The Product Malfunction Theory Lives On

Introduction

The malfunction theory permits a plaintiff in a products liability action to pursue a product failure matter based on circumstantial evidence even when the product has been destroyed. This theory was recently reaffirmed in Pennsylvania in Liberty Mutual Fire Insurance Company v. Sharp Electronics, 2011 WL 2632880 (M.D. Pa. July 5, 2011, Jones, J.) permitting a cash register failure to be pursued under circumstances discussed below.

Liberty Mutual Decision

In Liberty Mutual Fire Insurance Company v. Sharp Electronics, 2011 WL 2632880 (M.D. Pa. July 5, 2011, Jones, J.), Judge John E. Jones, III of the U.S. District Court for the Middle District of Pennsylvania denied defendants' motion for summary judgment affirming that Pennsylvania law recognizes the "malfunction theory" of products liability whereby a plaintiff "can assert a successful strict liability claim based purely on circumstantial evidence in cases where the allegedly defective product has been destroyed or is otherwise unavailable." Barnish v. KWI Bldg. Co., 602 Pa. 402, 408, 980 A.2d 535 (Pa. 2009).

Under Pennsylvania law, a malfunction of a product in the absence of evidence of abnormal use or reasonable secondary causes is evidence of a defect. Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102 (3rd Cir. 1992); Walters ex rel. Walters v. Gen. Motors Corp., 209 F. Supp. 2d 481 (W.D. Pa. 2002); Gordner v. Dynetics Corp., 862 F. Supp. 1303 (M.D. Pa. 1994); Rogers v. Johnson & Johnson Prods., 523 Pa. 176, 565 A.2d 75 (1989); Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489 (Pa. Super. 1997).

Liberty Mutual v. Sharp Electronics arises out of a May 22, 2006 fire at the Authentic China Wok in State College, Pa., that was discovered shortly after the restaurant closed for the evening. The fire caused extensive damage to the restaurant and to an adjacent shopping center. Plaintiffs claimed that the fire originated in a cash register due to an electrical defect. However, the fire had destroyed the cash register with the exception of the metal cash drawer and the heavy metal power transformer, thus the cause of the alleged internal electric fault could not be positively identified because the fire had consumed all of the internal evidence that started the fire.

Defendant Sharp, alleged to be the manufacturer of the cash register, moved for summary judgment contending that plaintiffs failed to produce evidence supporting an inference that a defect in the cash...