Vermont Bar Journal
Summer 2008 - #10.
The Least Stroke of a Pen: The Restatement (Third) of Torts, Products Liability, and Circumstantial Means of Proving Defect in Vermont Law
The Vermont Bar Journal #174, Volume 34, No. 2 SUMMER 2008
The Least Stroke of a Pen: The Restatement (Third) of Torts, Products Liability, and Circumstantial Means of Proving Defect in Vermont Lawby John A. Tartaglia, III, Esq.
A disturbing trend has emerged in Vermont products liability case law. Vermont courts and federal courts applying Vermont law have displayed a tendency to focus more on the doctrinal labels governing liability for product related injuries, the illusory distinctions between them,(fn1) and their compatibility with other principles of tort law,(fn2) rather than the functional formulas underlying those labels. Such a practice needlessly confuses things for practitioners and muddles the law. A recent decision of the Second Circuit Court of Appeals(fn3) exemplifies this trend and presents the Vermont Supreme Court with an opportunity to clarify an important aspect of product liability law: the manner in which a plaintiff establishes defect through circumstantial evidence. This article examines the various doctrines that allow the trier of fact to draw an inference of product defect from the circumstances surrounding the accident. It is clear that a single formula underlies all of these doctrines. The undesirable results of a failure to recognize this fact are chronicled as well. From this it is abundantly clear that the Vermont Supreme Court should apply this functional formula to prove an unspecified defect regardless of the theory under which plaintiff seeks recovery.
Allstate Insurance Company v. Hamilton Beach/Proctor Silex, Inc.
Gary Malboeuf purchased one of Hamilton Beach's coffee makers from an Ames department store in mid- to late- May of 2002.(fn4) Upon returning home he set the package that housed the coffee maker on his kitchen floor.(fn5) There it sat until the night of June 13, 2002, when Malboeuf took it out of the packaging, rinsed the glass carafe and filled it with ground coffee in preparation for use the next morning.(fn6) After he rose the next day he plugged it in to brew a cup of coffee with the machine for the first time.(fn7) He filled his travel mug, turned off the machine and left for work with it still plugged in.(fn8) Less than three hours after Malboeuf's departure, a neighbor observed flames coming from Malbouef's home. After the St. Albans fire department quelled the blaze, Chief Gary Palmer investigated the scene to determine its cause. The coffee maker itself was almost completely destroyed but Palmer concluded that the fire started in the spot where it was located.(fn9) Malboeuf's insurer, Allstate, sent an investigator to the scene and he noted that physical evidence was consistent with this proposition.(fn10) A second investigation ruled out all of the other possible sources of ignition.(fn11) Based upon his examination of stranded wires from the coffee maker's power cord, Allstate's electrical engineer concluded that arcing in the wires was the most probable cause of the fire.(fn12) Defendant's expert disputed whether any electrical arcing in the power cord would have been strong enough to cause a fire.(fn13)
In a subrogation action against Hamilton Beach, Allstate asserted warranty and strict liability claims. Allstate argued that they had produced sufficient evidence to allow an inference of defect pursuant to section 3 of the Restatement (Third) of Torts: Products Liability.(fn14) In his recommendation Magistrate Judge Niedermeier held that there was no need to consider whether the Vermont Supreme Court would adopt section 3 because plaintiff's failure to eliminate the possibility that the coffee maker had been damaged at some point post-sale but pre-accident prevented them from prevailing under it.(fn15) Judge Murtha adopted this recommendation and awarded defendants summary judgment. An appeal ensued.
The Second Circuit reversed the trial court's decision to grant defendant's summary judgment motion. Although they believed that the Vermont Supreme Court would adopt section 3's "malfunction theory," the Court thought that it was unnecessary to formally enter such a prediction because, under established rules of causation in Vermont law, the plaintiff produced sufficient evidence on its warranty and strict liability claims.(fn16) The court also found support for its holding in the policies underlying "strict liability."(fn17) Ultimately, the court laid down the following rule, In sum, under Vermont law Plaintiffs prevail in their opposition to Defendant's summary judgment motion if they can establish that: (1) their evidence would allow a jury to reasonably to conclude that a defect in the coffee maker was the most probable cause of the fire; and (2) a jury could reasonably infer that the product was defective while still in the possession and control of Hamilton Beach and the defect was not due to any post-purchase mishandling or misuse.(fn18)
The Allstate court's failure to indicate whether this rule applies exclusively to the breach of warranty or strict liability leads one to conclude that, when it comes to circumstantial cases, the two theories have been conflated.
Restatement (Third), Section 3
The Restatement (Third) allows plaintiffs to establish a product defect through circumstantial evidence. Section 3 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 product defect; and (b) was not, in the particular case, solely the result of causes other than defect existing at the time of sale or distribution.(fn19)
The standard for product safety in this section can be described as one that is implicit and internal.(fn20) It is implicit in the sense that it typically applies when products fail to safely perform the functions that the manufacturer manifestly, yet implicitly, intends...