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Ivester v. Wal-Mart Stores, Inc.

United States District Court, D. South Carolina, Anderson/Greenwood Division

June 20, 2016

DONNY FRANK IVESTER, JR., Plaintiff,
v.
WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; and WAL-MART STORES EAST, INC., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

          MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is a products liability action. The Court has jurisdiction over the matter under 28 U.S.C. §§ 1332 and 1367. Pending before the Court is Defendants’ motion for partial summary judgment. ECF No. 58. Having carefully considered the motion, the response, the reply, the record, and the applicable law, it is the judgment of the Court that Defendants’ motion will be granted in part and denied in part.

         II. FACTUAL AND PROCEDURAL HISTORY

         This action arose out of an incident on February 1, 2014, when Plaintiff suffered injuries from the explosion of a portable consumer gas can manufactured by Blitz, U.S.A., Inc., which Plaintiff purchased from Wal-Mart in the spring of 2003. Id. at 5; ECF No. 63 at 3-4. Taking the facts in the light most favorable to Plaintiff, the relevant facts for purposes of this motion are as follows:

         Plaintiff purchased the gas can at issue from Wal-Mart in Seneca, South Carolina, in the spring of 2003, and he regularly used the item over the next eleven years to fuel his lawnmower, chainsaw, four-wheeler, and generator. ECF No. 58 at 6. Plaintiff also owned about ten other portable consumer gas cans over the same time period and used them thousands of times. Id. (citing Pl.’s Dep. at 58:17-59:9, 80:11-19, 83:21-25).

         This particular gas can had warnings on both sides of the can. Id. One side of the can warns:

GASOLINE
DANGER
EXTREMELY FLAMMABLE
VAPORS CAN EXPLODE
HARMFUL OR FATAL IF SWALLOWED
IF SWALLOWED, DO NOT INDUCE VOMITING. CALL PHYSICIAN IMMEDIATELY. KEEP OUT OF REACH OF CHILDREN. AVOID PROLONGED BREATHING OF VAPORS. DO NOT SIPHON BY MOUTH. DO NOT STORE IN VEHICLE OR LIVING SPACE. STORE AND USE IN WELL-VENTILATED AREA. VAPORS CAN BE IGNITED BY A SPARK OR FLAME SOURCE MANY FEET AWAY. KEEP AWAY FROM FLAME, PILOT LIGHT, STOVES, HEATERS, ELECTRIC MOTORS, ...

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