On November 18, 1998, at approximately 7:00 PM, plaintiff was performing brake work on an automobile for an acquaintance. A brake job involves placing the vehicle on a lift, removing the wheels, cleaning and removing the brakes, and then the installation of new ones. By approximately 7:00 PM on November 18, 1998, plaintiff was working on the passenger rear wheel of the vehicle and was having difficulty removing some of the bolts. As was the practice at the shop, plaintiff needed a welder to help him loosen the bolts. Immediately prior to the incident plaintiff used a Parts Cleaner to clean the rear brakes on the passenger side of the vehicle. The parts cleaner contained a brush which sprayed fluid to clean the brakes and a tray to collect runoff when placed under the area being cleaned. The tray contained a drain for the solvents to flow into a reservoir which was used to recycle the solvents. plaintiff sprayed the rear brakes with the defendant A solvent from the parts cleaner, and placed the unit underneath the rear wheel to collect the residue. After cleaning the brakes with the defendant A solvent, he then sprayed the brakes with brake wash. The defendant A parts cleaner was used to collect the run-off of the brake clean solvent. When he completed the cleaning operation, he moved the parts cleaner away from the vehicle. Then, he began using a mig welder to help remove the bolts and complete the repair work on the brakes for the Isuzu Rodeo. While using the welder, he was wearing a welding mask.
Court Suffolk Superior, Boston Amount $2,900,000 Injuries Severe second and third degree burns over 30 percent of his body, the worse appearing on his face, hand, neck and left thigh. He also suffered an airway obstruction because of severe burns to his neck.
While using the welder, plaintiff was suddenly engulfed in flames after vapors from the defendant A parts cleaner ignited. The vapors accumulated from the defendant A parts cleaner and which contains both the defendant A solvent and the brake wash solvent. The brake wash solvent is an extremely flammable product whose vapors unknown to ignite from a variety of sources, including the spark from a welder.
As a result of the fire, plaintiff sustained severe second and third degree burns over 30 percent of his body, the worse appearing on his face, hand, neck and left thigh. He also suffered an airway obstruction because of severe burns to his neck He was taken by helicopter and subsequently intubated requiring cricothyroidotomy and was transferred to Brigham and Women’s Hospital where he underwent emergency surgery. He required multiple grafting and debridement procedures to both the chest, neck, face and bilateral hand areas. plaintiff’s medical bills are approximately $359,865.89, and he will need future surgeries. plaintiff has severe, raising hypertrophic scarring about his face, neck, hands, thigh, and chest. The scars are grossly disfiguring and are clearly visible. The third degree burns were very deep and involve the complete obliteration of plaintiff’s skin with the nerves and capillaries destroyed, and the most excruciating ordeal a human being can experience.
Liability of Premises Owner
The owner was responsible for training the plaintiff in the proper use of the Brake Wash and other cleaning solvents, and for training the plaintiff in the use of flammable and/or hazardous materials and for keeping a safe work site. Also, under Massachusetts and Federal laws and regulations, the owner was responsible for educating its employees on hazardous materials, communicating MSDS information to workers, and monitoring the activities of its workers. The owner was negligent in its training and supervision of the plaintiff on the use of flammable and hazardous materials such as the Brake Wash product in question. In addition, the owner failed to keep a safe work site. It did not make the product warning label or Material Safety Data Sheet known or available to users such as plaintiff. The premises was in an unkempt condition, contained numerous fire hazards, did not have a proper ventilation system, did not have a separate storage area for flammable substances and did not have insulated wall outlets. In addition, the owner failed to properly store flammable products, failed to properly dispose of these products, and failed to ensure that the products would not be used near, or exposed to, heat, sparks or flame. The owner did not properly train its employees on the safe use or storage of flammable products. The owner was aware of the dangers associated with the flammability of the brake wash. In fact, earlier in the day of plaintiff’s incident, there was another fire at the shop involving the brake wash. In addition, approximately one week prior to the fire, the owner complained to the brake wash sales representative about fires with the product. During that conversation, he requested a nonflammable alternative for use in the shop. Despite this knowledge and the other fires on the premises, the owner did not discontinue the use of the brake wash product, or take other precautions to prevent fires on the premises.
Liability of Brake Wash Manufacturer
The brake wash was volatile, flammable, and explosive and was sold by the manufacturer to the owner for use in the facility without providing adequate information, warnings, instructions and guidance to the owner as to the aforementioned unreasonably dangerous characteristics of those products and/or as to the proper and safe manner in which those products could or should be used or stored at the facility. In addition, the manufacturer failed to adequately apprize, inform and warn the owner that the manufacturer had alternative, safer and the nonflammable products which the owner could have bought from the manufacturer and which the owner could have used at its facility. These alternative and safer products performed the same function as the original brake wash product and would have prevented the happening of plaintiff’s incident.
The manufacturer also failed to give adequate instructions and warnings regarding the containers and/or spray bottles that the owner should use for and with the brake wash. the manufacturer’s sales personnel negligently failed to inform the owner of any dangers associated with the use of that product in or with the plastic spray bottles and containers which the owner used to store and apply that product during the course of brake work and/or exhaust work at the facility.
During the years that the manufacturer’s sale representative was selling the manufacturer s products, including brake wash, he led the owner to believe that the Brake Wash was safe for use in the owner’s kind of business, and he never informed it that the manufacturer’s products had, on previous occasions at other locations, caused or created dangerous conditions and fires and injury to persons and property. Neither the sales representative nor anyone from the manufacturer ever told the owner prior to November 18, 1998, about any incidents or fires with its products or with the Brake Wash.
The manufacturer’s sales representative was well aware of the equipment which was used at the facility in conjunction with the Brake Wash, including but not limited to the parts cleaners that employees were using to catch runoff from the Brake Wash. He was also aware of the manner in which employees were using that equipment to gather runoff from the Brake Wash product, and of the ventilation system in place and available to employees while they were using Brake Wash. Despite this knowledge, he never cautioned or warned the owner about the use of the parts cleaner or that the ventilation or ventilation system at the premises was inadequate or unsafe for the manner in which employees were using and gathering runoff from Brake Wash.
Liability of Parts Cleaner Manufacturer
The parts cleaner manufacturer supplied the plaintiff’s employer with a parts washer the plaintiff was using at the time of the subject fire. It provided and serviced a defective parts cleaner that had a broken lid and inappropriate electrical components, failed to properly instruct users how to use the tray and/or substance, and failed to regularly change the used solution. Moreover, defendant was aware that brake wash runoff was being collected in its parts cleaners in never warned of any dangers associated with this conduct.
Defendant had alternative parts cleaners that were safer and non-defective. To begin, one of the other parts cleaners, one of which was in use at the subject premises in November 1998, was a water-based cleaner which is not flammable. It is also a cold wash substance, so it is not necessary to heat it up in order to clean the parts. Also, this parts cleaner was made of a hard plastic rather than metal with a tight seal to prevent vapors from escaping. Finally, there was no electricity associated with this parts cleaner and it was a manual pump that was used to send the substance through the system. The elimination of electricity reduces the risk of a fire hazard from that source.
Defendant should also have been aware that its solvent was being mixed with other substances by the owner by virtue of the repair allocation process it was using. As a recycler of hazardous substances, defendant would routinely pick up and dispose of reservoirs filled with substances. Given the fact that recycling is paid for based upon the nature of the substances separated, there would have been some indication to defendant of just what it was receiving back from the various shops it did business with, including the premises owner. Defendant failed to inform the various shop owners of the hazards of mixing dangerous chemicals, and more particularly of any harm associated with mixing flammable materials with the solvent.