The Florida Supreme Court has agreed to consider the case of DZE Corporation v. Vickers, in which the manufacturer of "spice" was sued as a result of a purchaser causing a fatal accident while under the influence of its product, which is known to be abused for its marijuana-like effects. Following a trial, the jury found DZE Corp. to be 65% at fault, the driver 35% at fault.

        On appeal, the First District Court of Appeal reversed the judgment against DZE, stating that there was insufficient evidence of causation, and that the blame should rest entirely upon the intoxicated driver. The court pointed out that the product's packaging clearly stated that the product was to be used as a "potpourri" and was dangerous if consumed. Analogizing to prior lawsuits against alcohol manufacturers, the Court repeated established Florida law that does not permit a jury to find a manufacturer liable where the person responsible is voluntarily impaired or intentionally misuses a product.

        The bottom line was that the Court viewed any possible fault by DZE to be "one of pure speculation or conjecture", stating to find DZE liable would require speculation that DZE could foresee that the purchaser would: 1)disregard the warning on the product and consume the "potpourri";2)become voluntarily intoxicated; and 3) drive recklessly and cause an accident.

        The attorneys for Vickers thereafter requested that the Florida Supreme Court invoke its discretionary authority to review the case as conflicting with decisions of other Florida District Courts of Appeal. The Supreme Court accepted jurisdiction and is pending review.

         While the law appears clear regarding the circumstances necessary to hold a manufacturer liable for damages caused by the misuse of its product (ie. inhalation of aerosol can "gas"; lighter fluid, etc), the interesting question is whether the court will lump the "potpourri" involved in this case with alcohol and other intoxicating substances. There is evidence that virtually no one purchases this product for its aromatic qualities, as it is often sold in convenience stores alongside rolling papers and other smoking paraphernalia.

          Will the Supreme Court distinguish "spice" or continue to apply Florida law regarding manufacturers' liability? The answer will come sometime this year.