In two cases, sump pump manufacturers were charged with "wrongful deaths." Who's to blame?

An explosion rang out from a basement at a gas station in Maine when someone tried to operate a sump pump to remove gasoline. The arc (resulting from energizing the pump's motor) caused the explosion. Unfortunately, the incident resulted in a tragic death. Did the sump pump manufacturer provide adequate warning? This is the first of two cases involving electrical equipment, sump pump manufacturers, and tragic deaths.

In the first case, should the manufacturer have placed an easily seen warning on the pump stating: "Do not use for removing gasoline?" It seems obvious such a device is for removing water (these pumps have float switches for turning the pump ON or OFF, depending upon the water level). While reasonable and adequate warnings are appropriate and necessary, it is nearly impossible to create a product warning label listing that prevents a person from misusing that product.

Suppose someone uses a sump pump for distributing milk to containers; and in doing so, contaminates the milk with oil and grease from the pump's seals. This could occur even if someone thoroughly cleaned the pump. No one would suggest a sump pump manufacturer has a duty to protect citizens from the hazards of contaminated milk, due to the misuse of its product. In this case, the court agreed with the defense, concluding the sump pump manufacturer would not have reasonably anticipated someone would be foolish enough to use a sump pump to remove gasoline.

The second incident involved a young man who, while standing in water in a basement, touched a water pipe with his hand. The pipe was connected to a sump pump. Upon touching the pipe, he was electrocuted.

In this case, an attorney, who learned of my previous assignment by the legal Internet, contacted me. I agreed to review the situation. The attorney was defending the pump manufacturer. Several documents contained references to the plaintiff's expert, who stated that a ground fault circuit interrupter (GFCI) was not properly protecting the sump pump. Someone should have attached the GFCI to the cord of the pump. The plaintiff's expert tested the pump and receptacle. He relied exclusively on a "three-lamp circuit tester" in lieu of a more accurate and reliable ground circuit impedance tester.

By coincidence, a short time after we commenced an initial review of the files, we received our copy of the December '98 issue of EC&M. On page 16, there was an article (PQ Corner) written by Ken Michaels, a power quality specialist. In this article, Michaels suggests many three-lamp circuit testers are more suitable as night lights than circuit testers. He documented various scenarios where false conclusions resulted from various tests using the device. We found the same problem here!

Based on our review of the documents, we concluded the man's death was due to lack of a GFCI in the circuit. However, we were convinced the lack of GFCI protection was not due to negligence on the part of the sump pump manufacturer.

We struggled with two issues in this second assignment: The expert's opinion was based on an inappropriate method of testing, and we weren't able to visit the site or inspect the pump and related branch circuit wiring system. Our judgment was based only on our review of the documents, because the attorney declined to let us proceed. A thorough forensic investigation in this matter would be expensive, and the site of the incident was more than a thousand miles from our office.

During our analysis to determine who was negligent, we reviewed the 1996 National Electrical Code (NEC), which the local municipality adopted. We were looking for information to answer the key question: Did the sump pump manufacturer have a duty to provide a ground fault circuit interrupter (GFCI) in the cord leading from the pump?

The NEC, in Sec. 210-8(a), Ground-Fault Circuit-Interrupter Protection for Personnel states:

Dwelling Units. All 125V single-phase, 15- and 20A receptacles installed in the locations specified below shall have ground-fault circuit-interrupter protection for personnel.

As part of this Article, in paragraph (5) it states:

Unfinished basements. For purposes of this section, unfinished basements are defined as portions or areas of the basement not intended as habitable rooms and limited to storage areas, work areas, and the like.

However, two exceptions relate to (1) receptacles not readily accessible and (2) not easily movable appliances cord and plug connected. Thus, the NEC does not require a GFCI.

Not withstanding that the NEC, in Sec. 90-1(a) states:

Practical Safeguarding. The purpose of this code is the practical safeguarding of persons and property from hazards arising from the use of electricity.

This overall theme did not address the issue at hand, and its effect was small comfort to the family of the man who was electrocuted.

Had the courts retained us to conduct a comprehensive forensic investigation, we would have focused our study on the equipment return path. We would have inspected the wiring of the receptacle and tested the pump; as well as its components for shorts and grounds. Further, we would have followed the pipe as it left the sump pump to its final destination, where the water would discharge. We also would have followed any connections to this pipe, to determine if the pipe was completely made of metallic or plastic components; or both.

Unable to conduct these essential tasks, we determined the most important aspect of this case was the misuse of a simple test device. The three approved methods of assuring GFCI protection of personnel are (1) to make sure there's a breaker that contains a GFCI in use for protecting the circuit serving the sump pump; (2) to use a UL-approved receptacle containing a GFCI as the device for supplying power to the sump pump; or (3) to install an in-line GFCI in the cord as required in the NEC.

We could not conclude the sump pump manufacturer was negligent in the design or construction of this product.

Every time there's a tragic death, it is not always realistic to blame a particular product or manufacturer. We should also use the right tools for testing. Inexpensive three-lamp testers have no place in the real world of electrical testing.