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Breaking Legal Developments


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


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Kentucky District Court permits fire case to proceed when other potential causes ruled out


In Kentucky Farm Bureau, et al v. General Electric (January 19, 2011) currently available at, the United States District Court, W.D. Kentucky, Louisville Division, denied Defendant's Motion for Summary judgment finding enough evidence was presented to permit the dryer fire case to go to trial.

This was a subrogation action instituted by Kentucky Farm Bureau Mutual Insurance Company (KFB) on behalf of its insureds, Carl and Wanda Edwards, due to a fire that destroyed the Edwardses' home. On the morning of April 27, 2008, Wanda Edwards placed some clothing into the family's GE electric dryer. Wanda then went to have a cup of coffee. While she was drinking her coffee, Wanda looked out her window and noticed a strange fog in her yard. She pointed out this fog to her husband, Carl, who went outside to investigate the fog's source. Carl soon discovered, that the fog was actually smoke that was blowing out of the dryer vent.

While Carl was outside, Wanda went back to the laundry room to check on the clothing in the dryer. She entered the room and saw smoke rising from the sides and back of the dryer. She attempted to move the dryer away from the wall, but it was too hot to touch. Carl came back inside and turned off the main power breaker to the house. After the breaker was switched off, the dryer continued to expel smoke and the Edwardses then called the fire department and waited outside for its arrival. Shortly thereafter, smoke began billowing from the eaves of the home and it burned to the ground.

KFB retained a fire investigator to perform a cause and origin investigation of the fire in the Edwardses' home. The CFEI, of Forensic Fire conducted the investigation and concluded that the fire originated in the dryer. His conclusion was based on several factors including examination of burn patterns, charring, and electrical wiring as well as elimination of all other electrical appliances or electrical malfunctions as the start of the fire.

An engineer was hired to inspect the dryer in an attempt to identify the cause of the fire. He inspected the dryer twice, once with the private fire investigator and then again with the GE investigator over one year later. In his original report, the engineer identified only one possible cause of the fire, which was failure of the dryer's motor due to overheating.

Two days before his deposition, KFB served a supplemental report on GE that was materially different. The supplemental report still maintained that the fire originated in the dryer, but instead of one cause, the new report lists three possible causes within the dryer: (1) a failure of the dryer motor; (2) "friction heat" caused by the belt that turned the dryer's drum; or (3) an electrical short circuit involving unspecified wiring in the dryer. His supplemental report stated that "based on a reasonable degree of engineering certainty, [] the probable cause of the fire . . . [was] one of three potential causes." Supp. Report 25-26. The supplemental report also stated that "[d]ue to the extent of damage and the lack of specific dryer model identification we cannot narrow the probable cause to a single failure as the cause of the fire." Id. While he testified at his deposition that he did not intend to offer any criticism of the design or manufacture of the dryer or attempt to identify any particular defect in the dryer, he stated that if more information regarding the exact dryer model number became available that he could possibly testify regarding the design of the dryer and possible alternatives. However, at the time of his deposition, he stated that he could not offer any criticism regarding the manufacture of the dryer nor could he point to any specific defects.

KFB has alleged strict products liability, negligence and breach of warranty claims against GE. All three of these claims require a showing of causation. Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970). "Legal causation may be established by a quantum of circumstantial evidence from which a jury may reasonably infer that the product was a legal cause of the harm." Id. (citation omitted). "The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of a defendant was a substantial factor in bringing about the result." Texaco, Inc. v. Standard, 536 S.W.2d 136, 138 (Ky.1976). "Generally, the existence of a defect in the product itself may be established by a sufficient quantum of circumstantial evidence." Holbrook, 458 S.W.2d at 157. Circumstantial evidence may demonstrate the defect if the evidence is "sufficient to tilt the balance from possibility to probability" that the product was defective. Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 507 (6th Cir. 1998). Evidence that induces mere "surmise or speculation" does not establish a defect. See Highway Transport Co. v. Daniel Baker Co., 398 S.W.2d 501, 502 (Ky. 1966).

Defendant GE argued that KFB's expert has identified three possible causes of the start of the fire. GE contended that KFB's inability to identify which of the three causes started the fire prevents it from tilting the balance from possibility to probability and requires a finding that GE is entitled to summary judgment as a matter of law. In support of this argument, GE relied upon Gray v. General Motors Corp., 133 F.Supp.2d 530 (E.D. Ky. 2001). In Gray, the plaintiff attempted to establish a products liability claim based on circumstantial evidence when his seat belt failed due to a phenomenon called skip lock. The plaintiff's expert "outlined numerous possible problems with the restraint system which may have caused skip lock. . . . [but] refused to isolate any of those potential defects as a probable cause of skip lock." Id. at 534. The court found that the plaintiff was unable to tilt the balance from possibility to probability and granted the defendant's motion for a directed verdict.

