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Sears8/24/1995
OORS IN A WELL VENTILATED AREA.
On page ten of the use and care manual, there is a list of grill accessories which could be purchased from Sears. Accessory number seven was a twenty-pound gas tank. The caption under the tank read, "Keep a spare tank filled and handy." The "Keep a spare cylinder filled and handy" was in the Kenmore use and care manual, and Sunbeam did not object to the language or suggest its removal.
Johnson admitted that Sunbeam did not suggest removing the language because it was common practice for consumers to have a spare cylinder. The Sears representative, David Macarus ("Macarus"), chief engineer of home improvements and hardware for Sears, conceded that the statement "Keep a spare tank filled and handy" was intended to encourage the purchase of a spare cylinder. Mike testified that the Kenmore use and care manual that came with the grill which said "Keep a spare tank filled and handy" encouraged him to use a second tank.
Mike further testified that he decided to store the second tank under the grill because:
t was very common sense that it was -- it already had one there, and if it already had one, it was obviously, in my opinion, a very safe area to put my other grill -- I mean my other tank, the other cylinder. And with children, you know, I knew that you didn't put it inside a garage, and I knew you didn't put them, you know, some place where kids could play with it. So I put it under there, because to me it was extremely common sense to put it where another one was.
Johnson testified that Sunbeam did not receive any reports of accidents involving second cylinders stored under the grill prior to the fall of 1987. Johnson did not recall reviewing "the Long accident," but admitted reviewing "the Davis accident" in October 1987. Johnson went to the president of Sunbeam, Tom Welch ("Welch"), and discussed the problem of the spare cylinders being stored under the grill. Welch contacted Lou Uhl, corporate director of product safety, to run spare cylinder testing, and following the test results, Sunbeam issued a press release in May 1988. The press release read in part:
Consumers who own a gas barbecue grill and store a spare propane cylinder near or within the gas grill are creating a serious fire hazard. . . .
Storage of the spare cylinder on the lower shelf of cart-style grills or within the cabinet of enclosed shelf models could result in fires involving property damage and/or personal injuries.
The problem is not limited to any particular make or grill of cylinder and does not involve a product defect. Today's gas grills are very safe when used as the manufacturer suggests . . . It is the manner in which the spare cylinder is stored that creates the potential hazard.
Sunbeam also added a warning to its own use and care manual for the 1988 season at that time. Sunbeam also reviewed the Kenmore use and care manual at that time, but chose not to add the specific warning regarding the storage of spare cylinders because "the Kenmore use and care manual already contained a very strong warning regarding the storage of L.P. gas cylinders."
Although Sears had the final say in what information was placed in the use and care manual, the evidence at trial showed that Sears relied on Sunbeam to advise them on what warnings should be included. Macarus testified that no manufacturer ever told Sears that the AGA was having problems with any of the grills. Further, Johnson admitted that he felt Sears relied on Sunbeam to make recommendations regarding the warnings for the grill.
ANALYSIS
To support a theory of gross negligence, the evidence mu
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