Bombardi v. Pochel's Appliance & TV Co.

• Decision Date: 16 October 1973
• Docket Number: No. 831--II,831--II
• Parties: Amelia BOMBARDI, a widow, et al., Respondents, v. POCHEL'S APPLIANCE AND TV COMPANY, Defendants, Admiral Corporation, Oregon Division, a foreign corporation, Appellant.
• Court: Washington Court of Appeals

Page 797

9 Wn.App. 797

515 P.2d 540

Amelia BOMBARDI, a widow, et al., Respondents, v. POCHEL'S APPLIANCE AND TV COMPANY, Defendants Admiral Corporation, Oregon Division, a foreign corporation Appellant.

No. 831--II.

Court of Appeals of Washington, Division 2.

Oct. 16, 1973.

James M. Beecher, of Wolfe, Hackett, Beecher & Hart, Seattle, for appellant.

Albert R. Malanca of Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, Tacoma, for respondents.

ARMSTRONG, Judge.

This is an appeal from a judgment entered in favor of plaintiff, Mrs. Bombardi, for damages to her rental property, and in favor of plaintiffs Messina for personal injuries and property loss, all of which were sustained as a result of a fire occurring in a duplex owned by Mrs. Bombardi and being occupied by her niece, Julia Messina and her husband, Tony Messina.

It was the contention of plaintiffs at trial that the cause of the fire and of the consequent damage to plaintiffs was a defect in a television set manufactured by defendant Admiral Corporation and sold to plaintiff, Mrs. Bombardi, as a 'used' model by Pochel's Appliance and TV Company. The television set was completely consumed in the fire.

Although there are other contentions to be discussed, the primary issue raised by this appeal is whether there was substantial evidence to prove that the used television set, completely consumed in the fire, was in a defective condition when it left the hands of the manufacturer, and that the defective condition was the proximate cause of the damage to plaintiffs. We hold there was substantial evidence to support both challenged requirements necessary to establish strict liability.

Admiral assigns as error the failure of the trial court to grant defendants' challenge to the sufficiency of plaintiffs' evidence, and failure to grant defendants' motion for judgment non obstante veredicto, or for a new trial. Such motions admit the truth of the opponent's evidence and all inferences which can reasonably be drawn therefrom; require that the evidence be interpreted most strongly against the moving party and in a light most favorable to the nonmoving party; and can be granted only when the court can say, as a matter of law, that there is no substantial evidence to support the nonmoving party's claim. Davis v. Early Constr. Co., 63 Wash.2d 252, 386 P.2d 958 (1963).

A review of the record with these principles in mind discloses that in May of 1966, defendant Admiral manufactured a color television set, Model LK 5311, which was sold by Pochel's Appliance and TV Company. In January of 1970, Pochel again sold this same set to plaintiff, Mrs. Bombardi, as a 'used' set which had been taken back as a trade-in. Mrs. Bombardi placed the set in a corner of the front room of her rental duplex, which was being occupied by the Messinas. On March 23, 1970, a fire occurred in the duplex, causing property damage to the duplex and its contents and personal injury to the Messinas.

The local fire chief testified that he was able to 'pinpoint' the northeast corner of the apartment as the area where the fire originated. In this corner there were two items that aroused his suspicion, an electric baseboard heater and the television set, and as a result he called in the state fire marshal to get his opinion as to the cause of the fire. The state fire marshal and two other expert witnesses called by the plaintiffs all agreed that in their opinion the television set was the cause of the fire.

Turning now to the law governing this case, we note that in Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969), the court adopted the rule of strict liability set forth in the Restatement (Second) of Torts § 402A, 347 (1965). The rule as set forth in that section provides as follows:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In addition to giving an instruction based upon the Restatment rule, the court gave an instruction substantially in the terms recommended by the concurring opinion in Ulmer. That instruction provided, in substance, that the plaintiff had the burden of proving (1) that there was a defect in the television set, (2) that the defect existed at the time the product left the manufacturer, (3) that the defect was not known to the user, (4) that the defect rendered the product unreasonably dangerous, and (5) that such defect was the proximate cause of plaintiff's injury. We believe the two instructions to be clear and correct statements of the law of strict liability in this state.

