Jim Dey | After a grilling, aggrieved litigant gets the brushoff

Jim Dey | After a grilling, aggrieved litigant gets the brushoff

The most innocuous activities can lead to lawsuits. If readers are skeptical of that claim, they can ask Robert Kiminski of Michigan.

A resident of Dickinson County in the Upper Penninsula, Kiminski likes to barbecue chicken, and it's because he enjoys barbecuing and, of course, eating chicken that Kiminski sued the Libman Company of Arcola.

What does Libman, a manufacturer of brooms and a wide variety of other products, have to do with the great American pastime of outdoor grilling? The company makes stainless-steel grill brushes, one of which was purchased by Kaminski.

The 6th Circuit Court of Appeals in Cincinnati takes up the story from there.

"In July 2013, Kaminski purchased a stainless-steel grill brush manufactured by Libman. To clean his grill, he would run the brush back and forth over the hot grates for 10 to 30 seconds. According to Kaminski, he would put minimal pressure on the brush and never noticed any steel bristles fall off during the brushing process."

"In May 2014, Kaminski sought medical treatment for 'abdominal bloating' that had been 'worsening for the past few months.' A CT scan revealed that he had ingested a 'metallic foreign body resembling a thin copper wire,' probably from a 'wire brush related to grilled meat.' Kaminski had surgery, and the metal wire was removed," wrote appeals court Justice Eric Clay.

Most people probably don't know this, but there is an entire body of law that guides how the courts — state and federal — deal with product-liability disputes like this.

Let's begin at the end — Kaminski lost his lawsuit.

A federal district court judge threw the case out of court. A federal appeals court affirmed the trial judge's ruling.

But why?

It seems clear that a piece of metal wire from the grill brush came off when Kaminski used it to clean the grill. Somehow, the wire attached itself to a piece of chicken and was ingested by Kaminski when he ate the chicken.

Then he got sick, and he had surgery to remove the piece of wire. He sustained an injury and suffered a loss. But when he sought compensation, he was denied. Where is the justice?

Kaminski sued Libman on the grounds that it failed to warn him that the bristles on the grill brush could come loose.

Manufacturers have a legal duty to warn consumers of any dangers associated with their products. But that duty is not unlimited and does not apply in the case of what is known as a "simple tool."

Clay noted that a "manufacturer has no duty to warn of an open and obvious danger associated with the use of a simple tool."

What is a "simple tool"? The courts have defined it as one that is "not highly mechanized, thus allowing the users to "maintain control over the product" and/or its intended use "does not place the users in obviously dangerous situations."

"Courts have found hammers, knives, gas stoves, axes, buzz saws, propeller-driven airplanes, trampolines and backyard pools to be simple tools," said Clay, who concluded that "a grill brush is a simple tool" and one that is "less dangerous than many other items that qualify as 'simple tools.'"

Further, to the extent that the grill brush posed a danger, Clay said that danger — "that the bristles on a grill brush could break off and fall into food" — was "readily apparent."

"Given that brushes are ubiquitous* and extremely simple, a reasonable, prudent person would realize that the bristles on a grill brush are not indestructible. There is always a risk, however small, that bristles will break or become dislodged," he wrote.

To bolster his case, Kaminski identified two instances "in which bristles from Libman's brushes had caused injuries." The court, however, described those examples as reflecting a "remarkable low number, considering that Libman had sold 'millions' or even 'tens of millions' of brushes throughout its history."

Kaminski also could have argued that the product was defectively designed. But for tactical reasons, his lawyer did not do so.

With that, the case was over, and the use of Libman's grill brushes was vindicated in a court of law.

Suffice it to say, there were no Perry Mason moments in this case. If more aspiring lawyers read the opinion in "Robert Kaminski vs. the Libman Company," there would be fewer aspiring lawyers.

But the law is not just designed for the sensational and lurid; it's also there for the less exciting disputes in life. The courts have to be prepared — and usually are — for almost anything.

* — Word of the day: Ubiquitous is defined as "everywhere at the same time; omnipresent."

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-3531-5369.