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Barnish v. KWI Building Co.

October 2, 2009

ALFONCE A. BARNISH AND BILLIE M. BOZIC, HIS WIFE, APPELLANTS
v.
KWI BUILDING COMPANY; UNITED MCGILL CORPORATION; MCGILL AIRCLEAN CORPORATION; FENWAL SAFETY SYSTEMS, INC.; AND GRECON ELECTRONICS, INC., APPELLEES
SANDY L. BUSSARD AND CHRISTINE L. BUSSARD, HIS WIFE, APPELLANTS
v.
KWI BUILDING COMPANY; UNITED MCGILL CORPORATION; MCGILL AIRCLEAN CORPORATION; FENWAL SAFETY SYSTEMS, INC.; AND GRECON ELECTRONICS, INC., APPELLEES
DAVID A. JOHNSON AND STACEY L. JOHNSON, HIS WIFE, APPELLANTS
v.
KWI BUILDING COMPANY; UNITED MCGILL CORPORATION; MCGILL AIRCLEAN CORPORATION; FENWAL SAFETY SYSTEMS, INC.; AND GRECON ELECTRONICS, INC., APPELLEES
JODY L. COVERT, EXECUTRIX OF THE ESTATE OF JAMES C. COVERT, DECEASED, APPELLANT
v.
KWI BUILDING COMPANY; UNITED MCGILL CORPORATION; MCGILL AIRCLEAN CORPORATION; FENWAL SAFETY SYSTEMS, INC.; AND GRECON ELECTRONICS, INC., APPELLEES
JOYCE ENGELKEN, EXECUTRIX OF THE ESTATE OF GREGG ENGELKEN (A/K/A GREGORY G.), DECEASED, AND JOYCE ENGELKEN, WIFE, INDIVIDUALLY,
v.
KWI BUILDING COMPANY; UNITED MCGILL CORPORATION; MCGILL AIRCLEAN CORPORATION; FENWAL SAFETY SYSTEMS, INC.; AND GRECON ELECTRONICS, INC., APPELLEES



Appeal from the Order of the Superior Court entered January 2, 2007 at No. 1983 WDA 2005, affirming the Order of the Court of Common Pleas of McKean County entered October 19, 2005 at No. 1488 CD 2001. Appeal from the Order of the Superior Court entered January 2, 2007 at No. 1984 WDA 2005, affirming the Order of the Court of Common Pleas of McKean County entered October 19, 2005 at No. 1490 CD 2001. Appeal from the Order of the Superior Court entered January 2, 2007 at No. 1985 WDA 2005, affirming the Order of the Court of Common Pleas of McKean County entered October 19, 2005 at No. 1489 CD 2001. Appeal from the Order of the Superior Court entered January 2, 2007 at No. 1986 WDA 2005, affirming the Order of the Court of Common Pleas of McKean County entered October 19, 2005 at No. 1487 CD 2001. Appeal from the Order of the Superior Court entered January 2, 2007 at No. 2037 WDA 2005, affirming the Order of the Court of Common Pleas of McKean Appellants County entered October 19, 2005 at No. 1486 CD 2001.

The opinion of the court was delivered by: Mr. Justice Baer

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ARGUED: September 8, 2008

OPINION

We granted review in this case to consider the effect of a product's prior successful use on a plaintiff's ability to withstand summary judgment in a strict product liability action based upon the malfunction theory. As will be discussed in more detail below, a plaintiff pursuing a case under the malfunction theory can assert a successful strict product liability claim based purely on circumstantial evidence in cases where the allegedly defective product has been destroyed or is otherwise unavailable. Although the plaintiff does not have to specify the defect in the product, the plaintiff nonetheless must present evidence from which a jury can infer the elements of a strict liability action, beyond mere speculation. In this case, the plaintiffs sued numerous defendants that they alleged were liable for an explosion and fire in February 2001, at a particleboard plant. The only remaining defendant at this juncture is the manufacturer of the factory's spark detection system, which plaintiffs allege malfunctioned when it failed to activate as intended, precipitating the catastrophe. The trial court granted summary judgment to the manufacturer of the spark detection system, and the Superior Court affirmed. We affirm the decision based on the standard principle of summary judgment that a plaintiff must establish a genuine issue of material fact as to each element of the plaintiff's cause of action challenged in the defendant's motion for summary judgment. In this case, the defendant challenged the plaintiffs' ability to establish that the product's allegedly defective condition existed when it left the manufacturer's control, in light of the plaintiffs' admission that the product functioned properly for ten years prior to the incident in question. Absent some evidence, direct or circumstantial, to explain how the product could both function properly prior to the accident and be defective at the time of delivery, the plaintiffs failed to meet the required element of a strict liability claim that the product was defective when it left the manufacturer's control. Accordingly, we affirm the grant of summary judgment to the defendant.

In 1991, Allegheny Particleboard, Inc. (API) purchased a spark detection system from GreCon Electronics, Inc. (Manufacturer) for its Mount Jewett, Pennsylvania particleboard manufacturing plant. The system was designed with multiple sensors to detect sparks along a conveyor belt system carrying combustible raw materials. If the sensors detected sparks or a heat source, the system would respond by sounding an alarm, triggering a water deluge, and, at times, other measures, such as reversing the direction of the conveyor belt, depending on which sensor was triggered. API performed all maintenance on the system, save for one service call Manufacturer made to the plant in 1993. Indeed, the plaintiffs in this case admitted that the "evidence of record establishes that, prior to February 13, 2001, the [Manufacturer's] detection system had functioned properly." Plaintiff's Response to [Manufacturer's] Motion for Summary Judgment, ¶ 13. In this regard, one of the named plaintiffs testified at his deposition that the sensors in question had activated properly during "numerous other fires" and a prior explosion at the plant. Deposition of Alfonce Barnish, at 142-43(Q: "Do you know if in fact these sensors, if they were involved in any aspect of these fires and explosions, if they in fact activated prior to the events?" A: "Yes."), 198 (answering affirmatively that "[e]very time there had been a fire that originated in the dryer, it has been detected by [Manufacturer's] sensor prior to February 13, 2001").

