I’ve handled products cases involving a wide spectrum of products, from residential gas grills to tractor-trailer components. Frankly, I enjoy the variety and the opportunity to learn about new industries and products and meet the people who are associated with them. I understand, however, that many lawyers – especially plaintiffs’ lawyers – often focus on one product. It gives them the ability to develop and expertise on a certain subject and, as a result, handle more cases because of their familiarity.
I spoke with a plaintiff’s attorney recently who files a lot of litigation on behalf of plaintiffs allegedly injured by portable gas cans. Although we didn’t speak at length about the issues involved with the particular product, he mentioned something about an inexpensive component part that prevents fires but was not readily incorporated into the cans themselves by the manufacturers. A simple Google search on “gas can litigation” revealed that many plaintiffs’ attorneys actually list this type of litigation on their websites as a distinct area of would-be expertise, proving what the lawyer had impressed upon me: that gas can litigation is big business these days.
I ran across the recent case of Murray v. Traxxas Corp., — So. 3d —, 2D10-3789, 2012 WL 279657 (Fla. Dist. Ct. App. Feb. 1, 2012), which appears to illustrate my colleague’s point. The facts of the case are relatively simple. Two boys were trying to build a fire using leaves, sticks, and a cigarette lighter at their grandparents’ house so they could roast marshmallows. They had trouble lighting it, so they searched for an alternative fuel source. What they found in the garage was a portable gas tank containing gasoline. As one of the boys tipped the open gas can toward the pile of leaves and the lighter, before any fuel spilled out of the can, an explosion occurred. One of the boys sustained severe burns as a result of the explosion.
Witnesses who looked at the gas can after the accident, including a fire inspector, described the can as looking “bowed out.” Photographs were taken by the inspector, but the can was disposed of by the grandparents, who believed it still posed some danger.
Inevitably, a battle of the experts ensued; it focused on whether a “flashback” explosion had occurred. The plaintiffs’ expert argued the can was defectively designed because it did not have a so-called “flame arrestor,” an inexpensive component that would have prevented such an occurrence. According to the expert, “flame arrestors are readily available on the market and have been incorporated by other manufacturers into similar fuel cans,” and by not incorporating one into this particular can, the manufacturer defendants were negligent.
The defendants moved for summary judgment, which the trial court granted on the grounds that the can itself had not been maintained for inspection and testing. As the appeals court remarked, the disposal of the gas can gave rise to two particular problems for the trial court. First, there was no way to tell whether the original fuel was in the can, or whether it had been replaced by a different fuel. Second, the trial court held, the plaintiffs could not meet their burden of proof to show design defect because the can itself could not be tested. The court of appeals didn’t see it the same way. It noted that the plaintiffs had proven an unbroken chain of custody for the can and its contents. Furthermore, the court observed, it was unlikely that the original can could have been tested at all after the damage it sustained in the explosion and, in any case, similar cans could be tested because the manufacturer had been positively identified. The appeals court reversed the summary judgment and remanded the case for further proceedings.
We don’t yet know the outcome of this case, but from a plaintiff’s attorney’s position, this litigation is pretty savvy. Here is a product that, allegedly, can be made safer with a very inexpensive device. That, combined with the potential for serious burn injuries and property damage from cans without the device makes it a pretty attractive piece of litigation. Defense lawyers should be aware of these arguments when defending these cases and prepare for them accordingly.