In a bizarre (and some would say poetic) twist on the recent violent protests against the United States, a Pakistani protester, Abdullah Ismail, died after reportedly inhaling smoke from a burning American flag in Lahore.
Ismail died at Mayo Hospital a day after attending the protest and flag burning. His associates said that he immediately felt ill after inhaling the smoke from the burning flag.
Now here is a provocative thought for torts. The Supreme Court has said that flag burning is protected speech and has long been a common expression of protest. See Texas v. Johnson, 491 U.S. 397 (1989) and U.S. v. Eichman, 496 U.S. 310 (1990 If flag manufacturers can expect that a certain number of flags will be burned, is this a case of “foreseeable misuse” for a product liability case. The claim would be that the highly toxic chemicals are a defective design due to their release in anticipated burning. Of course, a warning could suffice to warn extremists who show due care in selecting flags to burn. See Comment j to the Restatement (Second) of Torts 402A (“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” ). However, as noted in Lewis v. Am. Cyanamid Co., 682 A.2d 724, 732 (N.J. Super. Ct. App. Div. 1996):
If there is an objectively foreseeable likelihood that a product will be subject to misuse and that that misuse will endanger users despite appropriate warnings, then warnings alone will not satisfy the manufacturer’s duty. In addition to providing warnings, the manufacturer must also take all other feasible measures required by a risk-utility analysis to make even anticipated misusers of the product reasonably safe.
Of course, I would not start looking for a contingency lawyer just yet. Even if you could get pass the jurisdictional problems and finding 12 people in voir dire without a bias against a flag burning religious fanatic, you would still have assumption of the risk problems for a man who participated in a despicable act.
Source: NY Post