Identify heater installation dangers

August 24, 2020 By    

On Feb. 5, 2015, the plaintiff in a North Dakota product liability case had gone to his friend’s house to feed and care for his three dogs.

The homeowner was away on personal matters. The plaintiff recounts that he let the dogs out in the garage to exercise a bit while he cleaned their cage and got their food together.

Inside the garage was a wall-mounted heater manufactured by ProCom. The homeowner bought it new from Menards and installed it in 2014. Instead of using the screws provided with the heater, he used his own screws. The heater came with a mounting plate that had pre-drilled holes for mounting the plate. But the homeowner drilled different holes in the plate for mounting the heater on the wall. 

When the plaintiff was attempting to get the dogs back into their pen, he claims he brushed up against the wall heater – it fell on top of him, and his clothing caught on fire. He suffered serious burn injuries as a result.

The plaintiff sued ProCom on a sole claim of strict product liability. This requires proof that the heater was a defective and unreasonably dangerous product. North Dakota, where this case occurred, required proof of a “reasonable alternative design” that would have likely prevented the plaintiff’s injuries.

ProCom sought summary judgment dismissal of the case. It first sought to exclude the plaintiff’s mechanical engineering expert. There was no dispute that the expert was qualified. Instead, ProCom argued that the expert was speculating when he claimed that the heater needed more robust fasteners, a flame guard that prevented snagging of clothing and a better manner of fastening the mounting plate to the wall.

ProCom argued that the expert did no testing to demonstrate that these changes would alter the outcome in this case. And he ignored that the installation was not done in accordance with the owner’s manual, without the use of the fasteners supplied or the screw holes that came with the mounting plate.

The court agreed that the expert was speculating on the effect of the design changes he recommended and that he ignored the fact that the owner did not install the heater in compliance with the installation instructions. The court would not allow the expert to testify.

Next, ProCom sought to dismiss the case entirely. As a general rule, all product liability cases require expert testimony to identify a product defect and, in North Dakota, to provide a safer alternative design.

Since the expert was prohibited from testifying, the plaintiff had no expert that could offer opinions on a product defect and a safer design.

ProCom also argued that a manufacturer can only be liable for a strict product liability claim for a defect that existed at the time it left the manufacturer. There was no such evidence. A defense to a case such as this is that the product was altered after it left the control of the manufacturer. Here there was clear evidence of such alteration. 

For these reasons, the district court dismissed the case with prejudice on July 8, 2020.

If you are installing items for customers, be sure to note the manner of installation by your service folks. This may mean taking photos or documenting on service orders the work performed.

Always follow the instruction manual for installations. If there is a subsequent modification of the installation that is not in line with those instructions, that may be grounds for dismissal by a manufacturer or those that did not perform that work.

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John V. McCoy is with McCoy, Leavitt, Laskey LLC. His firm represents industry members nationally. He can be reached at 262-522-7007.

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