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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. First Circuit Upholds Jury Verdict Finding Heater Caused Fire at Spa
  2. Alaska Court Reverses Arson Conviction For Questioning Violations
  3. New Hampshire Supreme Court Affirms Arson Conviction Over Defendant's Objection of Evidence Destruction


In CIGNA Ins. Co. v. Oy Saunatec, Ltd., No. 99-1912, the First Circuit Court of Appeals reviewed a jury verdict which found the design of a heater responsible for a fire which also included comparative fault by the owners of the Racquet Club. The Waltham Racquet Club, originally constructed in 1974, included a men's sauna room installed by an outside contractor. The sauna room was constructed entirely of wood, with two benches, which differed in height running around the walls. The contractor also installed the heater at issue in this case, a metal box placed in a corner of the room with heating elements that were designed to be covered by a mound of rocks. The heater did not, however, contain a metal grill that would prevent direct contact with the rocks.

The 480 volt Saunatec heater installed in the club in 1974 was not listed by Underwriter's Laboratories (UL), contrary to Saunatec's policy. The heater was equipped with a thermostat, a control box, and a timer. At the time of its sale to the club, a high limit switch was also installed. This switch was designed to turn the heater off if it should become too hot, but it was removed at some point before the 1997 fire. The high limit switch was not the only part of the heater that had been changed before 1997. The elements, timer, control box, and thermostat had all been replaced in the time between installation and the 1997 fire. These changes had no effect upon the operation of the heater because the replacements were all compatible with the original design.

Warnings and other measures did not completely prevent members from leaving towels and other items in the vicinity of the heater, a problem encountered by other clubs that had saunas. On March 18, 1997 at 7 a.m., the club had another fire from combustible materials left on top of the heater. By that time in the morning, the heater had been on for about an hour and a half, and the club had been open for an hour. The heater had been checked for discarded items late the night before and none had been found. There were no checks in the morning because the maintenance crew did not arrive until after seven. During the hour that the club was open, a member of the club either accidentally or deliberately left a towel or other combustible item on top of the heater, where it caught fire.

CIGNA insured the club. After settling the club's claim, it instituted this subrogation action against Saunatec, alleging negligent design, negligent failure to warn, negligent failure to warn of post-sale safety improvements, and breach of the implied warranty of merchantability. Massachusetts law applied to the claim. After an eight day jury trial, the jury returned a special verdict, finding that Saunatec had negligently designed the heater, had negligently failed to warn the club post-sale that the addition of a metal grill would have eliminated the danger posed by the defect, and had breached its warranty to the club. The jury also found, however, that Saunatec had met its burden of proving its affirmative defense that the club had been unreasonable in its use of the heater, thus preventing CIGNA's recovery on the breach of warranty claim. As to CIGNA's negligence claims, the jury found the club was 35% comparatively negligent. The jury assessed damages at $853,756.37. The court reduced that award by the club's 35% comparative negligence before entering judgment in the amount of $554,941.64.

There was ample evidence to support a conclusion that the heater was negligently designed. According to the UL standards in existence at the time of the sale of the heater, all heaters needed to include some form of guard to prevent combustible materials from coming into contact with any part of the heater that exceeded 536 degrees Fahrenheit. The "guard" could include the rocks that are normally piled on top of the heating elements in a sauna heater. If the rocks prevented contact, the industry standards at the time of sale generally did not require the addition of a separate metal grill on top of the heater.

In the case of the club's heater, however, the rocks were an insufficient barrier between combustible materials and the high temperature parts of the heater. Under the UL standards then in force, Saunatec was required to modify its heater, either by adding a metal grill or by increasing the dimensions of the heater to allow for more rocks to be included on top of the elements. Without these design changes, the heater failed to adhere to the industry safety standards. The UL standards also required that heaters pass a drape test. Under this test, cloth material was draped over the heater to determine if the placement of a towel on the heater would start a fire. Evidence at trial demonstrated that the club's heater could not have passed this test. The jury was justified in concluding that the heater had been negligently designed at the time of sale, thus triggering a duty to warn of post-sale safety improvements. The Court of Appeals affirmed the verdict.


