Product Liability –
Indeterminate Defect

By:  Robert M. Cavalier

The appellate division in New Jersey recently reaffirmed the “Indeterminate Product Defect Test.”  This doctrine is akin to the negligence concept of res ipsa loquitor which in essence lowers the level of proof a plaintiff must come forward with to defeat a summary judgment application.

            In State Farm Fire & Casualty, Co. v Kaz, Inc., 2008 WL 2122639 (App. Div. May 22, 2008), State Farm (as subrogee) appealed from a summary judgment dismissal of its product liability action the manufacturer of an electric fan which allegedly caused a house fire.  The product involved was purchased approximately one (1) year earlier at a Target department store and was located on a small bedroom dresser.  Plaintiff contended they did not modify, adjust or damage the fan in any way and it was installed in a manner which did not compromise the wire.  With a somewhat obviously flawed analysis, the Gloucester County Fire Marshal who investigated the fire, concluded it started as result of a failure of a cord which led to a free standing lamp plugged into a different outlet.  However, plaintiff’s expert opined the remains of the lamp cord 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 the lamp was eliminated as a possible cause of the fire.  With regard to an examination of the remains of the fan, plaintiff’s expert concluded there was no evidence of electrical activity on the wires and no visible melting of the stator coil.  Nonetheless, he noted “other circumstances indicated that it (fan) cannot be eliminated as the cause of the fire”.  Specifically, the only power cord which was energized at the time of the fire was the cord to the fan and thus the expert stated his opinion to a reasonable degree of scientific certainty the fire was due to a malfunction of the fan or its integral power cord.  The Fire Marshal and plaintiff’s expert agreed the duplex outlet itself where the lamp was plugged into was not the cause of the fire as the switch was in the off position and thus the fan was the only appliance electrically energized in the area of the fire’s origin.

            In granting summary judgment, the trial court stated plaintiff did not satisfy the second prong of the “indeterminate product defect test”.  Namely plaintiff did not eliminate maintenance or other causes and therefore the inference the defect existed when the fan left the manufacturer’s control was not supported by the facts of the case.  On appeal, plaintiff relied upon a 1999 New Jersey Supreme Court case which set forth the test provided in the Restatement (Third) of Torts: Products Liability §3 (1997) and provides:

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.

This test, allows a jury to rely on circumstantial evidence to infer there was a defect by reasoning from circumstances and the facts shown.  It is important to note, the burden of proof is not shifted to the defendant.  In reversing the trial court, appellate division discussed several prior cases which focused on the need for plaintiff to provide adequate proofs to negate other likely causes of the malfunction, thereby permitting the inference.  In this case, plaintiff’s use and installation of the product was simple and plaintiff affirmatively stated no alternations were made.  Defendant argued the plaintiff should have left the fan unplugged from the outlet when it was not in use which was consistent with the product manual’s instruction.  However, the court was not persuaded and stated the manual did not set forth a reason for this specific instruction.

The State Farm decision seems to provide a check list of items which must be included in an expert’s report when no specific theory of defect can be expressed.  The required (foundation) statements for the plaintiff presents an opportunity for a rather subjective overview of the analysis and a simple threshold for a plaintiff to comply with in order to put its case before a jury.