McConchie v. Samsung Electronics

McConchie v . Samsung Electronics      CV-99-040-JD   08/11/00
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE



Donald and Susan McConchie

     v.                                  Civil N o . 99-40-JD
                                         Opinion N o . 

Samsung Electronics America, Inc.
and Samsung Electronics Co., Ltd.


                             O R D E R


     The plaintiffs, Donald and Susan McConchie, brought suit
against the manufacturer and distributor of Samsung microwave
ovens, alleging that a defect in their Samsung oven caused a fire
that damaged their home and personal property.   The defendants
move for summary judgment on the grounds that the McConchies
cannot prove their claims of strict product liability or
negligence based on an alleged defect in the microwave oven.     In
addition, the defendants contend that the McConchies’ breach of
warranty claims are barred as untimely filed, by a limitation in
the warranty as to available remedies, and as to the claim of
breach of warranty for a particular purpose, due to a lack of
evidence of any particular purpose.



                       Standard of Review

     Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”    Fed. R. Civ. P.
56(c).    The record evidence is taken in the light most favorable
to the nonmoving party. See Zambrana-Marrero v . Suarez-Cruz, 

 (1st Cir. 1999).    “[A]n issue is ‘genuine’ if the
evidence presented is such that a reasonable jury could resolve
the issue in favor of the nonmoving party and a ‘material’ fact
is one that might affect the outcome of the suit under governing
law.”    Fajardo Shopping Ctr. v . Sun Alliance Ins. Co., 

 , 7 (1st Cir. 1999).   Summary judgment will not be granted as
long as a reasonable jury could return a verdict in favor of the
nonmoving party.    See Anderson v . Liberty Lobby, Inc., 

 (1986).



                             Background
     The plaintiffs’ home in Keene, New Hampshire, was
extensively damaged by a fire on April 8 , 1996. The fire marshal
for the city of Keene inspected the fire site and concluded that
the fire originated within the plaintiffs’ microwave oven and
that the source of ignition was electrical. The microwave oven
was designed, manufactured, and distributed by the defendants.
The fire investigator hired by the plaintiffs’ insurance company

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also concluded that the fire originated within the microwave.
     The plaintiffs bought the microwave at Lechemere’s on
September 2 2 , 1995. The fire occurred six and one-half months
later.   No one had used the microwave oven within twenty-four
hours before the fire.   All of the appliances near the microwave
were unplugged at the time of the fire.    For purposes of the
summary judgment motion, the defendants stipulate that the fire
originated within the microwave oven.

     Randolph W . Marshall, a licensed professional engineer, was
retained to examine the microwave oven along with other evidence
to determine the cause of the fire. Marshall obtained an
exemplar microwave, the same model as the plaintiffs’ oven, and
inspected the damaged microwave, including a destructive

examination of the oven.   From his investigation and examination
of both the damaged and exemplar ovens, Marshall determined that
the fire started in the area of the control panel, “on, or just
behind, the circuit board at about five inches from the bottom.
Examination of the exemplar microwave shows many components
installed on the board in this area, most of which control or
transfer the line voltage power.”    Marshall letter of April 1 2 ,
2000 at 3 .   However, Marshall could not pinpoint the source of
the fire: “Due to the complete destruction of the control panel,
neither the location on the board nor the component that failed


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can be determined.”   

   He concluded “that the circuit board,
one of the attached components, or the connection of a component
[in the microwave oven] was defective and failed.    The failure
caused overheating and ignited nearby combustibles.”       

    In his deposition, Marshall stated that it was his opinion
that the microwave oven had a manufacturing defect, not a design
defect.    The defendants, referring to their answers to

interrogatories, represented that Samsung microwave ovens were
manufactured in accordance with the Underwriters Laboratories,
Inc., standard for Microwave Cooking Appliances. The defendants
also represented that the microwave ovens were tested and
inspected for quality control by both Samsung and Underwriters
Laboratories.

     The plaintiffs’ microwave oven had a warranty “against
manufacturing defects in materials or workmanship” on parts and
labor for one year and on the magnetron for eight years.         Defs.
Ex. D-3.    The warranty also provided, “[Samsung] further warrants
that if this product fails to operate properly within the
specified warranty period and the failure is due to improper
workmanship or defective material, [Samsung] will repair or
replace the product at its option.”    

   The warranty listed
certain exclusions, including “damage due to accident, fire,
flood and/or other Acts of God.”


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                            Discussion
     The plaintiffs claim strict product liability and negligence
based on theories of defective design and manufacture of their
microwave oven.   The plaintiffs also claim breach of implied and
express warranties pursuant to N.H. Rev. Stat. Ann. (“RSA”)
§ 382-A:2-314 and 382-A:2-315. In their motion for summary
judgment, the defendants contend that the plaintiffs cannot prove
strict product liability or negligence absent proof as to which
part was defective and that the breach of warranty claims are
untimely, excluded, or lack proof.



