CASE NOTES

Plaintiffs Defeat Summary Judgment Against Manufacturer of Lighter

A mother, Shonda, and her son, Brandon, died in a fire in their trailer. The fire investigators determined the fire started in 4-year-old Brandon's room, and the only incendiary device found in the room was the metal tip of a utility lighter. The families sued the manufacturer of the lighter in federal court. They sought compensatory and exemplary damages on the basis of product liability, negligence, breach of express and implied warranties, misrepresentation, and violations of the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code ' 17.46 et seq.

The district court concluded that the plaintiffs could not prove a defect in the Aim 'n Flame utility lighter, which was designed, manufactured, and distributed by Scripto-Tokai, caused the fire that destroyed the trailer and resulted in the deaths. They appealed the district court's grant of summary judgment to defendants, Scripto-Tokai. The appellate court disagreed and concluded that plaintiffs presented sufficient summary judgment evidence to create a genuine issue of material fact as to whether the Aim 'n Flame caused the fatal fire.

Plaintiffs' primary claim was that Scripto-Tokai was liable under the theory of product liability based on the defective design of the defendants' lighter. In Texas, the state's Civil Practice & Remedy Code ' 82.005 and Section 402A of the Restatement (Second) of Torts govern product liability claims for design defects. The criteria therein require the plaintiff to show that: 1) because of its defective design, the product is unreasonably dangerous, 2) a safer alternative design exists, and 3) the defective design was the producing cause of the plaintiffs' injuries.

Scripto-Tokai argued, inter alia, that the lighter was made for adult use and that it was not unreasonably dangerous because the danger would be apparent to the ordinary user. The circuit court agreed with Scripto-Tokai that the dangers associated with the Aim 'n Flame might be readily apparent to the reasonable user. However, this fact alone did not tilt the balance of the risk-utility analysis so far in Scripto-Tokai's favor as to support summary judgment. The Supreme Court of Texas has consistently held that liability for a design defect may be found even if the defect is apparent. Thus, issues of fact precluded summary judgment on plaintiffs' product liability claims based on defective design.

With regard to a safer alternative design, the plaintiffs presented substantial evidence that an adequate child-resistant mechanism would have prevented the fire. A jury could find it unlikely that 4-year-old Brandon would have been able to ignite the Aim 'n Flame had it been equipped with the child-resistant features. Thus, the plaintiffs produced evidence from which a jury could find that the lack of an adequate child-resistant mechanism was a substantial factor in starting the fire. The plaintiffs met their burden of production that questions of fact remain with regard to whether a 'safer alternative design' existed at the time the Aim 'n Flame left the control of Scripto-Tokai.

As to causation, the only evidence of an ignition source found in Brandon's bedroom, where the fire originated, was the remains of the lighter. This fact, together with other surrounding circumstances, created a genuine issue of material fact as to whether Brandon started the fire with the lighter. Plaintiffs produced substantial evidence from which a jury could find that the lighter without the child resistant features was defectively designed and was a substantial factor in starting the fire. Thus, summary judgment was not appropriate and the circuit court therefore vacated the district court's order granting summary judgment on plaintiffs' design defect claims and remanded the case to the district court. Flock v. Scripto-Tokai Corp., No. 022-20098, Fifth Cir., Feb. 3, 2003.

Plaintiff Must Show Damages to Prove Negligent Spoliation

John Swick seriously injured his left arm, hand, and fingers when he attempted to inspect and repair the newspaper conveyor system of his employer, The New York Times ('The Times'). He sued the manufacturer and its successors-in-interest, alleging they were negligent in the design, manufacture, repair, maintenance, and inspection of the conveyor system that caused his injuries.

Because the plaintiff knew The Times intended to dismantle the conveyor due to a plant closing, his attorney wrote The Times, requesting the opportunity to inspect the equipment. After two more requests failed to result in an inspection, the plaintiff filed a petition in New York against The New York Times, seeking pre-lawsuit discovery. The Times indicated it no longer possessed the subject conveyor and had sold it to a company in the Philippines.

