The U.S. Court of Appeals for the Seventh Circuit has re-opened the door for an injury lawsuit against the makers of a chemical commercial paint removal that allegedly exploded while used by a consumer, resulting in serious burns. Plaintiffs – the injured man and his wife – are alleging the product was defective and the product maker failed to warn of the danger.
The appellate court in Suarez v. W.M. Barr & Co. ruled that while the lower court appropriately rejected the failure-to-warn claim, the claims of design defect under theories of both strict liability and negligence should be allowed to move forward. Justices ruled that although the warning label on the product was adequate in identifying the product’s principle hazards and proper precautionary measures, the plaintiffs adequately showed the fire could have been caused by static sparks created when plaintiff agitated the chemical – as the warning label instructed. That means a genuine issue of fact exists as to whether an ordinary consumer would know to expect that a fire or explosion would occur under these circumstances, and also whether the product maker should have known that agitating the substance could cause it to ignite.
The incident in question happened in April 2012 when plaintiff purchased a one-gallon can of defendant’s chemical product, called “Goof-Off” to help him remove paint from a concrete floor in the basement of a building he owned. Plaintiff said he read most of the warning labels, which indicated the primary active ingredient is acetone, which is highly flammable and evaporates quickly at room temperature.
Warnings on the bottle in both English and Spanish indicated the product was extremely flammable, should be kept away from heat/ sparks/ flames, that vapors could cause a flash fire or ignite explosively, that the product should only be used with adequate ventilation to prevent vapor buildup and indoor use of the product should only be undertaken in an area that is well-ventilated. The instructions informed users to apply the compound directly to the concrete and then agitate it with a brush.
Plaintiff opened two basement doors and one window before use. He poured some of the material onto patches of paint on the floor, let it stand for a period of time and then spread it out – first with his foot and then again with a kitchen broom. While plaintiff was using the broom, a fire erupted. Plaintiff suffered serious burns on his face, neck, head and hands.
Plaintiffs filed a lawsuit alleging the product is unreasonably dangerous, even when used in a foreseeable way. An electrical engineer testifying on behalf of plaintiff concluded it was a static charge migrating from plaintiff’s body/ clothing/ surroundings that probably ignited the chemical. The fire was not likely caused by the furnace or heaters in the room, he said.
Defense tried to prevent plaintiff from presenting the testimony of this witness. The trial court denied that request, but did grant defense summary judgment, finding it had complied with requisite warning label requirements and the product wasn’t unreasonably dangerous.
The federal appeals court reversed in part. There were genuine factual disputes regarding the alleged defective design. The question in these product liability claims is whether the product failed to perform safely as an ordinary consumer would expect when using it the way it was intended or in a reasonably foreseeable manner. These are questions, the court ruled, that should be decided by a jury.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Suarez v. W.M. Barr & Co., Nov. 22, 2016, U.S. Court of Appeals for the Seventh Circuit
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