Bed Bath & Beyond, Inc. the national retailer that sold the gel fuel ‘fire pot’ which critically injured a Riverhead teen in May 2011 has been held liable for his injuries.

A New York State appellate court panel has ruled that the fire pot and fuel gel that exploded in the face of Michael Hubbard, then 14, on May 28, 2011 were “so dangerous and were so defectively designed that their misuse was foreseeable” and the retailer is liable for Hubbard’s resulting injuries.

The Appellate Division court in Manhattan granted Hubbard summary judgment in a November 2017 ruling. It left to the trial court the task of determining the damages amount.

“In the present case, plaintiffs have established, as a matter of law, that the product at issue, consisting of the fire pot and the fuel gel, was defectively designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs’ injuries,” the court ruled.

Hubbard’s attorney, Stephen Barnes of Buffalo, said it was the first time a New York appellate court has ever granted a plaintiff summary judgment in a products liability case.

“It’s a history-making decision,” Barnes said.

The “fire pot” fuel burns something like the fuel in a Sterno — the small metal cups commonly used to keep food warm at parties. There’s no wick. The fuel itself ignites. It’s very clean-burning and it’s very hard to tell whether it’s lit. When gel fuel is poured on a pot that’s lit or still hot, flames erupt and burning fuel is splattered — up to several feet away from the container.

The court wrote that product “poses an extraordinary safety risk in that it can explode and propel flaming fuel gel onto persons in its vicinity and cause them to catch fire when a person attempts to light the fire pot with the fuel gel while the fire pot is already lit or hot” and “the viscosity of the fuel gel makes it easily adherent to skin and clothing which makes it very difficult to extinguish.”

That’s what happened to Hubbard on May 28, 2011, as he and his family were setting up a backyard party in Riverhead. He suffered third-degree burns over 40 percent of his body. As a result of those burns, he went into cardiac arrest nine days later. His brain was deprived of blood and oxygen for 13 minutes before doctors brought the boy back to life. The episode caused severe brain injury. [Related coverage]

Hubbard, severely impaired by the brain injury, has been hospitalized ever since. He receives nourishment via a feeding tube, is confined to a wheelchair and cannot care for himself in any way; while he is awake and alert, he is essentially nonverbal. Now 21, he has been a patient at the Peconic Bay Medical Center Skilled Nursing Facility since June 2013, after nearly two years at Blythedale Children’s Hospital in Westchester.

The “Fireburners” fire pots, distributed by Georgia-based Napa Home and Garden Inc. and sold throughout the country at Bed Bath and Beyond stores, injured at least 86 people in the U.S., many critically — 34 victims were hospitalized with second and third degree burns of the face, chest, hands, arms or legs — and resulted in two deaths, in a span of about 15 months in 2010-2011.

In June 2011, Napa Home & Garden voluntarily pulled the product off retail shelves. A month later, the company filed for bankruptcy. (Napa owners Jerry and KC Cunningham sold their company’s assets — minus the “Firepot” and “FireGel” lines — to a big corporation a month after the bankruptcy filing, with court approval. In January 2013, the Cunninghams were able to buy back their company and continue in business.)

Napa’s $1.1 million sale proceeds and liability insurance policies combined for a total of about $15 million, which the bankruptcy court disbursed to about 75 injured claimants, who who by stipulation had no further recourse against the bankrupt entity.

Hubbard’s lawyer Barnes opted instead to sue the retailer Bed, Bath & Beyond, which sold the “Fireburners” fire pot that exploded and critically injured Hubbard.

The two sides have been wrangling in court proceedings since 2012. The unanimous decision of a five-judge appellate panel in November, in addition to granting summary judgment to Hubbard on his defective design claim, granted the defendant summary judgment dismissing breach of express warranty, failure to warn, and punitive damages claims.

The attorney handling the case at Aaronson Rappaport Feinstein & Deutsch LLP in Manhattan, lawyers for Bed Bath & Beyond, did not return a phone call seeking comment

Now that he has won judgment for his client, Barnes said the trial court in Manhattan will hold a jury trial to determine damages. It is scheduled to begin March 5.

“The jury’s only job is to evaluate the extent of the damages Nancy and Michael have suffered,” Barnes said yesterday. “The jury will determine an award for pain and suffering, loss of enjoyment of life, Michael’s loss of earnings and the cost of Michael’s future medical care and treatment,” he said.

“We’re seeking justice for Michael, to ensure he continues to get the right care, the right rehabilitative therapy for the rest of his life, to ensure that he has a life,” Barnes said. “There’s a person in there.”