By Leah S. Poniatowski, J.D.
Fact issues remained as to whether the retailer had knowledge of risks associated with the portable gas can, but explicit warnings on the can shielded the retailer from failure-to-warn and warranty liability.
Three individuals who allegedly were injured when a portable gasoline container exploded failed to establish that a retailer was liable for negligent failure to warn or breach of implied warranty, but their negligent sale claim presented material facts to merit jury review, a federal court in Georgia ruled (Gomez v. Harbor Freight Tools USA, Inc., April 18, 2019, Land, C.).
A son borrowed the at-issue fuel container from his mother and added diesel fuel without removing the small amount of gasoline already in the can. Later, he had friends over and tried to set up his portable firepit. When the wood struggled to ignite, he drizzled some of the fuel on the edge and lit some balled-up paper, but the flame did not appear to stay lit. He was drizzling more fuel around the fire pit when he heard a hissing from the gas can and it then exploded, injuring him and two others. He stated that he was aware of the dangers of using gasoline and had read the warnings on the can, but that he believed that the diesel would have absorbed the gasoline and reduce the danger of pouring the fuel on the fire. According to the users, the container was defective because it did not have a flame arrestor. They brought negligence and pre- and post-sale failure-to-warn claims against Harbor Freight Tools USA, Inc., where the mother alleged she bought the gas can; Central Purchasing, LLC; and HFT Holdings, Inc. (collectively, Harbor Freight). The manufacturer, Blitz U.S.A., had declared bankruptcy several years prior to the litigation. Harbor Freight filed a motion for summary judgment contesting the claims, namely, that it did not sell the gas can to the mother.
Prior ruling. In a prior decision, the court determined that at that stage of litigation, the mother’s testimony that she had purchased the gas can from Harbor Freight despite the retailer having no record of her purchase may have been self-serving, but that did not require the court to disregard it. The court observed that the testimony also created a genuine fact dispute as to whether the container was sold at the retailer’s store. Moreover, the questions of whether the container was defective and whether the retailer knew of that danger had not been within the scope of Phase I discovery. As such, the retailer was not entitled to summary judgment on those issues. Harbor Freight filed the present second summary judgment motion for judgment as a matter of law on the remaining claims.
Negligent sale. According to Georgia law, a seller of a product may be liable for negligence if it sold a product of which the retailer had actual or constructive knowledge that the product was unreasonably dangerous at the time of sale. The court determined that there were jury questions as to whether Harbor Freight had the knowledge that the Blitz cans were unreasonably dangerous before September 2012, when the can was allegedly purchased. Harbor Freight was aware that Blitz had declared bankruptcy in 2011, and the retailer had received a letter from a gas can vendor which explained that its gas can price increase arose from the difficulties portable gas can manufacturers had been experiencing vis-a-vis expensive lawsuits, a "dramatic" increase to its liability insurance, and investments made to comply with new regulations. Receipt of the letter did not put Harbor Freight on notice of defects as a matter of law, the court explained, but it did raise questions for the jury as to whether Harbor Freight acted as a reasonable retailer under the circumstances. Because Harbor Freight offered no other ground to challenge the negligent sale claim, summary judgment on this claim was denied.
Failure to warn. In order for a negligent failure-to-warn claim to succeed, a plaintiff must establish that the seller was aware of a danger independent of the manufacturer’s warning and that failure proximately caused the plaintiff’s injuries. Case law holds that sellers have no duty to warn consumers of dangers clearly listed on the product. Here, the son knew that pouring gasoline on a fire was dangerous and the gas can warned that gas should never be used to start a fire and should be kept away from flame. Despite his erroneous assumption that the warnings did not apply because the can contents were mostly diesel, he presented no evidence that Harbor Freight knew but did not warn about a danger not provided by the manufacturer. The can’s lack of a warning that it did not contain a flame arrestor did not cause the injuries because the son understood the existing warnings not to use gasoline on a fire. Similarly, there was no evidence that Harbor Freight was aware of the risks of or specific injuries from using a diesel/gasoline mixture near a fire. Accordingly, Harbor Freight was granted summary judgment on the negligent failure-to-warn claim.
Remaining claims. The court explained that the implied warranty of merchantability claim failed because no warranty can be implied for a use that is specifically warned against on the product—i.e., pouring gasoline on to a fire. Also, the foreseeable misuse of the gas can was covered by the warning, and in the lack of case law holding a seller liable for injuries arising by a consumer using the product as specifically warned against, the claim failed. Finally, the son and others failed to respond to the summary judgment request on the punitive damages claim and, thus, it was abandoned. Consequently, summary judgment was granted on both of those claims.
The case is No. 3:17-cv-41 (CDL).
Attorneys: John P. Kristensen (Kristensen Weisberg, LLP) for Robert V. Gomez, II. Eileen Meghan Ahern (Willenken Wilson Loh & Delgado LLP) for Harbor Freight Tools USA Inc., Central Purchasing LLC and HFT Holdings Inc.
Companies: Harbor Freight Tools USA Inc; Central Purchasing LLC; HFT Holdings Inc
MainStory: TopStory SCLIssuesNews HouseholdProductsNews WarningsNews DamagesNews GeorgiaNews
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