[PUBLISH]

IN THE UMTED STATES COURT 0F APP` ALS
F¢LED
FC)R THE ELEVENTH CIRCU!T U-S- COURF OFAPPEALS
a ELEvENrH clRcurr
JuN 2_1»2012
No. 11-10405
n JOI'INLEY
CLERK
D.C. D0cket No. l:09-cv-23789-JLK
LILYBET FARIAS,
Plaintiff-Appellant,
V€I’SUS

NHLHEATER, INC_,

ENERC@ GROUP, INC.,

THE HOME DEPGT, INC.,

d.b.a. H0me Depot USA, Inc.,

Defendants-Appellees.

Appea1 from the United States District Court
for the S0uthem District of Florida

(June 21, 2012)
Before CARNES, BARKETT and BLACK, Circuit Judges.
BARKETT, Circuit Judge:

Lilybet Farias appeals from an adverse summary judgment and the denial of

her Rule 59 motion for reconsideration in favor of Mr. Heater, Inc., Enerco Group,
Inc., and the Home Depot, Inc., ("Defendants"), on her claims of strict products
liability' and negligent failure to warn. Farias asserts that the Defendants
negligently failed to warn her of the danger which could result from the indoor use
of the two propane gas-fired infra-red portable heaters that she purchased from
Home Depot and which had been manufactured by Enerco and Mr. Heater. As a
result of the allegedly inadequate wamings, Farias argues that she unwittingly used
the two heaters inside her home and when she failed to close the valve on one of the
propane gas tanks before going to sleep, her home caught on frre, causing
approximately $300,000 in damages.z On appeal, Farias argues that the district
court erred by resolving as a matter of law, rather than leaving for the jury’s
deter1nination, the question of the adequacy of the warnings and instructions
provided with the propane gas heaters.
lt is well~established that Florida law imposes a duty to wam "where a

product is inherently dangerous or has dangerous propensities" unless such dangers

are known or obvious. See Rodriguez v. NeW Holland North America, Inc., 767

l On appeal, Farias raises no arguments in support of her strict liability claim, and we
therefore deem this claim to have been abandoned. Fanin v. U.S. Dept. of Veterans Affairs,

, 876 n.l (l1th Cir. 2009).

2 Farias was compensated for her losses by her insurance company in the amount of
$3 05,060.86. This action is a subrogation claim in which F arias is seeking to reimburse her
insurance company through a money damages award from the Defendants.

So. 2d 543, 544-45 (Fla. 3d Dist. Ct. App. 2000). The Defendants do not dispute
that they had a duty to wam users of the propane gas heaters of the potential harmful
consequences of this product. Instead the parties’ dispute is whether the wamings
and instructions that Enerco provided with its Mr. Heater propane gas heater were
adequate and whether the district court correctly resolved this question as a matter of
law, rather than leaving it for the jury’s determination,

"While in many instances the adequacy of warnings . . . is a question_of fact,"
the Florida Supreme Court has held that it can be' resolved as a question of law where
the warning is "accurate, clear, and unambiguous." Felix v. Hoffmarm-LaRoche.
L, 

, 105 (Fla. 1989) (noting that many other courts have held the
same). "To wam adequately, the product label must make apparent the potential
harmful consequences. The warning must be of such intensity as to cause a
reasonable man to exercise for his own safety caution commensurate with the
potential danger." Scheman-Gonzalez v. Saber Mfg. Co., 816 So. 2d l133, 1139
(Fla. 4th Dist. Ct. App. 2002).' The adequacy of a warning is "determined by a
‘reasonable person’ standard, rather than on each particular plaintiffs subjective
appreciation of the danger." Bvrnes v. Honda Motor Co., Ltd., 

,
281 (S.D. Fla. 1994). Accordingly, and contrary to Farias’s contentions otherwise,

the question of the adequacy of the warnings accompanying the Mr. Heater propane

gas heater can properly be resolved as a matter of law so long as the warnings are
objectively accurate, clear, and unambiguous.

