On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-474-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, S. L. Reisner and Baxter.
Plaintiff, State Farm Fire & Casualty Co. (State Farm), as subrogee of Richard and Amy Snyder, appeals from a summary judgment dismissal of its product liability action against defendant Kaz, Inc.*fn1, manufacturer of the electric fan that allegedly caused fire damage to the Snyders' home. For the following reasons, we reverse.
The facts, as viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. All agree that the November 2, 2005 fire at the Snyders' home at 345 Kali Lane in Williamstown started in a second floor bedroom and is attributed to electrical energy. According to Amy Snyder, there was a [free-standing] lamp and small Honeywell Fan on top of the dresser in the bedroom of origin and [that it was] plugged into the duplex outlet behind the dresser.
The duplex outlet was split with the top outlet being energized by the wall switch [which was in the 'off' position], and the [bottom] outlet[, which] the fan was plugged into . . . [, was] always energized.
Amy Snyder also indicated that the day before the fire, she heard the fan motor occasionally make a faint humming noise, noticed it would not oscillate, and smelled a slight burning odor on the second floor.
According to the Snyders, the subject fan was one of three they purchased at a Target store during the previous October. They placed the three boxes unopened on a shelf in their basement until the summer of 2005, at which time the fans were removed from the boxes and placed in their children's bedrooms.*fn2
They claimed not to have modified, adjusted or damaged the fans in any way. They placed the subject fan in their daughter's bedroom in a place where the dresser did not compromise the fan's wire. As noted, at the time of the fire, the bedroom lamp was plugged into a receptacle controlled by a switch while the fan was plugged into a receptacle that was always energized; and the light switch in the bedroom was in the "off" position.
The Gloucester County Fire Marshal who investigated the fire, Edward Johnson, reported that a standing floor lamp found in a hole in the flooring caused by the fire had been plugged into the outlet on the east wall of a second floor bedroom. His report goes on to state:
The electric line that led to the lamp was found in the hole and parts of it along the baseboard on the east wall of the room. The wires were examined for evidence and it was determined that the stranded wires in the cord were cherry red in color and welded together at one end of the cord. The cord was found in three pieces, the first piece had the remains of the plug and blades on the plug were examined and were clean of debris and smoke staining. This indicated that the lamp had been plugged into the wall at the time of the fire. The second piece was the center of the cord and this was where the end of the cord was welded together and showed a cherry red appearance. The third section was on the lamp stand itself and that end was still attached to the lamp, which had been heavily damaged by the fire. According to the homeowner, the lamp was approximately 10 years old and had been with them the entire time.
The fire marshal further "observed three separate electric wires going into the receptacle and was unsure if the switch operated this receptacle." He found a wire along the baseboard of the wall that was pushed up against the baseboard by the leg of the dresser and may have caused a restriction in the wiring. The fire marshal noted that the remains of the wires were coiled under the dresser, which may have been on top of the wire, causing the line to build up heat and catch fire. However, not accounting for the fan and therefore assuming that the wires found in the room were from the lamp, the fire marshal ultimately concluded that the fire started on a second floor bedroom and was due to "the failure of the cord that led to the stand style lamp."
Plaintiff's experts, Randolph Marshall and Harry Hansen, opined otherwise and concluded that the cause of the fire was the fan manufactured by Kaz/Honeywell. Marshall opined that the remains of the cord of the lamp showed no evidence of electrical activity from the broken end of the cord at the base of the lamp to the broken end at the lamp shell, and therefore he eliminated this portion of the lamp as a possible cause of the fire. And although he examined the remains of the fan, finding that "[t]here is no evidence of electrical activity on the wires and no visible melting of the stator coil[,]" he noted that "other circumstances indicate that it cannot be eliminated as the cause of the fire." Namely, the only power cord that was energized at the time of the fire was the cord to the fan. Noting further that the welding of copper wires must have been caused by heat ...