956 F.2d 1319 (6th Cir. 1992), 90-6094, Hurt v. Coyne Cylinder Co.

Docket Nº:COYNE CYLINDER COMPANY, Defendant-Appellee (90-6094),
Citation:956 F.2d 1319
Party Name:David HURT and wife, Beth Hurt, Plaintiffs-Appellants, Cross-Appellees, Auto-Owners Insurance Company, Intervening Plaintiff-Appellee (90-6275), v.
Case Date:February 18, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1319

956 F.2d 1319 (6th Cir. 1992)

David HURT and wife, Beth Hurt, Plaintiffs-Appellants, Cross-Appellees,

Auto-Owners Insurance Company, Intervening

Plaintiff-Appellee (90-6275),


COYNE CYLINDER COMPANY, Defendant-Appellee (90-6094),

Liquid Air Corporation, Defendant-Appellee, Cross-Appellant.

Nos. 90-6094, 90-6275.

United States Court of Appeals, Sixth Circuit

February 18, 1992

Argued Sept. 17, 1991.

Rehearing Denied March 31, 1992.

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[Copyrighted Material Omitted]

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T. Robert Hill (argued and briefed), Hill, Boren, Drew & Martindale, Jackson, Tenn., Ralph E. Chapman, Dana J. Swan, Chapman, Lewis & Swan, Clarksdale, Miss., for David and Beth Hurt.

Marikaye C. Thurmond, Neely, Green, Fargarson & Brooke, Gail O. Mathes, Bogatin, Lawson & Chiapella, Memphis, Tenn., Craig A. Newman, Caruthers, Herzog, Crebs & McGhee, St. Louis, Mo., Robert L. Green (argued and briefed), Neely, Green, Fargarson & Brooke, Memphis, Tenn., for Coyne Cylinder Co.

David E. Harrison (briefed), Shelby R. Grubbs (argued), Grant, Konvalinka & Grubbs, Chattanooga, Tenn., for Liquid Air Corp.

Before GUY and BOGGS, Circuit Judges, and HARVEY, Senior District Judge. [*]

BOGGS, Circuit Judge.

David Hurt, Jr. and his wife, Beth Hurt, appeal a jury verdict for defendants Coyne

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Cylinder Company ("Coyne") and Liquid Air Corporation ("Liquid Air") in a design defect products liability case arising out of burns sustained by Hurt in the explosion of an acetylene cylinder. Hurt seeks reversal and remand for retrial on the grounds that the trial judge committed reversible error by 1) refusing to instruct the jury on the availability of alternative safety devices; 2) excluding a videotape from evidence; 3) denying plaintiff's motion to strike jury instructions on affirmative defenses; and 4) holding that Department of Transportation ("DOT") Regulations on Hazardous Materials, 49 C.F.R. § 179 et seq., create a presumption that the product is not unreasonably dangerous under Tennessee Code Annotated Section 29-28-104. We find reversible error on two grounds and remand for retrial.

Co-defendant Liquid Air cross appeals, claiming that the district court erred in denying its motion for a directed verdict on grounds of adequacy of warning. We reverse and direct the district court to grant Liquid Air's motion.


On August 30, 1985, David Hurt, Jr. was engulfed by flames from the explosion of an acetylene cylinder, resulting in burns to more than 70% of his body. The explosion occurred at the Hurt Seed Company after Hurt's son, Trey, had been using a mobile acetylene unit mounted on the back of an old pickup truck that was used solely for the service and maintenance of company property. The acetylene unit had only been used a few times previously and had about 50-75 feet of oxygen and acetylene hose coiled around a hook, resting alongside the cylinder. Despite all the extra hose, Trey began a small cutting job on a piece of pipe only a few feet from the back of the pickup truck. A few minutes later, he heard a swishing sound and saw that the acetylene unit was on fire. Trey dropped his torch, ran inside to get a fire extinguisher and returned with another employee but failed to put out the fire. They then ran back inside to get more extinguishers. Meanwhile, Hurt, seeing flames shooting from the back of the truck, came running out of his office with another fire extinguisher, thinking that his son might be on fire. When he realized that Trey was not in danger, Hurt nonetheless still tried to put out the fire. He quickly realized that the fire was inside the acetylene cylinder and started to run away. However, it was then too late and he was engulfed in flame as the acetylene cylinder exploded. The oxygen cylinder did not explode, nor did any other part of the truck. The explosion resulted in Hurt having disfiguring burns that required 164 days of hospitalization and cost $467,356.80 in medical expenses.

