Daniel

Opinion by Judge NOONAN; Dissent by Judge PREGERSON.

This dispute arises from a wrongful death action initiated by Mari Daniel on behalf of her husband and her father, Melvin Daniel and Fred Ramiskey.

FACTS

In September of 2006, Robert Haney, Fred Ramiskey, and Melvin Daniel went on a hunting trip in the Chambers Lake area near Packwood, Washington, staying in Daniel’s twenty-five foot camper. Haney was the owner of a Coleman Power-mate 5045 heater, which was purchased in 1995. Coleman describes the Powermate 5045 as a “commercial” grade heater, and the package label identifies it as an “industrial” heater. It operates off of 20-pound or larger propane tanks and is rated at up to 45,000 Btu of heat output. The warning on the base of the heater states: “Follow instructions and Warnings to avoid fires, serious injury or death. For outdoor or well ventilated construction use only. Never use inside house, camper, tent, vehicle or other unventilated or enclosed area.” Haney had seen the warning but had not read its contents. The Powermate 5045 also includes product instructions which direct users to open the propane tank fully and to relight the heater if the flame does not glow…

dissenting:

In this case, the use of a dangerous consumer product, a Powermate 5045 heater, led to the deaths of two people. After Coleman began to sell the Powermate 5045, Coleman learned that the product’s safety features and warnings were inadequate to protect consumers, some of whom died. In such circumstances, I cannot agree with the majority that as a matter of “logic, common sense, justice, [and] policy,” Coleman bore no post-sale duty to warn consumers of heightened dangers associated with the Powermate 5045. Simonetta v. Viad Corp., 165 Wash.2d 341 , 197 P.3d 127, 131 (2008) (en banc).

This appeal arises out of a suit filed by Mari Daniel, the widow of Melvin Daniel and daughter of the late Fred Ramiskey. During a family trip in 2006, Ramiskey, Melvin Daniel, and Robert Haney, a Chief Warrant Officer in the United States Army, used a Coleman Powermate 5045 heater to stay warm at night. Before he went to bed, Haney set the heater to its lowest setting and left the window of his twenty-five foot camper slightly open. Haney awoke to find Ramiskey and Daniel dead from carbon monoxide poisoning. Haney himself was hospitalized, but survived. Roughly two months after the…

Philip A. Talmadge, Peter Lohnes, Tukwila, WA; Michael E. Blue, Jeffrey M. Campiche, Seattle, WA; Patrick J. Kang, Seattle, WA; Thomas C. Bierlein, Issaquah, WA, for the plaintiff-appellant.

Kenneth R. Lang, Amy M. Decker, Wichita, KS; Keith Gerrard, Todd W. Rosencrans, Seattle, WA, for the defendant-appellee.

Before HARRY PREGERSON, JOHN T. NOONAN, JR. and CARLOS T. BEA, Circuit Judges.

Opinion by Judge NOONAN; Dissent by Judge PREGERSON.

NOONAN, Circuit Judge:

This dispute arises from a wrongful death action initiated by Mari Daniel on behalf of her husband and her father, Melvin Daniel and Fred Ramiskey.

In September of 2006, Robert Haney, Fred Ramiskey, and Melvin Daniel went on a hunting trip in the Chambers Lake area near Packwood, Washington, staying in Daniel's twenty-five foot camper. Haney was the owner of a Coleman Powermate 5045 heater, which was purchased in 1995. Coleman describes the Powermate 5045 as a "commercial" grade heater, and the package label identifies it as an "industrial" heater. It operates off of 20-pound or larger propane tanks and is rated at up to 45,000 Btu of heat output. The warning on the base of the heater states: "Follow instructions and…