Opinion
Civil Action No. 04-0901.
October 18, 2005
Clem C. Trischler, Esquire, Patrick J. Doheny, Esquire, PIETRAGALLO, BOSICK GORDON, Pittsburgh, PA, Attorneys for Defendant, Sharp Electronics Corporation.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
AND NOW, come the Defendants, Sharp Corporation ("SC") and Sharp Electronics Corporation ("SEC"), by and through their counsel, Pietragallo, Bosick Gordon, and file the following Motion for Summary Judgment:
1. This case involves claims for insured and uninsured real and personal property damages arising out of a fire that occurred on July 8, 2003 at the residence of Steve and Sherry Kozar in Ligonier, Westmoreland County, Pennsylvania.
2. Plaintiffs allege that Steve and Sherry Kozar purchased a Sharp window air conditioning unit, Model No. AF-08CRL, which was placed in the Plaintiffs' master bedroom window during the summer months of 2002 and in or around June 2003. (Plaintiffs' First Amended Complaint, ¶¶ 5-7).
3. Brittany Kozar allegedly discovered a fire in the home's master bedroom on July 8, 2003, and this fire eventually destroyed the Kozar home. (Plaintiffs' First Amended Complaint, ¶ 8).
4. Plaintiffs allege that the cause and origin of the fire at issue was a Sharp model AF-08CRL window air conditioner that was located in the master bedroom of the Plaintiffs' residence. (Plaintiffs' First Amended Complaint, ¶ 9).
5. However, the Pennsylvania State Fire Marshal's Office investigated the July 8, 2003 fire at the Kozar residence, and found that the cause of the fire was undetermined, although physical evidence suggested that the fire originated not in the master bedroom, where the Sharp air conditioner was located, but in or near the second floor master bathroom. (State Fire Investigation/Worksheet, authored by Tpr. Kevin Karwatsky, attached hereto as Exhibit "A").
6. A number of electrical devices were located in the master bedroom of the Kozar residence on the day of the fire. Plaintiff Sherry Kozar testified in her deposition as to the contents of the master bedroom. Copies of select pages of Sherry Kozar's Deposition are attached hereto as Exhibit "B."
7. In addition to the Sharp window air conditioner on the east wall of the room, there were two lamps and a clock radio located along the south wall of the bedroom, (Deposition of Sherry Kozar, pp. 92-93), a cell phone battery charger near the southeast corner of the room, (Deposition of Sherry Kozar, pp. 94-95), another lamp near the air conditioner along the east wall, (Deposition of Sherry Kozar, pp. 98-99), and a television along the northern wall of the bedroom (Deposition of Sherry Kozar, p. 102).
8. The Husband-Plaintiff, Steve Kozar, testified at his deposition that the air conditioner was in use during the summer months of 2002, and for a few weeks before the fire in June and July of 2003. (Deposition of Steve Kozar, pp. 81-82. Copies of select pages of Steve Kozar's Deposition are attached hereto as Exhibit "C").
9. Moreover, when asked if the Kozars had ever experienced any problems with the Sharp window air conditioner prior to the fire, such as unusual smells or noises, Steve Kozar testified: "No. Didn't have any problems with it at all." (Deposition of Steve Kozar, pp. 81-82, Exhibit "C").
10. Plaintiffs originally retained two investigators and/or consultants, Brian L. Gray, a cause and origin investigator, and Matthew Balmer, an electrical engineer, to investigate the cause and origin of the fire, and to testify in support of the Plaintiffs' theory that the cause and origin of the fire was the window air conditioner.
11. On September 30, 2005, this Court entered an Opinion and Order granting SEC's Motion to Strike and Motion to Preclude the Expert Testimony of Brian L. Gray and Matthew Balmer. A copy of the Court's September 30, 2005 Opinion and Order of Court is attached hereto as Exhibit "D."
12. By virtue of this Court's September 30, 2005 Memorandum Opinion and Order striking and precluding any expert testimony from Brian L. Gray and Matthew Balmer, the Plaintiffs lack any expert testimony or other competent evidence that could establish that the subject air conditioner contained a design or manufacturing defect. Moreover, there is no competent evidence that Plaintiffs can offer to establish the air conditioner as the proximate cause of this fire.
13. There exists no genuine issue as to any material fact to preclude the entry of summary judgment in favor of SC and SEC since the plaintiffs can offer no competent evidence to meet their burden of proof on the essential elements of the claims raised in their First Amended Complaint.
14. SC and SEC incorporate the factual and legal arguments contained in their Brief in Support of this Motion for Summary Judgment and submit that this case must be dismissed because:
a. Competent evidence to establish a defect in the product is a predicate to any strict liability or breach of warranty action. Absent expert testimony, plaintiffs cannot establish this fundamental element of their claim.
b. With the testimony of Gray and Balmer stricken, Plaintiffs have no evidence to offer that establishes that SC or SEC failed to exercise reasonable care in the design, manufacture or sale of the subject air conditioner or that these defendants breached any duty of care.
c. Causation is a fundamental element of each cause of action raised in the First Amended Complaint and Plaintiffs lack any competent evidence to meet their burden of proof on the causation prong.
15. Further, Plaintiffs cannot rely on the malfunction theory to overcome the absence of direct evidence of a defect since they cannot eliminate reasonable secondary causes of the subject fire.
16. In the present case, there is no genuine issue as to any material fact that Plaintiffs have failed to produce any competent evidence showing that the Sharp window air conditioner was the cause and origin of the subject fire, and Defendants SC and SEC are entitled to judgment as a matter of law.
WHEREFORE, Defendants Sharp Corporation and Sharp Electronics Corporation respectfully request that this Honorable Court grant their Motion for Summary Judgment and dismiss all claims against the Defendants with prejudice.