Joseph Brown

By: Joseph "Buddy" Brown
Cunningham, Bounds, Yance, Crowder & Brown
Mobile, AL
Alabama Trial Lawyers Association
Annual Seminar
Sandestin Beach Resort
Destin, Florida
June 13-15, 1996

I. INTRODUCTION:

You receive a call from a person in your community whose friend has suffered a terrible tragedy. The friend's house has caught fire in the middle of the day, and as a result of the fire, a three year old child has suffered extensive burns and has been rushed first to the local medical facility for primary care; then on to Birmingham or Mobile for follow-up care; and then on to Galveston, Texas to the Shriners Burn Center for Children.

Details of what has caused the fire are sketchy. What is known, however, is that several children were playing in the vicinity of a utility room where the lawn mower was stored, and, apparently one of the children accidentally tipped over a one gallon gasoline can half filled with gasoline. The three year old, curious as to the spill, had stepped into the gasoline puddle and was stomping in it when suddenly a fire engulfed the entire room. No other child was actually in the room at the time the fire erupted, and although fire investigators at the scene questioned all of the children as to the presence of matches or some other source of ignition, none has turned up.

Within the utility room itself were a chest type storage freezer, a washer and dryer, and a hot water heater fired by natural gas.

The friend has made arrangements for you to meet with the father of the child who was injured. The mother is in Galveston, Texas with the child at the Burn Center. Mom was at home with the children at the time of the fire, but Dad was at work. The father knows very little about the facts of the accident other than what he has been told by his wife, and those details are extremely sketchy as well. However, two older brothers, ages 7 and 9, are available and were on the porch adjacent to the utility room at the time of the accident. In addition, two older neighborhood children are also available who were on the porch when the utility room ignited.

What do you do?

II. FACTS

The factual scenario presented above has been repeated over and over again in America over the last 25 years. The victims have not always been children; as many adults have suffered serious burns, disfigurement, or, in some cases, fatal injuries resulting from the ignition of floor-disposed flammable vapors by gas-fired water heaters.

The facts are these:

Most hydrocarbon based solvents or petroleum distillates emit vapors when exposed to air or when released from their container.

These vapors are almost invariably heavier than air and will silently, invisibly, and rapidly sink to the lowest area in any environment wherein they are released. As an example, one of the most commonly encountered flammable vapors is the vapor emitted from spilled or exposed gasoline. These vapors are four and a half times the weight of air and readily fall to the ground, seeking the lowest point in a room when released in an enclosed environment.

Other common examples of heavier than air vapors emitted from common products around the household are vapors from contact cement, petroleum based bug sprays, paint thinners, lighter fluid, fingernail polish, and oil based paints.

Gas-fired (propane or natural gas) water heaters have been produced and manufactured in this country since the 1940's with essentially the same design.

The design of the most basic model water heater is one which relies on a gas-fired burner, equipped with a pilot light, to heat a large pot of water contained within the water heater jacket itself. The area between the "pot" and the exterior jacket of the water heater is insulated so as to keep the jacket itself from becoming hot to the touch. Inside the pot is a flue stack which extends up through the middle of the tank itself, exiting the top of the water heater and then extending on out to the roof of the building in which it is located. Also extending from the flue stack within the water heater itself are "baffles" which allow hot air to be introduced into the areas of the tank where the water is being heated. Through this heat transfer process, the water reaches the desired temperature.

Although certain models of water heaters exist which do not rely upon an exposed flame from the pilot or burner area to heat the water (electric models, "direct-vent" models, etc.), the water heater industry still relies upon the floor-mounted, exposed-burner, basic water heater described above as its "bread and butter" unit for water heater service and sales in 1996, some 50 years after its original introduction into the marketplace.

The burner area of floor-mounted water heaters with the exposed burner apparatus is located only a distance of some two to three inches above the floor level.

The burner apparatus of a water heater, when combined with its flue or chimney, operates in much the same way as the fireplace in your home. In other words, that burner must have oxygen in order to perform, and that oxygen, like the fireplace in your home, is drawn from the room into the fire in order to support combustion.

Once ignition occurs, an invisible yet significant "draft" begins to occur in the area near the base of the water heater. The reason for this "draft" is because of the ignition of the burner itself and the need for oxygen to be supplied for the burner's operation.

As oxygen in the immediate vicinity of the water heater is consumed, oxygen supplies from the areas around the water heater are drawn towards the water heater and are consumed in the production of the heat and fire necessary for water heater operation, at which point they are "drafted" up the chimney flue and expelled into the atmosphere outside.

