Harris v. Rose's Stores, Inc., 2042

• Decision Date: 06 July 1993
• Docket Number: No. 2042,2042
• Citation: 315 S.C. 344,433 S.E.2d 905
• Court: South Carolina Court of Appeals
• Parties: Pamela S. HARRIS, Personal Representative of the Estate of Aaron S. Harris, Appellant, v. ROSE'S STORES, INC., Edgar Gregory, and Dan Skinner, Defendants, of whom Rose's Stores, Inc., is the Respondent.

Page 905

433 S.E.2d 905

315 S.C. 344

Pamela S. HARRIS, Personal Representative of the Estate of Aaron S. Harris, Appellant, v. ROSE'S STORES, INC., Edgar Gregory, and Dan Skinner, Defendants of whom Rose's Stores, Inc., is the Respondent.

No. 2042.

Court of Appeals of South Carolina.

Submitted June 7, 1993.

Decided July 6, 1993.

Barney O. Smith, of Parham & Smith, Greenville, for appellant.

Edward R. Cole, of Drennan, Shelor, Cole & Evins, Spartanburg, for respondent.

GOOLSBY, Judge:

Pamela Harris brought these wrongful death and survival actions under a products liability theory against the respondent Rose's Stores, Inc. Harris alleges a fire in her home that caused the death of her minor son, Aaron Harris, resulted from a defective ceiling fan that Rose's sold to Harris' landlord, the defendant Edgar Gregory. The trial court granted Rose's motion for summary judgment on Harris' claim and on a cross-claim asserted by Gregory against Rose's. Harris appeals. We affirm. ¹

Harris contends the trial court erred in granting summary judgment to Rose's because she had produced sufficient circumstantial evidence that the ceiling fan, which the fire totally destroyed, was defective and was a substantial contributing cause of the fire. We disagree.

Summary judgment is appropriate where it is clear from the evidence before the trial court that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Smith v. T.H. Snipes & Sons, Inc., 306 S.C. 289, 411 S.E.2d 439 (1992). The trial court should grant summary judgment against a party who has failed to make a showing sufficient to establish the existence of an essential element of that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Here, Harris failed to make such a showing.

In a products liability case, a plaintiff is required to prove injury as a result of the product; the product, at the time of the accident, was essentially in the same condition as when it left the hands of the defendant; and the injury occurred because the product was in an unreasonably dangerous, defective condition. Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985).

Harris relies on the deposition testimony of her expert witness, Delvin L. Krause, ² in an effort to establish the elements of her case. Because the fire totally destroyed the fan, Krause was unable to point to any direct evidence that the fan itself was defective and therefore caused the fire. The most Krause could say was that there was a possibility the fan caused the fire; however, he also conceded it was equally as likely that other factors may have started the fire. ³

Causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case. Am Law Prod Liab 3d § 4:34, at 44 (1987). Since the cause of Harris' injuries may be as reasonably attributed to an act for which Rose's is not liable as to one for which it is liable, Harris has not met her burden of proof in establishing her injuries were proximately caused by the negligence of Rose's. Messier v. Adicks, 251 S.C. 268, 161 S.E.2d 845 (1968); see Brown v. Ford Motor Co., 287 F.Supp. 906 (D.C.S.C.1968) (right of recovery in a products liability case must be predicated on proof, either direct or circumstantial, that there was a defect in the product and that it was reasonably probable that such defect was the cause of the injuries complained of). The trial court's grant of summary judgment was therefore proper. See Crocker v. Sears Roebuck & Co., 346 So.2d 921 (Miss.1977) (where the evidence reveals several possible causes of an accident, it is...