United States District Court, M.D. Georgia, Athens Division
ROBERT V. GOMEZ, II, KAITLYN ANN WILLE, and JENNIFER PRICE, Plaintiffs,
HARBOR FREIGHT TOOLS USA, INC., CENTRAL PURCHASING, LLC, and HFT HOLDINGS, INC., Defendants.
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
V. Gomez, II, Kaitlyn Ann Wille, and Jennifer Price
(“Plaintiffs”) assert that they were injured when
Gomez poured a mixture of diesel and gasoline from a Blitz
portable gasoline can onto a mostly extinguished fire and the
gas can exploded. Plaintiffs contend that the gas can was
defective because it did not have a flame arrestor and did
not contain adequate warnings. The gas can was manufactured
by Blitz U.S.A., which declared bankruptcy in 2011.
Plaintiffs brought this action against Defendants Harbor
Freight Tools USA, Inc., Central Purchasing, LLC, and HFT
Holdings, Inc. (collectively, “Harbor Freight”)
because they assert that the gas can was purchased from a
Harbor Freight store. The Court previously concluded that a
genuine fact dispute exists on whether the gas can was
purchased from Harbor Freight. See Order (July 16,
2018), ECF No. 52. Harbor Freight filed a second summary
judgment motion, asserting that it is entitled to judgment as
a matter of law on all of Plaintiffs' remaining claims.
As discussed below, Harbor Freight's summary judgment
motion (ECF No. 76) is granted as to Plaintiffs'
negligent failure to warn and implied warranty of
merchantability claims but denied as to Plaintiffs'
negligent sale claim.
judgment may be granted only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
in the light most favorable to Plaintiffs, the record reveals
the following facts.
September 2012, Ronda Baldree bought a five-gallon Blitz
brand plastic gas can from the Harbor Freight store in
Valdosta, Georgia. Baldree Dep. 78:24-79:10, ECF No. 100.
Baldree used the gas can for storing gasoline and fueling her
lawn mower. Id. at 96:4-24; 101:14-23 (stating that
Baldree's son Tommy Lee and her daughter Raven Bennett
fueled Baldree's lawnmower using the gas can, which
Baldree kept in her garage).
lives next door to one of her sons, Plaintiff Bobby Gomez. On
March 6, 2015, Gomez asked Baldree if he could use her gas
can. Id. at 58:1-5, 21-23. Baldree said yes, so
Gomez went to her garage and borrowed the gas can Baldree had
bought from Harbor Freight. Id. at 58:3-5;
75:22-76:4. The gas can contained a “small amount . . .
of gasoline, maybe a cup or less.” Gomez Dep. 24:9-11,
ECF No. 79-1. Gomez took the gas can to a filling station and
put about a gallon of diesel in it. Id. at 24:14-19.
He did not dump out the gas first. Gomez “thought that
the diesel would have just completely diluted the gas, and it
was -- it would have been like the gas wasn't even in
existence . . . [b]ecause it was such a great amount of
diesel compared to the gas.” Id. at 75:10-16.
evening, Gomez had an informal gathering in his backyard with
some of his friends, including Wille and Price. Gomez had a
portable firepit, and he tried to start a fire by balling up
some paper, putting it between the logs, and lighting it.
Id. at 35:1-2. But the wood was wet, and Gomez
“realized that it wasn't going to catch.”
Id. at 35:3-4. He “kind of waited a little
while for it to go out and grabbed the [gas] can, released
the nozzle, walked over to the fire pit, and just kind of
drizzled some diesel around the outer edge of the
firewood.” Id. at 35:4-7. He balled up some
more paper and lit it. It “slowly caught the diesel,
” then “burned for a few minutes and went
out.” Id. at 36:8-11. Gomez did not see any
flames or embers, but “there may have been very small
pieces of paper burning or smoldering.” Id. at
64:4-10. Gomez went to drizzle more fuel around the fire pit.
As soon as he tipped the gas can, “there was an
extremely loud hissing, ” and the gas can exploded.
Id. at 37:1-4.
knew that it would be dangerous to use gasoline on a fire
because “[g]as is extremely flammable.”
Id. at 40:9-17. Gomez was aware that there are
warnings on the sides of gas cans, and he read and understood
such warnings before March 6, 2015. Id. at 22:1-10.
But Gomez testified that he did not know it would be
dangerous to use diesel on a fire. When Gomez worked on his
family's property as a teenager, he would help push
together a pile of trash “and kind of douse it down
with diesel and light it. . . . Never once did anything
violent happen, no explosions.” Id. at
22:18-23:1. He had also previously poured diesel on a small
flame, and the diesel put out the flame. Id. at
23:2-13. Gomez assumed that because there was mostly diesel
in the gas can on March 6, 2015, he would not get injured by
pouring it into the fire pit. He did not account for the fact
that there was some gasoline in the gas can, and he was
“under the impression that with that much diesel on top
of [the gasoline], that it would have killed the dangerous
properties of the gasoline.” Id. at 42:4-6;
can had a number of warnings embossed onto the side. In
relevant part, it stated:
DANGER GASOLINE EXTREMELY FLAMMABLE VAPORS CAN EXPLODE
NEVER USE GAS TO START A FIRE
KEEP AWAY FROM HEAT SOURCES VAPORS CAN BE IGNITED BY A SPARK
OR FLAME SOURCE MANY FEET AWAY * KEEP AWAY FROM FLAME . . .