On February 13, 2001, Plaintiffs aver that employees of one of the other defendants named in the lawsuit, KWI Building Company, used a torch to cut a catwalk guardrail on the outside of the factory. It is alleged that sparks from that operation entered the plant through a gap in the wall and fell onto one of the conveyors transporting the combustible materials for the particleboard. Apparently, employees of the plant extinguished several areas of smoldering material inside the plant. Nonetheless, hours later, several of API's plant employees saw a glowing ember the size of a small football on the conveyor. Based upon the location where the ember was observed, Plaintiffs assert that it would have passed at least the fourth and fifth sensors of the detection system. However, none of the five sensors activated a response to the ember. An explosion and fire resulted, killing Gregory Engelken and James Covert and severely injuring Plaintiffs Barnish, Bussard, and Johnson.

The injured employees, their spouses, and the executrixes of the decedents' estates, collectively "Plaintiffs," filed suit against various defendants,*fn1 including Manufacturer, in the McKean County Court of Common Pleas. Plaintiffs settled their claims against all the defendants other than Manufacturer. Plaintiffs' claim against Manufacturer sounded in strict product liability based on allegations that the sensors were defective.*fn2

Plaintiffs, however, could not present direct evidence of a defect in the sensors because the sensors were lost after the explosion and fire. Instead, Plaintiffs proceeded under the malfunction theory, which allows for proof of strict product liability claims through circumstantial evidence.

We digress briefly from the procedural history of this case to discuss the malfunction theory. Although many courts applying the malfunction theory under Pennsylvania law have cited to the lead opinion in Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974), as a primary authority for Pennsylvania law on the malfunction theory, we note that that decision was a non-precedential, plurality opinion.*fn3 This Court, however, did adopt the malfunction theory in Rogers v. Johnson & Johnson Products, Inc., 565 A.2d 751 (Pa. 1989).

In Rogers, we acknowledged our prior adoption of Section 402A of the Restatement (Second) of Torts, providing for "a plaintiff's right to pursue an action in strict liability against the manufacturer of a product."*fn4 Id. at 754. To bring a Section 402A claim, a plaintiff must demonstrate, inter alia, that the product was defective, that the defect caused the plaintiff's injury, and the defect existed at the time the product left the manufacturer's control. See Id.; Dansak v. Cameron Coca-Cola Bottling Co., Inc., 703 A.2d 489 (Pa. Super. 1997); RESTATEMENT (SECOND) OF TORTS § 402A(1)(b). We observed that in most cases, plaintiffs would produce direct evidence of an alleged defect in the product to establish the required elements of a Section 402A claim. "In some instances, however, the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the 'malfunction' theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction." Id. We stated that the malfunction theory permitted "a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction." Id.

While reminiscent of the logic of a res ipsa loquitur case, the malfunction theory requirements correlate with the three elements of a standard 402A claim. See, e.g., Higgins v. General Motors Corp., 699 S.W.2d 741, 743 (Ark. 1985)("Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable."). First, the "occurrence of a malfunction" is merely circumstantial evidence that the product had a defect, even though the defect cannot be identified. The second element in the proof of a malfunction theory case, which is evidence eliminating abnormal use or reasonable, secondary causes, also helps to establish the first element of a standard strict liability case, the existence of a defect. By demonstrating the absence of other potential causes for the malfunction, the plaintiff allows the jury to infer the existence of defect from the fact of a malfunction. For example, by presenting a case free of abnormal uses, such as using the product for an unintended purpose, the plaintiff can demonstrate that the product failed to perform as a reasonable customer would expect; thus, that it malfunctioned. Similarly, by eliminating other reasonable secondary causes, a plaintiff allows the jury to infer that a defect in the product caused the malfunction, as opposed, for example, to operator error or failure to service the equipment. Similarly, by presenting a case free of "abnormal uses" by the plaintiff and free of "other reasonable secondary causes," a plaintiff can establish through inference from circumstantial evidence the second and third elements of a 402A case, that the alleged defect caused the injury (as opposed to another cause) and that the defect existed when it left the manufacturer's control (as opposed to developing after the product left the manufacturer's control).*fn5

By point of comparison, a plaintiff does not present a prima facie malfunction theory case if the plaintiff's theory of the case includes facts indicating that the plaintiff was using the product in violation of the product directions and/or warnings. In such a case, no reasonable jury could infer that an unspecified defect caused a malfunction when the more likely explanation is the abnormal use. Similarly, if the plaintiff's theory of the case includes another cause for the malfunction such as a improper maintenance or substantial wear and tear from regular use, a reasonable jury could not conclude that the product was defective at the time of delivery when facts presented by the plaintiff suggest a cause for the malfunction unrelated to the alleged, unspecified defect.

Conversely, if the plaintiff presents a prima facie case free of abnormal use and secondary causes and the defense counters with a separate theory of causation, the case should go to the jury to resolve the question of fact. Rogers, 565 A.2d at 755 ("[S]o long as the plaintiffs presented a case-in-chief free of secondary causes which justified ...


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