## Facts

- Elizabeth Horton Ellsworth was severely burned when her loose-fitting flannelette nightgown ignited while she was making coffee near an electric stove burner.
- The nightgown’s fabric (87.5% cotton, 12.5% polyester) was manufactured by Cone Mills Corporation; the garment was designed, manufactured, and sold by Sherne Lingerie, Inc.
- Ellsworth wore the nightgown inside out, with pockets protruding; a pocket came close to a front burner and caught fire.
- Ellsworth claimed the nightgown was unreasonably dangerous due to high flammability and the absence of warnings about ignition risks during ordinary household activities such as cooking.
- The fabric met applicable federal flammability standards but was not flame-resistant, and no consumer warning was provided.
- Ellsworth sued on negligence (failure to make fabric flame-resistant and failure to warn), strict products liability (defect and failure to warn), and implied warranty of merchantability (against Sherne), seeking compensatory and punitive damages.
- The trial court removed punitive damages from the jury by directed verdict, instructed the jury on “misuse” as a defense to strict liability, refused an instruction stating contributory negligence is not a defense to strict liability, excluded certain federal flammability-related reports as hearsay, and the jury returned a general verdict for both defendants.

## Issues

1. Whether the strict-liability jury instructions improperly permitted “misuse” to defeat liability without limiting misuse to unforeseeable use and without clarifying that contributory negligence is not a defense to strict products liability.
2. Whether federal reports prepared under the Flammable Fabrics Act and later by the Consumer Product Safety Commission were admissible as public records or as materials reasonably relied upon by experts to explain the basis of expert opinions.

## Decision

- The Court of Appeals of Maryland reversed the judgments for defendants and remanded for a new trial.
- The court held the misuse instruction was erroneous because it risked treating a reasonably foreseeable manner of use as “misuse” and effectively injected contributory negligence concepts into strict liability.
- The court held the exclusion of the proffered federal reports was improper; they were admissible under a public-records hearsay exception and/or as expert-basis materials.

## Legal Principles

- In Maryland strict products liability under Restatement (Second) of Torts § 402A, ordinary contributory negligence (failure to discover or guard against a product defect) does not bar recovery.
- Product misuse is a defense to strict liability only when the plaintiff’s use is abnormal or not reasonably foreseeable; foreseeable use, even if careless, is not “misuse” for strict-liability purposes.
- Jury instructions in strict-liability cases must clearly distinguish unforeseeable misuse (a potential defense) from contributory negligence (not a defense).
- Federal agency reports prepared under statutory authority may be admissible under a public-records exception to the hearsay rule when sufficiently reliable.
- Materials customarily relied upon by experts may be admitted to explain the basis of expert testimony, subject to proper foundation and limiting instructions.

## Conclusion

The court ordered a new trial because the jury was improperly instructed on misuse in a way that blurred it with contributory negligence in a strict-liability claim, and because the plaintiff was prejudiced by the exclusion of relevant federal flammability and injury-incidence reports admissible as public records and as bases for expert opinion.


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