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Lightning Strikes, But No Good Luck for Plaintiff’s Suit…

lightningTim Kerin, a homeowner in Florida, had an outdoor fire pit equipped with gas.  Gastite CSST is used in home and commercial structures throughout the country in order to provide gas.  Mr. Kerin brought suit against Titeflex Corporation for an alleged product defect in Gastite corrugated stainless steel tubing.  In essence, the complaint alleges that there is a severe risk of CSST being vulnerable to failure after lightning strikes.

The suit, which was originally filed in federal court in Massachusetts, was dismissed due to lack of standing.  As we previously discussed, the justiciability requirement of standing requires an individual to have a concrete injury prior to bringing a suit.  The court dismissed Mr. Kerin’s injury as being speculative.  Mr. Kerin, on appeal, argues that lightning strikes can cause an electrical arc that punctures CSST which can ignite the natural gas contained within it.  Additionally, he argued that the CSST’s risks are well established and that experts have recommended several possible remedies for the problem including outright removal.

Mr. Kerin alleged four caused of action predicated on Massachusetts law against the manufacturer- based on the notion of CSST’s susceptibility to lightning strikes:  “strict liability for design and manufacturing defects, negligence in design[ing] and failing to test the product, negligence in failure to warn, and strict liability in failure to warn.”  It should be noted that Mr. Kerin did not plead, nor did he claim, that the susceptibility of his own CSST to lightning strikes has manifested in any actual, tangible, harm.  However, in an effort to circumvent and prevent and future harm- he is seeking damages for the cost of remedying the issue.

The district court in dismissing the case believed that the standing requirement could not be met because it was currently subject to too much conjecture.  The court held that ‘injury’ was too attenuated as it would take a lightning strike and a puncturing of the CSST to result in the sort of harm that is necessary to maintain a suit.  Additionally, the court concluded that even if there was standing, Kerin failed to state a claim because he failed to allege an applicable standard of care “as required to claim economic injury from a defective product under Massachusetts law.”

The Appeals Court did not accept the lower court’s reasoning that lightning strike is such a speculative risk as to prohibit recovery in all situations.  In fact, the court went so far to say that while lightning strike may be viewed as the stuff of “folklore” the law of probabilistic standing is evolving and may constitute injury in the right situations.    However, when the harm depends solely on the risk of some future injury, the court is to proceed with the utmost caution.

The Appeals Court ultimately held, “in light of Kerin’s failure adequately to allege either facts sufficient to assess the likelihood of future injury or instances of actual damage where the cause is clear, we find that the alleged risk of harm is too speculative to give rise to a case or controversy.”  As such- the Appeals Court affirmed the lower court’s decision to dismiss the case due to lack of standing.

To read more on the case mentioned above, please see Kerin v. Titeflex Corporation.  This opinion can be found on the website for the United States Court of Appeals for the First Circuit.  Go to Opinions & Oral Arguments and to Opinion Search.  If you believe you have a claim for a defective product our office can help.  To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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