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Koken v. Black & Veatch Constr., Inc. - 426 F.3d 39 (1st Cir. 2005)


Regardless of whether a failure to warn claim is phrased in terms of negligence or strict liability, the analysis is basically the same. A products liability action for failure to warn requires a three-part analysis: (1) whether the defendant held a duty to warn the plaintiff; (2) whether the actual warning on the product, if any, was inadequate; and (3) whether the inadequate warning proximately caused the plaintiff's injury. The plaintiff bears the burden of proof on each of these elements.


On May 17, 1999, a fire occurred during a torch-cutting operation performed as part of a construction project ("Project") in Maine. A fire blanket had been used to protect the area beneath the welding. The Project was insured by plaintiff Reliance Insurance Company ("Reliance"). Defendant Black & Veatch Construction, Inc. ("B&V") was the general contractor; defendants Appellees Redco, Inc. ("Redco") and O'Connor Constructors, Inc. ("O'Connor") were subcontractors. Although the fire was quickly put out through the use of a fire extinguisher, the chemicals in the fire extinguisher caused damage to the generator. The damage to the generator caused an estimated $ 9 million in repair and delay costs. Reliance, by and through its liquidator, plaintiff M. Diane Koken, filed a lawsuit against defendants in federal district court alleging, inter alia, that defendants Auburn Manufacturing, Inc. ("Auburn") manufactured the fire blanket and defendant Inpro, Inc. ("Inpro") distributed it; that the blanket caused the fire and the subsequent damage to the generator; that inadequate warnings accompanied the blanket; and that the blanket was unfit for its ordinary purpose. On their motions, the district court granted summary judgment on the product liability issues in favor of Auburn and Inpro. Reliance and B&V appealed.


Were Auburn and Inpro, the manufacturer and distributor of the fire blanket, respectively, entitled to summary judgment on Reliance's products liability claims?




The court of appeals affirmed the district court's judgment. The court ruled that, with respect to each of Reliance's suggested warnings for the blanket, there was insufficient evidence to support both a duty to warn and a finding that the damage would not have occurred if the warning had been provided. With respect to the breach of the warranty of merchantability claim, the court held that Reliance failed to show that the blanket was unfit for its ordinary purpose because there was no evidence that the ordinary user reasonably expected a fire blanket to prevent the type of melting that occurred.

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