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ARTICLE ID 139884

$________ - PRODUCT LIABILITY - CONTACT ADHESIVE USED TO ATTACH SPLASH PLATE BEHIND STOVE ALLEGEDLY HAS EXCESSIVELY LOW FLASH POINT - ALLEGED INADEQUATE WARNINGS ON ADHESIVE REGARDING EXTINGUISHING PILOT - ALLEGED SPOLIATION BY HOMEOWNER - SEVERE FLASHBACK BURNS TO LOWER PORTION OF BODY

Kings County

In this action, the 40-year-old plaintiff handyman contended that after he was retained by the defendant homeowner to help with work to his home, the defendant requested that he attach a flash plate to the back of the kitchen stove with an adhesive material that would obviate the need to use screws or to create holes. The plaintiff purchased a can of the substance that was brushed on like paint and a short period later, the pilot light on the stove ignited the vapors, resulting in a flashback that caused third degree burns to much of the plaintiff’s lower body and necessitated some 15 surgical interventions, including debridement and skin graft procedures.

The plaintiff contended that the flash point of the substance was too low to be in compliance with federal statute and should not been sold. The plaintiff further contended that the can’s label should have contained warnings regarding the need to extinguish a pilot light. The plaintiff further named the homeowner, contending that he violated his responsibility to provide a safe place to work. Finally, the plaintiff contended that the day following the incident, the homeowner, who should have known that litigation would be commenced, had discarded the can of adhesive material. The product liability defendants denied that the flashpoint was not in compliance with federal statute, maintained that the labeling complied with provisions of the Federal Hazardous Substances Act and that the federal statute pre-empted the plaintiff’s claims that the labeling was inadequate. The plaintiff included a spoliation count against this defendant, contending that the discarding of the evidence hindered its ability to establish that the flash point was such that the substance shouldn’t be sold.

The evidence reflected that shortly after the plaintiff began applying the substance to the back of the stove with a brush, the flashback occurred. The plaintiff established that in order to comply with the federal statute, the flashpoint of the material could not fall below 20 degrees F. The plaintiff contended that the flashpoint was lower since the product was misbranded, it had failed to comply with the Federal Hazardous Substances Act and the products liability defendants should not have the benefit of the pre-emption provisions relating to the labeling.

The plaintiff established that in the years elapsing since the incident, the formulation of the substance has not changed. The plaintiff’s engineer related that he purchased three separate cans and subjected them to testing, ascertaining that two of the three had flashpoints which were lower than the federal standard. The plaintiff would have argued that the circumstantial evidence was strong and that the can involved in the incident contained materials which failed to comply with the federal standard as well.

The plaintiff maintained that the labels should have contained warnings regarding the need to turn off the pilot light. The plaintiff further contended that the product liability defendants could have avoided all hazard by supplying a water-based rather than a solvent-based product and that a flashback could not occur if such a water-based product had been provided.

The products liability defendants maintained that the flashpoint complied with the federal statute. The product liability defendants further contended that the pre-emption provisions should apply and moved for summary judgment on this issue. The motion was pending as of the time of the settlement.

The plaintiff further contended that the co-defendant homeowner negligently failed to provide a safe place to work. The plaintiff maintained that the homeowner should have ensured that there was adequate ventilation. The plaintiff further contended that the homeowner should have provided instructions regarding the turning off of the pilot light.

The defendant homeowner maintained that the plaintiff had at least equal knowledge on these issues and contended that provisions of the Labor Law did not apply, denying that he violated any duty owed the plaintiff.

The plaintiff suffered third degree burns to much of his lower body and was an in-patient for several months. The plaintiff maintained that he required numerous painful debridement as well as several skin graft procedures. The plaintiff contended that he has also developed adhesions that interfere with joint functioning and that he may require further surgery. The plaintiff contended that the residual severe scarring and pain is permanent in nature.

The case settled prior to trial for $________, including $________ from the homeowner and the balance from the products liability defendants.

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