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"Recall Alerts"

12-14-2007

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. MICHIGAN COURT RECOGNIZES RULE THAT ARSON CASES CAN BE PROVEN
  2. Elmo USA Corp. Recalls Visual Presenters Due to Fire Hazard
  3. Meijer Inc. Recalls Firepits; Product Can Tip Over and Pose a Fire Hazard
  4. General Electric Recalls Microwave Combo Wall Ovens Due to Fire Hazard
  5. Black & Decker® Brand Toasters Recalled By Applica Consumer Products Inc. Due to Fire Hazard
  6. Collins International Co. Recalls Oscillating Ceramic Heaters Sold at Menards Retail Stores Due To Fire Hazard
  7. Hairstyling Irons Recalled by Farouk Systems Inc. Due to Fire and Burn Hazards
  8. Outdoor Vacuums with Honda Engines Recalled By Billy Goat Industries Inc. Due to Fire Hazard
  9. Venmar Ventilation Inc. Recalls Heat Recovery Ventilators Due to Fire Hazard


(1) MICHIGAN COURT RECOGNIZES RULE THAT ARSON CASES CAN BE PROVEN

Case Summary

In People v. Smith, 2007 Mich. App. Lexis 2460, the court upheld Defendant's arson/felony murder convictions based solely on circumstantial evidence that the fire was caused by arson. In this case, the circumstantial evidence consisted of the arson investigator's testimony that the fire had: two areas of origin in the basement, burning patterns consistent with the use of a flammable liquid accelerant, and evidence of a rag with an odor of gasoline. The court recognized that "there is rarely direct evidence of the actual lighting of a fire by an arsonist; rather, the evidence of arson is usually circumstantial."

Detailed Facts

Following a bench trial, defendant was convicted of two counts of first-degree felony murder, MCL 750.316(1)(b), and arson of a dwelling house, MCL 750.72. The trial court subsequently vacated the arson conviction and sentenced defendant to two concurrent terms of life imprisonment for the felony-murder convictions. Defendant appeals as of right. We affirm.

Defendant's convictions arise from a fire at a two-story, four-unit apartment building in Detroit. The fire occurred in the middle of the night and an elderly couple who lived in an upstairs unit were killed in the fire.

Defendant first argues that there was insufficient evidence to prove that the fire was caused by arson. We disagree.

In reviewing a challenge to the sufficiency of the evidence, this Court reviews the evidence de novo in a light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Oliver, 242 Mich. App. 92, 94-95; 617 N.W.2d 721 (2000).

A person who willfully and maliciously [*2] burns a dwelling house is guilty of arson. MCL 750.72. At defendant's trial, the trial court applied CJI2d 31.1, which provides, in pertinent part, that "when there is a fire, the law assumes that it had natural or accidental causes. The prosecutor must overcome this assumption and prove beyond a reasonable doubt that the fire was intentionally set." But as our Supreme Court explained in People v Nowack, 462 Mich. 392, 402; 614 N.W.2d 78 (2000):

In arson cases, the trier of fact usually draws inferences from circumstantial evidence:

"There is rarely direct evidence of the actual lighting of a fire by an arsonist; rather, the evidence of arson is usually circumstantial. Such evidence is often of a negative character; that is, the criminal agency is shown by the absence of circumstances, conditions, and surroundings indicating that the fire resulted from an accidental cause." [Id., quoting Fox v State, 179 Ind App 267, 277; 384 N.E.2d 1159 (1979.]

In this case, Winston Farrow, a police arson investigator, testified that he personally investigated the fire scene and found two locations of origin, in two separate areas of the basement. He found a low burning pattern in the north central area [*3] of the basement, which was consistent with the use of a flammable liquid accelerant. He also observed an area on the east wall, where mattresses and furniture were consumed by the fire. He was able to smell accelerants in both places, most strongly from the north central area of the basement, where he found a rag with odor of an accelerant comparable to gasoline. Farrow also testified that he investigated other possible sources of ignition, such as the furnace and electrical items in the house, but eliminated those sources as a possible cause of the fire. Farrow concluded that the fire "was incendiary in nature," which meant that it was deliberately set using an open flame device with a flammable liquid accelerant.

