Michigan court rejects open-and-obvious defense for 'natural' oil.

The mother of a boy who died after drinking hair oil can sue the product's manufacturer and seller because she had no way of knowing that the oil, marketed as natural, could be poisonous.

Reversing a trial court decision, the Michigan Court of Appeals ruled that the hair oil did not present an "open and obvious" danger to the average user. (Green v. A.P. Prods., Inc., No. 249113, 2004 WL 2674217 (Mich. Ct. App. Nov. 23, 2004).)

In 1999, Cheryce Green purchased a bottle of Wonder 8 Oil, a hair and skin moisturizer. Among its listed ingredients were coconut oil, wheat germ oil, carrot oil, and vitamins. A few days later, she found her 11-month-old son Keimer standing by the nightstand in her bedroom, holding the Wonder 8 bottle. He had oil around his mouth.

Green immediately drove Keimer to the hospital. He was transferred to another facility, where he was diagnosed with hydrocarbon ingestion with chemical pneumonitis. Keimer died a month later.

Green testified in court that she was cautious with her beauty products. She said she read product warning labels and kept her nail-care products in a locked case. Although she considered the Wonder 8 Oil nonlethal because of its "natural" ingredients, she kept it in a bathroom cabinet that her son could not reach. Green said her niece, who was babysitting the day Keimer drank the oil, had used it and left it on the nightstand. She testified that had she known the oil was potentially toxic, she would have kept it locked up.

Detroit lawyer Ramona Howard, who represented Green, noted that parents treat different products with different levels of caution: "You don't want your child to drink vegetable oil, but you don't think it's going to kill him--just make him sick. Now motor oil, that's different. Of course, you don't want your child drinking any of that. So you treat the two products very differently, just as this mother did." Howard added that few people could have known that Wonder 8 Oil had dangerous ingredients.

"They call it a recipe," she said. "There is no warning that would put any parent on notice."

The court agreed: "We cannot conclude ... that as a matter of law, the risk of death or fatality from the ingestion of Wonder 8 Oil would be obvious to a reasonably prudent product user and be a matter of common knowledge, especially considering the lack of any relevant warning."

A.P. Products, Inc., a subsidiary of Revlon that manufactures Wonder 8 Oil, argued that the dangers of drinking the product were clear, requiring no special knowledge to discern, and invoked a Michigan Supreme Court decision that found that the makers of an aboveground pool had no duty to warn buyers because the pool was a "simple product" whose features and potential dangers were "open and obvious." (Glittenberg v. Doughboy Recreational Indus., 491 N.W. 2d 208 (Mich. 1992).)

"Glittenberg defined a 'simple product' as one where all the features are apparent on casual inspection," said Howard, "so it isn't necessary to warn the user that, for instance, diving into a pool head-first would be dangerous. Glittenberg says the full spectrum of risks must be easily discernible to the user."

Wonder 8 Oil does not fit this description, the court found. "Although in a general sense, a hair and body care product is a 'simple' product, it cannot be considered simple when taking into consideration the numerous ingredients and compounds that are used to make and produce the product,"

Judge William Murphy wrote for the court, "To a great degree, these ingredients and either their benign or dangerous qualities most certainly are not within the realm of knowledge of a layperson.... Indeed, the reference to natural oils, such as coconut and wheat germ oil ... could lead a reasonable person to conclude that there was very little chance, if any, that ingestion would lead to serious ill effects, let alone death."

Howard said a different outcome would have had far-reaching consequences for consumers. Manufacturers "want the benefit of [selling products that are] all-natural, organic, and good for you--but then when something goes wrong, they want to say 'you should have known better.' If you take this to its logical conclusion, then nothing would need a warning label."