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On November 18, 1998, at approximately 7:00 PM, plaintiff was performing
brake work on an automobile for an acquaintance. A brake job involves placing
the vehicle on a lift, removing the wheels, cleaning and removing the brakes,
and then the installation of new ones. By approximately 7:00 PM on November 18,
1998, plaintiff was working on the passenger rear wheel of the vehicle and was
having difficulty removing some of the bolts. As was the practice at the shop,
plaintiff needed a welder to help him loosen the bolts. Immediately prior to the
incident plaintiff used a Parts Cleaner to clean the rear brakes on the
passenger side of the vehicle. The parts cleaner contained a brush which
sprayed fluid to clean the brakes and a tray to collect runoff when placed under
the area being cleaned. The tray contained a drain for the solvents to flow into
a reservoir which was used to recycle the solvents. plaintiff sprayed the rear
brakes with the defendant A solvent from the parts cleaner, and placed the unit
underneath the rear wheel to collect the residue. After cleaning the brakes with
the defendant A solvent, he then sprayed the brakes with brake wash. The
defendant A parts cleaner was used to collect the run-off of the brake clean solvent.
When he completed the cleaning operation, he moved the parts cleaner away from
the vehicle. Then, he began using a mig welder to help remove the bolts and
complete the repair work on the brakes for the Isuzu Rodeo. While using the
welder, he was wearing a welding mask.
While using the welder, plaintiff was suddenly engulfed in flames after vapors
from the defendant A parts cleaner ignited. The vapors accumulated from the
defendant A parts cleaner and which contains both the defendant A solvent and
the brake wash solvent. The brake wash solvent is an extremely flammable product
whose vapors unknown to ignite from a variety of sources, including the spark
from a welder.
As a result of the fire, plaintiff sustained severe second and third degree
burns over 30 percent of his body, the worse appearing on his face, hand, neck
and left thigh. He also suffered an airway obstruction because of severe burns
to his neck He was taken by helicopter and subsequently intubated requiring
cricothyroidotomy and was transferred to Brigham and Women’s Hospital where he
underwent emergency surgery. He required multiple grafting and debridement
procedures to both the chest, neck, face and bilateral hand areas. plaintiff’s
medical bills are approximately $359,865.89, and he will need future surgeries.
plaintiff has severe, raising hypertrophic scarring about his face, neck, hands,
thigh, and chest. The scars are grossly disfiguring and are clearly visible. The
third degree burns were very deep and involve the complete obliteration of
plaintiff’s skin with the nerves and capillaries destroyed, and the most
excruciating ordeal a human being can experience.
Liability of Premises Owner
The owner was responsible for training the plaintiff in the
proper use of the Brake Wash and other cleaning solvents, and for training
the plaintiff in the use of flammable and/or hazardous materials and for keeping
a safe work site. Also, under Massachusetts and Federal laws and regulations,
the owner was responsible for educating its employees on hazardous materials,
communicating MSDS information to workers, and monitoring the activities of its
workers. The owner was negligent in its training and supervision of the
plaintiff on the use of flammable and hazardous materials such as the Brake
Wash product in question. In addition, the owner failed to keep a safe work
site. It did not make the product warning label or Material Safety Data
Sheet known or available to users such as plaintiff. The premises was in an
unkempt condition, contained numerous fire hazards, did not have a proper
ventilation system, did not have a separate storage area for flammable
substances and did not have insulated wall outlets. In addition, the owner failed to properly store flammable products, failed to
properly dispose of these products, and failed to ensure that the products would
not be used near, or exposed to, heat, sparks or flame. The owner did not
properly train its employees on the safe use or storage of flammable products.
The owner was aware of the dangers associated with the flammability of the
brake wash. In fact, earlier in the day of plaintiff’s incident, there was
another fire at the shop involving the brake wash. In addition,
approximately one week prior to the fire, the owner
complained to the brake wash sales representative about fires with the product. During
that conversation, he requested a nonflammable alternative for use in the shop.