Almost a year later, the plaintiff commenced the action in New Jersey against the manufacturers of the equipment, and asserted claim of intentional and negligent spoliation of evidence against The Times, asserting that the newspaper had irreparably prejudiced his opportunity to prove a product liability action against the manufacturers because the conveyor had been sold. The Times denied liability, while acknowledging that the conveyor had been sold and removed.

Following a hearing, the court concluded that defendant had a duty to preserve the conveyor as of the date the plaintiff's attorney wrote to request inspection of the conveyor. The matter was scheduled for trial. Prior to trial, the plaintiff dismissed his complaint against all defendants except the newspaper.

The trial court dismissed the plaintiff's complaint, concluding that plaintiff could not establish a prima facie case of spoliation. A recent state supreme court case, Rosenblit v. Zimmerman, 166 N.J. 391, 766 A.2d 749 (2001), held that New Jersey does not recognize intentional spoliation as a separate cause of action, but a claim for negligence could be maintained. The trial judge noted: 'The problem I have here is that we can have no trial on the issue of whether or not the product liability case would result in a finding of no cause, or whether in fact there could be damages and I say that because all of the defendants in this case have been dismissed out, so there can be no trial of making that determination.'

The appellate court agreed. It noted that the plaintiff could have pursued a more traditional discovery sanction, eg, asked the trial court to require The Times to pay for the cost for his expert to travel to the location of the machine and examine the machine as a reasonable expense resulting from The Times' conduct. Instead, the plaintiff ultimately dismissed his complaint against the manufacturers and successor corporations. The court then applied traditional negligence principles to the case and concluded that the crucial issue was whether the plaintiff could demonstrate damages caused by the breach of the defendant's duty to preserve the evidence. The evidence showed that the manufacturer of the machine was out of business, and there was no insurance coverage. Thus, even if the machine had been available for the plaintiff's expert to examine, and even if the plaintiff had obtained a judgment against the manufacturer, the plaintiff could not recover damages from the manufacturer. Consequently, the plaintiff could not prove that the failure of The Times to preserve the machine proximately caused any injury to the plaintiff. The appellate court thus affirmed summary judgment in favor of The Times. Swick v. The New York Times Co., Docket No. A-2988-01T5, N.J. Super.Ct., App.Div., Feb. 7, 2003.

Plaintiffs Defeat Summary Judgment Against Manufacturer of Lighter

A mother, Shonda, and her son, Brandon, died in a fire in their trailer. The fire investigators determined the fire started in 4-year-old Brandon's room, and the only incendiary device found in the room was the metal tip of a utility lighter. The families sued the manufacturer of the lighter in federal court. They sought compensatory and exemplary damages on the basis of product liability, negligence, breach of express and implied warranties, misrepresentation, and violations of the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code ' 17.46 et seq.

The district court concluded that the plaintiffs could not prove a defect in the Aim 'n Flame utility lighter, which was designed, manufactured, and distributed by Scripto-Tokai, caused the fire that destroyed the trailer and resulted in the deaths. They appealed the district court's grant of summary judgment to defendants, Scripto-Tokai. The appellate court disagreed and concluded that plaintiffs presented sufficient summary judgment evidence to create a genuine issue of material fact as to whether the Aim 'n Flame caused the fatal fire.

Plaintiffs' primary claim was that Scripto-Tokai was liable under the theory of product liability based on the defective design of the defendants' lighter. In Texas, the state's Civil Practice & Remedy Code ' 82.005 and Section 402A of the Restatement (Second) of Torts govern product liability claims for design defects. The criteria therein require the plaintiff to show that: 1) because of its defective design, the product is unreasonably dangerous, 2) a safer alternative design exists, and 3) the defective design was the producing cause of the plaintiffs' injuries.

Scripto-Tokai argued, inter alia, that the lighter was made for adult use and that it was not unreasonably dangerous because the danger would be apparent to the ordinary user. The circuit court agreed with Scripto-Tokai that the dangers associated with the Aim 'n Flame might be readily apparent to the reasonable user. However, this fact alone did not tilt the balance of the risk-utility analysis so far in Scripto-Tokai's favor as to support summary judgment. The Supreme Court of Texas has consistently held that liability for a design defect may be found even if the defect is apparent. Thus, issues of fact precluded summary judgment on plaintiffs' product liability claims based on defective design.

