Carbon monoxide (CO) can be a deadly byproduct of the incomplete combustion of propane. Because of this, it has long represented a potential liability exposure for the propane retailer. Over the years, retailers have seen lawsuits based on alleged improper installation or inspection of propane appliances that have generated high levels of CO. Less common are suits based on carbon monoxide exposure from propane-powered vehicles used indoors. A recent example is a decision of the Florida Court of Appeals affirming an $8.9 million wrongful death verdict involving a propane-powered vehicle that was designed to strip floors.
Fortunately, the propane supplier was not involved in this litigation, but it does serve as an example of how serious exposure can arise with this type of equipment. The case is Sunbelt Rentals v. Burns.
Certified Ferrari Mechanic
Matthew Burns, an auto mechanic, operated a small automotive repair business (Exotic Performance Engineering) in a warehouse bay in Miami. The building also housed multiple other automotive businesses.
As a certified Ferrari and Maserati mechanic, Burns specialized in repairing and restoring high-end autos, especially Ferraris. He had substantial experience operating combustion engines inside repair shops, including time as the manager of a high-end repair shop in Coral Gables where carbon monoxide detectors were installed as basic safety equipment.
In July 2019, the floor in Burns’ repair bay needed to be cleaned and resurfaced. He rented special equipment for this job from Sunbelt Rentals — a BlastPro BP 10-27 ShotBlaster.
This is a piece of riding equipment powered by a 25-horsepower propane-fueled engine. It is designed to strip floors with high-pressure blasts of recirculating steel shot. This was Burns’ first time using such equipment. Accordingly, he received some instructions from a Sunbelt employee.
Proper Instruction?
The manual for the BlastPro required the use of a carbon monoxide detector when the equipment was operated indoors. This requirement was not mentioned in the several warning decals on the machine itself. The Sunbelt employee who instructed Burns did not mention the requirement. His supervisor later testified that he should have recommended the use of a CO detector to Burns when he rented the equipment. Sunbelt did have carbon monoxide detectors available for rent, but apparently one was not offered to Burns. It is not clear whether the manual accompanied the BlastPro when Burns rented it.
On July 12, 2019, Burns worked with his employee, Robert Lemoine, to strip the floor of the bay. There were three cars and a forklift in the bay. The cars were up on lifts and only one had an engine. The engine on that car was not operated on July 12. Before the stripping started, Lemoine used the forklift to move some items outside the bay. After that, the forklift was not operated. Lemoine acted as a “spotter” while Burns operated the ShotBlaster. Apparently cognizant of the carbon monoxide risk, they kept the large warehouse door open and the air conditioning unit turned on for extra ventilation.
Bad Headache
Lemoine was present for about eight hours that day while Burns operated the ShotBlaster. However, at about 7:30 p.m., he went home before the job was finished because he was feeling ill. He had a bad headache, was nauseous and had some vision issues. (Such symptoms do parallel those of carbon monoxide exposure.) According to Lemoine, Burns did not complain of any symptoms during the eight hours they were working together in the bay.
Edgar Ortiz ran a small business in a neighboring bay. He was aware that Burns was using equipment to strip the floor on July 12. At about 8 p.m., Ortiz briefly visited Burns in his bay to borrow some tools. Ortiz said that Burns appeared in “fine health” at this time. Ortiz later left the building at about 9:30 or 10 p.m.
Significantly, he later said that he heard the sound of the shot blasting equipment in operation at that time.
Fatality
The following morning, July 13, Burns’ wife, Melissa, realized her husband had not returned home. After calling several times with no answer, she went to the warehouse and found him dead on the floor, lying next to the ShotBlaster. A later autopsy revealed that Burns died of carbon monoxide poisoning. His carboxyhemoglobin level was 57%. Most fatalities from CO poisoning occur when this percentage exceeds 50%-60%.
Interestingly, when Lemoine returned to the bay after Burns’ body was discovered, he observed that no additional stripping work had been done on the floor after he left on the previous evening at 7:30. This appears to conflict with Ortiz’s statement that the ShotBlaster was still operating when he left at 9:30 or 10 p.m.
Dangerous Levels
When fire rescue personnel entered the bay, their carbon monoxide monitor detected 240 parts per million, a potentially dangerous level. Carbon monoxide was also detected in nine other auto repair bays in the warehouse building, although the level detected in those other bays is not clear from the court record. To further confuse the picture, emergency medical technicians arriving at the scene said the forklift was running when they arrived, while police said that no equipment was running.
Melissa Burns filed a wrongful death lawsuit against Sunbelt Rentals, BlastPro Manufacturing and Ideal Center Condominium Association (the owner and manager of the warehouse facility). She claimed that the ShotBlaster was defective and negligently manufactured, pointing among other things to an alleged failure to warn Burns about the carbon monoxide hazard. Against Ideal, she claimed the premises were unsafe because there was inadequate ventilation, and that carbon monoxide detectors should have been installed throughout the building.
Expert Testimony
Multiple experts were presented by Melissa’s lawyers to support the wrongful death claim. Dr. Weaver argued that even low concentrations of carbon monoxide in a partially enclosed space over a long period of time can result in the death of a person.
He concluded that Matthew Burns inhaled lethal amounts of carbon monoxide produced by the ShotBlaster over many hours on July 12 and 13. He ruled out sources of CO other than the ShotBlaster.
Another expert for the plaintiff was Dr. Galatsis. He claimed that Sunbelt should not have rented or marketed the ShotBlaster for use in indoor or partially enclosed areas. He added that Sunbelt did not adequately train Burns to safely use the ShotBlaster, and that at a minimum a carbon monoxide detector should have been supplied with the equipment.
Verdict & Appeal
BlastPro Manufacturing and Ideal Center both settled with the plaintiff prior to trial. That left Sunbelt as the sole remaining defendant. It asked the court to strike the opinions of Weaver and Galatsis, claiming they were speculative and without foundation. However, these motions were denied, and the case went to trial in July 2023. The jury found in favor of the plaintiff, allocating 68% fault to Sunbelt and 32% to Matthew Burns. It awarded just over $13 million in damages, but under Florida law, this amount was reduced to about $8.9 million to account for Burns’ share of fault. Sunbelt appealed.
On appeal, Sunbelt again claimed that the jury should not have been allowed to hear the opinions of experts Weaver and Galatsis. The appellate court rejected these arguments, finding that the opinions of both experts were admissible because they were “the product of reliable principles and methods,” and that those principles and methods were applied “reliably to the facts of the case.” The $8.9 million verdict was affirmed.
After that, Sunbelt initiated proceedings in the Florida Supreme Court, the final appellate option, but those proceedings were recently closed without comment by the court, suggesting that a confidential settlement may have been reached.
