Lowery v. Airco, Inc.

Citations: 725 F. Supp. 82; 1989 U.S. Dist. LEXIS 11802; 1989 WL 141549Docket: Civ. A. 86-0793-Y

Court: District Court, D. Massachusetts; September 8, 1989; Federal District Court

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Robert Lowery, an experienced welder, was injured when an oxygen-acetylene welding system exploded at a reclamation site. The explosion involved equipment manufactured by AIRCO, Inc. and Linde Division, Union Carbide Corporation, while the hand cleaner used before the incident was produced by Banite, Inc. Banite moved for summary judgment, arguing that Lowery failed to show essential elements of his case, including negligence and breach of warranties. The court noted that a jury could find in Lowery's favor based on the facts presented, which included Lowery washing his hands with Banite's 'DL' hand cleaner before reconnecting a regulator to a new oxygen tank. Laboratory analysis indicated that the hand cleaner could combust when exposed to high temperatures and pressurized oxygen, which was a factor in the explosion. Lowery alleged that Banite was negligent for not warning users about the dangers associated with the product, and his wife claimed loss of consortium. Banite's defense included the assertion that: (1) it was not negligent and did not breach warranties, (2) there was no evidence that its product contributed to the explosion, and (3) any failure to warn was not the proximate cause of Lowery's injuries. Banite contended that the risks were evident to Lowery due to his extensive experience.

Massachusetts law stipulates that when a product's danger is obvious, no duty to warn is required, as warnings would not mitigate injury risk. Determining if a danger is obvious relies on objective criteria. For example, risks associated with chewing a sharp toothpick while on a jungle gym are considered obvious to adults. Consequently, if a risk is clear, there is no legal obligation to warn regarding negligence or breach of warranty claims.

In assessing knowledge relevant to a plaintiff's awareness of risks, the case of Colter v. Barber-Greene illustrates that if a plaintiff is already aware of specific dangers related to a product, the defendant may argue that the lack of warnings did not cause the plaintiff's injuries. In the current case, Banite contends that Lowery was aware of the dangers associated with greasy substances near his torch equipment, arguing this negates the need for a warning. However, Lowery asserts he did not perceive the 'DL' product as greasy, believing it to be a grease remover. This creates a genuine issue regarding his awareness of the product's combustibility when used with oxygen-acetylene equipment, leading to the denial of Banite's summary judgment motion on this ground.

Banite's additional arguments hinge on whether Lowery can demonstrate that their product was involved in the explosion that caused his injuries, addressing both causation in fact and proximate causation. Lowery must show that 'DL' was linked to the explosion and that Banite's failure to warn contributed to the injury. Evidence suggests that 'DL' may have been transferred from Lowery's hands to the oxygen tank valve, as he reported a residue on his hands and a black residue was found in the valve area, which laboratory analysis indicates could be 'DL' residue. Thus, there is sufficient evidence for a jury to consider the connection between the product and the injuries sustained.

Lowery has met the burden of production necessary to advance his case to the jury by presenting competent evidence that the 'DL' waterless hand cleaner likely caused the ignition of the oxygen. An affidavit from expert Charette supports this, stating that if 'DL' had contaminated the regulator without other combustible substances, it would have been a competent contributing cause of the explosion. Banite contends that this affidavit is a sham, claiming it contradicts Charette's earlier deposition testimony to avoid summary judgment. While there is merit to this argument, the court finds that there is no direct conflict between the deposition and the affidavit. Charette's earlier inability to definitively identify 'DL' as the cause was based on a lack of personal knowledge, whereas the affidavit was based on hypothetical assumptions. The court cites Kennett-Murray Corp. v. Bone to illustrate that ambiguities in prior testimony can be clarified by subsequent affidavits, indicating that Charette's affidavit does not disqualify itself as a valid piece of evidence. Thus, even if there are inconsistencies, they do not warrant dismissing Charette's affidavit or denying the jury's consideration of the case.

The jury is tasked with determining issues of credibility. Banite's motion for summary judgment, which seeks to dismiss the Charette affidavit as a sham, is denied. Banite argues that Lowery cannot establish a proximate causal link between its alleged failure to warn and his injury because he does not definitively recall reading the 'DL' product label on the day of the incident. Banite cites Lowery's deposition, where he acknowledged uncertainty about reading the label, to assert that any potential warning would not have affected Lowery's actions. However, the Court finds that the record does not support this conclusion. Lowery indicated he had read the 'DL' label on multiple occasions and was generally aware of its contents. The Court accepts Lowery's affidavit as evidence that could allow a jury to infer that an inadequate warning may have contributed to his injury. Consequently, Banite's motion for summary judgment is denied.

Additionally, under Massachusetts law, liability for breach of warranty of merchantability is governed by M.G.L. c. 106, secs. 2-314, 2-318, aligning with the principles in Restatement (Second) of Torts sec. 402A, which establishes strict liability for sellers of products that are defectively dangerous. This liability persists regardless of the seller's care in the product's preparation and sale. Massachusetts law emphasizes the product's defectiveness and danger rather than the conduct of the user or seller, holding sellers responsible for injuries caused by their products as a matter of public policy.

A product manufacturer can defend against a warranty claim if it provides adequate warnings about unexpected risks associated with the product, either through labeling or other means. A product with such warnings, if used as directed, is not considered defective or unreasonably dangerous. The adequacy of warnings for the 'DL' hand cleaner, particularly regarding its industrial use risks, is a matter for jury determination. Expert opinion on the possibility of a design defect does not fulfill the plaintiff's burden of proof, which requires establishing a design defect by a preponderance of the evidence. In Lowery's case, the expert's assertion that 'DL' was a competent contributing cause supports the claim.