Laconia man claims defective firework cost him an eyeBy BEA LEWIS
Union Leader Correspondent
August 09. 2018 2:21PM
LACONIA — The New Hampshire Supreme Court is being asked to decide whether a law that allows for apportionment of fault in civil lawsuits applies in contract claims.
The question arose in a product liability suit filed by a Laconia man who was blinded in one eye as a result of a fireworks accident. James Virgin alleges the product was “unreasonably dangerous” because of defective manufacturing.
Attorney Andrew J. Piela of Nashua claims Fireworks of Tilton and Foursquare Imports LLC, doing business as AAH Fireworks LLC, were negligent in making and selling a firework that didn’t have a safety fuse and had a bent tube that directed a flaming ball directly into his client’s face.
On Tuesday, Judge James D. O’Neill III ruled that there is a clear difference of opinion on the question of whether apportionment of fault applies in contract claims, noting that at least one Superior Court decision held that it does not.
As the high court is the final arbiter of legislative intent, O’Neill wrote that it is appropriate for the justices to make a final determination on the issue. Such an interlocutory appeal “would substantially assist the resolution of this case and in that it would provide certainty for the parties and may significantly streamline this case for trial,” the ruling says.
In July 2013, Virgin lit a hexagonal “cake-style” firework that contained 19 cardboard tubes. It is designed to shoot flaming balls into the air in rapid sequence. It is typically equipped with a slow-burn, green-colored safety fuse that allows the consumer a few seconds to get clear before the device ignites. The suit alleges this firework had a gray “quick fuse,” which burns almost instantaneously.
The combination of the wrong fuse and a bent tube caused Virgin to suffer catastrophic injuries, Piela asserts, including the destruction of his left eye, deteriorating vision in his right eye, lost wages, loss of earning potential, medical bills and pain and suffering.
The suit, filed in Belknap County Superior Court in March 2016, asks for a jury trial.
The plaintiff’s attorney claims that federal regulations required that the firework have a safety fuse taped to the side of the box. He further asserts that there was no warning label to advise a consumer not to use the device if a safety fuse was not present.
Virgin claims to have noticed that the fuse on the firework that maimed him was gray, not green, but lit it anyway, as he had used fireworks previously that had different-colored fuses.
The defendants had a duty to manufacture, inspect and sell the firework and ensure the proper fusing was attached, Piela wrote.
The plaintiff additionally claims that as a seller of “permissible fireworks” that the Tilton store failed to give Virgin a required safety pamphlet and that as a result, state law makes the seller liable for damages awarded as a result of a civil action.
According to the lawsuit, Virgin had patronized the Tilton store for a number of years and would typically spend $1,000 annually to buy fireworks for his Fourth of July celebration.
When he went to the store on July 6, 2013, Virgin claims he did not intend to purchase the allegedly defective firework, but rather maintains it was added to his order by store staff. The suit claims employees “often suggested” types of fireworks Virgin should buy to make for a more spectacular display.
The day of the accident, Virgin left the store with the fireworks in the bed of his pickup truck and drove to his brother’s house, where a Fourth of July party was to take place. He prepared the launch site by laying a sheet of plywood on the ground to create a flat stable area and placed the fireworks between two blocks to prevent them from moving when fired.
When he lit it, the suit alleges the firework immediately ignited, sending a flaming ball directly into his face and ruining his left eye.
According to the Consumer Product Safety Commission’s 2017 Fireworks Annual Report, U.S. emergency rooms treated an estimated 12,900 people for fireworks-related injuries; most injuries were associated with misuse or malfunctions of fireworks.
Eight deaths were attributed to fireworks in 2017, including a 57-year-old Maine man who placed a firework in a PVC pipe and propped it against a cinder block.
When he lit the firework, the block exploded and chunks of it fatally injured the man as he stood about 15 feet away.