Judge Fans the Flames in Suit Over Fire Gel Defect

     (CN) – A man who was severely injured by “planet safe and people safe” pourable gel fire fuel that burst into flames can sue the store that carried it, a federal judge ruled.
     The fire occurred just a few weeks after Theresa Lynch bought a container of Napa Home & Garden Fire Gel Pourable Gel Fuel from the Gander Mountain store in Middletown, N.Y., in May 2011.
     Later that month, Theresa’s sister-in-law allegedly poured the fire gel as directed into a firepot of the same brand, which had been purchased at the same store and given to the Lynches as a gift.
     The Lynches say the so-called “planet safe and people safe” fire gel suddenly burst into flames, splattering 2 to 3 feet out of the bottle and onto the lap of Theresa’s husband Peter, causing severe injuries.
     The next month, the Duluth, Ga.-based Napa Home & Garden informed the press that the U.S. Consumer Product Safety Commission had recalled all Napa pourable gel fuels.
     After the Lynches sued Gander Mountain Co. in February 2013 in the Court of Common Pleas of Pike County, Pa., the St. Paul, Minn.-based store removed the action to the Middle District of Pennsylvania.
     The amended complaint includes claims for negligence, breach of warranty, design defect and inadequate warning.
     Last week, U.S. District Judge A. Richard Caputo nixed the Lynches’ strict products liability claim under the Restatement (Second) of Torts.
     “Based on the 3rd Circuit’s pronouncement that the Restatement (Third) applies to products liability actions arising under Pennsylvania law, and absent a decision from the Pennsylvania Supreme Court to the contrary, the court will apply the Restatement (Third) in this matter,” Caputo wrote. “Thus, plaintiffs’ claim based on the Restatement (Second) of Torts will be dismissed.”
     The Lynches’ breach of warranty claims survived, however.
     “Here, plaintiffs adequately allege claims for breach of the warranty of merchantability and breach of the warranty of fitness for a particular purpose,” Caputo wrote. “Moreover, Gander Mountain’s argument for dismissal of Counts III and IV of the amended complaint pursuant to Reese v. Ford Motor Co. is not persuasive. The 3rd Circuit in Reese simply noted that ‘the elements that prove a breach of the implied warranty of merchantability are essentially the same as those to recover on a strict products liability claim.’ Because plaintiffs sufficiently plead the necessary elements of the breach of warranty claims, Gander Mountain’s motion to dismiss Counts III and IV will be denied.”
     Also remaining are the Lynches’ claims for negligence, loss of consortium, design defect and inadequate warning, which the company did not move to dismiss.
     Gander Mountain reported $1.06 billion in revenue in 2008.

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