Connecticut Affirms the Malfunction Theory: Res Ipsa Creeps Into Products Litigation
After teaching the doctrine of res ipsa loquitur, my Torts professor immediately warned the class that the doctrine was not to be used as an answer on our final exam. Why? Well, according to the professor, answering a question with “the thing speaks for itself” is not a good way to get in the good graces with the faculty. Nevertheless, plaintiffs may still invoke res ipsa to suggest negligent conduct without direct evidence of a specific wrongful act. Of course, we here at Abnormal Use abhor res ipsa and its circumstantial implications. Despite our concerns, though, the Supreme Court of Connecticut has reminded us of the doctrine’s long-lost cousin – the malfunction theory. See Metropolitan Prop. & Cas. Ins. Co. v. Deere & Co., SC 18341 (Ct. August 16, 2011).
At issue in that case was a Connecticut family’s home destroyed by fire. On the day of the fire, a resident of the home attempted to mow the lawn with a 5-year old John Deere lawn tractor but was unable to finish because the engine was “running roughly.” The woman returned the mower to the garage and noticed a “different kind of smell.” Ninety minutes later, the home caught fire. A fire marshal investigation could not determine the cause or origin of the fire but identified the tractor as a “significant factor.” In addition, an insurance investigator concluded that the tractor was the specific point of origin. Neither the marshall nor the investigator disassembled the tractor. Several months later, an expert examined the mower and ruled out all possible causes of origin within the tractor except for the electrical system, which was 70 percent destroyed. The expert examined the remaining 30 percent and found no indication of side effects. The family’s insurer settled the property damage claim and, through its subrogation rights, brought a products liability action against Deere. The plaintiff alleged the tractor’s electrical system was in defective condition when it left Deere’s control and that this defect caused the fire. The jury returned a verdict in favor of the plaintiff in the amount of $749,642.69. Deere appealed, contending that there was insufficient evidence to support the verdict.
The Court agreed that the plaintiff’s evidence was insufficient to establish liability. Significantly, the Court upheld the malfunction theory of products liability asserted by the plaintiff. The malfunction theory permits a plaintiff to establish a prima facie products claim on the basis of circumstantial evidence when direct evidence is unavailable. The Court held that a jury may rely on circumstantial evidence to infer that a product was defective at the time it left the manufacturer’s control if evidence reveals:
(1) the incident that caused the plaintiff’s harm was of a kind that ordinarily does not occur in the absence of a product defect, and
(2) any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller.
While we must give credit to the Court for considering the inconclusiveness of the expert testimony and the age of the mower in reversing the trial court, we must question the affirmation of the malfunction theory. As much as we loathe res ipsa, at least that doctrine requires the defendant to have control of the damage-causing instrumentality. With a liberal application of the malfunction theory, manufacturers could find themselves lifetime insurers of products long outside the grasp of their control.
We do not think requiring plaintiffs to present direct evidence of a product defect is unfair in proving a product defect claim. It just seems logical. Think a court should be persuaded by our argument that Titleist makes a defective driver every time we slice a drive into the woods? Of course not, unless we let the thing speak for itself.
