Nassif v. National Presto Industries, Inc., Civil 87-835-A.

• Decision Date: 25 January 1990
• Docket Number: No. Civil 87-835-A.,Civil 87-835-A.
• Citation: 731 F. Supp. 1422
• Parties: Bernard NASSIF, Plaintiff, v. NATIONAL PRESTO INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Southern District of Iowa

731 F. Supp. 1422

Bernard NASSIF, Plaintiff, v. NATIONAL PRESTO INDUSTRIES, INC., Defendant.

No. Civil 87-835-A.

United States District Court, S.D. Iowa, C.D.

January 25, 1990.

William Scherle of Hansen, McClintock & Riley, Des Moines, Iowa, for plaintiff.

Richard Sapp of Nyemaster, Goode, McLaughlin, Voigts, West, Hansel & O'Brien, Des Moines, Iowa, for defendant.

RULING GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

WOLLE, District Judge.

Defendant's motion for summary judgment, reduced to essentials, presents three questions: (1) Did defendant, manufacturer of a space heater, act negligently or produce a defective product in failing to warn users the heater could burn them; (2) Did defendant owe a duty to give special warning to users who have sensory loss; and (3) Were the instructions accompanying defendant's space heater inadequate or misleading, making the product defective or defendant liable for negligence? The court answers no to all three questions. Defendant's motion for summary judgment is granted.

The plaintiff, a diabetic, purchased the Presto Quartz Heater manufactured by defendant for use in his home. Plaintiff's diabetic condition caused him to have a reduced sensitivity to heat; he was fully aware of this sensory loss. On November 5, 1985, the plaintiff received severe burns on his left foot when he fell asleep while using the heater to warm himself. He contends the product was defective and the manufacturer was negligent in failing to give appropriate warnings, in particular a special warning to persons with sensory deficit like himself. He also contends the written directions were misleading and made the heater unsafe for his use.

The written directions that accompanied the heater included an explanation that the Quartz Heater "warms you directly, comfortably, almost instantly, from head to toe without first heating the entire room." The "Important Safeguards" section included standard warnings about use of electricity and the additional statements:

2. Do not use heater in places where solvents or other flammable materials may come in contact with the heater. Never use heater for drying or heating when painting with lacquer or oil base paints, as they may ignite.

....

4. Close attention is necessary when this heater is used where children are present.

....

11. Do not allow heater to operate unattended in a small, well insulated room, as overheating may occur.

12. Do not place heater in closed areas such as beneath furniture, in cabinets or beneath or behind curtains or drapes. Always allow at least 30 inches of space between the front and sides of the heater and any other surface.

13. Keep heater away from materials which may be damaged by heat and from flammable materials such as drapes, curtains and delicate fabrics.

A further written statement explained how the heater "keeps you warm ..."

The Presto Quartz heater is designed to heat people and objects, directly without first heating the air space around them. This allows the actual room temperature to be kept at a lower level while personal comfort is maintained.

Heat is produced by a coiled wire element encased in a translucent quartz tube. When this element is energized, heat is produced on two "wave-lengths." One wave-length is in the "visible range" and can be seen as the red glow of the hot tube. The majority of the heat, however, is in the "infra-red" range. These "infra-red waves" pass through the air with very little energy loss. Instead of heating the air, they heat any solid objects, including people in their path.

The instruction concerning "Locating the heater ..." provides:

The location selected for the heater is very important for efficient operation. Follow these rules for best results:

1. Place the heater so the front grille faces the person to be heated. Direction is important since the unit heats people and objects directly. Do not try to heat the entire room. Also remember that infra-red heat will travel through glass, just like the sun's rays. If the heater is aimed at a window, objects outside will be heated.

For maximum effectiveness, place heater 3 to 10 feet away from people being warmed. Avoid sitting too close because intense heat may dry eyes and cause irritation. Heating efficiency begins to drop at locations over 10 feet away from heater.

2. For safety, the heater should be in a stable, upright position with at least 30 inches of space between the front and sides of the unit and any other surface.

Do not place the heater in a closed area, such as beneath furniture, in cabinets or beneath or behind curtains or drapes. Do not hang the unit from a wall or ceiling.

The extensive summary judgment record includes deposition testimony of the plaintiff's product-safety expert, Doctor Jerry Hall, who had inspected the heater. Hall expressed the opinion that a hand held twelve inches from the heater for thirty seconds would sustain a burn unless withdrawn because of the pain felt by a person with ordinary sensitivity. He conceded that a person with no sensory deficit would feel the heat and move the hand before it would be burned. Hall expressed the opinion the written product warnings were inadequate because the heat is transmitted by space, not by touch, and therefore the hazards are more subtle and require a specific warning. He did not explain what he meant by subtle; nothing in this record suggests that a person with ordinary sensitivity would be injured before feeling the heat transmitted by the space heater. This court held, following an earlier hearing, that Hall would be allowed to testify as to the criteria by which he would form an opinion on warnings that should accompany the product, but he would not be allowed to testify, without a further showing, that the product was defective in having inadequate warnings. The court based this ruling in limine on Federal Rule of Evidence 702 and Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64, 67-68 (8th Cir.1988). Plaintiff made no further showing to support admissibility of such testimony.

Plaintiff concedes his foot would not have been injured if he had not been afflicted with a sensory deficit in his left foot. An ordinary person would have felt the heat and withdrawn the foot to a safe distance from the heater. The motion papers disclose the only factual issue in dispute is the length of time plaintiff's foot was near the space heater and how near he placed it. Those fact issues might be material to questions of comparative negligence, assumption of risk, or product misuse, but they are not material to the questions here addressed — the extent of the duty to warn owed by defendant to users of the heater and whether inappropriate directions accompanied the heater.

Defendant had the burden to demonstrate that the summary judgment record does not disclose a genuine dispute on a material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has satisfied that requirement, the other party has an affirmative burden to demonstrate that evidence generates a genuine dispute and the case cannot be decided without a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); City of Mount Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273-74 (8th Cir.1988).

I. Scope of Duty to Warn. Both on the theory of negligent failure to warn and the theory the product was defective for...