We disagree with defendant's claim that Farrow's testimony must be disregarded because it violated MRE 703. Because defendant did not object to Farrow's testimony at trial, he must show a plain error affecting his substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). As defendant observes, MRE 703 requires that "[t]he facts or data . . . upon which an expert bases an opinion or inference shall be in evidence." Farrow relied on facts he personally [*4] observed during his investigation of the fire and he testified regarding those facts at trial. Although defendant asserts that the accelerant-soaked rag that Farrow allegedly observed was never produced at trial, Farrow testified that he detected an odor of accelerant "comparable to gasoline" when he examined the rag. Additionally, the rag was analyzed by the state police laboratory and tested positive for gasoline, and the laboratory report was admitted into evidence at trial without objection. Because the facts or data on which Farrow based his opinion were in evidence, his testimony did not violate MRE 703. There was no plain error.

Viewed in a light most favorable to the prosecution, Farrow's testimony was sufficient to enable the trial court to find beyond a reasonable doubt that the fire did not result from natural or accidental causes, but rather, was intentionally and willfully set.

Defendant also argues that even if there was sufficient evidence that he started the fire, the evidence was insufficient to show that he acted with the requisite malice to support a conviction for first-degree felony murder. The elements of felony murder include (1) the killing of a human being, [*5] (2) "with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e. malice]," (3) during the commission or attempted commission of an enumerated felony, including arson. Nowack, supra at 401.

The facts and circumstances of a killing may give rise to an inference of malice, and a jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm. Id. In this case, there was evidence that defendant intentionally set fire to a residential apartment building in the middle of the night, knowing that there were other tenants, including the elderly victims, in the building. From this evidence a rational trier of fact could reasonably find that defendant intentionally set in motion a force likely to cause death or great bodily harm. Thus, there was sufficient evidence of malice to support defendant's felony-murder conviction.

[remaining unrelated portions of opinion omitted).


(2) ELMO USA CORP. RECALLS VISUAL PRESENTERS DUE TO FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. Name of Product: Visual Presenters (sold as Image Presentation Cameras by Epson)

Units: About 54,000

Distributor: ELMO USA Corp. of Plainview, NY

Manufacturer: ELMO Co. Ltd., of Japan

Hazard: Improperly installed fluorescent top lights in the presenter can overheat, posing a fire hazard.

Incidents/Injuries: None reported.

Description: Visual presenters capture images to LCD panels, LCD projectors and TV monitors. The recall includes presenters sold under the ELMO, Epson, Doar Communications, Vtel and Tandberg brand names. The presenters were manufactured between December 1993 and December 2003. The manufacturer information is located on the side, rear and bottom of the main body of the following ELMO model numbers, EV-500AF, EV-400AF, EV-6000AF, EV-8000AF, HV-5000XG, HV-7000SX, HV-8000SX, EV-4400AF, HV-5100XG and Epson model ELPDC02.

Sold by: Elmo dealers, office supply stores and other retailers nationwide from December 1993 to June 2006 for between $2,600 and $9,000.

Manufactured in: Japan

Remedy: Consumers should stop using the recalled visual presenters immediately and contact Elmo USA for all models except Epson. All Epson owners should contact Epson. Consumers with recalled units will receive a free inspection and repair.

Consumer Contact: For additional information, contact Elmo USA at (877) 275-3566 between 9 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s Web site at www.elmousa.com. Epson customers should contact Epson at (800) 444-1498 between 7 a.m. and 5 p.m. PT Monday through Friday or visit the firm’s website at www.epson.com


(3) MEIJER INC. RECALLS FIREPITS; PRODUCT CAN TIP OVER AND POSE A FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. Name of Product: Grand Gourmet Firepits

Units: About 6,000

Distributor/Retailer: Meijer Inc., of Grand Rapids, Mich.

Hazard:The legs of the firepit can bend or snap off during use, causing the firepit to tip over and in turn the fire can escape. This poses a fire hazard to consumers.

