A state appeals panel has upheld a $7.1 million verdict for a woman who said she suffered injuries from an exploding can of Swell brand cooking spray oil.
On Nov. 1, a Cook County Circuit Court jury decided in favor of Tammy Reese, who said the injury happened while she was cooking in a club in Shippensburg, Pennsylvania, in 2017. According to her lawsuit, Reese's face, hands and arms were burned in the 2017 incident. The award includes $3.1 million in compensatory damages, plus $4 million in punitive damages.
According to a release from the firm of Meyers & Flowers, which represented Reese, a total of 56 cases were filed against ConAgra in Cook County Circuit Court, similarly alleging the cans can become overpressurized and explode when kept too close to a stove or other heat source, igniting in flames and causing burns to people standing nearby.
Illinois First District Appellate Justice Nathaniel Howse
| Illinoiscourts.gov
In 2011, the suits allege, ConAgra redesigned its aerosol cans for cooking oil measuring more than 10 ounces. The new cans included four “U-shaped score marks” on the bottom, allegedly to vent contents. However, the plaintiffs alleged this design makes the cans more prone to explode. Conagra discontinued the use of that can design in 2019, but lawyers note the old cans have not been recalled and replaced on store shelves.
ConAgra asked Cook County Circuit Court Judge Janet Brosnahan to overturn the verdict, arguing it was against the evidence.
When she denied that request, the company brought the issue to the Illinois First District Appellate Court.
Justice Nathaniel Howse wrote the panel’s decision, filed Dec. 24; Justices Margaret Stanton-McBride and David Ellis concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent.
On appeal, Howse wrote, ConAgra argued safety risks are inherent in all aerosol can designs and that it’s never safe to store one on a shelf above an oven. It noted Reese’s testimony clarified she understood printed warnings and the accident was preventable. But the panel sided with Reese, pointing to evidence a standard can design, without bottom vents, has “a higher pressure tolerance and uses non-flammable propellants which supports a finding that the risks associated with the bottom-vented can outweigh its benefits.”
The panel pointed to a 2002 Illinois Second District Appellate Court ruling, Hansen v. Baxter Healthcare Corp., which said plaintiffs can argue a product design is unreasonably dangerous by showing alternatives that are feasible with regard to cost and practicality.
“We find that any evidence that the accident would not have occurred if the warnings had been followed and the cooking spray was not kept on the shelf does not tip the weight of all of the evidence viewed in a light most favorable to plaintiff overwhelmingly in defendants’ favor.” Howse wrote. “The jury heard evidence that plaintiff used the product as intended and/or in a manner that was reasonably foreseeable. The product was intended and defendants designed the product in a manner that reflected its expectation that the product would be used in cooking, in a kitchen environment, in some degree of proximity to a heat source.”
Howse further wrote the evidence presented at trial could reasonably lead a jury to decide ConAgra’s warnings were insufficient and said testimony about the can design was enough to point to the eventual verdict without either side introducing incident reports or safety rates outside the context of Reese’s experience. The panel said evidence of a possibly safer design wasn’t speculative and note ConAgra was already using cans without vents for other spray products.
ConAgra also argued against Reese’s allegation it failed to properly warn consumers, implying no evidence she would’ve acted differently upon encountering different warnings. Howse said the verdict reflected the jury’s reasonable inference that compliance with federal regulations wasn’t at issue to the same degree as the adequacy of the warnings relative to Reese’s injuries.
Reese “testified she read the warnings but did not know the can used flammable propellants, did not know the can was designed to release flammable propellants if it reached a temperature of 165 degrees, and that she did not know what could possibly happen to the can if it was stored over 120 degrees,” Howse wrote. “The former manager of (Reese’s) workplace testified that after learning what could happen with the can of cooking spray he changed practices in the kitchen to keep the cans further from the stove and oven. (Reese) agreed that if the shelf was over 120 degrees keeping the cooking spray there would be a violation of the warning; but plaintiff also testified it would have been helpful if there was something on the can that told her it was approaching 120 degrees.”
The panel also agreed the jury had grounds to find for Reese on her allegation of willful and wanton conduct. While ConAgra argued any aerosol can is inherently dangerous, Howese explained Reese specifically alleged “unique risks” such as that the can in question overheated with normal use, that it had a lower pressure tolerance than other can designs and that if it were to experience excessive pressure, the vent would release flammable contents in the direction of a heat source.
While the jury was told to ignore prior incidents as evidence of a defect, Howse wrote, it was allowed to consider what those incidents meant for ConAgra’s knowledge of its product. Even so, he continued, other evidence reasonably led to a conclusion ConAgrea knew of the alleged dangers.
“The jury’s verdict awarding punitive damages is not against the manifest weight of the evidence,” Howse wrote, as the panel affirmed Judge Brosnahan’s decision to deny judgment notwithstanding the verdict.
Reese was represented by Meyers & Flowers, with offices in Chicago, St. Charles and Peru.
“Our client endured a life-altering injury caused by a product that should never have been on the market,” said Peter Flowers, in a release. “This ruling validates what the jury found — that ConAgra prioritized profits over safety, and they must be held accountable for the harm caused by their negligence.”
Frank Cesarone, who also represented Reese, said in the same statement:“This decision is not just about our client — it sends a clear message to manufacturers: consumer safety is not optional. ConAgra knew about the risks posed by this product, and they failed to act. We are proud to stand with Tammy Reese and other consumers who have been harmed by corporate negligence.”
ConAgra could yet seek to appeal the ruling to the Illinois Supreme Court.