Although the allegations in Farias’s Complaint and her summary judgment

l arguments predominately addressed whether the Defendants had a duty under

Florida law to provide warnings in the Spanish language,3 on appeal, Farias does not
challenge the district court’s conclusion that Florida law does not automatically
impose a duty to provide bilingual warnings on consumer products. Instead, Farias
presents two arguments in support of her contention that the adequacy of the l
warnings accompanying the Mr. Heater propane heater must be determined by a
jury. First, she argues that the district court erred in concluding that the
English-language written warnings and graphic depictions, which were provided,
can be deemed "adequate" as a matter of law because she asserts they are inherently
contradictory, inaccurate and ambiguous. She also argues that the circumstances
surrounding the Defendants’ marketing of the Mr. Heater propane gas heaters to

Miami’s Hispanic'community are similar to the facts of Stanlev Indus., Inc. v. W.M.

3 The parties’ summary judgment arguments also addressed whether the Defendants
actually provided sufficient Spanish-language warnings The Defendants argued in the
altemative that if they had a duty to provide Spanish-language warnings, they satisfied that duty
through the warnings that appeared on the propane gas tank that was used with the Mr. Heater.
Having concluded that the Defendants were not required as a matter of Florida law to provide
warnings in the Spanish language, the district court did not reach this question. Although Farias
argues on appeal that the adequacy of the Spanish language warnings that allegedly were on the
propane gas tank should be determined by a jury, we need not address her argument having
concluded that the English language warnings were adequate as a matter of law.

Barr & Co., 

 (S.D. Fla. l992), which left the question of the
adequacy of the English-only wamings on a consumer product to the jury.

While we have some doubts about whether the arguments Farias puts forth on
appeal were properly raised in the district court,4 we nonetheless see no error in the
district court’s conclusion that the warnings provided by the Defendants were
adequate as a matter of law. Having considered the totality of the written wamings
and graphic depictions, we find that the Defendants adequately notified consumers
of the "apparent potential harmful consequences" of the indoor use of the Mr. Heater
propane gas heater, including the risk of frre. . See Scheman-Gonzalez. 816 So. 2d at
1139. We are not persuaded by Farias’s argument that the picture illustrations on

the packaging material and the written instruction manual were ambiguous as to

whether the heater could be used inside a person’s home and whether the heater

4 The arguments Farias raises on appeal are more consistent with the two bases she raised
in her Rule 59 motion for reconsideration of the district court’s summary judgment order. Farias
also noticed her appeal of the district court’s denial of her Rule 59 motion, which it appears the
district court considered on the merits (rather than dismissing for procedural reasons), and
therefore we will treat Farias’s arguments raised on her Rule 59 motion as properly before us. On
appeal, Farias also relies on documents, which she argues demonstrate that Home Depot assumed
a duty to provide Spanish language instructions and warnings on its products by adopting a policy
requiring its vendors to use bilingual packaging. These documents were introduced for the first
time as part of her Rule 59 motion. In denying the Rule 59 motion on the merits, the district court
seems to have accepted Farias’s evidence into the record. We, therefore, will treat these
documents as part of the record. Ultimately, however, none of these newly raised arguments or
evidence persuades us that the district court erred in its conclusion that the Defendants’ warnings
were adequate as a matter of law.

posed a fire hazard if used inside a person’s home.

As to the adequacy of the wamings that the heater could only be used
outdoors, the outside of the product’s box contained, in addition to others, the
following operating instructions and "important safeguards": "This heater is
recommended for outdoor use only"; "Always store propane cylinders outdoors in
well-ventilated areas"; "Not designed for use in living areas or small tightly
enclosed spaces"; and "Propane cylinders should be located outdoors during heater
operation." The box also listed as examples of product use: "Construction Sites,"
"Auto & Truck Repair," "Other Vehicle Maintenance (farm equipment, trailers,
etc.)," "Animal Comfort," "Outdoor Jobs," "Thawing & Heating Purposes," and

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"Recreation, Poolside Areas. Moreover, the boxes had six photos depicting
appropriate uses of the heaters, each labeled with the depicted use including,
"Loading Docks," "New Construction," "Warehouses," "Splitting Wood," "Patios,"
and "Home Auto Repair."

The instruction manual also provided the following relevant warnings about
the appropriate use of the heater:

READ INSTRUCTIONS CAREFULLY: Read and follow all

instructions. Place instructions in a safe place for future reference.

Do not allow anyone who has not read these instructions to assemble,

light, adjust or operate the heater.

