The Run-of-the-Mill Table Saw: Not Your Grandfather’s Open And Obvious Dangerous Condition

Recently, an Alabama man filed suit against Sears Roebuck & Co. after losing several fingers while operating a Craftsman table saw. According to a report from the Cook County Record, Victor Ingram’s fingers came in contact with the saw’s blade while he was “acting reasonably and exercising all due care for his own safety.” As a result of the accident, Ingram had to have multiple fingers amputated on his left hand. The suit alleges that the table saw was known to Sears (which owns Craftsman) to be dangerous when it was designed and manufactured. Specifically, Ingram alleges that Sears knew of available technology which could better guard the blade and which could trigger the blade to shut off if the blade made contact with flesh. However, the table saw did not incorporate such technology. The suit contains causes of action for product liability, negligence, and breach of implied warranty of fitness.

At first glance, this suit appears to be the prototypical “open and obvious” case. Obviously, the purpose of the table saw is to cut wood.  The risk of injury from getting one’s fingers too close to a moving saw blade would certainly be known to the reasonable person. We question how Ingram could have possibly been “exercising all due care for his own safety” if he allowed his fingers to touch the blade in the first place. On the other hand, the allegations are not that Sears failed to warn of such an injury, but that there was available technology which could have prevented it that Sears neglected to use. Back in 2011, we wrote on a similar suit involving Ryobi and its failure to incorporate the “SawStop” technology.  In that case, Dr. Stephen Gass, who invented “SawStop,” testified on behalf of the plaintiff that he had pitched his technology to a number of table saw manufacturers, but did not get any suitors. In case you were wondering, that case ended with a $1.5 million verdict for the plaintiff.

The question becomes whether “SawStop” or similar technology is a viable alternative design? Are we going to establish that an entire category of inexpensive table saws are defective because they don’t incorporate the technology? Has technology now caught up to product liability principles such that what was once “open and obvious” is now a design defect? For the record, SawStop now manufactures its own line of table saws.

Alabama Federal Trial Court Defers to Alabama Supreme Court on Duty and Causation in Take Home Asbestos Cases

On June 22, 2015, Judge C. Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama, Northeastern Division, certified two questions to the Alabama Supreme Court in a take-home asbestos case.  The order is located here. Certification of the two questions followed a bench trial, in which the the Tennessee Valley Authority (TVA) was the sole remaining defendant.  The facts were similar to most take home asbestos cases.

Barbara Bobo was diagnosed with, and eventually died from, malignant pleural mesothelioma, which was allegedly caused by exposure to asbestos fibers on her husband’s clothing. Suit was filed by Ms. Bobo prior to her death, and following Ms. Bobo’s death, Ms. Bobo’s daughters, co-personal representatives, were substituted as Plaintiffs.  The Plaintiffs alleged that Ms. Bobo’s husband brought home asbestos fibers on his clothing while working at a TVA nuclear facility in Alabama from 1975 until 1997, and that Ms. Bobo was exposed to those fibers while laundering Mr. Bobo’s clothing, among other ways. During the time Mr. Bobo was a TVA employee, he performed a variety of tasks at the TVA facility, some of which included assisting insulators with work that required cleaning up and otherwise manipulating asbestos. Following the bench trial, Judge Smith found that “[t]he preponderance of the evidence presented at trial established that a significant quantify of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue while having received good rates on wholesale insulation at the time” at the TVA facility.  The Court also found that Mr. Bobo passed away in 1997 due to “lung cancer induced by asbestosis.”  It was undisputed that Ms. Bobo could have been exposed to asbestos from sources other than the TVA.

In order to decide the case, Judge Smith required clarity on the law of duty and causation in a take home asbestos case.  Accordingly, Judge Smith certified two questions to the Alabama Supreme Court:

  1. Whether a premises owner has a duty to protect the family members of persons who work on the property owner’s premises from secondary exposure to a toxic agent, such as asbestos, used during the course of the property owner’s business? and
  2. What causation standard applies when multiple exposures to a toxic agent, such as asbestos, combined to produce the Plaintiff’s injury?

