Burnham Brown Attorney Jimmie Williams Obtains Defense Verdict in Products Liability Case

On Dec. 31, 2001, plaintiff Marilee Hearn, a 57-year-old teacher, pulled her car into a San Francisco Chevron service station located on Market Street. Hearn alleged that after activating the pump with a credit card and lifting the nozzle off the cradle, she noticed a kink in the hose. She claimed that to un-kink it, she began walking away from the pump with the nozzle in her hand. She claimed that while doing so, gasoline spontaneously emerged from the nozzle without her pulling the lever or doing anything else to activate its flow.  While retrieving the squeegee to clean her car, Hearn stepped in the gasoline.  While returning the squeegee, she stepped on the gasoline again, slipped and fell.

In December 2002, Hearn sued Chevron USA Inc., Chevron Stations Inc. and operator David Sahagun, alleging premises liability and negligent maintenance and inspection of the hose and nozzle she was using before she fell, claiming that it spontaneously discharged gasoline. She also brought a products liability claim against a "Doe" defendant: the designer and manufacturer of the A4005 gasoline nozzle used at the station. The A4005 was a balanced recovery nozzle designed to capture vapor recovered during the fueling process and return it to underground storage tanks. Hearn argued that the A4005 was defectively designed and manufactured. She subsequently identified the manufacturer as EmcoWheaton Retail Corp.and, in August 2004, substituted it for the Doe defendant.

The defendants contended that the gas was dispensed as a result of Hearn's negligent use of the nozzle, which they alleged had been properly designed, manufactured and maintained. The Chevron defendants' expert witness, mechanical engineer Bernard Cuzillo, testified that it was mechanically improbable for the nozzle to have operated in the manner Hearn described.  Cuzzillo testified that it was likely that Hearn had inadvertently retracted the bellows and pulled the lever.

The Chevron defendants put into evidence a security camera tape which showed Hearn and other customers using the nozzle. While the tape could not conclusively establish or disprove Hearn's claims regarding the nozzle's operation, it showed other customers using the nozzle before and after Hearn without difficulty or recurrence of the problem Hearn described.  The defendants also argued that Hearn had actual knowledge of the gasoline on the ground prior to the fall, as she first stepped in the gas on her way to obtain the squeegee and fell only when she stepped in the gas a second time.

EmcoWheaton made the additional argument that Hearn's claim against it was precluded by the applicable statute of limitations of one year. EmcoWheaton alleged that Hearn had learned of EmcoWheaton's existence within one year of her accident through visits to the Castro Street station during that period.  Hearn denied having had knowledge of EmcoWheaton's existence until April 2004, when she claimed she learned of it through Chevron's discovery responses. She argued that she then properly substituted EmcoWheaton as a Doe defendant, and the claim was therefore not precluded by the statute of limitations.

At the close of evidence, the Chevron defendants moved for a partial directed verdict, and the court granted the motion. The court ordered that the Chevron defendants did not have to defend the product (the nozzle) and refused Hearn's request a res ipsa loquitur instruction on the station's maintenance and inspection practice concerning the nozzle and hose. The only remaining claim against the Chevron defendants was premises liability. Just before closing arguments, Hearn dismissed the Chevron defendants in exchange for a waiver of costs. Only the claims against EmcoWheaton were submitted to the jury.

Injuries/Damages
Plaintiff suffered a left distal radius fracture and distal radioulnar joint dislocation. When conservative therapy following a closed reduction was unsuccessful, she underwent a reconstructive surgery September 25, 2002 (palmaris longus reconstruction on the distal ulna). On July 8, 2003, she had a partial fusion procedure. She continues to experience discomfort and permanent range of motion limitations. Hearn claimed no loss of wages, as she was a teacher and her injuries and treatment took place during school vacations. She sought $51,501.26 in past medical expenses and $21,000 in future medical expenses, both of which amounts were stipulated. She also sought $350,000 for pain and suffering.

Result
The jury found that Hearn's claim against EmcoWheaton was not precluded by the statute of limitations, but found for EmcoWheaton on the question of liability.

Demand Hearn demanded $50,000 from Chevron USA, Inc., Chevron Stations and David Sahagun contingent upon defeating EmcoWheaton's statute of limitations defense that was present throughout trial.

Offer Chevron USA, Inc., Chevron Stations, and David Sahagun made a C.C.P. section 998 offer of $25,000.  EmcoWheaton offered $5,000.