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EXECUTIVE SUMMARY: This
weekly newsletter covers:
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Louisiana Appellate Court Finds Electrical Shock Caused by Improper Maintenance
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Arkansas Supreme Court Finds Hidden Danger Avoids Fireman's Rule
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Fifth Circuit Holds Home Office Meets Interstate Requirement Under Federal Arson Statute
(1)
LOUISIANA APPELLATE COURT FINDS ELECTRICAL SHOCK CAUSED BY IMPROPER MAINTENANCE
In Moody v. Blanchard Place Apts. (PDF Format) No. 34,587-CA; Court of Appeal of Louisiana, Second Circuit ( June 20, 2001), an apartment dweller was shocked while cooking. He filed an action against the apartment owner. A cross complaint by the apartment owner against the seller and manufacturer was dismissed for spoliation of evidence. The apartment dweller prevailed at trial. On appeal the court reviewed the verdict in excess of $300,000. The court affirmed the verdict noting the apartment owner did not authorized expenditure of sufficient funds to properly perform maintenance on the stove. For example, electrical tape was found in the stove. Use of that tape was not proper because it would melt at the temperature it would be exposed to in the stove. An improper amperage was used with the stove. The manufacturer called for 40 amps and the apartment use 50 amps. That causes the wiring to wear out faster and is more dangerous because it allow someone shocked to receive 25% more amperage which could be lethal. The court found the owner should have been aware of the dangerous condition.
(2)
ARKANSAS SUPREME COURT FINDS HIDDEN DANGER AVOIDS FIREMAN'S RULE
In BPS, Inc. v. Parker, No. 01-204; Supreme Court of Arkansas (June 28, 2001), a seriously injured firefighter and the estate of a firefighter who died brought civil actions for injuries sustained. The West Helena Fire Department responded to an emergency call at the BPS facility, which packaged agricultural chemicals. The Fire Department received a report that the chemical, Azinphos Methyl (AZM), was smoldering in BPS's Unit 2. As firefighters responded to the emergency at Unit 2, the building exploded, killing three firefighters, and injuring a fourth. BPS filed a motion for summary judgment based upon the Fireman's Rule which in Arkansas prohibits suits for injuries sustained from ordinary or open and obvious dangers which are associated with his/her employment The trial court denied the motion for summary judgment. On appeal, the defendants challenged that order.
The Court found that an incorrect MSDS sheet constituted a hidden danger, and such defect is attributable to BPS and Micro Flo Company; that the failure to correctly test and rate such a volatile and dangerous chemicals was tantamount to willful and wanton conduct; and supplying the firefighters with this limited amount of incorrect information was an independent act of negligence and arguably reckless indifference to the value of human life, on the part of both defendants BPS and Micro Flo Company. The Court further found that BPS acted with willful and wanton misconduct in concealing a hidden danger. That the testimony showed that the President of BPS, Allen Bartlo, had knowledge that the chemical properties of AZM were volatile and, in fact, wrote letters and requested further information and testing from Micro Flo Company on this chemical, but this information was not supplied to the City of West Helena Fire Department nor the West Helena firefighters at any time prior to the explosion. BPS received information that the City of West Helena Fire Department received information from the chemical engineer for BPS in New Jersey in which he telephoned the City of West Helena Fire Department after the explosion occurred and stated that if AZM was in the building and there was a water sprinkler system, that the chemical would explode. Thus, BPS had prior knowledge that the chemical compound, AZM, had the potential to explode and concealed this knowledge from the City of West Helena Fire Department which is the essence of a hidden danger. The Court further found that BPS had knowledge prior to the explosion that Micro Flo Company's MSDS for AZM was incorrect. Correspondence and memos from BPS to Micro Flo Company which have been introduced show that BPS had in the past worked with another brand of AZM (Guthion) which is rated as a "2" for both flammability and reactivity. The inquiry was further supplemented by samples of AZM being furnished to BPS for testing and an explanation that the product would smolder and smoke at approximately 170 degrees Fahrenheit. BPS further corresponded with Micro Flo Company indicating that the AZM was up and running, and that they had not experienced any problems with the dust they had