Anything that is in the air located near the base of this water heater in terms of suspended vapors or otherwise will be drawn into the area of the burner operation once the burner has ignited and begins to consume the oxygen necessary for its own existence.

To further complicate this issue, the contractor who builds the home frequently locates the water heater at the lowest point in the room, with the floor sloped and graded in such a way as to create a "low area" immediately beneath the water heater. A drain is usually located right under the water heater for purposes of capturing any water that might spill from the heater should it rupture.

Another complicating factor is the fact that water heaters are commonly located and placed in garages, basements, or utility rooms. By their very nature, these rooms or areas are used by homeowners for the storage of lawn mowers, boats, cars, outdoor grills, weedeaters, blowers, edgers, leaf blowers, lighter fluid, gasoline, cleaning solvents, bug sprays, contact cements, paints, and paint thinners. If intentionally or accidentally, exposed to the atmosphere through utilization or spillage these flammable liquids will immediately release their vapors, which, being heavier than air, will invisibly sink to the lowest point in the room and collect there until time and air currents have taken their toll upon them to disburse them to the free atmosphere.

If these vapors, however, are released at a point-in-time when the water heater is "cycling on" through burner operation, there is an imminent and foreseeable risk of the vapors being drawn to the area where burner operation is occurring due to the natural "drafting" process. If the released vapors are present in sufficient quantity to reach their lower flammability limits as they are drawn to the area of burner operation, the vapors will ignite, not only in the area where the water heater is located, but acting as a fuse, will also ignite a "trail" leading back to the area of original spillage or usage.

III. FACTS: HOW THE FIRE OCCURS

The lower flammability limit of a flammable liquid is determined in part by its "volatility". In other words, the more "volatile" a product is (gasoline, ether, other extremely low-flash-point materials and liquids) the less "liquid spill" for a fire to occur.

IV. RESPONSIBILITY

The responsibility of any product manufacturer in the design and conceptualization of a product for utilization by consumers is to identify and eliminate reasonably foreseeable hazards associated with the product wherever possible at the design phase.

This responsibility has often been referred to as the "hierarchy of design engineering responsibility". The "hierarchy" essentially requires that the designer of such a product take reasonable steps in the design of the product to:

• Identify the reasonably foreseeable hazards associated with a product at the time of its conception and creation and eliminate those reasonably foreseeable hazards by design wherever possible.
• Guard against reasonably foreseeable residual hazards which cannot be eliminated totally by design; and
• Only after all hazards have been eliminated by design where possible and then guarded against as to any residual hazards which cannot either be eliminated totally by design or through guarding, warnings should be given to the user with respect to:
  • the nature of the hazard posed to the user; and
  • the methods or manner in which the hazard may be avoided.

The above-enunciated hierarchy of design engineering responsibilities has existed as the "standard of care" in the design and engineering communities for at least the last 50 years. From these principles, one can readily conclude that if a manufacturer has an actual awareness of certain hazards associated with its product that were totally capable of being significantly reduced or eliminated by design at the time of the product's original conceptualization, it is completely unacceptable to then go forward with the release of the product on the market for sale with the hazards still existing.

Likewise, it is equally as unacceptable for the manufacturer to simply guard against a hazard associated with a product when that hazard could have been eliminated by design. Even more so is the criticism which would befall any manufacturer who would, in the face of a technologically available and feasible design fix, go forward with the release of a hazardous product accompanied by a "warning" to the consumer to "be safe and avoid the hazard."

V. WHAT THE WATER HEATER INDUSTRY HAS KNOWN FOR 20 YEARS.

There are five manufacturers of water heaters in the United States today. These five major manufacturers essentially design and manufacture all of the exposed burner type water heaters being sold commercially.

The water heater manufacturers, in conjunction with representatives of the American Gas Association, hold approximately 90% of the seats on the ANSI Z2 1. 10.1 Water Heater. This Subcommittee is responsible for establishing standards for the design and manufacture of gas-fired water heaters. The rules of this subcommittee establish that before standards are altered or promulgated, 80% of the subcommittee must vote in favor of such changes. Obviously with this makeup, no standards changes will take place unless manufacturers and gas suppliers allow them to take place, and all votes relating to standards changes can readily be manipulated by their overwhelming influence.

Since 1971, the water heater manufacturing industry has known of the particular hazards and problems which exist with respect to flammable vapor ignition by the pilot light or burner of gas-fired water heaters. In that year, the Secretary of Health, Education and Welfare noted in his annual report to the president of the United States that

"more than one-third of the accidents associated with cleaning with flammable liquids happened in the basement or utility room. This is consistent with other studies which have pointed to the pilot light of gas furnaces and gas water heaters as ignition sources for the invisible vapors of flammable liquids."

