Judith Wurster, individually and as its administrator executor The Estate of James Wurster Plaintiff - Appellant
The Plastics Group, Inc., doing business as Wedco, doing business as Wedco Moulded Products Company Defendant-Appellee
Submitted: December 11, 2018
from United States District Court for the Southern District
of Iowa - Des Moines
LOKEN, MELLOY, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Wurster ("Mr. Wurster") suffered fatal burns when a
gas can manufactured by Appellee The Plastics Group, Inc.
("TPG") exploded as he was burning garbage on his
farm in Iowa. His wife, Judith Wurster ("Mrs.
Wurster"), filed suit, both in her personal capacity and
in representative capacity for the estate and heirs-at-law,
against TPG. After trial, a jury rendered a take-nothing
verdict under Iowa's comparative fault scheme, finding
TPG forty-five percent at fault for Mr. Wurster's death
due to its failure to provide adequate warnings on the gas
can and apportioning the balance of the fault to Mr. Wurster.
See Iowa Code § 668.3(1). Mrs. Wurster appeals,
asserting the district court erred by (1) refusing to give her
proposed design defect instruction; (2) instructing the jury
on reasonable alternative design; (3) including two separate
assumption of risk instructions; and (4) granting judgment as
a matter of law on her post-sale failure-to-warn claim. We
late morning of February 8, 2013, Mr. Wurster stood in the
backyard of his farmhouse in Lenox, Iowa, attempting to burn
some trash in a burn barrel. As a fire or embers burned
inside the barrel, Mr. Wurster poured gasoline from a gas can
into the barrel. This caused a flame to travel up the stream
of gasoline into the can. Vapors inside the can ignited, and
the can exploded.
Mrs. Wurster heard the explosion, she rushed outside to see
her husband on fire, running toward her, and pleading for
help. By the time they were able to extinguish the fire, it
had burned most of Mr. Wurster's clothing and skin.
Despite his injuries, Mr. Wurster was lucid and coherent. He
let a responding officer inside the farmhouse and told the
officer "he had been in the process of starting a fire
to burn some scraps around the yard area there and a gas can
exploded and that's what caused the injuries."
Wurster was rushed by helicopter to a hospital in Iowa City.
When Mrs. Wurster arrived at the hospital, she was told that
her husband's injuries were fatal, would inevitably lead
to systemic organ failure, and that the only care that
medical staff could provide was to keep Mr. Wurster as
comfortable as possible. Mr. Wurster died the next day with
his wife and some of his children by his side.
can used by Mr. Wurster was a Model W520 can that TPG
manufactured in November 2000 under the brand name Wedco. It
is unknown when and where the Wursters purchased the can.
Embossed on one side of the can was a warning:
GASOLINE DANGER - FLAMMABLE EXTREMELY FLAMMABLE -
VAPORS CAN EXPLODE
. . .
CAUTION: . . . VAPORS CAN BE IGNITED BY A SPARK OR
FLAME SOURCE MANY FEET AWAY - KEEP AWAY FROM FLAME . . . AND
OTHER SOURCES OF IGNITION -KEEP CONTAINER CLOSED
had a removable front pouring nozzle that contained a debris
screen. The debris screen functioned as a flame arrester. A
flame arrester is a mesh screen that allows air and
liquid-but not sparks and flames-to pass through. The can had
a vent hole in the back that was not protected by a mesh
screen. The experts who testified at trial did not agree on
whether Mr. Wurster had poured gas out of the main hole of
the can after removing the nozzle or out of the rear vent
possibility of fire while using a gas can has been known for
over a century, and efforts to avoid such fires by use of a
flame arrester can design date to at least a patent in 1871.
Safety organizations and Consumer Reports have urged the
industry to take precautions to protect against explosions
caused by the lack of a flame arrester since the 1970s. By
the time the can in question was manufactured, many of
TPG's competitors were manufacturing cans that included
flame arresters. TPG could have added a basket-type flame
arrester to its gas cans for as little as five to ten cents
acknowledged at trial that while it was aware of the
possibility that explosions could be caused by the lack of
flame arresters by at least 2006, it provided no post-sale
warnings to previous purchasers of its cans. They did,
however, change the warning label on newly manufactured cans.
A TPG representative explained the company does not make
retail sales of its products and had no way of identifying
where Mr. Wurster purchased the can or whether he was the
original purchaser. While TPG was aware of which big box
retailers it sold its products to, it had no way of knowing
which particular stores sold the W520 gas can.
appeal focuses primarily on the court's jury
instructions. The case was tried to a jury on a negligence
theory, with the jury being instructed on two specifications
of negligence requested by Mrs. Wurster. Instruction No. 12
stated that in order to prevail on the negligence claim, Mrs.
Wurster must prove TPG was negligent in (1) its "design
of its gas cans" and/or (2) its "failure to provide
adequate gas can warnings."
Nos. 13 and 18 are the assumption of risk instructions at
issue in this appeal. Instruction No. 13 read:
TPG claims that James Wurster was at fault by being
negligent. In order to prove this claim, it must prove
1. James Wurster was negligent in one or more of the
a. misuse of the gas can by attempting to pour gasoline on a
b. misuse of the gas can by attempting to pour gasoline from
the vent hole; and c.unreasonable assumption of the risk.
2. James Wurster's fault was a cause of plaintiffs'
If TPG failed to prove either of these propositions, TPG has
not proved its defense. If TPG has proved both of these
propositions, then you will assign a percentage of fault
against James Wurster and include his fault in the total