Volume 36, Issue 3, March 2001

NEWSNOW

                            latest news developments

California Couple Wins Appeal of Shower Door Case

In a case that could have far-reaching implications for the glass industry, a California couple has won an appeal for a negligence claim against Guardian Industries of Auburn Hills, Mich. The case was originally dismissed by a local District Court on the grounds that the couple’s claims were preempted by the Consumer Product Safety Commission (CPSC) laws.

The suit was brought by Thomas and Cindy Leipart of Pasadena, Calif., in a California state court against Guardian, alleging that a glass shower door manufactured by Guardian shattered into small pieces, rather than breaking into long shards, as the result of a fall by Thomas Leipart. Leipart needed emergency surgery due to the injuries he sustained from the cuts. The Leipart’s claims were: strict negligence-based liability for design, manufacture and distribution; strict liability for failure to warn; negligent infliction of emotional distress; and loss of consortium. The district court had ruled that Guardian’s compliance with federal regulations promulgated by the CPSC pre-empted California’s state common law.
Upon appeal, however, Circuit Court Judge William A. Fletcher reversed the lower court’s decision on the couple’s strict and negligence-based liability claim. He stated, “The California law applicable to this case was in existence when the CPSC was enacted, and so far as we are able to determine, is well within the normal range of state tort law.” He continued, “It imposes no obligations that would surprise or unduly burden a manufacturer of glass shower doors. More importantly, it imposes no obligations that would have surprised Congress when it drafted the CPSC and explicitly saved ‘liability at common law’ from federal preemption.”
Judge Fletcher, however, upheld the lower court’s decision regarding the couple’s second claim for failure to warn liability. “… Plaintiff’s claim would impose liability for failure to affix a safety warning label to the door, or to provide some other effective means of warning, and would thereby impose a safety requirement not imposed under CPSC,” he said. “We do not consider a tort-based warning requirement … a ‘standard’ within the meaning of the preemption and saving clauses of the CPSC. Thus, a plaintiff’s claims can only be preempted if it would conflict with the Act [CPSC]. We hold that it does not.”
Daniel J. Stephenson, attorney for Guardian, is optimistic about the future of the case. “While Guardian is disappointed that it didn’t win on the preemption issue, they are confidant they will prevail on the merits of the case,” he said, “because all indications are that the glass was manufactured in accordance with Guardian’s usual high standards.”
The Leiparts’ attorney, Jeffrey P. Nola, was unavailable at press time.

Seattle’s Recent Earthquake Leaves
Glass in Pieces
Well-known for its array of architectural glass usage and art glass displays, Seattle lost much of its delicate treasure in the February 28th earthquake, which left much of the city in shards. Estimated millions of dollars worth of art glass from galleries, shops, hotels and convention centers was shattered during the quake.
The works destroyed included such pieces as a $40,000 Dale Chihuly piece from the Seattle Sheraton. When asked by San Jose Mercury News reporter Mike Frankel what to do with the pricey fragments, Pike Powers, artistic director of the Pilchuck Glass School said, “You throw them away … some state convention center employee isn’t going to sit there and try to glue it together.”
But art glass destruction was not the only case of glass damage. Numerous homes and buildings also suffered. Karen White, general manager of Wakefield Glass, a Seattle commercial contract glazing company, said the recent quake has had a major affect on her company’s business. “We’ve repaired buildings with several hundred cracked windows, as well as buildings with only a couple of cracked windows,” she said. “One of our clients, the Bank of America building, was built to withstand earthquakes, and it only had one cracked mirror,” she added.
In addition to the massive art glass, commercial and residential losses, Seattle-Tacoma Airport had to shut down operations completely for three hours and 36 minutes when its main control tower was damaged—the window frames and roof supports on the top floor failed.
“Within an hour of the quake we [Wakefield Glass] were called by the Federal Aviation Administration [FAA] to remove the existing broken glass,” said White. “When we arrived, however, we were told there was more structural damage than they had originally thought so we could not go inside to remove the glass. “We went back that night once we were told it was safe for us to go in,” she added.
Bob Parker of Aviation Public Affairs said the glass in the tower was ¾-inch thick, but not tempered, since it was his belief that tempering affects visibility. He added that the problem was not with the glass, but rather the frames. “We’ll probably put the same glass back in place, but with a framing system [which is being designed] to help avoid the kind of flex that shattered the glass this time,” said Parker. The frames were 5-inch, hollow mullions. One carried cabling to the tower antennas and did not shear, but six of the eight mullions were damaged, including two that sheared.
Interestingly enough, one of the tower’s controllers worked in a glass factory while he was in college, and has already been tapped to participate on the new tower’s design team. According to Parker, the controller believes laminated safety glass to be the best bet in replacing the tower’s glass. Herzog manufactured the original glass and will supply the replacement glass as well. Parker added that the controller with glass experience will go to Herzog’s plant in California to inspect the product before shipping, to avoid having it arrive and then be rejected.

Auto Glass Fabricators Allege Chinese Dumping

PPG of Pittsburgh, Safelite Glass Corp. of Columbus, Ohio, and Viracon of Owatonna, Minn., a division of Apogee Enterprises, all manufacturers of automotive replacement glass (ARG) windshields, have petitioned for relief against the alleged dumping of replacement windshields imported from China. According to a press release issued by PPG, the three companies jointly petitioned the U.S. Commerce Dept. and International Trade Commission, saying that due to the Chinese’s production and import of windshields at prices below fair value, they have experienced material injury.
“The U.S. replacement windshield industry has sustained significant injury from rapidly increasing exports of very low-priced ARG windshields from China,” said Garry A. Goudy, PPG vice president of auto replacement glass. “One U.S. producer has ceased operation, and the rest have experienced substantial financial harm,” he added.

“We are bringing this action to obtain relief under our trade remedy laws from significant injury that is being caused by rapidly increasing imports of unfairly low-priced ARG windshields from China,” said Apogee corporate secretary and general counsel Patricia A. Beithon.

However, the companies’ attempts to stop the Chinese are not being very well received by other ARG distributors. “PPG is just whistling in the wind, because there is no way they’ll be able to stop the Chinese,” said one distributor of Chinese glass. “They have just brought this on themselves because for years and years they have been the only ones making profits because they had no competition, and now that they do have competition they are just crying wolf. If they had had fair pricing all along this wouldn’t be happening.” He continued, “To make matters worse, look who they brought with them, Viracon, whom they practically own, and Safelite, who is in bankruptcy[sic].”

The two U.S. agencies are expected to review the petition and investigate its allegations, which, if confirmed, would lead to an imposition of anti-dumping duties on Chinese windshield makers. While such investigations could take close to a year, if found guilty preliminary duties could be imposed within 160 days.
According to the investigation report, the U.S. Trade Commission must reach a preliminary determination in the anti-dumping investigations by April 16, 2001, and their views are due to the Department of Commerce by April 23, 2001.

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