Butcher v. Robertshaw Controls Co.

Decision Date31 July 1981
Docket NumberCiv. No. HM81-72.
Citation550 F. Supp. 692
CourtU.S. District Court — District of Maryland
PartiesPatrick A. BUTCHER and Lisa A. Butcher v. ROBERTSHAW CONTROLS COMPANY; Rheem Manufacturing Company, T/A Ruud Manufacturing Company; and Arundel Gas & Water Conditioning Company.


J. James McKenna, Rockville, Md., for Patrick A. and Lisa A. Butcher.

Eugene A. Edgett, Jr., Baltimore, Md., for Liberty Mut. Ins. Co.

E. Charles Dann, Jr., Daniel J. Moore, and Semmes, Bowen & Semmes, Baltimore, Md., for Robertshaw.

William N. Zifchak, Upper Marlboro, Md., and Pamela A. Bresnahan, Baltimore, Md., for Rheem.

Kevin J. McCarthy and O'Malley, Miles, Farrington & McCarthy, Upper Marlboro, Md., for Arundel Gas & Water Conditioning Co.


HERBERT F. MURRAY, District Judge.

Plaintiff Patrick A. Butcher and his wife filed the instant action seeking damages for severe burns sustained by Patrick A. Butcher over 85% of his body as a result of an explosion of a gas-run hot water heater. The explosion and resulting fire were caused by the ignition of propane gas which had leaked from the heater or its controls. The heater was manufactured by the defendant Rheem Manufacturing Company, T/A Ruud Manufacturing Company, and was equipped with an automatic gas shutoff device manufactured by the defendant Robertshaw Controls Company. Also named as a defendant is the Arundel Gas & Water Company, which supplies the gas and services the hot water heater.

As both the plaintiffs and defendant Arundel are Maryland citizens, this case is not brought under the diversity jurisdiction, notwithstanding the source in state law of most of the causes of action incorporated into the complaint. All of these state-law claims (i.e. fraud and deceit, strict liability, negligence and loss of consortium) are pendent to the one federal question alleged, which is the alleged violation of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq., ("CPSA" or "the Act"). Defendants have moved to dismiss the complaint on the basis of lack of subject matter jurisdiction, asserting that CPSA provides no express private right of action for a consumer absent a violation of a "consumer product safety rule", as that term is defined by the Act.1


CPSA was enacted by the 92nd Congress on October 27, 1972, along with explicit Congressional findings of fact and statements of purpose.2 Briefly, the Act is intended for the protection of the public against unreasonable risks of injury associated with "consumer products", a term which is to be liberally construed in accordance with the statute's patently remedial purpose. United States v. One Hazardous Product Consisting of a Refuse Bin, 487 F.Supp. 581 (D.N.J.1980); Consumer Product Safety Comm'n v. Chance Mfg. Co., 441 F.Supp. 228 (D.D.C.1977). The Act established a new federal agency, the Consumer Product Safety Commission ("CPSC" or "the Commission"), to conduct studies, tests and investigations relative to the safety or hazards of various consumer products, maintain an Injury Information Clearing-house for the collection, analysis and dissemination of injury data, and promulgate consumer product safety standards where necessary in order to prevent or reduce unreasonable risks of injury. 15 U.S.C. §§ 2054, 2056. Only "consumer products" may be regulated by the Commission, Southland Mower Co. v. Consumer Product Safety Comm'n, 619 F.2d 499 (5th Cir.1980), the idea being to exclude from the Act's coverage those articles which are not customarily produced or distributed for sale to, or use by, or enjoyment of members of the consuming public. Kaiser Aluminum & Chem. Corp. v. Consumer Product Safety Comm'n, 428 F.Supp. 177 (D.Del.1977), rev'd on other grounds, 574 F.2d 178 (3d Cir.), cert. denied, 439 U.S. 881, 99 S.Ct. 218, 58 L.Ed.2d 193 (1978). See 15 U.S.C. § 2054(a)(1). That the heater and gas shutoff device involved in the instant case are indeed "consumer products" for purposes of the Act is not disputed.

