The opinion of the court was delivered by: BIUNNO
This suit, brought on diversity grounds, seeks damages for personal injuries sustained in the use of an inflammable fluid marketed for the specific purpose of igniting charcoal in an outdoor grill.
The defendant Inland Oil and Chemical Corp. (Inland) was the supplier who initially furnished the fluid to Stalfort, in bulk. The fluid was sold to one or the other of the Stalfort companies, which packaged the fluid in cans for defendant Great Atlantic & Pacific Tea Co., Inc. (A & P), which in turn marketed the product under its brand for retail sale. Plaintiff Goodman purchased the can of fluid from A & P.
In the late afternoon of a day in mid-June, 1970, Goodman, then 53 years old, set up a charcoal grill to cook steaks for expected guests. The grill was a rectangular one, a foot wide and two feet long, and perhaps 6 to 8 inches deep.
He set this up in his driveway on a picnic table in the sun near the rear of the house, and filled it "good and full" with charcoal briquettes he had bought at A & P that afternoon, along with the can of charcoal lighter fluid.
It was the first time he was using the grill; he had a round one before that he had used and lit charcoal fires in up to 5 times.
He poured the fluid, going back and forth over the charcoal to soak it all, using about half the contents of the can. He was not sure whether it was a pint can or a quart can. He then put the can down some distance away, waited a while for the fluid to soak into the charcoal, and then lit it in several places with a match.
The flames came up immediately, and satisfied that the fire was started, he went into the house to help his wife prepare the steaks. He came out ten to fifteen minutes later to check the fire, and it seemed to him to be out. He saw no flames, and passing his hand back and forth over the grill, there seemed to be no warmth, there was no heat to amount to anything. He did not poke or turn the charcoal to look underneath. Some of the briquettes on top were a grayish-white at the corners. In his prior experience with charcoal, he had observed that when the charcoal was fully burning, a whitish or grayish-white coating formed on the entire surface.
He then picked up the can again, and the moment he began pouring more fluid on the charcoal a flame shot up the stream of fluid and the can blew up in his hand. When he saw the can again later, three sides of the bottom had been forced open so that it was like a lid, and the formerly flat sides of the can were bulged out and rounded. The can itself was discarded by someone and it is no longer in existence or available for inspection.
When the can blew up burning fluid was expelled over Goodman's hands, arms, chest, thighs and shins. He rolled on the grass, but this did not put out the fire; and he then sprayed himself with water from a garden hose and put it out.
Goodman had read the cautionary instructions on the can. He remembers reading something like "Caution. Combustible Mixture." He read "Keep Away From Flame And Open Fire." He read "Do Not Add To Lighted Fire."
Goodman had completed high school and two years of pre-med courses in college, as well as extension courses in electronics, business management and purchasing. At the time of the occurrence, he was a salesman selling paint sundries, such as tools and brushes and had been for some 3.5 years. Before that he was a purchasing agent dealing in metals. Before that he was a laboratory technician for stress-rupture testing of high-temperature metal alloys. Before that he had worked in and managed a scrap metal yard, and before that as a time-study clerk for a metals manufacturer.
The foregoing account is summarized and condensed from the examination of Goodman on oral deposition taken November 17, 1972.
The court now has before it a number of motions by various parties, which have been submitted and the disposition of which is as follows.
A. A & P's MOTION FOR SUMMARY JUDGMENT.
A & P claimed a right of indemnification from Stalfort and filed a third-party complaint against Stalfort's carrier, The Camden Fire Insurance Association to have the benefit of its coverage on Stalfort extended to it, which included taking over and defending A & P under the public liability policy with broad form vendor's endorsement (Policy No. 36 794 97).
As to Stalfort, the judgment sought is to take over, defend and save harmless A & P in regard to Goodman's claim, and to reimburse A & P its reasonable expenses incurred until then.
As to Camden, the judgment sought is to include A & P as an additional insured under the broad form endorsement and otherwise for the same relief sought against Stalfort.