(CN) – Siding with a woman whose son was brain damaged by the explosion of a Bed Bath & Beyond fire pot, a New York appeals court found that the product was defectively designed.
Nancy Reyer brought the underlying complaint in January 2012, about eight months after watching her only child, 14-year-old Michael Hubbard, “go up in flames like a tree,” as she told The New York Times.
Reyer’s attorney at the Garden City firm Cellino & Barnes did not return a request for comment about his client’s Nov. 9 court win, but multiple news reports over the years have detailed Hubbard’s injuries and long road to recovery.
The explosion occurred on Long Island while Hubbard and his family were setting up his aunt’s home for a backyard wedding. The bride’s son had been using a fuel called FireGel to light a ceramic FireBurners pot when the candle and the bottle of fuel exploded, showering Hubbard with a flaming gel that caused third-degree burns over 40 percent of his body.
While being treated for his burns, Hubbard suffered organ failure and went into cardiac arrest. Nine days after the explosion, Hubbard’s brain was deprived of oxygen for 13 minutes before doctors were able to resuscitate him. When Hubbard turned 20 last year, the local news in Riverhead reported that the plan was to continue his extraordinary care at a nursing home in Riverhead where he was moved in 2013.
Reyer’s lawsuit against Bed Bath & Beyond meanwhile has been progressing slowly through the court. Both she and the retailer appealed a decision by the Manhattan trial court denying them summary judgment.
A five-judge panel sided with the family only as to the design-defect claim, finding that the evidence and expert testimony that Napa Home & Garden’s now-recalled FireGel “has minimal utility, serving a purely decorative purpose.”
Though the fire pot and the fuel gel both warn users not to add fuel when the candle is lit or hot, the ruling cites evidence that the product “has a nearly invisible flame, which can mislead users into perceiving the flame as extinguished and the fuel gel exhausted.”
Furthermore “the viscosity of the fuel gel makes it easily adherent to skin and clothing, which makes it very difficult to extinguish,” according to the ruling.
The manufacturers could have made the product safer moreover by designing a nonrefillable metal cartridge of fuel gel that gets inserted directly into the fire pot, the court found.
Whether Hubbard’s family misused the product – adding fuel to a lit candle despite the warnings – is irrelevant, the judges added.
“We find, as a matter of law, that even with adequate warnings, the fire pot and fuel gel, when used together, were so dangerous and were so defectively designed that their misuse was foreseeable,” Justice Cynthia Kern wrote for the court.
The ruling also denies Reyer’s claim for punitive damages, however, saying that Bed Bath & Beyond’s negligence did “not rise to the high level of ‘moral culpability’ necessary to support” such an award.
“Although defendant could have done more to ensure the product’s safety, defendant took a variety of steps to vet the product and to investigate reported incidents and its awareness of, at most, two unsubstantiated accident reports did not justify a full product recall,” Kern wrote.
The New York Times reported that a similar FireBurners explosion took place in Manhattan within one week of Hubbard’s accident. Its effects were also catastrophic for the users, one of whom faced months of surgery and rehabilitation after his face, arms and torso were covered in the flaming jelly.
In addition to the punitive damages issue, Bed Bath & Beyond also persuaded the court to grant it summary judgment on manufacturing defect, breach of warranty and failure to warn.
“Plaintiffs’ witnesses either admitted that they had not read the labels or could not remember whether anyone read the labels,” Kern wrote.
Reyer is represented by Stephen Barnes and Ellen Sturm of Cellino & Barnes.
Elliott Zucker and Deirdre Tracey of Aaronson Rappaport in Manhattan represents Bed Bath & Beyond.
The retailer declined to comment.
News reports note that Suffolk County legislators passed “Michael’s Law,” banning the fuel gel, in honor of Hubbard.
FireGel was recalled by the manufacturer on June 22, 2011, less than a month after Hubbard’s injuries. The makers of other brands announced similar recalls by September, and the the Consumer Product Safety Commission proposed regulatory action soon thereafter, citing 76 such incidents that resulted in two deaths and 86 injuries.