Following this in August of 1974, the Consumer Product Safety Commission through the National Electronic Injury Surveillance System (NEISS), published statistical data relating to the problem of flammable vapor ignition by gas-fired water heaters. Forty cases were reported which involved ignition of flammable vapors by a water heater flame. The study continued:

"Children 10 years of age and under were the victims in several cases, usually when the child knocked over improperly stored gasoline or was playing with gasoline. The vapors were subsequently ignited by the water heater... In several in-depth investigations, the victims indicated that they were aware of the danger of using flammable liquids in the vicinity of stoves or furnaces, but had not been aware that the same danger existed with water heaters."

A year later, Calspan Corporation, in a study conducted under contract to the Consumer Product Safety Commission, published its report entitled "Identification and classification of Potential Hazards Associated With the Use of Residential Flame-Fired Furnaces, Hot Water Heaters, Clothes Dryers and Ranges." In that report, Calspan Corporation found the following:

"Water heaters are more often situated in locations in which flammable liquids are likely to be used. In particular, water heaters are often located in garages which are attached to the house. Garages, of course, are the most likely area for the gasoline to be stored and used in open containers.

"The vast majority of accidents involving flammable liquids and vapors that were ignited by water heaters involved gasoline. Two types of accidents occurred. Either the victim was improperly using gasoline as a cleaning agent or gasoline was accidentally spilled from a container. The few other cases involved paint thinner, paneling and tile adhesives, and aerosol spray paint."

"Flammable liquids and vapors accounted for the majority of the injury producing accidents involving flame-fired water heaters investigated through the CPSC in-depth studies."

"In terms of frequency and severity of injury, the accidental ignition of vapors from flammable liquids was the number one hazard associated with the mere presence of appliances considered in this study. The activity involved at the time of the injury was nearly always unrelated to the use of the appliance itself."

"Adult victims generally realize that the liquid that they were working with was flammable, but were totally unappreciative of the distance that the vapors could travel and ignite. Child victims were usually imitating their adult behavior, e.g., 'refueling' a piece of 'equipment'... often a toy. Gasoline was by far the most common liquid involved. This would be expected both from its availability and its hazardous properties."

Calspan further noted that while utilization or accidental spillage of flammable liquids resulting in vapors being emitted into the ambient air of a room is usually governed by normal air currents in the room, the presence of an appliance, such as a gas-fired water heater, tends to assure that once the water heater has commenced operations there will tend to be a natural flow of air currents within the room toward the flame. Due to the physically lower location of the flame (two to three Inches off the floor), there is a greater anticipated hazard with respect to ignition of these floor-disposed vapors. As Calspan noted:

"The higher the burner rating and the physically lower the location of the burner, the more hazard would be anticipated with respect to fume ignition."

Still further, Calspan noted:

"Gasoline is in a hazard class by itself in that it does not need to even be near the appliance to constitute a hazard. The garage is a place where one may expect the legitimate use of gasoline. Thus the presence of flame-fired appliance in a garage constitutes a potential hazard."

Paul Daugirda is a retired employee of Rheem manufacturing Company, one of the leading manufacturers of water heaters In the United States in the last 50 years. Mr. Daugirda was Vice President of Product Development at Rheem from 1980 to 1991.

Although retired from Rheem Manufacturing presently, Mr. Daugirda testified in the Baldwin County case of Andrew Scott v. Rheem Manufacturing (September of 1995) that he was aware of the 1974 bulletin published by NEISS. He also was aware of the Calspan study conducted for the CPSC in 1975. Not only was Mr. Daugirda aware of the Calspan report in 1975, but he was at the presentation when the Calspan report was given.

As a result of the awareness of Mr. Daugirda and other members of the Gas Appliance Manufacturers Association of the Calspan study, GAMA itself issued a report in February of 1976. Recognizing the nature of the problem which existed in their industry, and further recognizing the severity of the consequences that would befall a consumer exposed to this hazard, the industry responded by deciding to openly "discuss the problem" in the owner's manual for the water heater.

The National Fire Protection Association, analyzing statistical data available from 1980 to 1984, concluded that the number one source of ignition in flammable vapor fires was gas-fired water heaters. Twenty-six percent of all flammable vapor fires ignited by equipment of any kind were ignited by gas-fired water heaters. The total number of injuries associated with gas-fired water heaters in that four year period were nearly 1,400. In addition there were 182 fatalities.

