Brown v. Sears, Roebuck & Co., 1

• Citation: 136 Ariz. 556,667 P.2d 750
• Decision Date: 08 March 1983
• Docket Number: No. 1,CA-CIV,1
• Parties: Sue N. BROWN, Personal Representative of the Estate of Mark McCormick Brown, deceased, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, a New York corporation; The Singer Company, a Delaware corporation; and Coleman Cable and Wire Company, a Delaware corporation, Defendants-Appellees. 5439.
• Court: Court of Appeals of Arizona

Page 750

667 P.2d 750

136 Ariz. 556

Sue N. BROWN, Personal Representative of the Estate of Mark McCormick Brown, deceased, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, a New York corporation; The Singer Company, a Delaware corporation; and Coleman Cable and Wire Company, a Delaware corporation, Defendants-Appellees.

No. 1 CA-CIV 5439.

Court of Appeals of Arizona Division 1, Department A.

March 8, 1983.

Rehearing Denied April 19, 1983.

Review Denied June 14, 1983.

Richard D. Coffinger, Glendale, for plaintiff-appellant

Weyl, Guyer, MacBan & Olson by Thomas G. Bakker, Phoenix, for defendant-appellee Coleman Cable and Wire Co.

Wentworth & Lundin by Charles W. Herf, William J. Reckling, III, Phoenix, for defendants-appellees Sears, Roebuck & Co. and The Singer Co.

OPINION

CORCORAN, Judge.

This is a wrongful death action in the nature of a product liability claim. Appellant, Sue N. Brown, filed a complaint pursuant to A.R.S. § 12-612 relating to the death of her late husband, Mark McCormick Brown (Decedent), naming three defendants: Sears, Roebuck & Company (Sears), The Singer Company (Singer), and Coleman Cable and Wire Company (Coleman Cable). The trial court granted summary judgment in favor of all defendants and appellant here challenges the propriety of that judgment.

In determining the propriety of a summary judgment granted in favor of defendants-appellees, the evidence and inferences drawn therefrom must be viewed in a light most favorable to the party opposing the motion. Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977). The facts and reasonable inferences are stated in a light most favorable to appellant.

On July 4, 1974, the Decedent died suddenly and unexpectedly in the back yard of his residence while he was operating a Craftsman portable electric circular saw (saw) to cut large tree limbs into smaller pieces of firewood. The saw, which had been purchased by Decedent's son in early 1970, was manufactured by Singer and was sold by Sears.

At the time of Decedent's death, the saw was connected to an electrical outlet on the exterior of the Brown residence by two extension cords. One of these extension cords was a three-pronged grounded cord manufactured by Coleman Cable (cord). Inspection of the cord revealed the presence of several cuts in the insulated casing with frayed conductors exposed. Repairs had been attempted by covering the cuts with tape. The other extension cord was a two-pronged ungrounded cord.

The Decedent's body suffered a large electrical burn to the left midabdomen and a small electrical burn on the dorsum of the right hand. He fell on top of the saw which continued to run with the spring guard covering the rotating blade. Appellant discovered the Decedent lying face down with his body contacting the saw as it continued to run.

Thomas B. Jarvis, M.D., Maricopa County Deputy Medical Examiner, performed a postmortem examination. He concluded that death was caused by electrocution. It was Dr. Jarvis' opinion that each of the burns on Decedent were electrical burns rather than thermal burns. He opined that electrical current was introduced through the burn on the Decedent's midabdomen which would likely have produced a malfunction of the heart.

Appellant filed a complaint wherein she alleged that the decedent's death by electrocution was caused by both the Coleman Cable extension cord and the Singer-Sears saw, which she claimed were defective and unreasonably dangerous on the date of the accident. The trial court entered summary judgment against appellant and in favor of Coleman Cable, Singer and Sears. On appeal, appellant urges this court to reverse the summary judgment entered against her on her claims for strict tort liability.

Inasmuch as the appellees challenge appellant's standing to bring this appeal, we will discuss the standing question raised before proceeding with the substantive issues before us.

STANDING

The standing question raised by the appellees quickly resolves itself when A.R.S § 12-612, Arizona's Wrongful Death Act, is read in relation to the formal written order entered by the trial court granting appellant's motion to amend the complaint.

