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Breaking Legal Developments


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


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Arkansas Court Affirms Arson Conviction Allowing Prior Arson Evidence
  2. Minnesota Court Upholds Failure to Warn Claim Against Fireplace Insert Company
  3. New Jersey Court Finds No Separate Cause of Action For Negligent Spoliation


In Williams v. State, No. CR 00520, the Arkansas Court of Appeals reviewed the defendant's arson, murder, aggravated robbery and theft convictions. The defendant after talking to the victims pulled a gun. He ordered them go to their ATM machine and withdraw money. Afterwards, he had them drive around. He finally killed one victim, injured the other and burned the car.

At his trial, the court allowed the State to introduce testimony from Sharon Hence, a woman who was abducted and robbed in a previous incident by William's, who was convicted of that crime. The State offered the evidence to prove that William's used the same modus operandi in this case as he had in the incident with Sharon Hence. The State offered evidence that Sharon Hence, too, was held at gunpoint with a silver revolver, made to withdraw money from an ATM, drive around town, down dead-end streets, and finally dropped off in a secluded place in town. Furthermore, the State showed that Sharon Hence's car also was burned in a secluded place not far from Williams's home after William's abandoned it.

The Court of Appeals upheld his convictions and the use of the prior arson. Both crimes were committed with strikingly similar methodology. Thus, the first requirement for introducing evidence of an unrelated prior act to show modus operandi was satisfied. The issue is whether the second requirement, that the methodology must be so unique that both acts can be attributed to one individual, had been satisfied. In this case, the most unique and compelling similar methodology that goes to independently identifying William's as the perpetrator of both crimes is that both cars were burned within fifty to seventy-five yards of each other and about two blocks from William's home, a silver revolver was used in both incidents, and the perpetrator forced the victims to drive around Pine Bluff and down several dead-end streets.


In Myers v. Hearth, No. C7-00-596, the Minnesota Court of Appeals reviewed a jury verdict for the plaintiff blinded in one eye by an explosion. The plaintiff had bought a fire place insert called a DVi-10 which had a two part ventilation system. The manufacturer knew the pilot light might extinguish so it installed a thermopile to shut off the flow of gas. However, the instructions did not address the situation of that light going out during normal usage. After the sale to the plaintiff, the manufacturer learned of numerous complaints that the light would extinguish because it was not getting enough air. Distributors were contacted about that problem but the plaintiff never was. Moreover an additional design change was made to halt the gas flow within 30 seconds of the light going out.

While watching TV, the plaintiff's fireplace pilot light went out. He waited five minutes attempted to relight it and an explosion occurred seriously injuring him. The jury verdict was upheld on appeal because the plaintiff had not been advised of the defect that could lead to oxygen starvation that could lead to an explosion.


In Gilleski v. Community Medical, No. A-1382-99T2, Superior Court of New Jersey, Appellate Division, reviewed a jury verdict for the plaintiff for injuries sustained for a chair breaking. After the incident and before notice of a lawsuit, the chair was disposed of. The Appellate Division reversed a jury verdict for the plaintiff based on spoliation of evidence. The Appellate Division concluded negligent spoliation need not be recognized as a separate tort, since such a claim can be resolved by simple negligent principles. Therefore, based on there being no duty to preserve the chair, because the hospital did not know litigation was likely forthcoming, the case should have been dismissed.

The court did note, if a party agreed to preserve evidence or voluntarily undertook to do so and there was detrimental reliance, the result might be different. The court reversed the judgment in favor of the defendant.

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.

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

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