Gas grill case heats up

On June 20, 2012, Matthew Oddo was cooking some chicken breasts on his gas grill at his condominium in Nashville, Tennessee.

After grilling on his patio, he went inside for a couple of minutes and claimed he was getting some vegetables to continue the grilling when he heard what sounded like a jet engine. He looked outside his closed patio door to see flames emanating from his gas grill. The ensuing fire severely damaged the common areas and seven other individual units. After a scene investigation to determine origin and cause of the fire, several lawsuits were initiated.

In one of the cases, QBE v. Wal-Mart, et. al., the insurer for the homeowner’s association sued Wal-Mart, the seller of the gas grill, and Sing Chen International, the Chinese manufacturer. After QBE failed to obtain legal process of service over Sing Chen, it was dismissed. The case proceeded against Wal-Mart and Oddo for his claimed negligent use of the grill.

After conducting extensive discovery of fact and expert witnesses, Wal-Mart sought to be dismissed from the case on several legal grounds.

The plaintiff’s expert alleged a product defect in the gas train of the grill, which leaked gas and created the initial flame that caused the cylinder’s pressure relief valve to vent. The fire damaged the grill so much that it could not be tested to determine the failure mode of any specific component. The plaintiff’s expert said there were several possibilities, including the hose, regulator or hose connections.

Wal-Mart argued the failure to provide an expert opinion as to a specific defect in the gas grill was a legal bar to continue the plaintiff’s claims against the company.

The plaintiff’s expert also acknowledged in deposition that the leak could have come from a manufacturing defect or the subsequent use of the grill, and that the hose could have simply dry rotted. He also acknowledged that he was not critical of the grill’s design, which was made to the applicable industry standards.

Wal-Mart argued the plaintiff could not prove the claimed defect in the grill that caused the leak existed when it left Wal-Mart’s control, as required to establish a product liability claim based on a manufacturing defect.

The plaintiff’s expert attempted to rely on circumstantial evidence to prove a product defect based on negative corpus logic. He eliminated a grease fire because Oddo testified he did not cook greasy foods on the grill and cleaned it regularly, and had not experienced any other flare-ups. He eliminated a defect in the cylinder because there was no evidence that it malfunctioned; it would have been leak tested by the gas supplier prior to the sale; Oddo never smelled any gas; and it had been used several times previously without incident.

Wal-Mart argued that this same case could be made as to why the gas train was not defective. Wal-Mart reasoned that no expert could prove a defect existed in the grill or the cylinder. In addition, Oddo used the grill less than the recommended distance from combustible construction, and testified that he could not recall where he placed the grill cover, which provided another potential cause for the cylinder relief valve to discharge.

Wal-Mart argued that because other reasonable possibilities remained, the fact that certain causes might have been less likely was not sufficient to utilize negative corpus to prove a defect in the grill.

Finally, Wal-Mart was only a seller immune from liability unless the manufacturer was not subject to jurisdiction or it exercised substantial control over that aspect of manufacture, design, testing or labeling that is claimed to have caused the incident. Here, the plaintiff did not appear to make a diligent effort to get service of process on the Chinese manufacturer. Instead, the plaintiff was forced to argue the exception was met because Wal-Mart sold the grill under its brand and required the grill to be submitted to its chosen testing facility.

Wal-Mart argued that labeling and testing did not cause the fire, as required to invoke the exception, and cited case law from a neighboring jurisdiction that providing specifications and requiring quality control does not amount to the type of substantial control required to impose liability.

Given these arguments, the trial court dismissed the case against Wal-Mart in September of this year.

John V. McCoy is with McCoy Leavitt Laskey LLC, and his firm represents industry members nationally. He can be reached at 262-522-7007 or jmccoy@MLLlaw.com.