Products Liability Law Daily Virginia’s Fireman’s Rule applies to products liability claims despite recent statutory change
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Monday, April 16, 2018

Virginia’s Fireman’s Rule applies to products liability claims despite recent statutory change

By Georgia D. Koutouzos, J.D.

Virginia’s Fireman’s Rule applies to products liability claims, a federal appellate panel ruled, affirming in an unpublished decision a Virginia federal trial court’s grant of summary judgment favoring the manufacturer of a recreational vehicle refrigerator on breach of warranty and negligent failure to warn claims against the company by a firefighter who had been injured when responding to an RV fire allegedly caused by a defective fridge. Contrary to the firefighter’s assertion, a recent statutory amendment creating a gross negligence exception to the Fireman’s Rule did not apply retroactively, the panel determined, noting that in creating a new exception, the amendment affected "substantive" rights and could not apply retroactively because it deals with the creation of duties, rights, and obligations (Colbert v. Norcold, Inc., April 13, 2018, per curiam).

A gas absorption refrigerator in a couple’s recreational vehicle caught fire and the fire destroyed the RV as well as the couple’s home and garage. Additionally, a volunteer firefighter who responded to the fire was injured when a piece of shrapnel struck his arm. The firefighter and the RV owners sued the refrigerator’s manufacturer, Norcold, Inc., alleging various product liability claims.

The RV owners’ claims eventually were settled, leaving only those of the firefighter, who alleged that: (1) the refrigerator maker breached the implied warranty of merchantability; and (2) the company’s willful and wanton conduct with respect to its product’s admitted defect amounted to an intentional tort. Norcold moved for summary judgment on the basis that Virginia’s Fireman’s Rule (a common-law rule that eliminates a defendant’s liability for negligent conduct that injures certain public officials performing their duties) applied to the injured firefighter’s claims, to which he responded with his own summary-judgment motion on the manufacturer’s affirmative defenses.

The trial court granted summary judgment favoring the refrigerator maker, finding that the firefighter failed to meet the higher bar of willful and wanton conduct sufficient to remove the case from the longstanding precedent of the Fireman’s Rule, which applies to product liability claims [see Products Liability Law Daily’s March 27, 2017 analysis]. The firefighter did not show that Norcold’s actions, or lack thereof, met the high bar of willfulness/wantonness necessary to negate the applicability of that defense, the trial court held, also concluding that his warranty claim failed because he was not within the class of permissible plaintiffs as one "whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods."

Issues on appeal. The firefighter appealed the trial court’s decision, arguing on appeal that the trial court erred by ruling on his breach of implied warranty of merchantability and negligent failure to warn claims because Norcold did not move for summary judgment on those claims. He also maintained that Virginia’s Fireman’s Rule does not apply to products liability claims and, alternatively, that a recent statutory amendment created a gross negligence exception to the Fireman’s Rule that applies retroactively.

Warranty and negligence claims. The trial court did not err by ruling on the breach of warranty and negligent failure to warn claims, the appellate panel determined, noting that the refrigerator maker plainly requested summary judgment on the breach of warranty claim as to all plaintiffs. Moreover, the firefighter pleaded his negligent failure to warn claim as part of "Count II – Negligence," and Norcold moved for summary judgment on that count pursuant to Virginia’s Fireman’s Rule, the panel observed.

Fireman’s Rule. As for the applicability of Virginia’s Fireman’s Rule, the appeals court agreed with the trial court that the Rule applies to products liability claims and that the refrigerator maker’s conduct had not been willful or wanton. Norcold issued seven recalls, commissioned several studies, and instituted logging protocols—all in an effort to reduce the risk of fires attributable to its refrigerators, the panel observed, commenting that such responsive conduct could not be said to be willful or wanton.

Statutory amendment. Finally, the appeals court disagreed with the firefighter’s assertion that a recent statutory amendment creating a gross negligence exception to the Fireman’s Rule applied retroactively. In creating a new exception, the amendment affected "substantive" rights and could not apply retroactively because it deals with the creation of duties, rights, and obligations, the panel instructed, declining to address the applicability of the gross negligence exception to the case and affirming the trial court’s decision.

The case is No. 17-1419.

Attorneys: Bradley Landon Leger (Leger Ketchum & Cohoon, PLLC) for Brian Colbert. Martin Andrew Conn (Moran, Reeves & Conn, PC) for Norcold, Inc., Thetford Corp., and Dyson-Kissner-Moran Corp.

Companies: Norcold, Inc.; Thetford Corp.; Dyson-Kissner-Moran Corp.

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