expected. None of this information or other information for which BPS had knowledge with regard to potential problems with AZM being flammable, explosive, or otherwise, reactive was shared with the firefighters. The Court also found that the evidence showed that the chemist for BPS's New Jersey office telephoned the City of West Helena Fire Department and asked if the sprinklers were activated. Upon questioning about what would happen if the sprinklers went off, the chemist stated that there would be an explosion. The Court further founds that the City of West Helena firefighters were not told about a propane forklift that was left by a BPS employee in close proximity to the smoldering sack of AZM. Obviously, propane is highly explosive, and the firefighters should have been warned. The Court further found evidence that BPS had advanced knowledge of a potential problems [sic] with Micro Flo Company's AZM product. A truck driver who delivered the product and BPS employees reported an unusually strong and sickening odor from one of the two truckloads of AZM delivered prior to the explosion, and that there was a torn supersack of AZM. The Court found that the pleadings revealed that BPS accused Micro Flo Company of misconduct and misrepresentation, mainly with regard to the faulty MSDS sheet, and Micro Flo Company accused BPS of misconduct and other fault, which allegations in and of themselves give rise to a factual controversy such that the bare application of the Firemen's Rule to the facts of this case is wholly inappropriate, and such that summary judgment cannot be granted to either defendant.
(3)
FIFTH CIRCUIT HOLDS HOME OFFICE MEETS INTERSTATE REQUIREMENT UNDER FEDERAL ARSON STATUTE
In United States v. Jimenez, No. 00-50323, the United States Court of Appeals for the Fifth Circuit (June 29, 2001), reviewed the defendant's arson conviction. The defendant along with others went to house that included a home office. He threw two Molotov cocktails into the residence resulting ultimately in the death of one man. The defendant challenged the federal arson conviction arguing a home office did not meet the requirements for interstate commerce to permit federal jurisdiction of the arson. In the instant case, the jury heard significant, unrebutted evidence that the Cruz family's home office was the primary location for their construction business. As an initial matter, because A-1 Plastering's address for tax purposes was 2414 Townbreeze, the location of the home, this case is quickly distinguishable from the garden-variety situation of a lawyer or salesperson who occasionally works from home. A-1 Plastering's gross receipts in 1993 averaged nearly $20,000 per month, and the company paid over $8,000 month in wages to its employees. At a more fundamental level, an office building having the same characteristics as the Cruzes' home office - where business records and supplies were stored, where employee paychecks were written and picked up, and where business vehicles occasionally parked overnight - would easily be classified as substantially affecting interstate commerce. Federal jurisdiction over the firebombing of the Cruz home is not undermined simply because the "locus of [the family's] commercial undertaking," was a private home. What remains is the equitable argument presented by Jimenez and Santivanez, that they had no reason to believe that the Cruz home contained an office. In this view, a quiet street lined with single-family homes becomes a trap for the unwary firebomber. But this analysis ignores the other side of the equation. Several defendants who burned down commercial buildings have benefited by those buildings' lack of economic viability. In one case, a defendant who set fire to an abandoned fitness center had his conviction overturned, because the court held that a completely abandoned building has no substantial nexus to interstate commerce. See United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000). In another case, a defendant escaped the application of § 844(i) because, even though she knew the house was rented to tenants, the house was vacant and uninhabitable at the time of the arson. See United States v. Gaydos, 108 F.3d 505, 511 (3d Cir. 1997). It would be inconsistent to reward the defendants in Ryan and Gaydos - who had the good fortune of setting fire to buildings that were not commercially viable, but not to punish defendants who inadvertently destroy a commercially viable office located in a private home. Hence, the convictions were affirmed.
Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610,
San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax),
palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.
Please direct comments, suggestions, stories, and other items to the author by
e-mail at palynch@cozen.com
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