A.   Defect

     The defendants argue that the plaintiffs cannot prove their
strict liability and negligence claims without proof of what
component in the microwave was defective and caused the fire and
without proof of a design defect. The defendants also contend
that the plaintiffs lack proof of negligence. Although the
plaintiffs did not expressly concede their design defect claims,
they offer no evidence or argument in their objection to summary
judgment in support of their defective design claims.   Randolph
Marshall, the plaintiffs’ expert witness, stated in his
deposition that he found evidence of a manufacturing defect but

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not a design defect. As the plaintiffs have not shown any
evidence to support a design defect claim, the defendants are
entitled to summary judgment as to the plaintiffs’ strict
liability and negligence claims based on a theory of defective
design.   See Price v . Bic Corp., 

 (1997)
(providing elements of defective design claim).



    1.    Strict product liability.

    New Hampshire applies the theory of strict product liability

provided in the Restatement, Second, of Torts, § 402A: “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 . . . .”   See Bellotte v . Zayre Corp., 

 2 ,

53 (1976).    A manufacturing defect “involve[s] injury to a

particular consumer from one defective item in a product line.”

Price, 

. The plaintiff must prove a defective

condition that was unreasonably dangerous to the user and that

the condition existed at the time of purchase. See Thibault v .

Sears, Roebuck & Co., 

 (1978).

    A plaintiff cannot rely solely on the fact of injury to

prove a product defect. See Elliott v . Lachance, 

 (1969).    Instead, a “[p]laintiff must adduce proof of facts

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and circumstances warranting the conclusion that the product was
unwholesome or not fit for the purpose for which it was
intended.”   

   While “mere injury” is insufficient to prove
liability, when a plaintiff cannot identify the specific defect,
product defect may be proven through circumstantial evidence of
malfunction and a lack of evidence of other causes. See Makuc v .
American Honda Motor Co., Inc., 

 (1st Cir.
1987); see also Perez-Trujillo v . Volvo Car Corp. (Sweden), 

 0 , 56 n.10 (1st Cir. 1998); Walker v . General Elec. Co.,

 (1st Cir. 1992).     Many courts permit
circumstantial evidence to prove product defect. See, e.g.,
Ricci v . Alternative Energy Inc., 

 (1st Cir.
2000) (“‘By the very nature of a fire, its cause must often be
proven through a combination of common sense, circumstantial
evidence and expert testimony.’” [quoting Minerals & Chems.
Philipp Corp. v . S.S. Nat’l Trader, 

, 832 (2d Cir.
1971)]); Klein v . General Elec. Co., 

 (Mo. C t .
App. 1986); Allison v . Merck and Co., Inc., 

(Nev. 1994); White v . DePuy, Inc., 

 5 0 , 456 (Ohio C t .
App. 1997); Roselli v . General Elec. Co., 

 (Pa.
Super. C t . 1991); Turbines, Inc. v . Dardis, 

(Tex. C t . App. 1999).

     The plaintiffs have provided evidence that the fire started

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in the area of the microwave’s circuit board.   Their expert
witness gives his opinion “that the circuit board, one of the
attached components, or the connection of a component [in the
microwave oven] was defective and failed. The failure caused
overheating and ignited nearby combustibles.”   The plaintiffs
have therefore provided sufficient circumstantial evidence of a
manufacturing defect in the microwave that caused the fire to
survive summary judgment.



     2.   Negligence.

     To prove negligence, the plaintiffs must show “that the

defendant[s] owed the plaintiffs a duty, that the duty was

breached, that the plaintiffs suffered an injury, and that the

defendant[s’] breach was the proximate cause of the injury.”

Laramie v . Sears, Roebuck & Co., 

 (1998)

(quotation omitted).    Every manufacturer owes a legal duty “to

use due care to avoid foreseeable dangers in its products.”

Medtronic, Inc. v . Lohr, 

 (1996).   The

defendants contend that the plaintiffs lack evidence both of a

particular defect in the oven and that the defendants breached

their duty to use reasonable care to avoid dangers in their

microwave ovens. As discussed above, the circumstantial evidence

and the plaintiffs’ expert witness provide sufficient evidence of

                                 8
defect to avoid summary judgment on that issue.
    The plaintiffs provide no evidence of negligence, however,
and instead invoke the doctrine of res ipsa loquitur in support
of their negligence claim.   The doctrine of res ipsa loquitur
permits an inference of negligence from circumstantial evidence
pertaining to an accident in an appropriate case. See Rowe v .
Public Serv. Co., 

 (1975).   For res ipsa
loquitur to apply, the plaintiffs must prove “that (1) the
accident [is] of a kind which ordinarily does not occur in the
absence of someone’s negligence; (2) [the accident was] caused by
an agency or instrumentality within the exclusive control of the
defendant; and (3) other responsible causes are sufficiently
eliminated by the evidence.”1   

