Opinion
03-CV-0083E(Sr).
November 18, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiffs New York Central Mutual Fire Insurance Co. ("NYCM") and State Farm Insurance Companies ("State Farm") (collectively "plaintiffs") commenced this action November 26, 2002 in the Supreme Court of the State of New York, County of Niagara, and defendant Toyota Motor Sales, U.S.A., Inc. removed this action to this Court on January 31, 2003. This products liability action arises from a fire that occurred on September 12, 2001 at the home of Gary and Cynthia Sykes, located at 7141 Laur Road in Niagara Falls, N.Y. Plaintiffs allege the fire started in the engine of the Sykes's 2000 Toyota Celica, spread to the garage structure in which it was parked and caused severe damage to the Celica, garage and insured premises. The Sykes's home and surrounding structures were insured by NYCM and their leased Celica was insured by State Farm. Plaintiffs, as subrogees of Mrs. Sykes, claim, inter alia, that defendant manufactured and sold a defective automobile to Mrs. Sykes, which was the proximate cause of the damage to the Sykes's property. State Farm seeks recovery of the $22,215 paid to Mrs. Sykes to replace her Celica plus interest and NYCM seeks recovery of the $243,119.07 paid to Mrs. Sykes to repair her property plus interest. Defendant now moves for summary judgment pursuant to Rules 37 and 56 of the Federal Rules of Civil Procedure ("FRCvP") and Rule 702 of the Federal Rules of Evidence ("FRE") claiming that (1) plaintiffs, based on New York products liability law and the FRE, have no reliable proof of a design defect or that a manufacturing defect caused the fire and thus cannot establish an essential element of their prima facie case and (2) plaintiffs' claims should be dismissed pursuant to the spoliation doctrine because, by destroying the garage before defendant had a chance to inspect it, plaintiffs had not given defendant an opportunity to adequately defend this action. Defendant, in the alternative, seeks a FRE 104(a) hearing to evaluate plaintiffs' expert witnesses. For the reasons set forth below, defendant's motion will be granted and plaintiffs' claims will be dismissed.
The insurance policies were in Mrs. Sykes's name.
Defendant pursued the spoliation doctrine against both plaintiffs in its Memorandum of Law in Support of the Motion for Summary Judgment; however, defendant only pursued the spoliation doctrine against NYCM in its Reply Memorandum.
The facts, in the light most favorable to the plaintiffs — the non-moving parties —, are found as follows and are undisputed except where otherwise noted. Mrs. Sykes leased the 2000 Toyota Celica with the standard equipment for the GT model on September 30, 2000, approximately one year before the fire, from the Rainbow Toyota dealership in Niagara Falls, N.Y. The primary driver of the Celica was the Sykes's then 21 year old son Garrett. Before Mrs. Sykes leased the Celica, it had been used as a "demo" vehicle for approximately five months, during which time it had not had any problems. Prior to the fire, the Sykes also had not had any major problems with the Celica.
The Sykes replaced the tires on January 2, 2001. The Sykes never had any problems starting the Celica and never observed lit warning lights inside the Celica.
Mr. Sykes built the garage, which was a detached two-story building adjacent to the Sykes's home. The building had a garage, woodworking shop and bathroom on the first floor and the Sykes had been planning to build an apartment on the second floor, which was unfinished at the time of the fire. Mr. Sykes had equipped the garage with electricity, cable, telephone service and water, but not a gas hookup. Mr. Sykes contends that the garage adhered to the electrical code of the 1980's, which he claims has not changed much since then although he did not make sure as to such.
At around midnight on September 12, 2001 Garrett pulled the Celica into the garage nose first and shut off the ignition, got out of the Celica and went inside the house to go to bed. Garrett did not see, hear or smell anything burning or notice anything out of the ordinary to indicate a problem with the Celica. Approximately thirty to forty-five minutes later — around 1 a.m. —, his parents came in his room to tell him that the garage was on fire.
The Niagara Active Hose Company and Niagara Fire Company Number One responded to the fire. At 1:16 a.m., Jason Zona was the first firefighter to arrive at the scene. He reported that the fire was concentrated more on the second floor. The fire caused the roof and door of the garage to collapse and destroyed the outer walls of the garage.