The parties’ arguments pertaining to the duty issue centered around major take home cases in other states, including California’s Campbell, which we discussed here.  On the causation issue, the Plaintiff argued that the “substantial contributing factor” test should apply, while TVA argued for a more stringent standard, such as the standard set forth in Lohrman, which we discussed here and here.

For obvious reasons, the result of this case will have an enormous impact on take home exposure cases in Alabama.

At The Corner Of Literature And Lawsuits: The Harper Lee Litigation

Back in 2010, our fearless leader Mills Gallivan offered his thoughts about To Kill a Mockingbird in a post entitled “Bluejays and Mockingbirds.”  Today, we revisit To Kill a Mockingbird, or rather, provide an update on Harper Lee, the author of one of the most brilliant legal novels ever written (in our own humble opinion).

As reported by CNN, Lee is suing the Monroe County Heritage Museum for trademark infringement.  As quoted by CNN, the lawsuit makes the following claims:

“The museum seeks to profit from the unauthorized use of the protected names and trademarks of ‘Harper Lee’ and ‘To Kill a Mockingbird.’ It is a substantial business that generated over $500,000 in revenue for 2011, the last year for which figures are available,” said the lawsuit filed last week. “But its actual work does not touch upon history. Rather, its primary mission is to trade upon the fictional story, settings and characters that Harper Lee created.”

For its part, the museum isn’t admitting any infringement.  USA Today quoted the museum’s attorney as follows:

The museum’s Birmingham attorney said the tourist attraction is within its rights to educate the public and preserve the area’s history. “It’s sad that Harper Lee’s handlers have seen fit to attack the nonprofit museum in her hometown that has been honoring her and the town’s rich history associated with that legacy for over 20 years,” [Matt] Goforth said.

Goforth further stated that “Every single statement in the lawsuit is either false, meritless, or both.”  Some of the facts surrounding the case, however, appear to suggest otherwise.  First, the website for the museum is  The gift shop is called “The Bird’s Nest” and contains lots of “Mockingbird” memorabilia, according to news reports.

The case is pending in the the Southern District of Alabama (C.A. No. 1:13-cv-490), where it was filed on October 10, 2013.  Lee seeks a permanent injunction against the museum.  On November 5, 2013, the museum filed a motion to dismiss for failure to state a claim.  As of the date of this post, the court had set out a briefing schedule for that motion, and states that it will take up the motion on November 26. What will Lee have to prove?  In order to succeed on the merits of a trademark infringement claim, a plaintiff must show that the defendant used the mark in commerce without her consent and  that the unauthorized use was likely to deceive, cause confusion, or result in mistake.  Davidoff & CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300-01 (11th Cir. 2001).  Seven factors are considered as to the likelihood of confusion: (1) type of mark; (2) similarity of mark; (3) similarity of the products the marks represent; (4) similarity of the parties’ retail outlets and customers; (5) similarity of advertising media; (6) defendant’s intent; and (7) actual confusion. Frehling Enters. v. Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir.1999). Of these, the type of mark and the evidence of actual confusion are the most important. Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1239 (11th Cir. 2008). Federal courts may grant permanent injunctions where infringement is found to have occurred in order to prevent further infringing use of a mark, and such injunctions should be designed to keep the former infringers a safe distance away from the protected mark. Id. at 1242.

This lawsuit is getting a lot of attention from the media world, and we are also interested in the outcome.  We’ll follow along with everyone else, and let you know of any developments.

Guns and Products Liability in Alabama

Maybe I’m naive.  Maybe I just haven’t felt the need to carry a firearm for personal protection in my everyday life.  Maybe I’m just not from Alabama.  But this case confuses me.

Out of the Northern District of Alabama comes the case of Avery v. Cobra Enterprises of Utah, Inc., C.A. No. 2:11-cv-02870, 2013 WL 2532320 (N.D. Ala. May 23, 2013).  The facts are simple.  James Avery was given a Cobra Model C32 derringer by his son.  Beginning in 2004, Mr. Avery began carrying the derringer every day for protection.  As the Court notes, Avery “regularly carried it without the safety engaged.” Here’s a picture of the gun at issue:

Now, you can guess where this is going.  One day, Avery returned home from running errands.  He got out of his car carrying not only the derringer (safety off), but magazines (the reading kind), wallet, keys, and soda bottles.  He got as far as the trashcan, but when he tried to open it, he dropped the gun.  The gun hit the ground and discharged, like Complete AK 47 rifles would, shooting Avery in the abdomen.

