Connecticut Supreme Court appeal

AUGUST 29, 2011
VOL. 37 • NO. 30
CTLAWTRIBUNE.COM
Court Mows Down Products Liability Claim
‘Malfunction theory’ clarified in case involving lawn tractor
By CHRISTIAN NOLAN
M
Attorney Bruce Raymond said the evidence suggested that the fire started
in a different part of the garage from
where the lawn tractor (the same model
as the one picture above) was parked.
er Adams-Beman, of Skelley Rottner in
West Hartford, pointed to the lawnmower’s
rough ride earlier that morning as an indication of an electrical defect that caused the
fire in the garage. Adams-Beman used expert testimony from Scott Boris and Thomas Bush of NEFCO Fire Investigations in
New Hampshire to further her claim.
John Deere’s lawyer, Bruce H. Raymond,
of Raymond & Bennett in Glastonbury,
however, contended that the fire started in
a different part of the garage. Raymond said
his fire expert noticed an area of significant
fire damage above a wooden bench in the
garage but did not see any damage to the
area to the roof above the mower.
It was hard for investigators to judge the
condition of the mower before the fire, since
it was heavily damaged in the blaze. Also,
the plaintiffs had no direct evidence that
the mower had been defective beforehand.
So Adams-Beman used the malfunction
theory of products liability to try to prove
her claim. This doctrine enables a plaintiff
to prove a product liability case with just
Law Tribune File Photo
etropolitan Property & Casualty
Insurance Co. v. Deere & Co. et al.:
The state Supreme Court has reversed a
$764,000 jury award in a products liability
case involving a John Deere riding mower
and a house fire.
On July 13, 2003, at approximately 10
a.m., Roula Kallivrousis was at her Cheshire
home attempting to mow the lawn with the
family’s John Deere LX 178 lawn tractor.
The mower almost immediately began sputtering and laboring, belching and
backfiring smoke. Sick of the recent problems with the mower, Kallivrousis pulled
the tractor back into the garage.
About an hour-and-a-half later, she noticed an antifreeze smell coming from the
garage. She went to check on it, but noticed nothing unusual and couldn’t find the
source of the odor. She then left the house
with her two children.
Another 90 minutes later, Kallivrousis
received a phone call notifying her that
there had been a fire at her home and that
it had started in the garage. Witnesses reported the fire and the Cheshire Fire Department extinguished the blaze. The fire
destroyed a large portion of the family
home and its contents.
Their homeowner’s insurer, Metropolitan Property & Casualty Co., paid for the
$764,462 in damage and then sought reimbursement from John Deere & Co., claiming that an electrical defect inside the lawnmower caused the fire.
Investigators never determined the official cause of the fire, but they ruled out
any foul play. They said the lawnmower was
likely “a significant factor.”
The insurance company’s lawyer, Heath-
circumstantial evidence when direct proof
of a defect is unavailable.
This argument worked with the Hartford
Superior Court jury and the trial judge,
James Bentivegna, but not with the state
Supreme Court justices.
“Although the malfunction theory is
based on the principle that the fact of an accident can support an inference of a defect,
proof of an accident alone is insufficient to
establish a manufacturer’s liability,” wrote
Justice Peter T. Zarella.
“Although the loss of a product in an
accident may harm the plaintiff ’s case, it
also may prevent the manufacturer from
defending itself by proving the absence of a
defect in a particular product,” Zarella continued. “Furthermore, the loss of the product does not make it any more likely that
a defect in the product existed, so courts
must be cautious not to diminish a plain-
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AUGUST 29, 2011
tiff ’s burden of proof in such cases.”
This had been an unclear area of the law
for some time, said Raymond. The state’s
highest court took the case from the state
Appellate Court in order to provide guidance on the law.
Raymond said the court appears to have
narrowed the applicability of the malfunction theory in product liability cases.
“Before this, we had no real position
from the Supreme Court on the malfunction theory in Connecticut,” said Raymond. “Now the court has defined when
and what circumstances it’s going to apply.
In the future, the law will be more clearly spelled out on what type of proof the
plaintiff will have to bring to court to avail
itself of this theory.”
CONNECTICUT LAW TRIBUNE
Zarella spelled out specific factors that
judges will look for when a plaintiff wants
to argue the malfunction theory. The first
factor is whether the incident that caused
the harm is of a kind that ordinarily does
not occur in the absence of a product
defect. The second factor is whether the
defect most likely existed at the time the
product left the manufacturer’s or seller’s
control.
This second factor, Raymond maintains,
would not have been proven by the plaintiff in this case. He said the lawnmower had
worked fine for several years after it was
purchased in 1998. And when it was repaired in the months prior to the fire, the
dealer said there was no defect causing the
sputtering and backfiring.
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Adams-Beman said despite the Supreme
Court ruling, she does not necessarily think
the pendulum has swung in the favor of the
defense when it comes to these types of
products liability cases. She said plaintiffs’
lawyers will have to take a “harder look” at
the circumstantial evidence they do have in
light of the guidance in this opinion.
“It’s a difficult burden when you don’t
have the specific defect to begin with and
that’s the basis for using the malfunction
doctrine,” Adam-Beman said. “It’s going to
be [reviewed] on a case by case basis.”
Though the house that burned eventually was rebuilt, the Kallivrousises moved
to a different part of Cheshire. “It was too
traumatic for them to go back there,” Adams-Beman said.
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