Kimbrell v. Zenith Radio Corp.

• Decision Date: 12 October 1976
• Docket Number: No. 48509,48509
• Citation: 555 P.2d 590
• Parties: Lottie Jo KIMBRELL, an Individual, and State Farm Fire and Casualty Company, a corporation, Appellants, v. ZENITH RADIO CORPORATION, a Foreign Corporation, Appellee.
• Court: Oklahoma Supreme Court

Page 590

555 P.2d 590

Lottie Jo KIMBRELL, an Individual, and State Farm Fire and Casualty Company, a corporation, Appellants, v. ZENITH RADIO CORPORATION, a Foreign Corporation, Appellee.

No. 48509.

Supreme Court of Oklahoma.

Oct. 12, 1976.

Pierce, Couch, Hendrickson & Short by John Wiggins, Oklahoma City, for appellants.

Watts, Looney, Nichols, Johnson & Hayes by Charles J. Watts, Oklahoma City, for appellee.

CAVISON, Justice:

This case involves a manufacturer's products liability action brought by the appellant, Lottie Jo Kimbrell, and State Farm Fire and Casualty Company against the appellee, Zenith Radio Corporation, manufacturer of a television set alleged to have caused extensive fire damage to Ms. Kimbrell's home due to defects in material, workmanship and design. At the conclusion of the plaintiff's case, the trial court sustained appellee's demurrer to the evidence. Appellants have appealed from the trial court's ruling.

The primary issue raised by this appeal is whether the evidence presented in appellants' case in chief was sufficient to permit the case to be submitted to the jury.

At trial, the plaintiff's father, Mr. Galloway, testified that he purchased the television set as new in 1965, though on cross-examination defense counsel suggested that the television set may have been a 1960 or 1961 model. The fire in question occurred on February 8, 1973. Mr. Galloway further testified that he had lent the television set to his daughter, he had the set moved to her home, and that he had in the past changed tubes and fuses in the set. There is no evidence to suggest that the fuses and tubes were improperly replaced. Mr. Galloway testified that in addition to the repairs he had performed, the television set was on one occasion serviced by a television repairman, but could not testify as to the type of work performed, since the television set was removed from his home and repairs conducted at a service shop.

During the trial, the television set, as well as photographs of it and of plaintiff's home shortly after the fire, were introduced and received into evidence. Mr. Green, an expert witness called by the plaintiff, testified that he had examined the plaintiff's home and television set shortly after the fire. The witness's examination included an inspection of the burn patterns and the wiring in the home. Based on his investigation, the witness testified that it was his expert opinion that the fire which damaged the plaintiff's home originated in the television set and was caused by a defective AC wire which was crimped inside the television set. Mr. Green further testified that in his opinion the changing of the tubes and/or fuses by the plaintiff's father could not have caused the crimp in the wire and that in his opinion the crimp occurred when the television was manufactured.

In Kirkland v. General Motors Corporation, Okl., 521 P.2d 1353 (1974) at pp. 1363, this Court held that in order to prevail in a manufacturer's products liability action, a plaintiff must prove three elements:

'First of all Plaintiff must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough.

'Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the manufacturer, at the time the product left the manufacturer's possession and control. Thompson v. Trane Co., Okl., 500 P.2d 1329 (1972). If the action is against the retailer or supplier of the article, then the Plaintiff must prove that the article was defective at the time of sale for public use or consumption or at the time it left the retailer's possession and control.

Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property as the term 'unreasonably dangerous' is above defined.'

Citing § 402A comment g, of the Restatement of Torts, this Court defined unreasonably dangerous as follows:

"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the original knowledge common to the community as to its characteristics."

The evidence at the trial was sufficient to enable the jury to find that a defect in the television set was the cause of the fire, in that the television set with its defect was dangerous to an extent beyond which an ordinary customer with common knowledge could contemplate.

The evidence did not, however, so clearly establish that the defective, crimped wire existed in the television set at the time the television left the manufacturer. Witness Green testified that the crimp might have occurred if the set was dropped or if the chassis were removed from the set. Green further testified that his examination would not prove or disprove that the chassis had been removed.

The plaintiff's father testified that he changed both fuses and tubes in the television. But, Mr. Green, in his expert opinion, did testify that the mere changing of tubes and fuses could not have crimped the wire in question.

The plaintiff's father also testified that the television had been serviced on one occasion by a television repairman. No evidence showing the type of repair work performed was offered by plaintiff. Were the repairs made by the repairman in the area in which the crimped wire was found? Could the crimp in the wire have been caused by the work performed by the television repairman?

The plaintiff left these questions unanswered, and in so doing, failed to meet the burden of proof necessary to withstand a demurrer to the evidence.

In Kirkland v. General Motors Corporation, supra, we stated:

'Although the manufacturers' products liability for injuries caused by defective products described in this opinion is neither grounded in negligence or breach of implied warranty, Responsibility for the defect must still be traced to the proper Defendant. Where the product is of sophisticated design and construction, or if the product reaches the consumer in a sealed container, varying degrees of difficulty are encountered in tracing this responsibility. The fact that the plaintiff may not be able to ascertain...