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EXECUTIVE SUMMARY: This
weekly newsletter covers:
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Pennsylvania District Court upholds Malfunction Theory on Fire Cash Register loss
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PENNSYLVANIA DISTRICT COURT UPHOLDS MALFUNCTION THEORY ON FIRE CASH REGISTER LOSS
In Liberty Mutual, et al v. Sharp Electronics (July 5, 2011), United States District Court, M.D. Pennsylvania, No. 08-cv-1678, http://www.leagle.com/xmlResult.aspx?xmldoc=In FDCO 20110706A16.xml&docbase=CSLWAR3-2007-CURR, defendant's motion for summary judgment was denied in a fire loss case involving a Sharp cash register. A fire had began in a restaurant after business hours. Plaintiffs alleged the fire was the result of an electrical defect in the register. Originally filed in state court, the cases were removed to the Federal court and consolidated. Plaintiffs alleged the "malfunction theory" developed in Pennsylvania State court. That theory permits a plaintiff in Pennsylvania to pursue a strict product liability action based purely on circumstantial evidence even in cases where the allegedly defective product has been destroyed or unavailable. A plaintiff must present sufficient evidence from which a jury can infer that the injury was caused by a defect in the product beyond mere speculation. Abnormal use or reasonable secondary causes for the malfunction must be ruled out. See Danask v. Cameron Coca Cola Bottling Co. (Pa. Super. 1997) 703 A.2d 489, 496. Plaintiffs' expert stated: "It cannot be ruled out that an assembly defect was present to subject Sharp cash register. An assembly defect can result to pinched wires, improper routing of conductors, conductors installed in a fashion that contacted conductive metal that was at ground potential and over a period of time arc tracking resulted. Normal vibration from the use of the Sharp cash register cannot be ruled out that resulted to damaged electrical insulation by the assembly defect. It cannot be ruled out that thermal printer malfunctioned that resulted to ignition of the plastic housing or ignition to roll of thermal register paper. The entire Sharp cash register was consumed by the fire with the exception to the metal cash drawer and the heavy metal power transformer. The power transformer clearly dictates that an internal electrical event occurred. The cause of the internal electrical fault could not be positively identified inside the Sharp cash register because the fire consumed all the internal evidence that started the fire. It might be concluded that the fire was caused by an assembly defect to the Sharp cash register because all of the items in evidence pointed to the Sharp cash register that was unique to the fire damage." The expert's theory was according to the trial judge "because the fire consumed most of the internal evidence within the cash register, it was caused by a defect in the cash register. Other causes were ruled out by the expert and the fire department. The expert did not identify a specific assembly defect that caused the fire. The court permitted the case to proceed to trial denying the motion noting "While this will not be an easy path for Plaintiffs to follow, and we express no opinion on the likelihood of success, we shall not deprive the Plaintiffs of the opportunity to do so."
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.
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e-mail at palynch@cozen.com
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