In 1991, the U.S. Consumer Product Safety Commission estimated that 65% of all gasoline vapor fires in dwelling places in the United States were ignited by gas-fired water heaters. A total of 20 appliances were studied with respect to their propensity to ignite flammable vapors.

In 1995, the Consumer Product Safety Commission issued a news release indicating that gas-fired water heater ignition of flammable vapors is associated with nearly 2,000 fires a year, resulting in an estimated 316 injuries annually and 17 deaths. $26 Million in total property damage is estimated, with a total societal cost as high as $395 Million.

Against this backdrop, Mr. Daugirda, as Vice President of Product Development at Rheem, admitted that he was aware of literally everything contained in this summary up until his retirement in 1990.

In addition to the above, Rheem Manufacturing Company admits to an awareness of over 50 claims and lawsuits levied against it during the same period.

During the entire time, from 1975 until 1993, Rheem did not spend any money whatsoever in an effort to redesign the water heater so as to eliminate the hazard. Instead, Rheem relied upon labels and warnings in the manual to address the problem.

Vl. THE CURE:

The cure for this problem of flammable vapor ignition by gas-fired water heaters is simple, easy, effective, and has been around and known for well over a decade. As early as 1980, the National Fuel Gas Code (ANSI Z223.1) contained the following provisions:

5.1.8 Flammable Vapors: Gas appliances shall not be installed in any location where flammable vapors are likely to be present, unless the design, operation and installation are such to eliminate the probable ignition of the flammable vapors.

5.1.9 Installation in Residential Garages:
(a) Gas utilization equipment in residential garages shall be installed so that all burners and burner ignition devices are located not less than 18 inches above the floor.

With these two provisions, we see very clearly the cure to the problem. Flammable vapors are heavier than air. As a result, they sink invisibly to the floor or lowest point in a room at the time of their disbursement. If the flame of the burner and pilot of the water heater are located adjacent to the floor, there is an immediate capability of ignition of these vapors once they are present in sufficient quantities to be ignited. As in any fire, however, there is a need for three elements in order for the fire to exist: oxygen, fuel, and an ignition source. It is an elementary principle of fire physics that if one of these components of the "fire triangle" is removed, the fire cannot exist. Elevation of the water heater to a position of 18 inches above the floor is the means by which the primary component, ignition, can be removed from the triangle.

Clearly, the manufacturers of gas-fired water heaters have known of the 18 inch elevation cure for years. Rheem itself has made a standard kit available for installers as optional equipment, but has steadfastly refused to make the 18 inch elevation standard safety equipment for its exposed pilot and burner water heaters. As of the late 1980's, the Southern Standard Building Code adopted the 18 inch elevation requirement for all installations of exposed pilot and burner water heaters. In the early 1990's, most municipal codes were amended to adopt 18 inch requirements for new installations of exposed pilot and burner water heaters as well.

However, in the face of the acknowledged hazard; the foreseeable consequences of continuing to manufacture such water heaters with exposed pilot lights and burners; Rheem's own President's admission that 18 inches of elevation provides a substantial increase in the margin of safety to consumers; and the undeniable absence of any other case that Rheem or the manufacturers of water heaters can point to wherein a water heater on an 18 inch stand ever caused a flammable vapor fire, the manufacturers nonetheless steadfastly refuse to implement 18 inches of elevation as a standard safety device associated with these water heaters.

VlI. CONCLUSION

Water heater cases are factually, emotionally, and financially intense cases. In the Scott case, the water heater manufacturer admitted in post trial hearings to having spent in excess of $1 Million in defense of the case. In addition, the water heater manufacturers have joined together to create a committee which is involved in the defense of literally every water heater manufacturing case in the country. This committee has retained the services of a nationwide investigation concern which literally investigates every house fire in America within days after the fire has occurred.

One of the most revealing facts unearthed in the trial of the Scott case was the admission by Paul Daugirda on cross examination that the redesign of these water heaters so as to require 18 inches of elevation as standard would pose a severe "economic disadvantage" to Rheem. An average of 850,000 units annually of this particular model have been produced by Rheem alone during the last decade. This yields 8.5 million units in the last 10 years with an average Iife expectancy of each unit of 15 years.

The cost to change one year's production to 18 inches of elevation?

$15.00 per stand x 850,000 units =

$12.75 Million per year

$127.5 Million per decade

In essence, what Mr. Daugirda was actually enunciating was the fact that, since he himself became aware of this problem some 20 years ago, Rheem itself has saved in excess of $250 Million through its refusal to incorporate 18 inch stands in each one of its gas fired water heaters as standard safety equipment.

Obviously the stakes are high.