a state law action may be foreclosed by congressional enactment.

The Federal Insecticide, Fungicide, and Rodenticide Act, and the regulations promulgated thereunder, impose approval and labeling requirements on manufacturers of insecticides, fungicides, and rodenticides based on each product’s effectiveness and potential harmfulness to humans. FIFRA also establishes a complex process of review by the Environmental Protection Agency, culminating in the approval of the label under which the product is to be marketed and packaged. The EPA will register the pesticide if it determines that the pesticide is efficacious and will not cause unreasonable adverse effects on humans and the environment and that its label complies with FIFRA’s prohibition on misbranding. FIFRA also provides that, as long as no cancellation proceedings are in effect, registration of a pesticide shall be prima facie evidence that the pesticide, its labeling, and packaging complies with the registration provisions. As a result, causes of action predicated on alleged inadequacies of a product label and the failure to warn were preempted by FIFRA.

The Pankows disposed of the actual container. Bonide stated that the label on its Bonide Insecticide provided under “Restrictions” the following: “Do not apply the product in a way that will contact people or pets.” “For outdoor homeowner use only.” “Do not apply to plants to be used for food or feed.” Under another section entitled “Restrictions,” the bottle stated, “Do not allow people or pets to enter the treated area until sprays have dried.” Additionally, under the section, PESTICIDE STORAGE, the bottle read: “Keep pesticide in original container. Do not put concentrate or dilute into food or drink containers…Store in a cool, dry place, preferably in a locked storage area.”

The label already clearly stated that the Bonide Insecticide was for outdoor use only, and, in any event, the insecticide was never used. Thus, the essence of the Pankows’ causes of action in relation to the inadequacy of the warnings and instructions related to storage, specifically, that the label should have provided additional information regarding long-term storage. Such requirement would go beyond the label already approved by the EPA and therefore was preempted. As a result, the allegations asserted against Bonide in the First cause of action for strict liability and the second cause of action for negligence, based on the inadequacy of the warning label, were dismissed.

On the other hand, claims based on the alleged inadequacy of packaging or the testing, manufacture, or design of the packaging of the product (i.e., the physical aspects of the container in which the Bonide Insecticide was kept) were not preempted. Unlike the text of a warning label, the EPA does not impose any insecticide packaging requirements other than those related to child-resistant packaging.

Claims pertaining to the testing, manufacturing, and/or design of the Bonide Insecticide itself (i.e., the contents) were also not covered by FIFRA and, thus, also not subject to preemption. Accordingly, to the extent that the Pankows asserted such claims in their complaint, those claims were not preempted by federal law and were not dismissed.

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