Suarez v. W.M. Barr & Co.

• Decision Date: 22 November 2016
• Docket Number: No. 15-3602,15-3602
• Citation: 842 F.3d 513
• Parties: Juan SUAREZ and Billie Suarez, Plaintiffs–Appellants, v. W.M. BARR & COMPANY, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

842 F.3d 513

Juan SUAREZ and Billie Suarez, Plaintiffs–Appellants,

v.W.M. BARR & COMPANY, INC., Defendant–Appellee.

No. 15-3602

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2016

Decided November 22, 2016

Edmund James Scanlan, Attorney, Scanlan Law Group, Chicago, IL, for Plaintiffs–Appellants.

Gerard W. Cook, Attorney, George J. Casson, Attorney, O'Halloran, Kosoff, Geitner & Cook, LLC, Northbrook, IL, for Defendant–Appellee.

Before Wood, Chief Judge, and Flaum and Williams, Circuit Judges.

Williams, Circuit Judge.

Juan Suarez used Goof Off, an extremely flammable product made by W.M. Barr, to remove paint from a basement floor. While doing so, a fire erupted in the basement and severely burned him. Juan and his wife sued Barr, alleging failure to warn and defective design under Illinois law. The Suarezes appeal the district judge's grant of summary judgment in Barr's favor.

We conclude that the district judge appropriately rejected the Suarezes' failure-to-warn claim. The warning label on the Goof Off can adequately identified the product's principal hazards, as well as the precautionary measures to be taken while using the product. However, we reverse and remand the district judge's rejection of the Suarezes' design defect claims under both strict liability and negligence. The Suarezes have adequately shown that the fire may have been caused by static sparks created when Juan agitated Goof Off with a brush as the warning label instructed. So a genuine factual issue exists as to whether an ordinary consumer would expect a fire to erupt under these circumstances, whether this risk outweighs the benefits associated with Goof Off, and whether Barr should have known that agitating Goof Off could have created static sparks sufficient for ignition.

I. BACKGROUND

A. Fire Erupts While Using Barr's Product

In April 2012, Juan Suarez (Juan) purchased a one-gallon can of Professional Strength Goof Off to help remove paint from the concrete basement floor of a building he owned. Goof Off is produced by Defendant W.M. Barr & Company, and is advertised as being effective at removing dried latex paint and other materials from various surfaces such as metal, glass, brick, wood, and concrete. The primary active ingredient in Goof Off is acetone, which is extremely flammable and evaporates quickly at room temperature. The can Juan purchased contained various warnings in both English and Spanish. For example, the side of the can stated,

DANGER! EXTREMELY FLAMMABLE. KEEP AWAY FROM HEAT, SPARKS, FLAME AND ALL OTHER SOURCES OF IGNITION. VAPORS MAY CAUSE FLASH FIRE OR IGNITE EXPLOSIVELY . Extinguish all flames and pilot lights and turn off all stoves, heaters, electric motors and all other sources of ignition during use and until all vapors are gone. USE ONLY WITH ADEQUATE VENTILATION TO PREVENT BUILDUP OF VAPORS. Do not use in areas where vapors can accumulate and concentrate such as basements, bathrooms and small enclosed areas. If using indoors, open all windows and doors and maintain cross ventilation of moving fresh air across the work area.... IF THE WORK AREA IS NOT WELL VENTILATED, DO NOT USE THIS PRODUCT.

(emphasis in original). The can also instructed users who wanted to remove stains from concrete to "[a]pply directly. Agitate with brush."

Juan claims that before using the Goof Off, he read at least most of the warnings on the label and opened at least one window in the basement and two doors that separated the basement from the outside. It is unclear, however, whether he turned off the pilot lights connected to two water heaters and a furnace located in a utility room in a separate portion of the basement. Juan then poured some of the Goof Off onto paint patches on the basement floor, and after letting the product stand for a period of time, he spread it out initially with his foot and then with a kitchen broom. While Juan was using the broom, a fire erupted and severely burned his face, head, neck, and hands.

B. Legal Proceedings

Juan and his wife Billie sued Barr, alleging failure to warn and defective design (under both strict liability and negligence theories). The Suarezes argued that Goof Off is unreasonably dangerous, even when used in a foreseeable manner, and that Barr did not provide adequate warnings regarding Goof Off's dangers. They also claimed that the fire was caused by static sparks created while Juan was using the broom to spread the Goof Off,¹ and retained two experts to bolster this theory. Benjamin Miller, an electrical engineer, opined that Juan's broom was capable of producing a static charge when brushed against his body, clothing, or surroundings, and that such a charge could migrate to the floor and cause sparks. Steve Chasteen, a certified fire investigator, concluded that a static spark was the most probable ignition source, and that the fire likely was not caused by the heaters and the furnace in the utility room.