With regard to a safer alternative design, the plaintiffs presented substantial evidence that an adequate child-resistant mechanism would have prevented the fire. A jury could find it unlikely that 4-year-old Brandon would have been able to ignite the Aim 'n Flame had it been equipped with the child-resistant features. Thus, the plaintiffs produced evidence from which a jury could find that the lack of an adequate child-resistant mechanism was a substantial factor in starting the fire. The plaintiffs met their burden of production that questions of fact remain with regard to whether a 'safer alternative design' existed at the time the Aim 'n Flame left the control of Scripto-Tokai.

As to causation, the only evidence of an ignition source found in Brandon's bedroom, where the fire originated, was the remains of the lighter. This fact, together with other surrounding circumstances, created a genuine issue of material fact as to whether Brandon started the fire with the lighter. Plaintiffs produced substantial evidence from which a jury could find that the lighter without the child resistant features was defectively designed and was a substantial factor in starting the fire. Thus, summary judgment was not appropriate and the circuit court therefore vacated the district court's order granting summary judgment on plaintiffs' design defect claims and remanded the case to the district court. Flock v. Scripto-Tokai Corp., No. 022-20098, Fifth Cir., Feb. 3, 2003.

Plaintiff Must Show Damages to Prove Negligent Spoliation

John Swick seriously injured his left arm, hand, and fingers when he attempted to inspect and repair the newspaper conveyor system of his employer, The New York Times ('The Times'). He sued the manufacturer and its successors-in-interest, alleging they were negligent in the design, manufacture, repair, maintenance, and inspection of the conveyor system that caused his injuries.

Because the plaintiff knew The Times intended to dismantle the conveyor due to a plant closing, his attorney wrote The Times, requesting the opportunity to inspect the equipment. After two more requests failed to result in an inspection, the plaintiff filed a petition in New York against The New York Times, seeking pre-lawsuit discovery. The Times indicated it no longer possessed the subject conveyor and had sold it to a company in the Philippines.

Almost a year later, the plaintiff commenced the action in New Jersey against the manufacturers of the equipment, and asserted claim of intentional and negligent spoliation of evidence against The Times, asserting that the newspaper had irreparably prejudiced his opportunity to prove a product liability action against the manufacturers because the conveyor had been sold. The Times denied liability, while acknowledging that the conveyor had been sold and removed.

Following a hearing, the court concluded that defendant had a duty to preserve the conveyor as of the date the plaintiff's attorney wrote to request inspection of the conveyor. The matter was scheduled for trial. Prior to trial, the plaintiff dismissed his complaint against all defendants except the newspaper.

The trial court dismissed the plaintiff's complaint, concluding that plaintiff could not establish a prima facie case of spoliation. A recent state supreme court case, Rosenblit v. Zimmerman , 166 N.J. 391, 766 A.2d 749 (2001), held that New Jersey does not recognize intentional spoliation as a separate cause of action, but a claim for negligence could be maintained. The trial judge noted: 'The problem I have here is that we can have no trial on the issue of whether or not the product liability case would result in a finding of no cause, or whether in fact there could be damages and I say that because all of the defendants in this case have been dismissed out, so there can be no trial of making that determination.'

The appellate court agreed. It noted that the plaintiff could have pursued a more traditional discovery sanction, eg, asked the trial court to require The Times to pay for the cost for his expert to travel to the location of the machine and examine the machine as a reasonable expense resulting from The Times' conduct. Instead, the plaintiff ultimately dismissed his complaint against the manufacturers and successor corporations. The court then applied traditional negligence principles to the case and concluded that the crucial issue was whether the plaintiff could demonstrate damages caused by the breach of the defendant's duty to preserve the evidence. The evidence showed that the manufacturer of the machine was out of business, and there was no insurance coverage. Thus, even if the machine had been available for the plaintiff's expert to examine, and even if the plaintiff had obtained a judgment against the manufacturer, the plaintiff could not recover damages from the manufacturer. Consequently, the plaintiff could not prove that the failure of The Times to preserve the machine proximately caused any injury to the plaintiff. The appellate court thus affirmed summary judgment in favor of The Times. Swick v. The New York Times Co., Docket No. A-2988-01T5, N.J. Super.Ct., App.Div., Feb. 7, 2003.