First Circuit Tosses Lightning-Related CSST Defect Claims For Lack Of Standing

In a products liability case concerning standing based on a theory of enhanced risk of future injury, the First Circuit affirmed a district court’s dismissal of a plaintiff’s purported class action claiming that the corrugated stainless steel tubing installed to provide gas to his outdoor firepit was susceptible to causing fires if struck by lightning.  Despite being a known risk that a direct or indirect lightning strike can cause an electrical arc that can puncture the tubing and ignite the gas within, this tubing continues to meet code requirements and is used in buildings throughout the country.  The court stressed this point, recognizing that “[a]lthough not dispositive, this consideration carries particular weight because the political branches have, after study of the particular risk in question, concluded that such risk is both permissible and manageable.”

Although the First Circuit recognized that the law of probabilistic standing is evolving and it is conceivable that a product’s vulnerability to lightning could constitute a sufficient justiciable injury in some circumstances, the plaintiff in this case could not establish standing.  The plaintiff failed to meet the burden of showing that lightning causing a fire in his home by exploding the tubing was anything but remote.  Specifically, he failed to allege facts sufficient to calculate or estimate the risk, including any facts such as the frequency of lightning strikes, the proportion of homes struck by lightning, or the likelihood that a lightning-caused fire would occur in a home with this particular tubing.