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06/18/97 DANIEL O'DONNELL AND MARY O'DONNELL v. BIG

June 18, 1997

DANIEL O'DONNELL AND MARY O'DONNELL, HIS WIFE, APPELLANT
v.
BIG YANK, INC. AND K-MART CORPORATION, CLOVER AND MCGREGOR CORPORATION, APPELLEE; DANIEL O'DONNELL AND MARY O'DONNELL, APPELLANT V. BIG YANK, INC. AND CLOVER, INC., APPELLEE



Appeal from the Order entered March 21, 1996 docketed March 25, 1996 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 477 Oct. Term 1991, 1786 Feb. Term 1992. Before KLEIN, J.

Before: Del Sole, Popovich And Olszewski, JJ. Opinion BY Del Sole, J.

The opinion of the court was delivered by: Del Sole

OPINION BY DEL SOLE, J.

FILED: June 18, 1997

Following a ruling on two Motions in Limine which precluded a finding of liability against Appellees, the trial court entered an order of Summary Judgment in their favor and against Appellants. The Conclusion that an award of Summary Judgment was warranted came after the court ruled that the "spoliation" doctrine applied in this matter and that Appellants' claims were pre-empted by federal legislation. Because we have determined that both these Conclusions were reached in error, we reverse the award of Summary Judgment and remand this matter for trial.

Appellants, Mr. and Mrs. O'Donnell, brought this action against Appellees claiming that Mr. O'Donnell sustained injuries while employed as a cable splicer. *fn1 They claim that he made contact with electrical voltage which arced from an underground substation. Appellants maintain that Mr. O'Donnell's garments ignited, quickly melted upon exposure to flame and produced a hot tarry substance which caused or substantially enhanced his burn injuries. Appellants assert that Mrs. O'Donnell purchased these work clothes for her husband at Appellee, K-Mart's store, and that Appellee, Big Yank Inc., manufactured or otherwise distributed through its vendors the pants worn by Mr. O'Donnell. Appellants allege the pants were defective when sold.

Appellees filed Motions in Limine based upon the undisputed fact that Appellants had discarded the pants Mr. O'Donnell was wearing at the time of the accident and were unable to produce them for inspection. Appellee also sought relief based upon a federal pre-emption theory since the trousers in question admittedly met federal standards for flammability. The trial court accepted both arguments. It concluded that because Appellants were unable to produce the pants, Appellee, Big Yank, was unable to challenge whether it was the manufacturer of the garment. Further, the court ruled that the absence of the trousers prevented Appellees from pursuing the defense that grease on the pants, rather than their fiber, caused the fire. With regard to the pre-emption argument, the trial court ruled that Appellants could not claim that the design of the pants was defective, since it admittedly met federal safety standards. Accordingly, the court granted the Motions in Limine and entered Summary Judgment against Appellants. This appeal followed.

We first address the "spoliation" argument prompted by the fact that the pants worn by Mr. O'Donnell at the time of the accident were discarded by Appellants. The trial court cited Roselli v. General Elec. Co., 410 Pa. Super. 223, 228, 599 A.2d 685, 687 (1991), as setting forth the policy behind this rule. However to properly interpret the holding of Roselli, we must examine the particular facts of that case to understand the decision.

In Roselli, the plaintiff alleged she suffered personal injuries when a glass carafe from a coffee maker shattered in her hand, spraying coffee onto her body causing severe burns. She brought an action against General Electric, as manufacturer of the coffee maker, claiming that there existed a defect in this particular carafe which caused it to shatter. The defense offered an expert report which indicated that the base of the machine was scorched and scarred which indicated frequent use. When it was established that the remnants of the glass carafe were discarded and unavailable for inspection by the defense, the trial court awarded the defendant summary judgment. The trial court noted that the plaintiff did not claim this defect occurred in all General Electric coffee makers, and that under such circumstances the entry of summary judgment was warranted. The award was affirmed on appeal with this court commenting that the plaintiff was unable to prove that a malfunction occurred in the absence of abnormal use or reasonable secondary causes. Id. at 230, 599 A.2d at 688. We held that the plaintiff failed to eliminate the realistic possibility that the carafe broke because of its use and handling prior to the date of the incident. Id. at 230, 599 A.2d at 689. Thus, we concluded the plaintiff failed to meet her burden of proof and the award of summary judgment was affirmed.

The trial court in this case cites Roselli for the untenable proposition that whenever a key piece of evidence is discarded, preventing the defendant from undertaking its own independent examination of the product, the spoliation doctrine applies and no evidence concerning the product can be presented by the plaintiff. However the facts of Roselli do not call for such a broad Conclusion. In Roselli the summary judgment was based upon the uncontested facts that the product had been used repeatedly and that the event which was claimed to have occurred with this one specific carafe could have occurred absent a manufacturer defect. The plaintiff, who was unable to produce the product, could not offer evidence in support of her claim of defect. Roselli does not hold that in all cases where evidence has been lost or destroyed prior to suit or inspection, a plaintiff cannot pursue its claim. Rather, traditional concepts of burden of proof remain. In Roselli the award of summary judgment was warranted because the plaintiff failed to present evidence which, if believed, would allow her to meet her burden of proving a defect since the carafe could shatter for reasons unrelated to a defect. However, in cases where the plaintiff is able to establish a defect even if the specific product is lost or destroyed, the case must be allowed to proceed. Such is the situation presented before us.

This case involves a pair of pants worn by the injured party who alleged the garment was constructed of highly flammable material, which was easily ignitable and which melted into a hot tar-like substance. Unlike Roselli an examination of the specific product is not necessary to determine the validity of the claim because the injured party in this case is not claiming a defect particular to this item, but rather that the defect occurs in all like products manufactured and sold by the defendants.

This distinction was recognized by the United States District Court in Quaile v. Carol Cable Co. Inc., 1993 U.S. Dist. LEXIS 2745 (E.D. Pa. Feb 26, 1993). There the court refused a request for summary judgment in an instance where the plaintiff had discarded an allegedly defective lamp. The court concluded that because the plaintiff claimed that all lamps made by the defendant contained the same design defect, the defendant was able to examine its other lamps, and was not prejudiced by the absence of the particular lamp. In reaching its Conclusion the court relied upon the decision in Lee v. Boyle-Midway Household Products, Inc., 792 F. Supp. 1001 (W.D. Pa. 1992) which distinguished its facts from those found in Roselli, (supra) . In reference to Lee, the Quaile court stated:

More recently in Lee v. Boyle-Midway Household Products, Inc. the district court in applying Pennsylvania law, noted that where a plaintiff alleges a defect in all of the defendant's products as opposed to simply alleging a defect in the particular product causing the injury, the case may be distinguished from the holding in Roselli v. General Electric which bars recovery on a defect theory where the product has been destroyed. The district court stated:

Plaintiff's case here could conceivably be distinguished from Rosselli and Martin [ Martin v. Volkswagen of America, Inc., 1989 U.S. Dist. LEXIS 8087 (E. Pa. July 13, 1989)] because the plaintiffs in those cases did not allege a defect present in all of defendants' like products. In this case plaintiff is, at least in part, apparently alleging that Boyle-Midway's Lewis Red Devil Lye Drain ...


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