Barr moved in limine to exclude Miller and Chasteen from testifying at trial, and for summary judgment on all of the Suarezes' claims. The district judge declined to rule on Barr's motion in limine but granted its motion for summary judgment, concluding that: (i) Barr had complied with the requisite labeling requirements; (ii) Goof Off was not unreasonably dangerous because ordinary consumers would expect that exposing it to sparks or flames could cause a fire; and (iii) there was insufficient evidence concerning Goof Off's risks and benefits to the public, its conformity (or lack thereof) with industry standards, or any feasible alternatives. The Suarezes appeal this decision.

II. ANALYSIS

We review the district judge's grant of summary judgment de novo and construe the facts in the light most favorable to the Suarezes as the non-moving party. Stephens v. Erickson , 569 F.3d 779, 786 (7th Cir. 2009). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

A. Failure–To–Warn Claim Properly Rejected

Although the parties agree that Goof Off is a hazardous substance under the Federal Hazardous Substances Act and must therefore comply with the Act's labeling requirements, we must nevertheless confirm that this agreement accurately reflects the law. The Act tells us that a "hazardous substance" includes "[a]ny substance or mixture of substances which ... is flammable or combustible ... during or as a proximate result of any customary or reasonably foreseeable handling or use," as defined by the Consumer Product Safety Commission. 15 U.S.C. §§ 1261(f)(1)(A)–(B). Commission regulations currently instruct that a substance is "flammable" if its flashpoint—i.e., the lowest temperature at which a compound emits ignitable vapors—is between 20° and 100° Fahrenheit. 16 C.F.R. § 1500.3(c)(6)(ii). Goof Off's flashpoint is 0° Fahrenheit, well beyond the threshold for flammability.² So Goof Off is a hazardous substance under the Act, and as such, it must be accompanied with a label that conspicuously displays "an affirmative statement of the principal hazard or hazards, such as ‘Flammable.’ " 15 U.S.C. § 1261(p)(1)(E). The label must also identify "precautionary measures describing the action to be followed or avoided." Id. § 1261(p)(1)(F).

Critically, the Act also preempts any claim "based on a state-law theory that the product's label should have included particular warnings not required" by the Act and corresponding regulations. Mwesigwa v. DAP, Inc. , 637 F.3d 884, 887 (8th Cir. 2011) ; see also Kirstein v. Parks Corp. , 159 F.3d 1065, 1067 (7th Cir. 1998) (observing in passing that the Act preempted plaintiffs' state law claim); accord Richards v. Home Depot, Inc. , 456 F.3d 76, 78 (2d Cir. 2006) ; Comeaux v. Nat'l Tea Co. , 81 F.3d 42, 44 (5th Cir. 1996) (per curiam); Moss v. Parks Corp. , 985 F.2d 736, 739 (4th Cir. 1993).

1. Failure–to–Warn Claim Not Forfeited

The Suarezes argue that the Goof Off label violated the Act by failing to identify certain principal hazards and precautionary measures. Before addressing the substance of this argument, we begin with Barr's contention that the Suarezes forfeited the issue. Specifically, Barr argues that the amended complaint "does not claim that the Goof Off label was in violation of the [Act] or its implementing regulations in any respect." This, however, ignores the amended complaint's reference to § 1261(p)(1)(F) where it states, "Defendant had an obligation to provide plaintiff, Juan Suarez, with adequate relevant information and data and warnings regarding the proper use and risks associated with the use of Goof Off." Am. Compl. ¶ 16 (emphasis added). Although the amended complaint does not cite § 1261, it provided Barr with adequate notice of the Suarezes' failure-to-warn claim, as evidenced by the content of Barr's motion for summary judgment, in which it argued, among other things, that Goof Off's label adequately warned about the product's flammability hazard. Cf. Bartholet v. Reishauer A.G. (Zurich) , 953 F.2d 1073, 1078 (7th Cir. 1992) (noting that Federal Rule of Civil Procedure 8 does not require a complaint to point to the exact statute that entitles a plaintiff to relief); Townsend v. Benjamin Enters., Inc. , 679 F.3d 41, 57 (2d Cir. 2012) ("The failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of the claim. Factual allegations alone are what matters." (citation omitted)).

Barr also faults the Suarezes for failing to raise the precautionary measures issue in response to Barr's motion for summary judgment. But this criticism is based on a misunderstanding of the parties' burdens at summary judgment. As the moving party, Barr had the burden to show that it was entitled to judgment under established principles. In attacking the Suarezes' failure-to-warn claim, Barr discussed only the label's references to principal hazards, neglecting to mention precautionary...