Torts II Hypothetical

Sue owned the local beauty show for many years. She was very proud of CLIPS, LLC, which she owned with her husband, John, who kept the books for the company. A new customer, Candy, arrived at her shop one afternoon and asked that her dark brunette hair be changed to platinum blonde. Candy's husband Hank, the local pharmacist, loved blondes and badly wanted his new wife to look like a famous actress with platinum. Candy said that Hank was concerned about her transformation from brunette tresses to platinum blonde so he recommended a product he had seen in his retail pharmacy called "Dark Away." Sue had used the product many years ago so she accepted the box of "Dark Away" Candy handed her. She had turned many a brunette into a blonde using "Dark Away" but she had never turned a dark haired brunette into a platinum blonde with this particular product. Sue began work on Candy's hair. Sue know what the product instructions required from her prior experience with the product and did not feel the need to read them again. She did not realize the instructions had changed due to the change of the chemical composition of the product which shortened the time required to dye hair. The old instructions did not require a patch test. The new instructions on the side of the Box required a patch test on a 2 inch portion of hair and advised that the person applying the product should wait for 30 minutes before continuing the process. If there were no side effects, such as redness, rash, hair breakage, etc, the application process could continue. The patch test warning was on the side of the box in bold red print and read as follows: CAUTION. BEFORE BEGINNING APPLICATION OF THIS PRODUCT PERFORM A PATCH TEST ON A TWO INCH STRAND OF HAIR. WAIT THIRTY MINUTES AFTER THE APPLICATION TO THE AREA. IF NO REDNESS, RASH, HAIR BREAKAGE OR OTHER UNUSUAL SYMPTOMS APPEAR, PROCEED WITH THE APPLICATION INSTRUCTIONS ON THE BACK OF THE BOX. The instructions on the back of the box did not mention the patch test and did not refer the user to the side of the box. Several complaints had been made to "Dark Away" over the last two months and the company was in the process of changing the wording on the back of the box to include the patch test recommendation. No notice had been sent to retailers or purchasers of the impending change. Twenty-five minutes into the process Candy started to complain that her scalp was itchy and hot. Sue told her that was common. Ten minutes later Sue noticed that Candy's scalp was fire engine red and welts as large as quarters were popping up all over her scalp. However, the brunette hair was turning a nice shade of platinum blonde. Hank arrived and was horrified to see Candy slumping over in the chair. Candy, a diabetic, had apparently gone into diabetic shock without Sue realizing it. Sue had been too busy worrying about the red scalp and the welts. Hank immediately called 911 and began to attempt to revive his wife. Hank rode in the ambulance on the way to the hospital and was very upset and distraught to see Candy in this condition. During the 20 minute ride to the hospital, Candy regained consciousness only once. She looked up at Hank and said "It hurts so band." She was pronounced dead on arrival at the hospital. Medical

Professor A. Mason Torts II Spring 2022 personnel had to physically remove Hank from her side. He was weeping uncontrollably and refused to let go of Candy's hand. The autopsy showed that Candy died from diabetic shock most likely brought on by her failure to take her insulin that morning and possible from the shock of the injuries she sustained due to the application of the "Dark Away." Candy left behind three children. Danny, age 19 was child of a previous marriage. Eva, age 5 and Frank, age 7, were children with Hank. Hank is inconsolable and had to seek psychiatric treatment due to his feelings of guilt and due to his present at the salon, in the ambulance and at the hospital. He was present when Candy drew her last breath. He has missed months of work and has been unable to care for the two minor children, resulting in significant medical and childcare expenses. Discuss any claim Candy's beneficiaries may have against Sue. Discuss any claim Hank may have under La. Civil Code Article 2315.6