U.S. Court of Appeals Reverses Product Liability Case for Design Defect Claims Under Both Strict Liability and Negligence

Juan Suarez used Goof Off, an extremely flammable product made by the defendant W.M. Barr & Co., to remove paint from a basement floor. While he was removing the paint, a fire erupted in the basement and severely burned him. Suarez and his wife sued W.M. Barr claiming it chose not warn and for failing by producing a defective product design under Illinois law. After the U.S. District Court granted summary judgment in favor of Barr, the Suarezes appealed to the U.S. Court of Appeals in Chicago.

The appeals panel concluded that the district judge appropriately rejected the Suarezes’ failure-to-warn claim. The warning label on the Goof Off can adequately identified the product’s principal hazards, as well as the precautionary measures to be taken while using the product.

However, the appeals panel reversed and remanded the district court’s rejection of the Suarezes’ design defect claims under both strict liability and negligence. The Suarezes have adequately shown that the fire may have been caused by static sparks created when Juan agitated Goof Off with a brush, as the warning label instructed.

A genuine factual issue exists as to whether an ordinary consumer could expect the fire to erupt under these circumstances, whether these risks outweighed the benefits associated with Goof Off, and whether W.M. Barr should have known that agitating Goof Off could have created static sparks sufficient for igniting the fire.

This all started when in April 2012, Suarez purchased a one-gallon can of Professional Strength Goof Off to help him remove paint from the concrete basement floor of the building he owned.  The primary active ingredient in Goof Off is acetone, which is extremely flammable and evaporates quickly at room temperature. Suarez purchased a can of Goof Off that contained various label warnings in both English and Spanish.

The Court of Appeals rejected the failure-to-warn claim made by the Suarezes. Under the Federal Hazardous Substances Act, the labeling requirements were met by the labels found on the Goof Off product. The court said the Act states that a “hazardous substance” includes “[a]ny substance or mixture of substances which . . . is flammable or combustible . . . during or as approximate result of any customary or reasonably foreseeable handling or use,” as defined by the Consumer Product Safety Commission. 15 U.S.C. ¶¶ 1261(f)(1) (A-)(B).

The Suarezes attacked the warning labels on two grounds. First, they claimed that the label should have included a warning about static sparks, such as “beware of static electricity that may be generated by synthetic clothing or other sources.” The Act makes clear that a label need not identify every conceivable way in which a predicate condition for a principal hazard can occur.  Rather, the label needs only to identify the principal hazard itself – here, flammability.

As to the claim of defective design under strict liability, according to Illinois law, a plaintiff must prove:  (i) the product had an unreasonably dangerous condition; (ii) the condition existed when the product left the manufacturer’s control, and (iii) the condition injured the plaintiff. Mikolajczyk v. Ford Motors Co., 901 N.E.2d 329, 345 (2008).

When a plaintiff’s claim is based on an alleged design defect, the “unreasonably dangerous” element can be proved in one of two ways. The consumer-expectation test provides for liability if the product “failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Lamkin v. Towner, 563 N.E.2d 449, 457 (1990). The risk-utility test asks if “on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.”  Where the two tests are in conflict, the risk-utility test wins out.  In that instance, the product is deemed not unreasonably dangerous (notwithstanding consumers’ expectations that the product would be safer).

To support the Suarezes’ consumer-expectation argument that agitating Goof Off with a brush – as the product label instructed – would cause the product’s vapors to ignite, they relied on the testimony of an electrical engineer who opined that the broom Suarez used could have caused a static spark if it had brushed against his body, clothing or surroundings. The fire investigator the Suarezes retained concluded that a static spark was the likeliest source of ignition that caused and started the fire. This was a genuine issue of material fact to consumer expectations. In addition, the Suarezes also produced enough evidence suggesting that water-based Goof Off was a practical and technologically feasible alternative the acetone based product.

The Court of Appeals concluded that a genuine factual issue exists as to whether Goof Off was negligently designed. In addition, the court held that the Suarezes had marshalled enough facts indicating that the risk-utility test weighs in their favor to survive summary judgment.

In conclusion, the judgment of the District Court was affirmed in part and reversed in part and the case remanded for proceedings consistent with the opinion.

Suarez v. W.M. Barr & Company Inc., No. 15-3602 (U.S. Court of Appeals for the 7th Cir., Nov. 22, 2016).

Kreisman Law Offices has been handling pharmaceutical defect cases, product liability cases, product defect cases, design defect cases, wrongful death cases, work injury lawsuits and catastrophic injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Palos Heights, Tinley Park, Lincolnwood, Arlington Heights, Bensenville, Inverness, Lockport and Gurnee, Ill.

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