Avery sued Cobra Enterprises, the manufacturer of the derringer, asserting several theories of products liability; however, the only claim that survived to the summary judgment stage was a claim for breach of implied warranty of merchantability.  Under Alabama law, one of the requirements is that a product must be “fit for the ordinary purposes for which such goods are used.”

Avery’s lawyers did something clever with this claim after Cobra filed a motion for summary judgment.  They claimed that “ordinary purposes” include not only those uses intended by the manufacturer or seller, but those which are reasonably foreseeable.  Their argument is that the manufacturer of a firearm should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly, that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.”

The Court basically called this out as the “wild west” argument, but unbelievably, denied Cobra’s motion for summary judgment, in part on this basis:

This is analogous to the reasoning of hair trigger artists of the Old West.  It may be an uphill battle for the Averys to convince a jury that there exists such a reasonable expectation, either by seller or by user, but on the current state of the evidence, the Averys will be afforded the opportunity to put their theory to the jury test.

Unbelievable.  One other point should be made about Avery, lest you think that he, like me, was simply naive about the way guns work and how they can be safely handled on an everyday basis:

Avery had experience with firearms throughout his life. He went hunting for the first time at age 6, used a pistol around age 8, handled a semi-automatic handgun around age 18, and has carried a pistol permit since the age of 18. He also served in the Navy where he received formal firearm training. He had experience both with firearms that have manual safeties and firearms that have no safeties at all. He had no experience with a derringer until he acquired the one at issue. Upon receiving any new firearm, he always examined it himself to figure out how it works, but he does not typically read the instruction manual right away. He said he “probably … looked over” the derringer’s manual at some point while he owned it. Avery July 18, 2012 depo at 53. He testified that he knew a firearm could discharge if mishandled, but he did not know that a firearm could be expected to discharge if dropped while fully loaded with the safety off.
I’ll withhold further commentary here, except to say that I hope that the jury gets a well drafted contributory negligence charge from the Court.  Sharpen your pencils, counselors.

Napalm in your backyard?

Napalm is a gel-like incendiary agent that has been used in warfare weapons for decades.  What makes napalm different from any other firebomb type incendiary agent such as gasoline?   The gel clings to what ever it touches, creating a large burning area around the target, thereby decreasing the need for accuracy.  Doesn’t this sound like a perfectly safe type of fuel to use in adding ambience to your backyard?  Well, it wasn’t napalm, but an Alabama man has sued, alleging he suffered severe burns when his girlfriend poured gel fuel into a fire pot which ignited and hit his neck, chest, and face.

In his lawsuit, the plaintiff claims the fuel gel and fuel pot were defective, unreasonably dangerous, and carried “an extremely high risk of combustion” with potential for serious injury.  According to the complaint, in May of 2011, the plaintiff was using a fire pot “as instructed” along with several family members and his girlfriend.  When his girlfriend saw the flame had been extinguished, she added more fuel gel, which caused a “flash fire explosion” that “bathed” the plaintiff with the fiery substance.  His family attempted to douse the flames with water, but the plaintiff still suffered severe burns and had to be airlifted to the University of Alabama Birmingham burn center.

In September of 2011, the U.S. Consumer Product Safety Commission announced a voluntary recall of gel fuels by several manufacturers, including Bird Brain, Inc., which was named in this lawsuit.  The real problem with the gel fuels is not that it can combust when poured onto a lit flame.  That could happen with any incendiary agent.  Instead, the problem lies in the fact that the flame can be difficult to see and vapors from inside the gel container can be ignited by the flame. This can, in turn, cause an explosion, and the effects are compounded by the fact that the burning gel sticks to the skin and can be difficult to extinguish with water.

Frankly, this suit may not bode well for the defendants.  Then again, it’s certainly early in the game, and we’ve only got one side of the story.  If this one goes to trial, we’d expect there will be a bit quibbling over whether the term “napalm like substance” is objectionable and whether this video from the Consumer Product Safety Commission is admissible.