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Pyrotechnic Promotion of Rum Burns Bacardi (NY)

December 15, 2011

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Everyone knows that playing with fire is generally not a good idea. But recently, Bacardi found itself on the wrong side of a summary judgment decision, in part, because the Court found that it encouraged such behavior.
In <em>Scalfani v Brother Jimmy’s BBQ, Inc</em>., plaintiff was injured during a “pyrotechnic” display when the bartender poured Bacardi “151” onto the bar and ignited it. Bacardi 151 has an alcohol content that exceeds 75%, and as such is often used because it is capable of being ignited. In fact, plaintiff alleged Bacardi promoted bartender flame tricks at a Las Vegas bartending convention. Unfortunately, during this incident at Brother Jimmy’s, the flame spread from the bar the bottle, and the remaining rum ignited and shot out,  severely burning plaintiff.
Plaintiff brought claims under theories of strict liability and negligence against Bacardi, alleging the bottle was defectively designed. In New York, a defectively designed product is one which, “at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use." If the "utility" of a product "does not outweigh the danger inherent in its introduction into the stream of commerce," then the product is defectively designed.
In its defense, Bacardi claimed that the bottle included a flame arrester, and also warning labels. It also argued that the intended use of the product is to be consumed, not to ignite flames. But the Court held such arguments were not sufficient to award Bacardi summary judgment, particularly where it was alleged that Bacardi had actively promoted the very type of pyrotechnic displays that caused plaintiff’s injury. Thus, plaintiff’s claims survived for a jury to determine liability.
Thanks to Joe Fusco for his contribution to this post.
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