Incidents/Injuries: The firm has received reports of two incidents in which the legs of the firepits bowed in and buckled. No injuries have been reported.

Description: This recall involves the Grand Gourmet metal wood-burning firepits model FSQ279. The firepit is black, has four legs and two sparks guards on top. It measures 27 inches wide by 27 inches deep by 25 1/2 inches high. The model number can be found on the cover page of the product manual.

Sold at: Meijer retail stores in Michigan, Ohio, Illinois, Indiana, and Kentucky from September 2004 through August 2007 for about $60.

Manufactured in: Taiwan

Remedy: Consumers should stop using the recalled firepits immediately and return them to their nearest Meijer retailer for a full refund.

Consumer Contact: For additional information, contact Meijer toll-free at (866) 280-8419 between 8 a.m. and 5 p.m. ET or visit the company’s Web site at www.meijer.com


(4) GENERAL ELECTRIC RECALLS MICROWAVE COMBO WALL OVENS DUE TO FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. Name of Product: Built-in Combination Wall and Microwave Ovens

Units: About 92,000

Manufacturer: GE Consumer & Industrial, of Louisville, Ky.

Hazard: The door switch in the microwave oven can overheat and ignite plastic components in the control area, posing a fire hazard to consumers. The lower thermal oven does not pose a hazard.

Incidents/Injuries: GE is aware of 35 incidents of minor property damage and one incident in which a fire damaged adjacent kitchen cabinets. No injuries have been reported.

Description: The recall includes GE combination microwave and conventional built-in wall ovens sold under the following brand names: GE, GE Profile® and Kenmore. The ovens were sold in white, black, bisque and stainless steel. The brand name is printed on the lower left corner on the front of the microwave door. The following model and serial numbers can be found inside the microwave oven on the left interior wall.

 Recalled ModelsSerial number
begins with:
GE / GE Profile JKP85B0A3BB, JKP85B0D1BB, JKP85W0A3WW, JKP85W0D1WW, JKP86B0F1BB, JKP86C0F1CC, JKP86S0F1SS, JKP86W0F1WW,
JT965B0F1BB, JT965C0F1CC, JT965S0F1SS, JT965W0F1WW,
JTP85B0A2BB, JTP85B0A3BB, JTP85B0A4BB, JTP85B0A5BB,
JTP85B0D1BB, JTP85W0A2WW, JTP85W0A3WW, JTP85W0A4WW,
JTP85W0A5WW, JTP85W0D1WW, JTP86B0F1BB, JTP86C0F1CC,
JTP86S0F1SS, JTP86W0F1WW, JTP95B0A2BB, JTP95B0A3BB,
JTP95B0A4BB, JTP95B0A5BB, JTP95B0D1BB, JTP95W0A2WW,
JTP95W0A3WW, JTP95W0A4WW, JTP95W0A5WW, JTP95W0D1WW
AZ, DZ, FZ, GZ, HZ,
LZ, MZ, RZ, SZ, TZ,
VZ, ZZ, AA, DA, FA,
GA, HA, LA, MA, RA,
SA, TA, VA, ZA, AD,
DD, FD, GD, HD, LD,
MD, RD, SD, TD, VD,
ZD, AF, DF, FF, GF,
HF, LF, MF, RF, SF,
TF, VF, ZF
Kenmore
(All model numbers
start with 911)
41485991, 41485992, 41485993, 41485994, 41489991, 41489992,
41489993, 41489994, 49485992, 49489992, 47692100, 47699100,
47862100, 47869100, 47812200, 47813200, 47814200, 47819200,
47792200, 47793200, 47794200, 47799200
0, 1, 2, 3

Sold at: Department and appliance stores from January 2000 to December 2003 for between $1,500 and $2,000.

Manufactured in: United States

Remedy: Consumers should stop using the microwave oven immediately. Consumers should contact GE regarding their GE/GE Profile micro-oven combo or Sears for their Kenmore unit. GE is offering a free repair or rebate on a new product, a $300 rebate toward the purchase of a new GE brand unit, or a $600 rebate toward the purchase of a new GE Profile brand unit. Sears is offering a free repair or $300 rebate toward the purchase of a new Kenmore brand unit. Consumers can continue using the lower thermal oven.