In Miller v. State, No. A-7333, the Alaska Court of Appeals reviewed the defendant's arson convictions. The defendant attacked his convictions stating his statements given to the police were involuntary. Douglas Miller was residing without permission in a vacant warehouse in Fairbanks. On July 26, 1998, the warehouse caught on fire and the lower portion was extensively burned. The upstairs office was not burned. A witness to the fire observed Miller standing near the warehouse. Deputy Fire Marshall Andrew F. Garcia determined that the fire had originated above the bumper of a bus that was located in the warehouse. The fire had then spread to the warehouse.

The police interviewed Miller for approximately forty-five minutes on the expressway. During the interview, the police assured Miller that if he started the fire accidentally "[I]t's not that big a thing . . . not that big a thing at all." They told him if starting the fire was an accident, "[i]t's done with. It's an over and done deal." They assured Miller that they were not there to arrest him. After these assurances, Miller told the police that he had burned some foam insulation to turn it into a piece of artwork. He had then poured catsup on the insulation to make sure it was out. He said he had put the insulation up against the bus. He said he had no intention of setting the bus or the building on fire.

Several times during his interrogation, the police made statements that suggested that Miller would not be in any trouble if he had accidentally started the fire. They implied to Miller that if the fire was accidental they would not arrest him and that it would be "not that big a thing" and "an over and done deal." Although originally denying several times that he had anything to do with the fire, after these inducements Miller admitted that he had burned a piece of foam insulation to turn it into a piece of artwork. He admitted that he had placed this insulation over by the bus but also stated that he had thoroughly doused the insulation with catsup so that he believed that it had been extinguished. But he suggested that the fire could possibly have started from the insulation. Miller's account can reasonably be understood as describing an accident. Since the police essentially told Miller that he would not be prosecuted for accidentally starting the fire, the court concluded that the officers offered an improper inducement for Miller's statements and that the statements were involuntary. The Appellate court concluded that the trial court erred in failing to suppress those statements. Since the convictions against Miller were obtained through use of these statements, the convictions were reversed.


In State v. Michaud, Nos. 97-488, 489, 207, the New Hampshire Supreme Court reviewed the defendant's arson conviction. The defendant was separated from his wife when there was a fire at the residence. His attorney was aware of the house fire in July of 1996. A prosecutor advised the wife to wait on demolishing and rebuilding the home. She was told it was ok for demolition in Spring of 1997 while the matter was still pending trial. After the home was demolished, the defendant's attorney moved to dismiss the case.

He allegedly claimed that the reconstruction deprived him of the opportunity to: (1) analyze floor samples to show that there were no accelerants present; and (2) show the property to the jury to demonstrate that his stepson's observations of the fire were physically impossible. The trial court found the State negligent but acted in good faith. The State was precluded from offering accelerant evidence at trial. The New Hampshire Supreme Court affirmed. In this case, where the court found the State acted in good faith but with culpable negligence, the court concluded that a showing of prejudice was required before the court could dismiss the indictment.

The record does not reflect any prejudice, and the court's sanction was sufficiently curative, see id. (court must consider whether less extreme sanctions have the intended punitive effect). The defendant's assertion that the floor samples would have revealed that no accelerants were present was speculative at best. The State's chemical tests revealed the presence of accelerants, and it appears that the defendant had access to these test results.

The defendant's assertion that had the property not been destroyed he would have shown it to the jury was equally speculative. The court observed that because of the property's "extremely dangerous" condition, it was unlikely that the court would have permitted the jury to enter the property. Moreover, the defendant had access to 200 photographs of the property, including a view from the top of the stairwell. The defendant also had access to two State videotapes of the property. Also, before the home was reconstructed, one of the defendant's experts inspected the fire scene himself for over three hours and photographed and videotaped it. In these circumstances, the defendant suffered no prejudice.

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), (e-mail),, emergency loss assistance - pager (619) 333-2713.

Please direct comments, suggestions, stories, and other items to the author by e-mail at

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