SCM Corp. v. Letterer

• Decision Date: 28 April 1983
• Docket Number: No. 3-1280A384,3-1280A384
• Citation: 448 N.E.2d 686
• Parties: SCM CORPORATION, Appellant (Defendant Below), v. Robert LETTERER and Shirley Letterer, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 686

448 N.E.2d 686

SCM CORPORATION, Appellant (Defendant Below), v. Robert LETTERER and Shirley Letterer, Appellees (Plaintiffs Below).

No. 3-1280A384.

Court of Appeals of Indiana,

Fourth District.

April 28, 1983.

Roland Obenchain, John B. Ford, South Bend, for appellant.

Mary E. Davis, Davis & Davis, P.C., Elkhart, for appellees.

MILLER, Judge.

Appellant-defendant SCM Corporation (SCM) is appealing from a judgment entered on a jury verdict in favor of appellees-plaintiffs Robert and Shirley Letterer, husband and wife, in the sums of $28,000 for damage to their real estate and $40,000 for damage to their personal property. The jury rendered its verdict on the basis of testimony linking a toaster-oven manufactured by SCM with a fire that substantially destroyed the Letterers' home and belongings.

Because the verdict was improperly premised upon the res ipsa loquitur rule of evidence in negligence cases, we must reverse the jury's decision. However, we also must remand this case for a new trial because the jury failed to reach any conclusion on the Letterers' strict liability charge.

ISSUES

SCM presents us with numerous issues on review, but our resolution of the following two significant issues is dispositive of this case:

1. Whether the doctrine of res ipsa loquitur was inapplicable because the toaster-oven had been purchased more than two-and-a-half months preceding the fire and was in the Letterers' exclusive possession and control at the time of the fire;

2. Whether the Letterers' amendment during trial, adding a paragraph to their complaint charging strict liability in tort, should have been disallowed.

FACTS

At noon on May 29, 1974, Mr. Letterer began to prepare his lunch at home by placing two slices of bread in a Proctor-Silex toaster-oven and then depressing the lever. The oven was purchased more than two-and-a-half months earlier by Mrs. Letterer. The toaster did not heat, whereupon Mr. Letterer discovered the electricity to the house had been shut off by the utility company. He left immediately, paid the electric bill, and returned to work. The utility company restored the electricity to the home at 12:50 P.M., and the fire department received the alarm at 1:07 P.M. The Letterers brought suit against SCM for breach of implied warranty and negligence, claiming the defective toaster-oven caused the fire.

At trial, Mr. William Servaas, an engineer for Letterers' insurer and a consultant in the field of "failures" and accident reconstructions, testified his examination of the debris in the house and the burn patterns revealed the fire originated on the kitchen counter next to the refrigerator where the toaster-oven had been located. Such testimony unequivocally contradicted the contentions of the fire department witness that the fire originated behind the stove. Servaas also experimented with a second Proctor-Silex toaster-oven which he opined operated the same as Letterers' destroyed model but had cosmetic differences. At trial and without objection, Servaas duplicated his experiments, simulating the conditions as they existed at the time of the fire by placing bread in the toaster, depressing its lever when the power was off, and then turning the power on. At that point, the demonstration revealed that the heating element "energized" for a period, shut off, then re-lighted. In Servaas's opinion, bread remaining in the toaster under such conditions would dry out and catch fire in less than 10 minutes.

At the close of all the evidence, the trial court granted Letterers' motion to amend their complaint to add a charge of strict liability. SCM was awarded a directed verdict on the warranty charge. The jury was given verdict forms on both negligence and strict liability and was instructed that, if it found for the Letterers, it was to allocate damages between realty and personalty. The jury then returned a verdict on the negligence theory against SCM which specifically found the Letterers' damages to be $28,000 regarding their real estate and $40,000 with respect to their personalty. It returned no verdict as to strict liability.

