May 22, 2008
STATE FARM FIRE & CASUALTY CO., AS SUBROGEE OF RICHARD SNYDER AND AMY SNYDER, PLAINTIFF-APPELLANT,
KAZ, INC., HONEYWELL INTERNATIONAL, INC., JOHN DOES NOS. 1-10, AND ABC CORPS. NOS. 1-10, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2008
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 generated from electrical energy, and that "the only possible cause for the fire is electrical energy, and the only energized item in the origin area is the Kaz fan plugged into the energized outlet of the receptacle," he concluded:
It is my opinion to a reasonable degree of scientific certainty, that the fire was due to a malfunction of the Kaz branded fan or its integral power cord. This is the only device energized at the origin of a fire classified as being cause[d] by electrical energy outside the wall. The only other electrical item in the vicinity was a floor lamp that was not energized at the time of the fire.
Hansen agreed with Marshall's findings and disagreed with those of the fire marshal, noting that the latter "did not note the existence of the fan remains in his report and assumes the wires found in the room were from the lamp." Hansen thus concluded: the cause of this fire was the result of a malfunction of the fan and/or it's [sic] power cord. The remains of the duplex outlet were eliminated as a cause by F/M Johnson and myself, and the lamp, according to Mrs. Snyder, was plugged into the upper switched section of the outlet and was not energized at the time of the fire since the switch was found in the off position by F/M Johnson, thus the fan was the only appliance electrically energized in the area of the fire's origin.
Plaintiff is an insurance carrier providing property and casualty insurance for the Snyders' home. Pursuant to the terms of the homeowners' insurance policy, State Farm made payments to the Snyders for property destroyed in the fire, alternative living arrangements, and the repair of their home. State Farm, in exercising its subrogation rights against defendant, then sued, alleging that defendant manufactured a defective fan, which caused the fire in the Snyders' home.
Following submission of plaintiff's supplemental expert reports on the last business day before discovery ended, defendant moved for summary judgment. After considering the late filings, the court granted the motion dismissing plaintiff's complaint with prejudice on the basis that plaintiff did not satisfy the second prong of the "indeterminate product defect test[,]"*fn3 namely that plaintiff had not eliminated maintenance or other causes, and therefore "the inference that there was a defect in the fan that existed at the time it left Kaz' control is not supported by the facts in the case."
Plaintiff then moved for reconsideration, providing a supplemental certification of the Snyders further describing their use and maintenance of the fan and representing that the fan was "not modified, adjusted, maintained or damaged in any way." Considering the supplemental certification, the court explained that it originally granted summary judgment because "there was no real evidence as to the handling, storage, and usage of the fan after it was purchased[,]" and that "[u]pon review of the plaintiff's supplemental certification, I am still not satisfied that the evidence and circumstances presented are such that it is appropriate to apply the indeterminate defect, and allow an inference in this case." The court declined to equate malfunction of the fan with a defect at the time it left the manufacturer, and concluded:
I think the difference here is common sense does not lead to the conclusion that a product defect causes a fan to be on fire. . . . But, fans, computers, certain items are known to be of greater hazard than others. I don't think there's a common sense that if a fan starts a fire, it's because it was a defective fan. I think there are just too many other factors as set forth in the case. . . . Fans are known to be dangerous products, oscillating fans, and they do not fall into the category in my view of a product where you can just say, "There's a fan and a fire, therefore infer a defect at the time it left the manufacturer." There's too many intervening things that can occur.
On appeal, plaintiff contends a jury question exists as to liability and that the summary judgment dismissal of its complaint was error. We agree.
As a threshold matter, we note that the court properly considered plaintiff's two additional expert reports even though submitted late, within the last twenty days of discovery. See Rule 4:17-7; Ponden v. Ponden, 374 N.J. Super. l, 9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005); Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003). The circumstances, in our view, warrant relaxation of the rule's time constraints. Most notably, although plaintiff submitted the reports on May 11, 2007, the matter was not scheduled for trial until August 6, 2007, and plaintiff's counsel had earlier advised defendant's counsel on March 29, 2007, that he would be obtaining an expert report from an electrical engineer and that he intended to supplement Hansen's report "as a result of Fire Marshal Johnson's [deposition] testimony." Moreover, the motion judge found no lack of due diligence on the part of plaintiff's counsel and that "[State Farm] was diligently attempting to get [the expert reports] and serve them within the discovery time."
We also find no error in the court's consideration, on plaintiff's motion for reconsideration, of the Snyders' supplemental certification. R. 4:49-2. In any event, defendant did not properly preserve the issue on cross-appeal.
A plaintiff may prove the existence of a product defect by relying on the testimony of an expert or alternatively, a plaintiff may proffer circumstantial evidence of a defect, including use, handling, and operation of the product. Lauder v. Teaneck Volunteer Ambulance Corps., 368 N.J. Super. 320, 331 (App. Div. 2004). Expert testimony is required, however, when the "matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982) (citation omitted).
If "the case involves a complex instrumentality, expert testimony is needed in order to help the fact-finder understand 'the mechanical intricacies of the instrumentality' and help to exclude other possible causes of the accident." Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2000) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 546 (App.Div.), certif. denied, 145 N.J. 374 (1996)).