    The plaintiffs offer no evidence or even argumentation to
show that the circumstances of this case meet the requirements of
the res ipsa loquitur doctrine. The defendants contend in their
reply memorandum that the plaintiffs cannot satisfy the

    1
      In their reply memorandum, the defendants argue that New
Hampshire courts do not apply the doctrine of res ipsa loquitur.
To the contrary, the New Hampshire Supreme Court has stated that
“res ipsa loquitur has long been the law of this State.” LaRoche
v . Doe, 

 (1991). The doctrine, therefore,
appears to be viable under New Hampshire law in an appropriate
case, even if the New Hampshire Supreme Court has not yet found
an appropriate case in which to apply the doctrine. See, e.g.,
Cowan v . Tyrolean Ski Area, Inc., 

 (1985).

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“exclusive control” element of the res ipsa loquitur doctrine
because when the accident occurred, the oven was installed in the
kitchen of the plaintiffs’ house and was not in the exclusive
control of the defendants. Res ipsa loquitur requires that the
“instrumentality” of the accident be in the exclusive control of
the defendant. See Smith v . Coca Cola Bottling Co., 

 (1952).     Given the plaintiffs failure to show a trialworthy
issue as to the application of res ipsa loquitur in this case and
the lack of any evidence of the defendants’ negligence, the
defendants are entitled to summary judgment on the negligence
claim.



B.   Warranty

     As the defendants acknowledge, under New Hampshire law, a

seller warrants that the goods are merchantable and are fit for

the ordinary purposes for which such goods are used unless the

seller expressly limits the warranty. See RSA § 382-A:2-314;

Xerox Corp. v . Hawkes, 

 (1984).    A warranty as

to the fitness of the goods for a particular purpose is implied

if the seller had reason to know of the buyer’s particular

purpose for the goods at the time of contracting for the sale.

See RSA § 382-A:2-315. A buyer’s remedy for a breach of warranty

includes consequential damages. See RSA § 382-A:2-715(2).      The

                                  10
agreement may alter the remedies available, but the remedy
provided is optional “unless the remedy is expressly agreed to be
exclusive.”   RSA § 382-A:2-719(1).    While the statute provides
four years from the time of sale to bring an action for breach of
a contract for sale, the parties may agree to a shorter time, but
not less than one year. See § RSA 382-A:2-725(1).

     The defendants argue that the warranty in the Samsung User’s
Guide requires that actions be brought within one year of the
sale.   Because the plaintiffs did not bring their action within a
year of the sale of the microwave, the defendants contend their
warranty claims are not timely.    The pertinent language in the
warranty limits its coverage to manufacturing defects in
materials or workmanship for a period of one year for parts and
labor and eight years for the magnetron. That provision plainly
applies to the period of warranty coverage, not to the time
within which a buyer may bring an action. See Gamble v .
University of New Hampshire, 

 (1992) (providing
principles of contract interpretation under New Hampshire l a w ) .
The fire occurred six and one-half months after the microwave
oven was purchased.

     Nothing in the part of the warranty included in the record
for summary judgment addresses the period within which claims for
breach may be brought.   Since the plaintiffs brought suit within

                                  11
the four years provided in RSA § 382-A:2-725(1), their suit was
timely filed.

     The defendants also argue that the warranty limited the

plaintiffs’ remedy to repair or replacement of the oven at the

defendants’ option.   While the warranty provides for the repair

or replacement remedy, it does not explicitly limit buyers to
that remedy nor does the warranty disclaim consequential damages.

Cf. Xerox Corp., 

 (considering effectiveness of

disclaimer language).   In the absence of limiting language or a

disclaimer, the warranty does not preclude consequential damages.

See RSA § 382-A:2-714, 382-A:2-719(1).
     The plaintiffs do not contest the defendants’ motion for
summary judgment as to a warranty of the oven for a particular
purpose under RSA § 381-A:2-315. No evidence has been presented
of any particular purpose for the oven.   The defendants are
entitled to summary judgment as to the claim of breach of the
implied warranty for a particular purpose.



                            Conclusion

     For the foregoing reasons, the defendants’ motion for leave

to file a reply memorandum (document n o . 26) is granted; the

memorandum was considered in deciding the motion for summary

judgment.   The defendants’ motion for summary judgment (document

                                12
n o . 23) is granted as to the plaintiffs’ negligence claims, the
strict liability claim based on a theory of design defect, and
plaintiffs’ claim of breach of warranty for a particular purpose.
The defendants’ motion is otherwise denied.
      With the resolution of this motion, the parties should
engage in good faith efforts to arrive at a nontrial disposition
of this case.

      SO ORDERED.



                                      Joseph A . DiClerico, Jr.
                                      District Judge

August 1 1 , 2000
cc:   James C . Wheat, Esquire
      Robert D. Lietz, Esquire
      Andrew D. Dunn, Esquire




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