On August 12, 2000, four-year-old Justin Misner crawled onto his family’s deck to get a gas can that didn’t have a child-resistant closure. He poured gasoline over himself and his toy Jeep, sitting in the Jeep and pressing the accelerator, when they both caught fire. Over 50 percent of his body was severely burned.
He was taken by Flight for Life to Children’s Hospital of Wisconsin and spent approximately three months enduring excruciatingly painful procedures to save his life. He will require a lifetime’s worth of treatment for physical injuries and physiological distress.
The family immediately contacted Attorney Jason F. Abraham and by July 2002, a lawsuit was started against the gas can manufacturer alleging that a child-resistant closure should have been placed on the can at the time it was sold to the Misners. The manufacturer denied any requirement or responsibility to place a child-resistant closure on this gas can. The insurance company’s only offer was less than $1 million to settle before the trial started.
The judge set the case for trial on May 7, 2007.
The defendant’s primary defense for not placing a child-resistant closure on the can was the claimed legal loophole that they were not legally required to do so, since the cans were sold empty at the time of purchase, even though they were aware that hundreds of children each year suffered injury by either drinking gasoline or being burned by gasoline.
Evidence showed that the vast majority of these incidents could be prevented by the use of child-resistant closures that have been in existence since the 1960’s. In fact, at the time this gas can was sold to the Misners, you could not buy Scope mouthwash or many other simple household products without a child-resistant closure. We were prepared to present evidence in court that a child-resistant closure on the gas can in question would have only cost the manufacturer between one-half cent and four cents per can.
For the first week of the trial, the lawyers argued about what evidence could and could not be introduced into the trial. During the beginning of the second week, a jury was selected and all sides gave their opening statements to the jury. As the witness testimony began, the insurance company for the gas can company finally agreed to resolve the case with a total payout of $7.3 million.
The case was vigorously prosecuted on behalf of Justin Misner and defended on behalf of the gas can manufacturer. Hundreds of thousands of dollars were spent for Justin Misner in litigating the case.
The Misners were extremely happy with this result. We are pleased to report, also, that Justin is doing well, although he will continue to have both the physical scars and emotional issues as a result of this tragic incident. We are also happy to report that most gas can manufacturers now routinely put child-resistant closures on gas cans, although it is still not required by the federal government.
Hupy and Abraham practices personal injury law in Wisconsin, Iowa, and Illinois and have lawyers licensed in Wisconsin, Illinois, and Iowa.