Within its realm of consumer products, the Commission has issued rules which, for purposes of this case, may broadly be classified into two major categories: "consumer product safety rules" and administrative rules. The former is comprised of rules promulgated in order to halt or restrict the sale or manufacture of consumer products deemed unreasonably dangerous to the public. Restrictive rules heretofore promulgated include the imposition of safety standards for architectural glazing materials, 16 C.F.R. § 1201, matchbooks, 16 C.F.R. § 1202, walk-behind power lawn mowers, 16 C.F.R. § 1205, swimming pool slides, 16 C.F.R. § 1207, and cellulose insulation, 16 C.F.R. § 1209. Outright bans have been imposed upon the manufacture of unstable refuse bins, 16 C.F.R. § 1301, extremely flammable contact adhesives, 16 C.F.R. § 1302, lead-containing paint and products incorporating the same, 16 C.F.R. § 1303, and certain items containing respirable free form asbestos, 16 C.F.R. §§ 1304, 1305.

The other major category of rules comprises regulations promulgated in order to facilitate the administration of the CPSC and its statutory duties. Of paramount importance to the efficient functioning of the CPSC is a subset of these administrative regulations comprising what might conveniently be referred to as disclosure rules. Thus Part 1115 of 16 C.F.R., headed "Substantial Product Hazard Reports" is just such a disclosure provision, the purpose of which is to delineate the CPSC's "interpretation of the reporting requirements imposed on manufacturers (including importers), distributors, and retailers by section 15(b) of ... CPSA, 15 U.S.C. § 2064(b) and to indicate the actions and sanctions which the Commission may require or impose to protect the public from substantial product hazards, as that term is defined in section 15(a)3 of the CPSA." 16 C.F.R. § 1115.1 This rule thus implements the statutory directive of 15 U.S.C. § 2064(b), which provides:

Every manufacturer of a consumer product distributed in commerce, and every distributor and retailer of such product, who obtains information which reasonably supports the conclusion that such product —
(1) fails to comply with an applicable consumer product safety rule; or
(2) contains a defect which could create a substantial product hazard described in subsection (a)(2) of this section,
shall immediately inform the Commission of such failure to comply or of such defect, unless such manufacturer, distributor, or retailer has actual knowledge that the Commission has been adequately informed of such defect or failure to comply.

In addition to these two broad categories of rules, there exist rules of a hybrid nature, such as 16 C.F.R. § 1401, which requires manufacturers of self-pressurized products containing chlorofluorocarbons to provide the Commission with specified technical data, and 16 C.F.R. § 1402, which requires manufacturers of radio and television antennae to provide instructions to consumers regarding safe installation methods.

From the foregoing, somewhat cursory review of federal regulation in the field of consumer product safety, it is clear that the Commission cannot and does not rely solely on standards or bans; indeed, without disclosure provisions such as 16 C.F.R. § 1115, it would be impossible for the Commission to gain an awareness of substantial product hazards in order to begin thinking about bans or standards in the first place.

The logic of CPSC's modus operandi notwithstanding, the question before the court is whether a member of the general public like Patrick Butcher may maintain a private action for damages against a manufacturer for fraudulent noncompliance with a disclosure rule. Concededly, neither of the manufacturer-defendants violated a consumer product safety rule as none has been issued with respect to the product in question.

Plaintiffs' federal claim is premised on 15 U.S.C. § 2072, which provides:

(a) Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent, subject to the provisions of section 1331 of Title 28 as to the amount in controversy, and shall recover damages sustained, and the cost of suit, including a reasonable attorney's fee, if considered appropriate in the discretion of the court.
(b) The remedies provided for in this section shall be in addition to and not in lieu of any other remedies provided by common law or under Federal or State law.

(Emphasis added).4 The allegedly violated rule is, of course, 16 C.F.R. § 1115, which appeared in its original form in the Federal Register of Feb. 19, 1974 and entered into force on March 21, 1974. The rule, as initially promulgated,5 provided in pertinent part:

1115.4 General requirements.
Every manufacturer of a consumer product distributed in commerce ... shall immediately inform the Director, Bureau of Compliance, Consumer Product Safety Commission, Washington, D.C. ... of any defect or failure to comply immediately upon obtaining information ... which reasonably supports the conclusion that a product contains a defect which creates or could create substantial product hazard.
* * * * * *
1115.5 Initial notification.
The initial notification to the Commission shall:
* * * * * *
(e) Furnish (to the extent such information is then reasonably available) the data specified in § 1115.7(a).
* * * * * *
1115.7 Subsequent notification.
(a) Subsequent notification to the Commission shall be made in writing and shall include, but not be limited to, the information listed below in this paragraph (a). The person(s) responsible for supplying such information is (are) placed in parentheses after each item of information requested.

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