Swift v. Service Chemical, Inc., 310 P.3d 1127 (Okla. Civ. App., 2013)

On October 14, 2008, a nine-year-old child known as “B.S.” for the purposes of litigation, was was severely burned when he ignited chemicals which had spilled out from an “Exploding Scarecrow, Jr.” target kit. As packaged, the Exploding Scarecrow contained a small plastic bag filled with the oxidizing agent, potassium perchlorate, another bag filled with magnalium, a larger mixing bag, double stick tape, a spoon, instruction sheet, and a larger plastic mixing bag.

The kit came from a friend of the plaintiff’s sister, Kyle Warden, who got it from his former teacher, Shawn Singleton, who got it as a promotional item from Bert Dunn, who sold the product over the internet, purchased from Havasu Research, who developed the exploding target for pistols and firearms, made from chemicals purchased from Service Chemical, Inc.

Warden first brought the Exploding Scarecrow to the plaintiff’s home, with permission from B.S.’s parents, for Warden and B.S. to shoot with a pellet gun. The target was assembled according to the instructions, but some of the chemicals spilled on the ground. After the target was shot, it did not explode as expected. A week later, B.S. was burned as he tried to light the spilled chemicals with a match. The chemicals exploded in a flash fire, injuring B.S.

The plaintiffs filed a lawsuit against all defendants, asserting claims of negligence and products liability. As against defendant Service Chemical, Inc., the plaintiffs alleged failure to warn and strict liability, including inadequate warnings to accompany the sale of raw chemicals. The trial court granted Service Chemical’s motion for summary judgment.

On appeal, the appellate court found that the evidence was undisputed that the plaintiff was the type of individual foreseeably expected to use the chemicals, and as they were not ordinary customers, there was no duty to warn. The court also found that there was no evidence to show that Service Chemical, Inc. was aware of this type of purpose for these chemicals for consumer use and did not owe a duty to plaintiffs under the theory of negligence. The trial court’s ruling was affirmed.

Woods v. Fruehauf Trailer Corporation, 765 P.2d 770 (Okla., 1988)

Leonard Woods was an employee of Oklahoma Tank Lines, a gasoline transport company, when he suffered second and third-degree burns over 50 percent of his body in the fire at a gasoline storage area at the Pier 51 Marina near Mannford, Oklahoma. Woods contended that Pier 51 was negligent in ordering more gasoline than the storage tank could hold. He also alleged that Fruehauf should have included an automatic shutoff device in the pumping mechanism.

A jury awarded Woods $12.4 million in damages ($6 million in actual damages from both the Fruehauf Corp. and Pier 51). The jury also ordered Pier 51 to pay an additional $400,000 in punitive damages. Woods’ percentage of fault was held to be at 30%.

The defendants moved for a mistrial, for judgment notwithstanding the verdict, remitter of the damages award, and for a new trial. The trial court denied all motions with the exception for the motion for a new trial. The motion for new trial was granted as to both Fruehauf and Pier 51 on the basis that the court had incorrectly instructed the jury concerning failure to warn as a basis for Fruehauf’s liability under products liability theory and because the court felt that the jury had failed to understand the instructions and had rushed to a verdict.

Woods then appealed the granting of a new trial on the basis that the granting was erroneous. The Supreme Court of Oklahoma ultimately granted Fruehauf’s motion for a directed verdict and judgment notwithstanding the verdict. However, the Court affirmed the jury verdict against Pier 51, as initially rendered on the jury verdict.

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