DECISION

Applicability of Res Ipsa Loquitur ¹

In support of the Letterers' claim, the trial court instructed the jury on the doctrine of res ipsa loquitur. SCM urges res ipsa loquitur is unavailable unless the instrumentality in question was under the exclusive possession and control of the defendant (SCM) at the time of the injury. In this case, the evidence showed the toaster-oven was in the exclusive possession and control of the Letterers for the two-and-a-half- to three-month period immediately prior to the fire. On the other hand, the Letterers argue the res ipsa doctrine is applicable if a defendant had exclusive control of the instrumentality at the time of the probable negligence, although not at the time of the injury, provided the plaintiff presents evidence which tends to show the instrumentality had not been tampered with or changed after it left the defendant's control. The Letterers acknowledged regular normal use of the toaster after its purchase but denied tampering with it and testified when purchased the toaster-oven was in its packing box, sealed and intact.

However, Indiana strongly embraces the res ipsa doctrine only if the injuring instrumentality is within the exclusive control of the defendant at the time of injury. Thus, under the facts presented, we agree with SCM.

The doctrine involved is a rule of evidence whereby an inference of negligence can be drawn under certain factual circumstances. It is generally agreed there are three prerequisites to its application: "1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." W. Prosser, Law of Torts Sec. 39, 214 (4th ed. 1971); 1 L. Frumer & M. Friedman, Products Liability Sec. 12.03, 286 (1982); Bituminous Fire & Marine Insurance Co. v. Culligan Fyrprotexion, Inc, (1982) Ind.App., 437 N.E.2d 1360. The uniqueness of the res ipsa doctrine is the inference raised by the second factor--defendant's exclusive control--that the defendant is the culprit to the exclusion of all other causes once a particular set of facts conforms to this tripartite formula. Id. With this premise, both parties here would agree; the dispute centers around the time at which a defendant must exert such control to incur liability.

In Indiana, our case law clearly requires that the defendant have exclusive control of the offending instrumentality at the time of injury. The failure to show such control was the basis for denying liability under the res ipsa doctrine when a folding chair collapsed, Evansville American Legion Home Ass'n v. White, (1958) 239 Ind. 138, 154 N.E.2d 109, when a water heater burned a trailer, Henley v. Nu-Gas Co., Inc., (1971) 149 Ind.App. 307, 271 N.E.2d 741, and, most recently, when a sprinkler system caused water damage. Bituminous Fire & Marine Insurance Co. v. Culligan Fyrprotexion, Inc., supra. The time of the alleged negligence was not a crucial factor in these cases. Nor are we persuaded our result here should be different because the injuring agency in this case is a manufactured electrical product.

We also pay particular heed to a pertinent bit of dicta of the Wisconsin Supreme Court regarding products with moving parts that can be operated by the user. In Ryan v. Zweck-Wollenberg Co., (1954) 266 Wis. 630, 64 N.W.2d 226, that court was faced with a negligence suit brought by a user who had sustained an electrical shock from a refrigerator's door handle. The court found res ipsa applicable because the refrigerator's operating mechanism was hermetically sealed. In reaching that conclusion, the Wisconsin court distinguished this product from those with accessible moving parts:

"Philco maintains that the principle of res ipsa loquitur cannot be invoked in behalf of the plaintiff to establish Philco's negligence inasmuch as the refrigerator was not within the exclusive control of Philco. If the refrigerator were a machine or appliance, such as an automobile or sewing machine, the moving parts of which are capable of being operated by the user, defendant's point would be well taken. In case of injury resulting from the use of such a machine the inference would be just as strong that the defect causing the injury occurred as the result of the operator's use as would the inference that the same was due to some defect in manufacture, and therefore the principle of res ipsa loquitur would not be applicable."

Id. at 639, 64 N.W.2d 226. ² On the same plane, we find res ipsa inapplicable to the alleged malfunctioning of the toaster-oven here which had movable and exposed parts and which had been in the possession of and operated for several months by the Letterers. We reach this conclusion despite the Letterers' self-serving testimony both that they had not tampered with the applicance and that its sealed packing box had not been opened prior to their purchase.

To conclude otherwise would push the res ipsa loquitur doctrine further and further into the battlefield of strict liability. In fact, it has been argued that in products liability litigation res ipsa is a species of strict liability. 1 Frumer & Friedman, Products Liability Sec. 12.03. We are in agreement with the following language of California's Justice Traynor:

"An injured person, ... is not ordinarily in a position to refute [proper care on the part of a manufacturer] or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is...