Torch cutter at Alcoa gets burned, sues maker of protective garment

By Nicholas Malfitano | Oct 16, 2018

PHILADELPHIA – A man employed as a torch cutter is suing Aramark and its subsidiaries for allegedly manufacturing and distributing a protective garment that he claims failed to protect him from second and third-degree burns he sustained on the job.

Charles A. Nalewak of Elizabethtown filed suit in the Philadelphia County Court of Common Pleas on Dec. 14 versus various Aramark entities, some of whom were dismissed from the litigation on Oct. 2.

“On Jan. 26, 2016, plaintiff Charles Nalewak was an employee of Alcoa in Lancaster, Pennsylvania. Pursuant to his employment duties, plaintiff was wearing an apparel product sold and/or rented for use by plaintiff by Aramark subsidiary defendants…to serve as plaintiff’s personal protective equipment,” the suit states.

“Plaintiff was engaged in his job and using a torch while wearing the subject apparel product…[when it] ignited, causing plaintiff, the product user, to be engulfed in flames and to suffer second-degree and third-degree burns over his chest and torso.”

Nalewak suffered the above-mentioned burns, scarring and disfigurement and incurred past and future medical costs, lost wages, lost earnings capacity and physical pain and suffering, the suit says. According to the plaintiff, the defendants failed to properly design, manufacture, inspect, test or warn about the allegedly-defective and dangerous apparel, among other allegations.

Among several preliminary objections filed Oct. 3, the Aramark defendants claimed Nalewak failed to sufficiently allege facts, either pursuant to the consumer expectations test or the risk utility test (per Tincher v. Omega Flex) to show that his 100% percent cotton, not-flame resistant garment was defective, failed to make allegations aimed at piercing the corporate veil and failed to allege why the “not-flame resistant” garment malfunctioned, nor why it was reasonably expected, or an intended purpose of the product, to be used while engaged in hot torch cutting.

Moreover, in new matter filed that same day, the defendants argued the lawsuit should be dismissed because the plaintiff failed to state a claim upon which relief could be granted, failed to mitigate his damages and caused his own injuries while wearing the garment in question.

For counts of negligence, products liability and breach of warranty, the plaintiff is seeking damages, jointly and severally, in excess of $50,000, plus all damages available under the facts and Pennsylvania law and a trial by jury.

The plaintiff is represented by Peter M. Patton and Debra A. Jensen of Galfand Berger, in Philadelphia.

The defendants are represented by Charles J. Reitmeyer and Natalie M. Georges of Morgan Lewis & Bockius, also in Philadelphia.

Philadelphia County Court of Common Pleas case 171201748

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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