Despite this knowledge and the other fires on the premises, the owner did not
discontinue the use of the brake wash product, or take other precautions to
prevent fires on the premises.
Liability of Brake Wash Manufacturer
The brake wash was volatile, flammable, and explosive and was sold by the
manufacturer to the owner for use in the facility without providing adequate
information, warnings, instructions and guidance to the owner as to the
aforementioned unreasonably dangerous characteristics of those products and/or
as to the proper and safe manner in which those products could or should be used
or stored at the facility. In addition, the manufacturer failed to adequately
apprize, inform and warn the owner that the manufacturer had alternative, safer and the
nonflammable products which the owner could have bought from the manufacturer and which
the owner could have used at its facility. These alternative and safer
products performed the same function as the original brake wash product and would have
prevented the happening of plaintiff’s incident.
The manufacturer also failed to give adequate instructions and warnings regarding the
containers and/or spray bottles that the owner should use for and with the brake wash.
the manufacturer’s sales personnel negligently
failed to inform the owner of any dangers associated with the use of that
product in or with the plastic spray bottles and containers which the owner
used to store and apply that product during the course of brake work and/or
exhaust work at the facility.
During the years that the manufacturer’s sale representative was selling the
manufacturer
s products, including brake wash, he led the owner to believe that the Brake Wash was safe for use in
the owner's
kind of business, and he never informed it that the manufacturer’s products had, on previous occasions at other
locations, caused or created dangerous conditions and fires and injury to
persons and property. Neither the sales representative nor anyone from the
manufacturer ever told the owner prior to November 18, 1998, about any incidents or fires with its products
or with the Brake Wash.
The manufacturer’s sales representative was well aware of the equipment
which was used at the facility in conjunction with the Brake Wash,
including but not limited to the parts cleaners that
employees were using to catch runoff from the Brake Wash. He was
also aware of the manner in which employees were using that
equipment to gather runoff from the Brake Wash product, and of the
ventilation system in place and available to employees while they
were using Brake Wash. Despite this knowledge, he never
cautioned or warned the owner about the use of the parts cleaner
or that the ventilation or ventilation system at the premises was
inadequate or unsafe for the manner in which employees were using
and gathering runoff from Brake Wash.
Liability of Parts Cleaner Manufacturer
The parts cleaner manufacturer supplied the plaintiff’s employer with
a parts washer the plaintiff was using at the time of the subject fire. It provided and serviced a defective parts cleaner that had a broken lid and
inappropriate electrical components, failed to properly instruct users how to
use the tray and/or substance, and failed to regularly change the used solution.
Moreover, defendant was aware that brake wash runoff was being collected in its parts
cleaners in never warned of any dangers associated with this conduct.
Defendant had alternative parts cleaners that were safer and non-defective. To
begin, one of the other parts cleaners, one of which was in use at the subject
premises
in November 1998, was a water-based cleaner which is not flammable. It is also a
cold wash substance, so it is not necessary to heat it up in order to clean the
parts. Also, this parts cleaner was made of a hard plastic rather than metal
with a tight seal to prevent vapors from escaping. Finally, there was no
electricity associated with this parts cleaner and it was a manual pump that was
used to send the substance through the system. The elimination of electricity
reduces the risk of a fire hazard from that source.
Defendant should also have been aware that its solvent was being mixed
with other substances by the owner by virtue of the repair allocation process
it was using. As a recycler of hazardous substances, defendant would routinely
pick up and dispose of reservoirs filled with substances. Given the fact that
recycling is paid for based upon the nature of the substances separated, there
would have been some indication to defendant of just what it was receiving
back from the various shops it did business with, including the premises owner.
Defendant failed to inform the various shop owners of
the hazards of mixing dangerous chemicals, and more particularly of any harm
associated with mixing flammable materials with the solvent. |
