The United States Court of Appeals for the Fifth Circuit recently upheld a Motion for Summary Judgment granted in favor of the Defendant by Judge Sam R. Cummings of the Northern District of Texas. The underlying case involved an accident were a welder’s uniform shirt caught fire while he was working resulting in second degree burns. The Plaintiff asserted a strict liability-failure to warn and negligence cause of action based upon the claim that the company to supply the uniform, had a duty to clearly warn him that the uniform was in fact flammable. The District Court agreed with the Defendant’s argument that there was no duty to warn Plaintiff in this instance because it is common knowledge that a non-flame retardant uniform suffers from the danger of catching fire when exposed to sparks derived from welding. The District Court held Plaintiff’s remaining negligence claims were subsumed within his strict liability claim and dismissed the case in its entirety. On appeal, Plaintiff attempted to assert a claim for negligent undertaking for the first time in addition to arguing for preservation of his original claims. The Fifth Circuit agreed with the Defendant’s argument that the negligent undertaking claim was forfeited as it was not asserted and held that the negligence and strict liability claims were defeated by the common knowledge defense presented by the Defendant. The Fifth Circuit further agreed with the District Court that, as a matter of law, it is common knowledge that a cotton shirt is flammable.
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