Dillard v. Pittway Corp.

• Decision Date: 24 April 1998
• Parties: Phillip Carl DILLARD and Kathy Lynn Dillard v. PITTWAY CORPORATION and Gadsden Fire Extinguisher & CO sub2 Service, Inc. 1951422, 1951423.
• Court: Alabama Supreme Court

Page 188

719 So.2d 188

Phillip Carl DILLARD and Kathy Lynn Dillard v. PITTWAY CORPORATION and Gadsden Fire Extinguisher & CO sub2 Service, Inc.

1951422, 1951423.

Supreme Court of Alabama.

April 24, 1998.

Opinion Modified on Denial of Rehearing June 19, 1998.

Michael L. Roberts of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellants.

William H. Mills of Redden, Mills & Clark, Birmingham, for appellee Pittway Corporation.

Dorothy A. Powell and John M. Bergquist of Parsons, Lee & Juliano, P.C., Birmingham, for appellee Gadsden Fire Extinguisher & CO sub2 Service, Inc.

KENNEDY, Justice.

Phillip Carl Dillard and his wife, Kathy Lynn Dillard, sued Gadsden Fire Extinguisher & CO sub2 Service, Inc. ("Gadsden Fire"), and Pittway Corporation, claiming that a smoke detector manufactured by Pittway and sold by Gadsden Fire had failed to work properly during a fire. Phillip's claims were based on personal injuries, and his wife's claims were based on loss of consortium. The trial court entered a summary judgment in favor of the defendants. The Dillards appeal.

A summary judgment is proper when there is "no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P. The movant has the burden of showing that this standard is met. If the movant has made a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to present evidence creating a genuine issue of material fact. Foremost Ins. Co. v. Indies House, Inc., 602 So.2d 380 (Ala.1992). To do this, the nonmovant must produce "substantial evidence" in support of his or her claim or defense. § 12-21-12, Ala.Code 1975. "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Viewed in the light most favorable to the nonmovant, as we must view it, the evidence suggests the following facts: Phillip Dillard's sister, Kathy Richey, operated a boarding home for the elderly in Etowah County. In 1989, she contacted Gadsden Fire about purchasing smoke detectors. She told its employee Calvin Boggs that she wanted the "best" smoke detectors because she was operating a boarding home. Boggs testified that he knew that the smoke detectors were to be used in a boarding home.

Gadsden Fire did not usually keep smoke detectors in stock. It was Gadsden Fire's custom that when a customer asked for a smoke detector, a Gadsden Fire employee would purchase a smoke detector from a hardware store, add on a $4 or $5 charge for the service of choosing a smoke detector, and then sell it to the customer. Boggs purchased Pittway model 83R ionization smoke detectors for Richey. The smoke detectors were installed in the home, and new batteries were placed in the detectors approximately two weeks before the fire occurred.

On the morning of April 27, 1991, Richey was asleep in the living room of the home. Barbara Lemons, a sister of Kathy Richey and Phillip Dillard, came to the home around 7:00 a.m. to wash and dry clothes. She put some clothes in the washer and made coffee. She then went into the living room, where she saw smoke and fire coming out of a closet. Her screams awakened Richey. Richey opened the closet and threw the burning clothes outside the front door. One of the smoke detectors was near the closet, but the alarm had not sounded. It was not until after Richey was trying to wake the others in the home that the alarm sounded.

Phillip Dillard, who lived approximately one block from the home, ran to help. He rescued one of the boarders. He then attempted to save his father, who was a boarder in the home. A portion of the roof fell in, injuring Dillard and killing his father. Another boarder, Mary Brock, was also killed in the fire.

The administratrix of the estate of Mary Brock filed a wrongful death action against Kathy Richey, Gadsden Fire, and Pittway. In a separate action, Kathy Richey and Phillip Dillard sued Gadsden Fire and Pittway, based on the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), for damages based on personal injuries they had received in the fire. In that second action, Phillip Dillard's wife Kathy Lynn Dillard also sued for damages, claiming a loss of consortium; and Phillip Dillard, as executor of his father's estate, also filed a wrongful death claim against Gadsden Fire and Pittway.

