When Fireworks Go from Ooh’s and Aah’s to “Oh My God”

Summertime is in full swing and as we saw on July 4th, we all love to celebrate our nation’s freedom with friends, family, fun, and that usual “dangerous” tradition—fireworks. What a spectacular way to commemorate Independence Day.

The truth is that thousands of people are injured each year and some have even died as a result of fireworks accidents. A U.S. Consumer Products Safety Commission statistic shows that an average of 7,500 people are treated every year due to fireworks-related injuries. Here are just a few examples of recent injuries caused by legal and illegal fireworks reported by the commission:

• A 49-year-old male from Nebraska was fatally injured in an explosion while illegally manufacturing homemade fireworks in his garage. Materials and tools used in the production of fireworks or explosives were recovered by the authorities at the scene.
• A 26-year-old male duct taped together a large number of sparklers to make a sparkler bomb. When he lit the homemade device, it exploded before he could move away. The resulting injuries required surgery to remove skin and flesh from the man’s right knee, hip, and leg.
• An 11-year-old male found an unused golf ball-shaped firework on the beach and lit it. The firework exploded in his right hand. He lost his right index finger, middle finger, and thumb.

There are two areas of liability to examine when looking at fireworks claims and lawsuits. One is products liability and the other is the liability on the part of the person who ignited the fireworks. 

In a lawsuit filed in August 2009 by South Carolina resident Michalyn Gardner against the town that was the host and sponsor of a fireworks show, the following allegations were made, among others:

• Failure to properly oversee the discharge of the fireworks;
• Failure to properly protect attendees from falling debris or faulty fireworks, particularly Gardner;
• Failure to properly distance attendees from the area where the fireworks were being ignited;
• Failure to properly warn attendees of the inherent dangers of faulty fireworks and/or falling debris;
• Failure to properly ensure the safety of attendees, particularly Gardner; and
• Failure to “use that degree of care that an ordinary and prudent person would use under the same or similar circumstances.”

The lawsuit alleges that “as a direct and proximate result of the negligent and/or reckless, willful, and wanton act of the town, the plaintiff has suffered serious painful and personal injuries.”

In New Jersey, 19-year-old Thomas Eldershaw lit a firework that allegedly misfired, sending a projectile into his face that left him partially blind. Eldershaw filed a lawsuit against the store, the fireworks manufacturer, and his friend who crossed the state line into Pennsylvania to purchase the fireworks.

In Virginia, Kathryn Hollis was awarded a $4.75 million jury verdict against fireworks company Schaefer Pyrotechnics. Hollis and her two sons were injured after a box of linked fireworks fell over, sending explosive mortar into the crowd watching the town of Vienna’s Independence Day celebration. Hollis sustained a fractured arm, shrapnel embedded in her arm and shoulder, perforated eardrums, burns, and brain damage.

The suit alleged that Schaefer had previous reports of similar problems with the so-called “finale boxes” and did nothing to refrain from using them—similar accidents occurred at about 30 other Schaefer shows that evening, none with serious injuries.

The jury awarded $45,000 to older son Alex, who had minor injuries. Max, three years old at the time, suffered brain damage and injuries to his face. He has a pending claim targeting the fireworks company, the town of Vienna, and Fairfax County. Also named in the suit is the Chinese manufacturer.

The common law defines situations in which strict liability is imposed for harm or damages resulting from the keeping of animals, inherently dangerous products, and inherently dangerous activities. Fireworks are just one of the operations under “inherently dangerous products.”

When examining products liability, adjusters must investigate if the product purchased or used caused injury or harm. If so, you may be entitled to assert a claim regarding potential defects in design, manufacturing, or marketing. You may have a claim against the manufacturer, the sellers, the wholesalers, and others.   

Mary Anne Medina is an instructor and course developer for Vale Training Solutions. She has extensive experience in claims process redesign and claims handling training, with an emphasis on liability loss adjusting. She has been a CLM Fellow since 2010 and can be reached at MMedina@vale-ts.com.

A Defense Perspective

“Whether or not using fireworks is an ‘ultra-hazardous activity’ depends on the jurisdiction,” says Richard Lenkov, CLM member attorney for Bryce Downey & Lenkov, LLC. “An ‘ultra-hazardous activity’ in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others from being injured. If your jurisdiction recognizes fireworks as an ‘ultra-hazardous activity,’ it will be far easier to prove liability than if the activity is simply subject to the general standard of care.”

What other considerations should claims and litigation professionals keep in mind? “Many lawful fireworks shows are sponsored by cities and towns that can take advantage of tort immunity defenses,” continues Lenkov. “Additionally, many fireworks are imported, which creates a problem for parties to bring the actual manufacturer into the case, removing a key party that may assume all or some of the liability. In the end, the same principles apply as in any other claim, an important one being that early and thorough investigation is key.”