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From Products Liability Law Daily, January 27, 2015

Jack-of-all-trades not ordinary consumer of painting chemical or secondhand storage barrels

By Pamela C. Maloney, J.D.

A manufacturer of a lacquer thinner intended for professional use in various vehicle painting activities was not liable for the death of a “jack-of-all-trades” who acquired a barrel used to store the chemical secondhand because he was not an intended user of either the chemical or the storage barrel, a federal district court in Oklahoma determined, granting the manufacturer’s motion for summary judgment on the estate’s strict liability design defect and failure-to-warn claims. The court also granted summary judgment on the estate’s negligence claims, finding that the decedent was not a foreseeable user to whom the manufacturer owed a duty of care (Thompson v. TCI Products Co., January 26, 2015, Eagan, C.).

Background. The decedent, Troy Howard Thompson, died from injuries received in an explosion that occurred as he was using a plasma cutter to remove the lid from secondhand barrel that had contained an acrylic lacquer thinner. The lacquer thinner, which had been manufactured by TCI Products Co., was used for various applications in the painting of vehicles, including as a paint thinner and a painting equipment cleaner. TCI sold the product only to distributors that, in turn, sold the product to automobile body shops. The manufacturer never sold the product directly to the general public or to businesses that painted vehicles. TCI requested summary judgment on the decedent’s estate’s products liability, negligence, and breach of warranty claims, arguing that the estate failed to prove that the lacquer thinner was dangerous beyond that which would be contemplated by the ordinary consumer who purchased it, or that it had any duty to warn the decedent of the dangers associated with the lacquer thinner.

Ordinary consumer requirement. Under Oklahoma case law, a claim for products liability design defect requires proof that, inter alia, a defect made the product unreasonably dangerous, meaning the product was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. The Oklahoma Supreme Court has defined “ordinary consumer” as one who would be foreseeably expected to purchase the product involved. It was undisputed that the lacquer thinner was intended for use in the painting of vehicles and that the manufacturer sold it to distributors, not to end users. The product was labelled “for professional use only” and its sale was limited to a specific type of industrial user. Although the decedent had been described as a “jack-of-all-trades,” there was no evidence the he ever intended to or would have purchased the lacquer thinner for its intended use. Instead, he acquired the secondhand barrel which had been used to store the chemical so that he could transform it for his own purposes; the contents of the barrel had been irrelevant for his purposes.

Dangerous requirement. The court went on to address the issue of whether the lacquer thinner was dangerous beyond that contemplated by an ordinary consumer, which raised the question of whether it was less safe than the ordinary consumer would expect, not whether it was merely dangerous. The lacquer thinner, like similar solvents, was highly flammable and presented a danger of explosion that rendered it inherently dangerous. However, the ordinary consumer of the lacquer thinner would expect it to be highly flammable and potentially explosive. Thus, the lacquer thinner was not dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community. Because the decedent was not an ordinary user of the lacquer thinner and because the lacquer thinner was not more dangerous than an ordinary consumer would expect, the estate’s design defect claim failed as a matter of law.

Failure-to-warn claim. The estate’s failure-to-warn claim failed for similar reasons. Oklahoma limits a manufacturer’s duty to warn to ordinary consumers of its products. Having determined that the decedent was not an ordinary user of the lacquer thinner, the manufacturer had no duty, as a matter of law, to warn him of the dangers associated with use of the product.

Negligence. In its negligence claim, the estate alleged that the manufacturer breached its duty of care to protect the public from the dangers of the lacquer thinner by putting the product into the stream of commerce. The existence of a duty of care is determined by the foreseeability of harm to the plaintiff or, as the Oklahoma courts have phrased it, the “focus of the duty element of negligence is on whether the defendant’s conduct creates a broader ‘zone of risk’ that poses a general threat of harm to others.” In order to be recognized as being within the “zone of risk,” the person injured by a product must be an ordinary or foreseeable purchaser or user of that product. Given that the court had already concluded the decedent was not an ordinary user of the lacquer thinner, he was not within the zone of risk, and therefore, as a matter of law, the manufacturer owed him no duty.

The court rejected the estate’s argument that because there was no impediment to a vehicle painting business selling or giving a barrel that contained the lacquer thinner to a secondhand user, the decedent was within the zone of risk or, at the very least, there was a dispute as to whether the manufacturer took reasonable steps to prevent the public from coming into contact with the lacquer thinner. According to the court, this argument would expand the zone of risk to a point that rendered it meaningless. Not every zone of risk included the general public and the product in this case, which was intended for and sold to a specific type of industrial user, was just such a product. Thus, the zone of risk was restricted to the intended, foreseeable users and not to secondhand users, like the decedent.

The case is No. 13-CV-0824-CVE-PJC.

Attorneys: David Earl Jones (Logan & Lowry) for Dexter Thompson. Drew Austin Lagow (Holden & Carr) for TCI Products Co.

Companies: TCI Products Co.

MainStory: TopStory DesignManufacturingNews WarningsNews IndustrialCommercialEquipNews OklahomaNews

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