The acetylene cylinder was designed, manufactured, tested, and sold by Coyne, owned by Mid-South Oxygen Company in Memphis, and shipped directly by Coyne to Liquid Air, which then filled the cylinder with acetylene in August 1984. The cylinder was delivered to the Hurt Seed Company on April 24, 1985, and simultaneously exchanged for an empty, used cylinder as was customary. Liquid Air had placed a flammability warning label on the acetylene cylinder. The label included the word "FLAMMABLE" in very large type, set off by a distinctive red diamond surrounding it. It also included the legend (with the first word printed in red): "DANGER: FLAMMABLE GAS. MAY FORM EXPLOSIVE MIXTURE WITH AIR. ... KEEP AWAY FROM HEAT, FLAME AND SPARKS."

Hurt maintains the fire was caused by design defects in the acetylene cylinder and that Liquid Air provided inadequate labels warning of the product's danger for consumer use. Appellees claim that the explosion occurred as a result of extreme external heat from the fire raging in and around the faulty hoses, which impinged on the cylinder and caused the steel to weaken and rupture. The jury returned a verdict for defendants. Hurt's motion for a new trial was denied and both Hurt and Liquid Air now appeal.



In order for acetylene cylinders to be transported and enter the flow of commerce,

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they must comply with Department of Transportation ("DOT") Regulations on Hazardous Materials, 49 C.F.R. § 179 et seq. The parties do not dispute that the appellees complied with the DOT regulations. However, Hurt claims that the trial judge committed reversible error by instructing the jury that appellees' compliance with the DOT regulations established a rebuttable presumption that the acetylene unit was not unreasonably unsafe for consumer use.

The instruction was based on T.C.A. § 29-28-104, which states:

Compliance by a manufacturer or seller with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, shall raise a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards.

Based on this statute, the judge ruled that Coyne's compliance with DOT regulations established a presumption that the cylinder was not unreasonably safe. Both at trial and on appeal, Hurt argues that these regulations only deal with transportation and have nothing to do with consumer usage and that compliance with transportation regulations does not create a presumption of safety with regard to consumer use.

Whether the judge should have instructed the jury on this issue depends on statutory interpretation. The presumption created by T.C.A. § 29-28-104 is limited "to matter covered by these standards." Appellees argue that this section establishes that a manufacturer of a product is entitled to a rebuttable presumption if it complies with any state or federal statute. They claim that because the DOT regulations contain comprehensive and exclusive standards for the manufacture, inspection, testing, and marking of acetylene cylinders, e.g., 49 C.F.R. § 173.34, they therefore are meant to apply to consumer use. For example, the DOT regulations include a section entitled "General Qualifications for Use of Cylinders," 49 C.F.R. § 173.34(a). In addition, they are the only federal regulations that exist with regard to acetylene cylinders. See 49 C.F.R. §§ 178 et seq. The only other material concerning acetylene cylinder safety is found in industry pamphlets.

However, these arguments are not persuasive. Section 173.34(a) is part of 49 C.F.R. § 173, which is entitled "Shippers--General Requirements for Shipments and Packagings." That section is limited to containers "intended for use in the transportation of hazardous materials." 49 C.F.R. § 173.1(a)(3). In fact, the statutory language and legislative history of the statute authorizing the DOT regulations limit their applicability to matters of transport and not consumer use. See Sawash v. Suburban Welders Supply Co., 407 Mass. 311, 316-17, 553 N.E.2d 894 (1990).

The DOT...

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