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1st Cir. Rejects Speculative Harm Caused by Potential Lightning Strike

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By Mark Wilson, Esq. on November 05, 2014 6:09 PM

Does a person have standing to claim a product defect because of an increased risk of harm from a product's vulnerability to lightning strikes?

Maybe. The First Circuit Court of Appeals concluded that such scenario could give rise to standing, but in the case of Tim Kerin and his lawsuit against the Titeflex Corporation, the court said that, regardless, Kerin hadn't met his burden of alleging sufficient facts to show probable future injury.

Standing, or Something Like It

Kerin's house in Florida has a gas-powered fire pit. He claimed that Titeflex's corrugated stainless steel tubing (CSST) was defective because it was vulnerable to lighting strikes. While nothing bad has happened yet, Kerin claimed that the allegedly defective tubing could lead to some kind of harm in the future. Maybe. Sort of.

As the First Circuit points out, "the law of probabilistic standing is evolving." Probabilistic standing is a fairly new idea in Article III standing, rejected by the Supreme Court (or maybe not) that's predicated on the idea that "accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury." The theory is expanding into tort situations dealing with probability of future harm.

Even if probabilistic standing could apply, Kerin would first have to prove that the tubing is defective, and then prove that the risk of harm is probable. In this case, Kerin did neither. He provided no evidence showing frequency of lightning strikes in homes with CSST versus those without. He also didn't show that, where there was damage from lightning strikes, CSST was the cause.

And, notably, state and federal regulators have determined that CSST is safe. "Although not dispositive, this consideration carries particular weight because the political branches have, after study of the particular risk in question, concluded that such risk is both permissible and manageable," the court said.

All Is Not Lost

What the First Circuit did not do is laugh Kerin out of court. It's notable that the court prefaced its analysis by saying, "We do not adopt the district court's reasoning to the extent it relies on the proposition that lightning strikes present a textbook example of speculative risk and remote possibilities which are simply insufficient for injury in fact." Dictum? Maybe. But arguing over whether something is dictum is how appellate attorneys get paid. The First Circuit is still amenable to certain kinds of probabilistic standing, and it remains to be seen what they would have said if Kerin had more hard data to support his claim.

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