Consumer Contact: For additional information on GE /Profile units, contact General Electric toll-free at (888)-240-2745 from 8 a.m. to 8 p.m. ET Monday through Friday, and 9 a.m. to 3 p.m. ET Saturday, or visit GE’s Web site at www.geappliances.com. For additional information on Kenmore units, contact Sears toll-free at (888) 679-0282 from 8 a.m. to 10 p.m. ET Monday through Saturday, or visit Sears’ Web site at www.sears.com


(5) BLACK & DECKER® BRAND TOASTERS RECALLED BY APPLICA CONSUMER PRODUCTS INC. DUE TO FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products and unplug the unit immediately unless otherwise instructed. Name of Product: Black & Decker® brand Infrawave™ Toasters

Units: About 70,000

Distributor: Applica Consumer Products Inc., of Miramar, Fla.

Hazard: An electrical component in the toaster can overheat and ignite the circuit board, posing a fire hazard.

Incidents/Injuries: Applica has received two reports of the toasters igniting, including one report of fire that damaged a kitchen countertop and cabinets. There have been no reported injuries.

Description and Model: The recalled two-slice toaster is black with stainless steel trim and has a digital display below the toaster lever. The Black & Decker® brand name is on the top of the toaster. Model number ST2000 is printed on the rating plate on the bottom of the toaster.

Manufactured in: China

Sold at: Home improvement and discount department retailers nationwide from March 2007 through November 2007 for about $50.

Remedy: Consumers should stop using the recalled toaster, unplug it immediately, and contact Applica to receive a refund.

Consumer Contact: For additional information, contact Applica at (800) 556-9439 between 8:30 a.m. and 5 p.m. ET Monday through Friday, or log on to the firm's Web site at http://www.acprecall.com


(6) COLLINS INTERNATIONAL CO. RECALLS OSCILLATING CERAMIC HEATERS SOLD AT MENARDS RETAIL STORES DUE TO FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. Name of Product: Oscillating Ceramic Heaters

Units: About 20,000

Importer: Collins International Co., Ltd., of Fair Lawn, N.J.

Hazard: The heaters can overheat, smoke, or ignite which could pose a fire hazard to consumers.

Incidents/Injuries: Collins International has received seven reports of the heaters overheating, smoking, or igniting, including four reports of minor property damage to carpets and floors. No injuries have been reported.

Description: This recall involves 1500 watt oscillating ceramic heaters model EB38005. The heater has a white plastic housing with the name "Heat-Wave" in black on its top. A label on the bottom of the product contains the model and the control number "ETL 3090262."

Manufactured in: China

Sold at: Menards’ stores nationwide from September 2006 through March 2007 for about $25.

Remedy: Consumers should immediately stop using the heaters and return them to the nearest Menards’ store for a full refund.

Consumer Contact: For additional information, contact Collins International toll-free at (866) 877-1889 between 10 a.m. and 4 p.m. ET Monday through Friday, or visit the company’s Web Site at www.collinsinternational.com


(7) HAIRSTYLING IRONS RECALLED BY FAROUK SYSTEMS INC. DUE TO FIRE AND BURN HAZARDS

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. Name of Product: WEE CHI Ceramic Hairstyling Irons

Units: About 5,700

Importer/Distributor: Farouk Systems Inc., of Houston, Texas

Hazard: The iron’s “on/off” switch was installed incorrectly. When the iron is plugged in and switch is in the “off” position, the iron remains “on,” which could pose fire and burn hazards.

Incidents/Injuries: None reported.

Description: The recalled hairstyling iron is black and measures 9.5 inches long. “CHI” is printed on the iron in red lettering. Date code 0306 or 0507 is embossed on the inside of the paddle.

Sold by: Professional beauty supply distributors and beauty salons nationwide from April 2006 through September 2007 for about $160.