In this case recovery was sought against the manufacturer, rather than the immediate seller. As we have pointed out, in such an instance the burden of proof is upon the plaintiff to prove that the product was in a defective condition when it left the manufacturer. Curtiss v. Young Men's Christian Assoc., 82 Wash.2d 455, 511 P.2d 991 (1973); Restatement (Second) of Torts § 402A, comment g at 351 (1965).

In attempting to show that the television set was in a defective condition when it left the hands of the manufacturer, Admiral Corporation, it was virtually impossible for the plaintiffs to produce Direct evidence as to the exact nature of a manufacturing defect in the set that caused the fire, or of a particular part that malfunctioned, since the television was destroyed beyond any testing or examination. The set was described after the fire by various witnesses as 'one melted mess,' 'totally disintegrated,' 'just a glob,' and as a 'melted mass of steel.' However, the fact that plaintiff is unable to point an accusing finger at a particular defective component does not preclude him from establishing that a product was defective where, as in this case, the exact nature of the alleged defect is that it is one causing the product to totally consume itself in fire.

Generally, direct evidence of an identifiable defect will be the plaintiff's strongest evidence of a product's defectiveness, as for example chemical analysis indicating that diesel oil was contaminated by 7 percent gasoline, ¹ or expert testimony that a defectively installed 'A-frame' pivot bolt had come loose, rendering it impossible to control an automobile. ² On the other hand, we have previously held that proof of the defective condition of a product may be by direct or circumstantial evidence, and that a verdict does not rest on speculation or conjecture when founded on reasonable inferences drawn from circumstantial facts. Tokarz v. Ford Motor Co., 8 Wash.App. 645, 654, 508 P.2d 1370 (1973); Lamphiear v. Skagit Corp., 6 Wash.App. 350, 356, 493 P.2d 1018 (1972).

Here the record reveals that the subject television was sold as a new set and serviced throughout its first ownership by Pochel's Appliance and TV Company, an authorized Admiral dealer. The set was serviced some 7 or 8 times after the original sale on February 15, 1967, and testimony was received to the effect that this was not an unusually large number of service calls for a set of its age. The service was performed by technicians required to attend service training schools conducted by Admiral, and who had available to them a service manual distributed by Admiral showing the chassis, the circuitry, and all of the component parts of their sets. The servicing included a reset and replacement of the circuit breaker, the installation of a new on-off volume control switch, and a voltage regulator because the area in which the original owner lived had a utility system which was often subject to power surges. The voltage regulator was manufactured by Admiral to take care of this particular problem. In servicing the set, only Admiral parts were used, with the possible exception of some tubes. The set was traded back to the Pochel organization by the original owner and checked out according to a routine shop procedure prior to its sale to Mrs. Bombardi in January of 1970. We set forth following testimony, which was received without objection, concerning the condition of the set at the time of its sale as a used model to Mrs. Bombardi:

Q Now Mr. Purtell, at the time this set was placed for sale to Mrs. Bombardi, having sold the set new from Admiral, having serviced it throughout its existence prior to going to Mrs. Bombardi, having been checked out by your shop, do you have an opinion as to the condition of this set in comparison in considering all the component parts and so on in comparison to when it was first sold fresh out of the factory except for the length of time it has been in use, do you have such an opinion?

A The only, the opinion that I would have, we did service it from the inception of going to the first customer, that other than what we have here and I would assume other than the tubes, everything in it were the original type manufacturers.

Q All right. Would you say then that the set that you sold to Mrs. Bombardi was in the same condition as Admiral manufactured it except for the length of time it had been used by the Sanfords?

A Yes.

No error is assigned to the testimony of plaintiffs' expert witness, Mr. Rasmussen, who, after reviewing a schematic of the model No. LK 5311 set involved in the fire, and assuming that the set was turned off but that the cord running from the set was plugged into the wall,...