Wurster v. Plastics Grp., Inc.

• Decision Date: 25 February 2019
• Docket Number: No. 17-2698,17-2698
• Citation: 917 F.3d 608
• Parties: Judith WURSTER, Individually and as its Administrator Executor the Estate of James Wurster Plaintiff - Appellant v. The PLASTICS GROUP, INC., Doing Business as Wedco, Doing Business as Wedco Moulded Products Company Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

917 F.3d 608

Judith WURSTER, Individually and as its Administrator Executor the Estate of James Wurster Plaintiff - Appellant

v.The PLASTICS GROUP, INC., Doing Business as Wedco, Doing Business as Wedco Moulded Products Company Defendant - Appellee

No. 17-2698

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2018

Filed: February 25, 2019

Diane M. Breneman, SHAFFER & LOMBARDO, Kansas City, MO, Timothy J. Kingsbury, Kenneth Blair McClain, Lauren E. McClain, HUMPHREY & FARRINGTON, Independence, MO, Jay Madison Smith, SMITH & MCELWAIN, Sioux City, IA, for Plaintiff-Appellant.

John Michael Hawkins, Michael Alan Holcomb, David I. Matthews, WEINBERG & WHEELER, Atlanta, GA, Joel D. Vos, Jeff William Wright, HEIDMAN LAW FIRM, Sioux City, IA, for Defendant-Appellee.

Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

James Wurster ("Mr. Wurster") suffered fatal burns when a gas can manufactured by Appellee The Plastics Group, Inc. ("TPG") exploded as he was burning garbage on his farm in Iowa. His wife, Judith Wurster ("Mrs. Wurster"), filed suit, both in her personal capacity and in representative capacity for the estate and heirs-at-law, against TPG. After trial, a jury rendered a take-nothing verdict under Iowa’s comparative fault scheme, finding TPG forty-five percent at fault for Mr. Wurster’s death due to its failure to provide adequate warnings on the gas can and apportioning the balance of the fault to Mr. Wurster. See Iowa Code § 668.3(1). Mrs. Wurster appeals, asserting the district court¹ erred by (1) refusing to give her proposed design defect instruction; (2) instructing the jury on reasonable alternative design; (3) including two separate assumption of risk instructions; and (4) granting judgment as a matter of law on her post-sale failure-to-warn claim. We affirm.

I. Background

In the late morning of February 8, 2013, Mr. Wurster stood in the backyard of his farmhouse in Lenox, Iowa, attempting to burn some trash in a burn barrel. As a fire or embers burned inside the barrel, Mr. Wurster poured gasoline from a gas can into the barrel. This caused a flame to travel up the stream of gasoline into the can. Vapors inside the can ignited, and the can exploded.

When Mrs. Wurster heard the explosion, she rushed outside to see her husband on fire, running toward her, and pleading for help. By the time they were able to extinguish the fire, it had burned most of Mr. Wurster’s clothing and skin. Despite his injuries, Mr. Wurster was lucid and coherent. He let a responding officer inside the farmhouse and told the officer "he had been in the process of starting a fire to burn some scraps around the yard area there and a gas can exploded and that’s what caused the injuries."

Mr. Wurster was rushed by helicopter to a hospital in Iowa City. When Mrs. Wurster arrived at the hospital, she was told that her husband’s injuries were fatal, would inevitably lead to systemic organ failure, and that the only care that medical staff could provide was to keep Mr. Wurster as comfortable as possible. Mr. Wurster died the next day with his wife and some of his children by his side.

The gas can used by Mr. Wurster was a Model W520 can that TPG manufactured in November 2000 under the brand name Wedco. It is unknown when and where the Wursters purchased the can. Embossed on one side of the can was a warning:

GASOLINEDANGER – FLAMMABLEEXTREMELY FLAMMABLE — VAPORS CAN EXPLODE

...

CAUTION: ... VAPORS CAN BE IGNITED BY A SPARK OR FLAME SOURCE MANY FEET AWAY — KEEP AWAY FROM FLAME ... AND OTHER SOURCES OF IGNITION — KEEP CONTAINER CLOSED

The can had a removable front pouring nozzle that contained a debris screen. The debris screen functioned as a flame arrester. A flame arrester is a mesh screen that allows air and liquid—but not sparks and flames—to pass through. The can had a vent hole in the back that was not protected by a mesh screen. The experts who testified at trial did not agree on whether Mr. Wurster had poured gas out of the main hole of the can after removing the nozzle or out of the rear vent hole.

The possibility of fire while using a gas can has been known for over a century, and efforts to avoid such fires by use of a flame arrester can design date to at least a patent in 1871. Safety organizations and Consumer Reports have urged the industry to take precautions to protect against explosions caused by the lack of a flame arrester since the 1970s. By the time the can in question was manufactured, many of TPG’s competitors were manufacturing cans that included flame arresters. TPG could have added a basket-type flame arrester to its gas cans for as little as five to ten cents per can.