DO NOT LEAVE I-[EATER UNATTENDED OR IN OPERATION

WHILE SLEEPING

WARNING: _

CARBON MONOXIDE CAN~KILL YOU: USING A PORTABLE
GAS CAl\/IPING HEATER INSIDE A TENT, RV, CAMPER,
VEHICLE, SHELTER OR OTHER ENCLOSED AREAS CAN
PRODUCE DEADLY CARBON MONOXIDE.

WARNlNG: NOT FOR HOl\/fE OR RECREATIONAL VEHICLE
USE

WARNING: Asphyxiation Hazard: Do not use this heater for heating
human living quarters. Do not use in unventilated areas.

WARNING: This heater is an unvented appliance and

MUST be used ONLY in a well-ventilated area. NEVER attempt to

operate the heater inside any vehicle, camper or enclosure.

THIS HEATER MUST BE USED WITH ADEQUATE

VENTILATION. Do not use in a tightly enclosed area. Two

openings directly to the outdoors MUST be provided.

WARNING: To avoid injury or property damage never allow

clothing, tents or other combustible material within 24" of the heater.

This heater must be located at least 32" above the floor level when in

use. Never operate the heater while sleeping.
Farias argues that the warning about not leaving the heater unattended while
sleeping and the wamings about ventilation raise an ambiguity about whether the
heater can be used inside cfa residential home. She also argues that the pictures of
the proposed use of the heater in the warehouse, new construction site and on a patio

add to that ambiguity. We however, do not find that the warnings or pictures create

any ambiguity about whether the heater can be used inside a residential home as

Farias suggests. There are several written warnings that the heater must only be
used outdoors. These wamings make it clear that it is unsafe to use the heater in
living areas, dwellings, tightly enclosed areas or near combustible items. None of

the pictures show the heater being used inside a home. The depicted patio use and

home auto repair feature both users performing an outdoor activity at their homes.

The warnings also adequately convey the message that misuse of the heater
runs a serious risk of not only frre, but explosions, asphyxiation, carbon monoxide
poisoning, electrical shock, and personal injury, loss of life and property darnage.
Those warnings are provided in bold and capital letters and contain the headings
"WARNING." We find these warnings to be "of such intensity as to cause a
reasonable man to exercise for his own safety caution commensurate with the
potential danger" of fire that occurred due to Farias’s misuse of the heater.
Scheman-Gonzalez, 816 So. 2d at 1139.

Finally, we are unpersuaded that the facts of this case are similar to those in
Stanlev Indus. Inc. v. W.M. Barr & Co., 

, 1576 (S.D. Fla. 1992), in
which the district court concluded that "[g]iven the advertising of defendants’
product in the Hispanic media and the pervasive presence of foreign-tongued
individuals in the Mia1ni workforce, it is for the jury to decide whether a warning, to

be adequate, must contain language other than English or pictorial warning

symbols." lJnlike in Farias’s case, in Stanley Industries, the district court found
that the manufacturer and seller of the linseed oil, which caused a fire, engaged
"regularly and actively" in general marketing on "Hispanic television, on four
different Hispanic radio stations and in Diario Las Americas, a Spanish-language
newspaper." 784 F. Supp. at 1573. Just three weeks before the fire, the seller
placed an order for an advertisement for the linseed oil to run in Diario Las
Americas. I_d. Given these facts involving the specific targeting of the largely
Hispanic "unskilled or semi-skilled Miami workforce" through the Hispanic media,
the district court concluded that a jury should detennine if the adequacy of the
wamings necessitated them to be in Spanish. I_d.

I-Iere, Farias has produced no evidence that Enerco or Home Depot
specifically marketed the Mr. Heater in any way to Spanish-speaking customers
through the use of Hispanic media, That Home Depot has recently instituted an
intemal policy for all of its vendors to use bilingual packaging is not evidence cfa
targeted marketing campaign of the Mr. Heater to Miami’s Hispanic community
through predominantly Hispanic media outlets.

Because we find no error in the district court’s conclusion that the warnings
provided with the Mr. Heater were adequate as a matter of law, we hereby AAF FIRM

the grant of summary judgment in favor of the Defendants on Farias’s claim of

negligent failure to warn.5 We also AFFIRM the denial of Farias’s Rule 59 motion
for reconsideration.

AFFIRMED.

5 Having concluded that the English warnings and instructions were adequate as a matter of law,
we need not address Farias’s additional arguments regarding proximate cause.

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