GE relied on Gray, claiming that KFB must do more than point to potential problems with the inner workings of the dryer to prove its case using circumstantial evidence. Although it is unclear, it appears that the allegedly defective product in Gray, a seatbelt, was not extensively damaged. The court in Gray stated that the plaintiff's expert could not determine which part of the seatbelt was defective "without testing, which he did not perform." Gray, 133 F. Supp. 2d at 533. This indicated that in Gray, the possibility of further testing to identify the exact defect was possible. The instant case was markedly different. While the dryer still exists, the internal mechanisms which are allegedly defective are so damaged that the experts could not conclusively determine what caused the fire. The expert testified that to conduct further testing would destroy what was left of the inner workings of the dryer. This presents a situation much more analogous to Kentucky Farm Bureau Mutual Insur. Co. v. Hitachi Home Elec., 2009 WL 2760956 (E.D. Ky. 2009).

In Hitachi, plaintiff's experts were able to trace the cause of a house fire to a Hitachi television based on burn patterns and the family's testimony that they saw flames engulfing the wall that held the television. Plaintiff's expert testified that the television was the probable cause of the fire, but also admitted that he was "unable to identify a defect, manufacturing or design, in the television[,]" due in part to the extensive damage to the television. Id. at *2. Defendant moved for summary judgment contending that plaintiff could not meet its burden that a defect in the television caused the fire. The court found that the plaintiff's circumstantial evidence (the family's testimony that the fire was on the same wall as the television, the expert's conclusion that the television was the probable cause of the fire, and the expert's elimination of various other possible causes like a DVD player and VCR player as the cause of the fire) "presented sufficient evidence to create a jury issue on whether the television caused the fire." Id. at *4. To the extent that defendant disputed plaintiff's expert's elimination of other possible causes, the court found that such a dispute only created factual issues which precluded summary judgment.

In the instant case, Plaintiff identified the probable cause of the fire, the dryer. The Edwardses saw smoke rising from the dryer prior to the fire beginning. Plaintiff's fire inspector, traced the burn patterns back to the dryer and the engineer opined that the cause of the fire was the GE dryer. The fire investigator eliminated all other appliances and electrical malfunctions as possible causes of the fire. The engineer also eliminated the possibility that the fire started outside of the dryer, instead concluding, based on a reasonable degree of certainty, that the fire began in the base of the dryer. This circumstantial evidence is enough to allow a reasonable jury to decide that KFB has tilted the balance from possibility to probability. To the extent that Plaintiff identified multiple possible causes within the dryer, that is not fatal to its claim because the jury will have sufficient evidence to find that GE's conduct was a substantial factor in bringing about the harm, regardless of which of the three possible causes is advanced. In similar situations, this Court and others have allowed products liability claims to proceed to the jury. 1

KFB's evidence pointed to one probable cause of the fire, the dryer. The jury is not left to speculate as to multiple theories of liability because each of the potential causes is attributable to GE. The Court finds that the plaintiff produced enough evidence to create a triable issue for the jury. Therefore, Defendant GE's motion for summary judgment is denied.

1. Footnotes

1. See Kentucky Farm Bureau Mutual Insur. Co. v. Deere & Co., 2008 WL 339622 (W.D. Ky.) ("While KFB cannot isolate the exact defect that caused the tractor to burn, the fire investigator eliminated potential causes of the fire other than a problem in the fuse box. Because the fuse box has been isolated as the ignition site of the fire, there is sufficient circumstantial evidence of a defect in the tractor for this case to proceed."); Kentucky Farm Bureau Mutual Insur. Co. v. Hitachi Home Elec., 2009 WL 2760956 (E.D. Ky. 2009) (denying defendant's motion for summary judgment when plaintiff could not point to a specific defect in a television because it was too damaged); Turpin v. Stanley Schulze and Co., Inc., 2009 WL 875218 (Ky. Ct. App. 2009) (denying defendant's motion for summary judgment when an allegedly defective door was disposed of and could not be tested, but sufficient circumstantial evidence existed to create a genuine dispute of material fact regarding whether the door was defective).

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), Follow us on Twitter at @firesandrain.

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