Eighth Circuit Court Of Appeals Affirms Decision Concerning Wrongful Death From House Fire And Hazardous Materials’ Labels

Your Charleston personal injury attorneys came across a recent court decision involving fatal burn injuries and the labeling of the product that fueled the fire. The following are the facts of the case. A Missouri man purchased a can of DAP Cement to use in installing new baseboards in his home. While he was carrying the closed can through his laundry room (located in his basement), he accidentally dropped the can causing some of the can’s contents to spill on the floor. When he attempted to clean up the spill by wiping up the adhesive, the vapors emitted from the DAP cement ignited and caused a flash fire. The 32-year-old man suffered second- and third-degree burns to 80% of his body. Remarkably, he was able to grab his 2-year-old and 3-year-old sons and saved them from the burning home. Unfortunately, the man ultimately died from his burn injuries two months after the accident.

The man’s wife and family sued DAP Inc., in federal court for: wrongful death on the theories of negligence, strict liability, and failure to warn; for negligent misrepresentation; and for violations of the Consumer Product Safety Act. The District Court for the Eastern District of Missouri granted summary judgment in favor of DAP, and the plaintiff’s appeal summary judgment on their wrongful-death, failure-to-warn claim.

The Federal Hazardous Substances Act (FHSA) requires hazardous substances sold in interstate commerce and intended for household use to bear adequate cautionary labels. According to case precedent, a plaintiff may bring a failure-to-warn claim based on the theory that a product label failed to comply with the FHSA. However, also according to a court’s previous decision, a plaintiff cannot bring a failure to warn suit based on a state law theory that the product’s label should have included warnings not required by the FHSA.

The plaintiff’s suit contended that the label did not comply with the FHSA because it failed to warn of one of the principal hazards of DAP cement. Specifically, the suit argues that the label should have included the risk of fire and severe burn injuries from an accidental spill of the DAP cement as a principal hazard, separate from the product’s general flammability. According to the plaintiff’s reasoning, if the spill is handled in a particular manner the product becomes exponentially more dangerous, thus the spill constitutes a separate principal hazard. However, the Eight Circuit Court of Appeals concluded that the risk of fire from an accidental spilling of DAP cement is not a principal hazard that the FHSA requires the product’s label to explicitly state.

Also, the plaintiff’s argue that the DAP contact cement label failed to exhibit adequate “precautionary measures describing the action to be followed or avoided.” Specifically, the plaintiff’s assert that the label should have informed the consumer the product should not be wiped and spread, but absorbed with an inert absorbent in the event of an accidental spill. The Circuit Court of Appeals concluded that the FHSA does not require the DAP cement label to warn consumers against spreading the product after a spill as a precautionary measure. Although the FHSA refers to precautionary measures generally, the Code of Federal Regulations makes clear that the precautionary measures required to be warned of on a product’s label are those necessary to avoid the principal hazard associated with the product.

The label on DAP cement instructs the consumer that in order to avoid the principal hazard of general flammability and flash fire, before the DAP cement is used any potential source of ignition must be eliminated as a precautionary measure. Spreading the product after a spill is dangerous only if the consumer has not removed potential sources of ignition. Although an additional warning instructing the consumer to avoid spreading the cement in the event of an accidental spill might reinforce the precautionary measures already provided, the FHSA does not require the additional warning. The label complies with the FHSA because the principal hazard to be avoided is flammability, and the way to avoid that hazard is to remove all potential ignition sources.

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