Ohio LODD Suit Ends in Victory for Morning Pride and Motorola

The parents of an Ohio firefighter killed in the line of duty have lost their wrongful death suit against Morning Pride and Motorola.

Robin Broxterman, a captain with the Colerain Township Fire Department, and firefighter Brian Schira died on April 4, 2008 when they became trapped in a house fire on Squirrelsnest Lane. Among the challenges that occurred at the fire, Captain Broxterman attempted to report a mayday but got a “busy-signal” on the county’s Motorola digital trunked radio system.

The basement fire was later ruled accidental. The homeowners, Matthew and Sharyn Cones, were allegedly running an illegal marijuana growing operation out of the house. However, investigators determined the grow operation was not associated with the fire.

Captain Broxterman’s parents, Donald and Arlene Zang, filed a wrongful death suit against the Cones, Morning Pride/Honeywell, and Motorola. The Cones were granted a summary judgment in January 2013, ending their involvement in the case.

The product liability case against Morning Pride and Motorola has been quietly winding its way through Hamilton County Court of Common Pleas. Last week, Judge Carl Stich granted summary judgment to both Morning Pride and Motorola in a well written and well reasoned decision. According to Judge Stich:

A variety of mistakes were made during the response to the Squirrelsnest fire, such as the delay in upgrading the alarm to a working fire, delays in reaching the site, and failure to conduct a 360 degree site inspection before entering the house. Those mistakes and others may well have contributed to the conditions leading up to Capt. Broxterman’s death, but few of them are material to the pending motions. Firefighting equipment is intended for use in ultra-hazardous conditions. Even if those conditions arose because of foreseeable human error-including that of the victims themselves-the equipment should perform properly.

Judge Stich did an excellent job of detailing the events that led up to the deaths of Captain Broxterman and FF Schira… so much so I am considering using it in one of my fire law books because much of it reads like a LODD investigative report with details that will be interesting to firefighters. His discussion of the facts are lengthy and I will omit them here – but firefighters should considered downloading the attached decision for a review of what occurred.

• The plaintiffs argue that the Morning Pride PPE-the firefighter’ s helmet, coat, and trousers-were defective because they failed to protect Capt. Broxterman from the fire. Alternatively, plaintiffs argue that the warnings accompanying the PPE were inadequate. They acknowledge that the warning told users that they would not be protected from “all hazards encountered during emergency operations,” but argue that the warning was “too vague to be of use” in warning Capt. Broxterman that the PPE would not protect her from a “simple structure fire.”
• As for the Motorola products, the plaintiffs argue that the 800 MHz digital trunk communication system was defective, primarily because it will not permit more than one user to speak at a time. That resulted in Capt. Broxterman experiencing the rejections (bonks) recorded in the radio log. They contend that handheld radio unit itself was defective because the emergency button would be difficult to press wearing gloves, making it unsuitable for firefighting operations. …
• The plaintiff’s burden in a products liability action is to establish all of the following by a preponderance of the evidence:

1. That the product was defectively manufactured or designed, did not contain adequate warnings, or failed to conform to the representations made by the manufacturer;
2. That the defect or inadequate warning was proximate cause of the injury; and
3. That the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the product.

In terms of Morning Pride’s motion for summary judgment:

• Plaintiffs do not argue that the products were defectively manufactured. They argue that the defendant’s products were defectively designed. …
• [A] product is defective in design if the foreseeable risks associated with the design exceeded the benefits associated with that design

According to the court, Morning Pride’s experts testified that:

• Capt. Broxterman’s gear was state-of-the-art, met all applicable standards, and was free of defects in its design and manufacture…
• “Based on damage to Cpt. Broxterman’s PPE, conditions within the basement clearly exceeded those for which her PPE was required, designed, and reasonably expected to protect against.”
• “Capt. Broxterman’s injuries and death were not the result of any design or manufacturing defects in her PPE, but rather result of lengthy exposure to severe thermal conditions that exceeded the design capabilities of her PPE.”

Judge Stich concluded:

• Thus the undisputed evidence is that Capt. Broxterman was subjected to conditions that far exceeded what any PPE could be expected to withstand; that the Morning Pride gear was state-of-the-art; that the gear complied with all relevant standards; and that there would be no feasible way to improve its heat-resistant properties without violating other standards, such as breathability. The plaintiffs offer no contrary evidence, nor do they propose a workable alternative design. Their only argument is that the gear must be defective because it didn’t prevent Capt. Broxterman’s death. In light of the overwhelming evidence that she was placed in an unsurvivable situation, the failure of the gear to save her life is not evidence of a defect.
• [N]o reasonable person-especially one whose vocation is to fight fires would expect turnout gear to provide protection from the type of conditions into which Capt. Broxterman fell
• [T]he plaintiffs cannot point to any evidence that the product warnings contributed to Capt. Broxterman’s death. She didn’t wander into the heart of an active fire because she overestimated the capabilities of her gear; she fell into the fire because its intensity caused the floor to collapse. The proximate cause of her injuries was a catastrophic event.
• There is no disputed issue of material fact

And with that Judge Stich ruled that Morning Pride is entitled to summary judgment as a matter of law. As for Motorola, the case was more complicated and indeed a bit closer – at least in part because the Zang’s had an expert witness.

• The premise of plaintiffs’ argument is not that Motorola supplied a defective digital [trunked] system, but that a digital [trunked] system is inferior to an analog [simplex or duplex] system for firefighting, primarily because digital [trunked] allows only one speaker at a time.
• The ultimate question posed by the plaintiffs’ argument is simple: Can a manufacturer be liable for supplying a non-defective product in compliance with a buyer’s wishes, if a product using another design would be superior?
• Motorola provided an emergency button on Capt. Broxterman’s radio, allowing her to circumvent the design defect raised by plaintiffs’ expert, much as a safety guard can prevent injuries for users of industrial equipment.
• Without a functioning emergency button, there is plainly a disputed issue of material fact as to whether the risks of the system outweigh the benefits. With a functioning emergency button, however, Motorola could cure the only design flaw relevant to this case.
• The plaintiffs’ only specific complaint about the [portable] radio is that the emergency button on top was small and recessed. According to [Plaintiff’s expert] that made it difficult to push while wearing a fireman’s glove, which he considers a design defect.
• Motorola offered the expert opinion of J. Gordon Routley, an experienced firefighter who uses the XTS5000 on a regular basis. He described it as “state of the art” technology for use while wearing firefighting gloves.
• The plaintiffs have failed to meet their burden of producing admissible evidence to respond to Motorola’s evidence that the design of the radio was non-defective. Thus the claims as to defects in the portable radio must be dismissed.
• Some of what happened in the Squirrelsnest fire will remain a mystery, but that does not relieve plaintiffs of their burden to prove that the Motorola products were a proximate cause of Capt. Broxterman’s death. The undisputed evidence shows that the plaintiffs could not meet that burden.

Here is a copy of the decision: Zang v Cones DECISION

Here is the final judgment: Zang v Cones Judgment