Appellant, the Decedent's surviving spouse, originally filed her complaint in her own name for and on behalf of herself and the Decedent's two children. She later made a motion to amend this complaint which was granted. The trial court entered an order amending her complaint as follows:

The second sentence of Count I, Paragraph I, is deleted and replaced with the following sentence: "Plaintiff brings this action pursuant to A.R.S. § 12-611 in her capacity as personal representative for the Estate of Mark McCormick Brown, deceased, in Case No. P-112422 in the Superior Court of the State of Arizona in and for Maricopa County, on behalf of the surviving spouse and children of the decedent."

(Emphasis added.)

A.R.S. § 12-612(A) provides:

An action for wrongful death shall be brought by and in the name of the surviving husband or wife or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.

(Emphasis added.)

Appellees object to the language in the order amending the complaint, indicating that appellant appears "in her capacity as personal representative for the estate of Mark McCormick Brown, deceased." None of the parties to this appeal has cited subsection D of A.R.S. § 12-612, which provides:

The term "personal representative" as used in this section shall include any person to whom letters testamentary or of administration are granted by competent authority under the laws of this or any other state. The action for wrongful death may be maintained by any such personal representative without issuance of further letters, or other requirement or authorization of law.

Obviously, if a personal representative is appointed by the superior court, the personal representative can appear as such representing the estate. Even assuming there were error, the language referring to the estate is surplusage which does not affect the substantial rights of the parties.

LIABILITY OF COLEMAN CABLE

In O.S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968), our Supreme Court adopted the doctrine of strict products liability set forth in Restatement (Second) of Torts § 402A (1965) which provides in relevant part:

(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.

....

Strict liability, however, cannot be equated with absolute liability. Morrow v. Trailmobile, Inc., 12 Ariz.App. 578, 473 P.2d 780 (1970). Before liability can be fixed, the plaintiff is required to prove that the product was defective, that the defect was unreasonably dangerous, and that plaintiff's injuries were proximately caused by the defect. Vineyard v. Empire Machinery Co., 119 Ariz. 502, 581 P.2d 1152 (App.1978). The plaintiff bears the burden of proving that the defect existed at the time that the product left the manufacturer. Byrns v. Riddell, 113 Ariz. 264, 550 P.2d 1065 (1976); Sullivan v. Green Manufacturing Co., 118 Ariz. 181, 575 P.2d 811 (App.1977). Applying these general principles to the facts before us, we find that the summary judgment entered in favor of Coleman Cable must be affirmed. On the date of the accident, Harold D. Hayes, a City of Phoenix traffic signal technician, was called to the Brown residence to test the saw and cord. He tested the saw to see if the case of the saw was energized but found no fault and no indication of malfunction or electrical short in either the saw or the extension cord. Mr. Hayes then demonstrated the lack of a short or fault by turning on the electric saw and holding it in his hands. It functioned normally and Mr. Hayes felt no passage of current from the saw or the extension cord. He also put the saw in one hand and put his other hand on the damp ground where the decedent was standing to see if there was any conduction of electricity and, although this was a dangerous thing to do if there was any short in the system at that time, he felt no effects.

Appellant retained the services of Paul Young, an electrical engineer, to examine the saw. He found no electrical malfunction in the saw. He also examined Coleman Cable's yellow grounded extension cord. Mr. Young testified that the cord was taped, meaning that someone had physically damaged the cord and applied tape thereto in an effort to repair it. Mr. Young had never seen a new cord sold in this condition. He also testified that the female plug at the end of the cord was not the original plug that had been put on by the manufacturer. In his opinion both of these alterations to the cord had occurred after it was manufactured.

Mr. Young checked the cord for continuity and found that each of the three wires was continuous within the cord. No wire within the cord was shorted to another wire and the polarity of the wires was maintained throughout the length of the cord. All of his continuity and resistance checks, wire to wire, showed that they were safe for the function for which they were originally manufactured.

Appellant submitted the cord and the saw to another electrical engineer, W.D. Pennycook. He examined the saw and the cord and found, as had Mr. Young and Mr. Hayes, that the cord had normal continuity. He found no anomalies present in the cord or the saw that were present at the time it left the manufacturer. However, he observed that when the tape was removed from the cord there was evidence of arcing on one of the...