The trial court consolidated the actions and entered a summary judgment for Gadsden Fire and Pittway on Phillip's claims alleging personal injuries and on his wife's derivative claim alleging loss of consortium. The trial court denied Pittway and Gadsden Fire's summary judgment motions as to the other plaintiffs. The court made Gadsden Fire and Pittway's summary judgment final, pursuant to Rule 54(b), Ala.R.Civ.P. Phillip Dillard and his wife Kathy Lynn Dillard appeal.

When Pittway and Gadsden Fire filed their summary judgment motions, discovery was not yet completed. Pittway and Gadsden Fire conceded the existence of a question of fact as to whether there had been a defect in the smoke detector. (R.T. 16, 37-38; C.R. 336; Pittway's brief, p. 15.)

Suffice it to say, the plaintiffs presented expert evidence indicating that the smoke detectors chosen by Gadsden Fire were not the "best" type of smoke detector available. They presented evidence indicating that Pittway model 83R smoke detectors had malfunctioned, that they had been the subject of numerous consumer complaints, and that a component contained within them was the subject of a recall when it was used in another model. Specifically, the same horn used in the alarm of the model 83R smoke detectors was the subject of a recall (because corrosion had caused the horn not to work) when it was used as a component of other models. The plaintiffs also presented evidence that model 83R smoke detectors were set at a 20% obscuration level (zero is clean air and 100% is totally smoke-filled and impossible to see through). According to documents obtained during discovery, the model 83R smoke detector should have had a 7% obscuration level.

Gadsden Fire

Gadsden Fire argues that it is not in the business of selling smoke detectors, as that concept is employed in the AEMLD. It also argues that there was no causal relation between its handling of the smoke detector and the defect, because it merely resold the smoke detector in the same condition it was in when Gadsden Fire received it from Pittway. We disagree with both arguments.

Gadsden Fire is in the business of providing fire safety products. It knew that Kathy Richey wanted the "best" smoke detectors, and, in particular, Gadsden Fire knew that the smoke detectors were going to be installed in a home where elderly people were living and that those people would need the earliest possible warning of a fire. Boggs said he went to a store and purchased a smoke detector that he perceived as being a "good brand" that should let someone know immediately if there was a fire. Boggs stated in his deposition that his "general practice" was to charge $4 or $5 for the "service" of choosing a smoke detector. Additionally, there was evidence that Gadsden Fire did occasionally have smoke detectors in stock.

Gadsden Fire is not entitled to a judgment based on a "no-causal-relation" defense. If the seller of a product has an opportunity to inspect the product that is superior to the opportunity of the consumer, or has knowledge of the product that is superior to that of the consumer, then it is not entitled to a "no-causal-relation" defense, even where it did not contribute to the defective condition of the product. Caudle v. Patridge, 566 So.2d 244 (Ala.1990). In Caudle, the seller of a four-wheel-drive "conversion kit" to be installed on a truck was not entitled to a no-causal-relation defense, because he had, at the very least, a superior knowledge of the nature of the trucks on which such kits had been installed. Gadsden Fire was in the business of selling fire safety products. It undertook to choose a smoke detector for Richey. Boggs opened the smoke detector and explained to Richey how it was to be used and where it should be placed.

We conclude that the trial court erred in entering the summary judgment in favor of Gadsden Fire as to the personal claims of Phillip Dillard and his wife Kathy Lynn Dillard.

Pittway

Pittway argues that Phillip and Kathy Lynn Dillard's injuries were not proximately caused by a defect in the smoke detectors. The purpose of a smoke detector is to provide notice of a fire. Pittway contends that Phillip had notice of the fire when he ran inside the home to help. Therefore, it argues that Phillip's personal injuries did not result from a lack of notice of the fire. In essence, Pittway is arguing that Phillip assumed the risk or was contributorily negligent by attempting the rescue. Pittway argues that Phillip was not the ultimate user or consumer of the smoke detector and that it therefore owed no duty to him; Pittway says the ultimate users or consumers were the occupants of the home. Pittway also argues that it owed no duty to Phillip under the "rescue doctrine." Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces an injury or harm and without which the injury or harm would not occur. Thetford v. City of Clanton, 605 So.2d 835 (Ala.1992). Foreseeability is the cornerstone of proximate cause. General Motors Corp. v. Edwards, 482 So.2d 1176 (Ala.1985). The first question we must answer is whether it is reasonably foreseeable that a smoke detector's failure to timely sound would result in injuries.

" 'An essential element of the plaintiff's cause of action for negligence, or for that matter for any other tort, is that...