TPG acknowledged at trial that while it was aware of the possibility that explosions could be caused by the lack of flame arresters by at least 2006, it provided no post-sale warnings to previous purchasers of its cans. They did, however, change the warning label on newly manufactured cans. A TPG representative explained the company does not make retail sales of its products and had no way of identifying where Mr. Wurster purchased the can or whether he was the original purchaser. While TPG was aware of which big box retailers it sold its products to, it had no way of knowing which particular stores sold the W520 gas can.

This appeal focuses primarily on the court’s jury instructions. The case was tried to a jury on a negligence theory, with the jury being instructed on two specifications of negligence requested by Mrs. Wurster. Instruction No. 12 stated that in order to prevail on the negligence claim, Mrs. Wurster must prove TPG was negligent in (1) its "design of its gas cans" and/or (2) its "failure to provide adequate gas can warnings."

Instruction Nos. 13 and 18 are the assumption of risk instructions at issue in this appeal. Instruction No. 13 read:

TPG claims that James Wurster was at fault by being negligent. In order to prove this claim, it must prove

1. James Wurster was negligent in one or more of the following ways:

a. misuse of the gas can by attempting to pour gasoline on a fire;

b. misuse of the gas can by attempting to pour gasoline from the vent hole; and

c. unreasonable assumption of the risk.

2. James Wurster’s fault was a cause of plaintiffs’ damage.

If TPG failed to prove either of these propositions, TPG has not proved its defense. If TPG has proved both of these propositions, then you will assign a percentage of fault against James Wurster and include his fault in the total percentage of fault found by you in answering the special verdicts.

Instruction No. 18 read:

TPG claims that James Wurster unreasonably assumed the risk by pouring gasoline onto the fire or using the vent hole to pour gasoline.

To prove this defense, TPG must prove all of the following propositions:

1. James Wurster knew the risk was present.

2. James Wurster understood the nature of the risk to himself.

3. Nevertheless, James Wurster unreasonably, freely, and voluntarily took the risk.

4. James Wurster’s assumption of the risk was a cause of plaintiffs’ damage.

If TPG has failed to prove any of these propositions, it has not proved this defense. If TPG has proved all these propositions, then you will assign a percentage of fault against James Wurster and include it in the total percentage of fault, if any, found by you in your answers to the special verdicts.

Mrs. Wurster objected unsuccessfully to submitting assumption of risk both as a negligence factor in the comparative fault instruction and as a separate instruction.

Mrs. Wurster proposed a jury instruction based upon Iowa Civil Jury Instruction 1000.2, which is titled "Design Defect - Essentials for Recovery." At the instructions conference, the court proposed a modified version of Mrs. Wurster’s proposed instruction as Jury Instruction No. 14. The court’s proposed instruction was substantially similar to Mrs. Wurster’s except for its mention of strict products liability in the preamble:

Plaintiffs claim TPG was at fault under a theory of strict products liability. In order to prove a claim of design defect, they must prove all of the following propositions:

1. TPG manufactured the gas can,

2. TPG was engaged in the business of manufacturing gas cans,

3. The gas can did not comply with the state of the art at the time of its manufacture,

4. The gas can was in a defective condition at the time it left TPG’s control, in that it lacked flame arrestors on all openings.

5. A reasonable alternative safer design could have been practically adopted at the time of sale or distribution.

6. The alternative design would have reduced or avoided the foreseeable risks of harm posed by the gas can.

7. The omission of the alternative design renders the gas can not reasonably safe.

8. The alternative design would have reduced or prevented plaintiffs’ harm.

[9]. The amount of damage.

If plaintiffs failed to prove any of these propositions, they are not entitled to damages on this theory of recovery. If plaintiffs have proved all of these propositions, then you will consider the defense of comparative fault.

Counsel for TPG objected to the mention of strict products liability, arguing defective design under Iowa law is a negligence concept, and suggested the words "strict products liability" be replaced with "defective design." When Mrs. Wurster’s counsel insisted the "instruction is not a negligence instruction, and it would be error to give it if the court is not giving a strict products liability instruction," the court decided not to give Jury Instruction No. 14.

Both parties proposed a reasonable alternative design instruction based on Iowa Civil Jury Instruction 1000.4, which is the counterpart to—and specifically references—Iowa Civil Jury Instruction 1000.2. During the instructions conference, Mrs. Wurster’s attorney argued the court could not give Instruction No. 15—the court’s modified version of her proposed reasonable alternative design instruction—if it did not also give Instruction No. 14. The...