TYLER – A Longview couple blames the lack of a child-proof cap on a gas can for a fire and explosion that engulfed their 2-year-old son.
Leonel and Amber Zecaida, individually and as next friends of Roman Zecaida, a minor, filed suit against Blitz U.S.A. Inc. and Wal-Mart on June 29 in the Tyler Division of the Eastern District of Texas.
According to the complaint, Leonel Zecaida poured gasoline into the tank of his lawn mower, placed the cap on the gas container spout and placed it on a nearby patio table.
His 2 year old, playing in the backyard, managed to pick up the gas container, remove the cap and carry the container into a storage room. The father saw his child and saw the gas can lying on the floor in a puddle of gasoline.
He ran and picked up the child but as he did the gasoline vapors were ignited and the lower half of the child burst into flames. As the dad turned to run out of the storage room with his burning child, the gas can exploded, burning his leg, the suit states.
The 2 year old was hospitalized in a burn unit in a Dallas hospital with third-degree burns to over one-third of his body.
The parents believe their child would not have been burned if the gas container was equipped with a more effective child-resistant cap.
Causes of action filed against the defendants include strict liability, failure to warn, negligence, breach of warranty, misrepresentation and negligence per se.
Instead of equipping the gas can with child-resistant and/or spill-proof closures, the plaintiffs argue that Blitz put a "yellow line-up arrow on the cap on its spout that looked child resistant but in reality was not and could be easily removed by children under the age of 5, and had never been tested for child resistance."
The complaint states that the incorporation of a flame arrester into the design and construction of the gas container would have prevented the explosion.
A flame arrester is a small metal device, either a perforated metal screen or wire mesh screen, which is placed into the gas can's opening and allows liquids to flow out but prevents flashback of flames back into the container.
The plaintiffs argue the container was "unreasonably dangerous" without the inclusion of a child resistant closure, a spill proof spout and a flame arrestor and the "foreseeable risk of injury and/or death" far exceeded the utility and benefits of the gas containers design.
Further, the plaintiffs maintain their injuries were a result of the defendant's negligence in allowing and placing the plastic fuel container on the market without adequate warnings and instructions.
The defendant is accused of negligent behavior for allegedly failing to conduct adequate tests on the product, failing to recall or take remedial measures after learning of the defects, failing to retrofit the container, failing to investigate complaints about the defects, failing to investigate other lawsuits involving similar claims and failing to comply with industry standards, customs, and practices.
The plaintiffs bought the Blitz 1+ one-gallon gas can from a Longview Wal-Mart in 2005 and in addition to other allegations, believe the store could have prevented their injuries.
"Wal-Mart participated in and had impacted the design of Blitz's gas cans and knew that it had the ability to impact the design of Blitz's gas cans," the complaint alleges.
The Longview residents are seeking damages for medical expenses, mental anguish, physical pain and suffering, physical impairment, physical disfigurement, lost earnings, loss of earning capacity, loss of consortium and emotional distress.
The plaintiffs are also seeking exemplary damages arguing that the defendants "had actual, subjective awareness of such risk but nevertheless proceeded with conscious indifference to the rights, safety, and welfare of others and even joked about such injuries."
Tyler attorneys Matthew B. Flanery and Darren Grant of the law firm Grant and Flanery PC and Kansas City, Mo., attorneys Diane M. Breneman and Stacey L. Dungan of the law firm Breneman Dungan LLC are representing the plaintiffs.
The plaintiffs are requesting a jury trial.
U.S. District Judge Michael H. Schneider will preside over the litigation.
Case No 6:09cv283