Manufactured in: South Korea

Remedy: Consumers should stop using the product immediately and contact the firm to return the product for a full refund or replacement iron. Farouk Systems is directly notifying all distributors and retailers.

Consumer Contact: For additional information, contact Farouk Systems Inc. at (800) 237-9175 between 8 a.m. and 5 p.m. CT Monday through Friday, or visit the firm’s Web site at www.farouk.com


(8) OUTDOOR VACUUMS WITH HONDA ENGINES RECALLED BY BILLY GOAT INDUSTRIES INC. DUE TO FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. Name of Product: Billy Goat MultiVac Outdoor Vacuums

Units: About 1,600

Manufacturer: Billy Goat Industries Inc, of Lee’s Summit, Mo.

Hazard: The vacuum’s fuel tank could crack and leak fuel. If gasoline leaking from the fuel tank is ignited, a fire or explosion can occur. This poses a fire and burn hazard to consumers.

Incidents/Injuries: None reported.

Description: The recalled outdoor vacuum is black and green with a red motor housing. “Billy Goat” is printed on the vacuum’s bag. Only outdoor vacuums with the following model and serial numbers are included in the recall. The model and serial numbers are printed on a label located directly below the height adjustment crank on the left side of the vacuum.

ModelsSerial Numbers
MV650H
MV650SPH
061107xxx
061807xxx
062507xxx
070907xxx
072407xxx
073007xxx
080607xxx
081307xxx
082007xxx
082707xxx
090407xxx
091007xxx

Sold at: Outdoor power equipment and rental dealers nationwide from June 2007 through November 2007 for between $1,500 and $1,850.

Manufactured in: United States

Remedy: Consumers should immediately stop using the recalled outdoor vacuums and contact any Billy Goat or Honda Lawn and Garden dealer for a free fuel tank replacement. Registered owners of the recalled vacuums will be mailed a notice.

Consumer Contact: For additional information, contact Honda at (800) 426-7701 between 8:30 a.m. and 5 p.m. ET Monday through Friday, or visit the firm’s Web site at www.hondapowerequipment.com


(9) VENMAR VENTILATION INC. RECALLS HEAT RECOVERY VENTILATORS DUE TO FIRE HAZARD

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of Product: Heat Recovery Ventilators

Units: About 1,100

Manufacturer: Venmar Ventilation Inc., of Quebec, Canada

Hazard: The thermal protector in these units can fail, posing a potential fire hazard to consumers.

Incidents/Injuries: None reported.

Description: This recall involves heat recovery ventilators made between October 2006 and August 2007, and have the following brand names and model numbers:

BrandModels
Venmar40225
Venmar AVS457XX, 16016XX, 43XXX, 451XX, 45400, 45709IEH, C32042
Vane458XX, 16016XX, 43405, 43828, 45405, 45808
Rheem, Ruud, Protech84-ERVXXX, 84-HRVXXX
CarrierERVCCLHU1200, HRVCCLHA1250, HRVCCSVU1200, ERVCCLHU1150,
HRVCCLHA1150, HRVCCLVU1150, HRVCCLVU1200, HRVCCSVU1150
BryantERVBBLHU1200, HRVBBLHA1250, HRVBBSVU1200
BroanERV200HC, HRV200H, HRV100H

Sold at: Heating, ventilating and air conditioning wholesale distributors, dealers and contractors, and building supply stores nationwide from October 2006 through December 2007 for between $700 and $2,500.

Manufactured in: Canada Remedy: Consumers should immediately turn off and unplug their ventilators. Consumers should contact Venmar Ventilation to schedule an inspection and repair.

Consumer Contact: For additional information, contact Venmar Ventilation toll-free at (866) 441-4645 between 9 a.m. and 5 p.m. CT Monday through Friday, or visit the firm’s Web site at www.venmar.ca

DISCLAIMER: This column is not intended to create an attorney-client relationship. The information contained in this update is general in nature. Individual situations of readers may not fit the general educational information described in the column. Readers are strongly encouraged to consult with an attorney to evaluate individual situations and provide legal advice. Any reliance on the information contained herein is taken at the reader's own risk and should not be considered legal advice.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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