To be sure, "[c]ertain dangerous conditions that create the foreseeable risk of fire are well known to ordinary people and are a matter of common knowledge." Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (citation omitted). In Scully, supra, the Court stated that "[a] jury does not need a fire expert to explain to it the dangers that might follow when a lit cigarette is thrown into a pile of papers or other flammable material." Ibid.
Here, of course, a jury would be asked to determine whether there was a defect in the fan and whether the fan's malfunction caused the fire. The electrical wiring of an appliance and the electrical infrastructure of a house are not matters within a jury's common knowledge. Ibid. The issue in this case, therefore, is esoteric in nature and an expert would be required to assist the jury's determination whether a defect existed and whether it caused the fire.
Plaintiff in this case relies on the "indeterminate product defect test," as adopted in Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84 (1999), to establish defendant's products liability. The indeterminate product defect test is the same test as provided in the Restatement (Third) of Torts: Products Liability:
It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of a product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.
[Myrlak, supra, 157 N.J. at 104 (quoting Restatement (Third) of Torts § 3 (1997)).]
The indeterminate product defect test allows a jury to "rely on circumstantial evidence to infer that there was a defect by reasoning from circumstances and the facts shown."
Id. at 107 (internal quotations omitted). It does not, however, shift the burden of proof. Ibid.
Here, plaintiff presented expert proof that either the electric fan or its cord was the cause of the fire, therefore allowing the inference that the incident was of a kind that ordinarily occurs as a result of a product defect. However, such expert proof establishes merely the existence of a defect, not the cause of the defect, and therefore does not further allow the inference that the defect is one for which defendant is responsible, or was the result of an unreasonably dangerous condition that existed at the time the product left the manufacturer's hands. On this score, there must be additional proof "to negate other likely causes of the . . . malfunction[,]" Moraca v. Ford Motor Co., 66 N.J. 454, 460 (1975), namely that plaintiff's use or maintenance of the product did not cause the defect.
For instance, Jakubowski v. Minn. Mining & Mfg. Corp., 42 N.J. 177, 183-84 (1964), addressed the proper scope of res ipsa when the defendant manufacturer is no longer in exclusive control of the product that causes an accident. There, the plaintiff, a Ford Motor Company employee, sued the manufacturer of an allegedly defective disc that broke and injured the plaintiff while he was using it in the course of his employment. Id. at 179-80. The record, however, was devoid of evidence describing "the manner and extent of use of the disc prior to [the] plaintiff's use." Id. at 186. The plaintiff did not produce a witness or other testimony that excluded the possibility of mishandling or overuse causing the disc to break.
Ibid. In the absence of such proof, the court declined to hold the manufacturer liable and held that "[i]n order to recover, [plaintiff] must present evidence from which it is reasonable to infer that more probably than not[,] the cause of the break was one for which the defendant is responsible." Ibid. (citations omitted).
In Moraca, supra, on the other hand, the Court found that the plaintiff produced adequate proofs "to negate other likely causes of the . . . malfunction thereby permitting the inference that it was the result of an unreasonably dangerous condition which existed at the time the vehicle left the manufacturer's hands." 66 N.J. at 460 (citing Jakubowski, supra, 42 N.J. at 186). In that case, the plaintiff, who sued the manufacturer of his car, provided the following proofs: the car he purchased was a new model; he had the car serviced at 6,000 miles; at the time of the accident the car had approximately 11,000 miles on it; he brought the car to a neighborhood service station for a front end service prior to the accident; and, that he heard an odd noise momentarily before the car malfunctioned. Id. at 458-59. Crediting the plaintiff's proofs, the Court held that the evidence "tend[ed] to negate other possible causes of the accident and indicate that more likely than not a critical malfunction in the steering system occurred." Id. at 459.
Contrastingly, in Scanlon v. Gen. Motors Corp., 65 N.J. 582 (1974), which involved a nine-month old station wagon with 4,000 miles, the plaintiff established that there was a defect at the time of the accident, namely an accelerator that jammed; however, he failed to establish the manufacturer's responsibility. Id. at 596-97. The plaintiff did not negate other possible causes of the defect, such as improper maintenance or care. Id. at 600. The plaintiff's expert had not examined the car and there was no testimony as to the car's service record. Ibid. Thus, the Court found that the plaintiff failed to present a factual question for the jury. Id. at 599-600.
Here, plaintiff presented sufficient proofs, by way of the Snyders' certifications, to suggest that a defect existed at the time of sale or distribution and to negate the possibility that there were other causes for the fan's alleged failure. In particular, the Snyders' certification explained their use of the fan and established that they simply removed the fan from the box, placed it in their child's room, plugged it in and used it for the first time during the summer of 2005. In a subsequent certification, they represented that they neither "modified, adjusted, maintained or damaged [the fan] in any way."
Contrary to defendant's assertion, the fact that the Snyders may not have demonstrated full compliance with the instructions in the owner's manual -- namely they failed to unplug the fan from the outlet when not in use -- does not preclude a finding that plaintiff provided sufficient evidence to negate any suggestion of improper maintenance or misuse of the fan by the Snyders as a cause of the fire. In other words, the fact that the fan was left plugged in does not establish that the Snyders mishandled the appliance or that such action on their part caused the fire. Indeed, there is no record evidence as to the reason for the manual's instruction not to leave the fan plugged in. In sum, we conclude that plaintiff's proofs, when considered under the Brill standard, render the grant of a summary judgment dismissal of its complaint erroneous.
Reversed and remanded.