After the fire had been contained, the Niagara County Fire Service interviewed witnesses and inspected the fire scene to determine if the fire was accidental or arson. Upon a finding that the fire was accidental, the investigators ceased their investigation — no lab, chemical or electrical analysis was conducted. The investigators, although not definitively, determined that the origin of the fire was "at or near the car" parked in the garage but no cause was determined. (Haseley Dep. at 115: 11-13.) The investigators did not narrow the origin of the fire to one side or to a particular area of the Celica and did not limit the origin of the fire to the Celica itself but to something near the Celica. They believed that the fire was the result of heat from the Celica's catalytic converter coming into contact with the rubber mat over which the Celica was parked. The investigators determined that the power panel in the garage did not contribute to the fire and spent little time examining other potential causes of the fire, such as the wiring and propane tanks. The investigators stopped the investigation after the rubber mat had been discovered under the Celica and left the Celica in its original position for the insurance companies to examine.
The origin of a fire is different from the cause of a fire: the origin is where the fire begins and the cause is the actual circumstances that give rise to the fire.
Two days after the fire, on September 14, 2001, NYCM retained Norbert Kupinski and State Farm retained Anthony Bartello — both of whom now are plaintiffs' fire experts — to investigate the fire. The six-to-eight-hour inspection took place at the Sykes's property with the Sykeses present and no additional investigation regarding this case was conducted by either inspector. Both inspectors concluded that the fire had been originated by an unknown electrical malfunction in the Celica's engine compartment; however, the inspectors did not and could not attribute the fire to a defect and affirmatively denied finding such a connection. Neither inspector claims to know what caused the fire — they do not know what created the rise in temperature that resulted in the fire. Neither inspector could determine the precise nature of the malfunction that allegedly caused the fire because of both the extensive fire damage to the Celica and their lack of experience or expertise in car fires.
Kupinski is a private investigator and owns an auto repair shop and a used car lot. He has attended fire investigation training courses at the New York State Academy of Fire Science. He does not, however, have any degrees or certifications in the field of fire investigation.
Bartello is a certified New York State fire investigator, works as a private investigator and has investigated nearly 1000 fires. He has a Bachelor's of Science degree in secondary education, is not an engineer and has no training or knowledge of automobile electrical systems, automobile fires or Toyota vehicles.
Kupinski concluded that "an electrical malfunction occurred which caused an overheating of the electrical systems components causing combustible materials to ignite." (Pls.' Ex. F at 2.) Bartello concluded that "[t]he fire originated within the left front portion of the 2000 Toyota Celica's engine compartment, most probably as a result of a faulty body ground connection on the left fender." (Pls.' Ex. D at 6.)
Moreover, neither inspector thoroughly, if even briefly, examined the garage itself for potential fire causes. Mrs. Sykes said that the inspectors "were there strictly to investigate the car. They did not investigate any of the other parts of the fire." (Cynthia Sykes Dep. at 15:21-22.) The inspectors included in their respective reports photographs of the property investigated. The vast majority of the photographs were of the Celica and neither inspector took a close-up or detailed photograph of the garage or anything in the garage that was investigated — if there ever was such an investigation. Neither expert can identify the underlying condition that gave rise to the fire or determine if the fire started on account of something wrong with the Celica or some other cause, and they are not qualified to make such a determination.
Garrett Sykes said that the inspectors spent all their time examining the Celica, but for a few minutes of casual conversation. (Garrett Sykes Dep. at 25-26.)
Kupinski said in his deposition that he cannot be more specific as to the cause of the fire except that there was an "electrical malfunction * * * [an] unknown malfunction in an unknown electrical system". (Kupinski Dep. at 189: 3-7.) Bartello said in his deposition: "The heat generated by that wire reaches a temperature of 1900 degrees. 1900 degrees is sufficient to ignite just about any combustible nearby. * * * I'm not an electrician, so I can't give you the science behind it[.] * * * I don't know what created that temperature." (Bartello Dep. at 159:15-160:20.)
Plaintiffs also retained electrical engineer Gene Haynes to examine the Celica and further expand on the findings of plaintiffs' fire inspectors. Haynes did not examine the garage and based his examination exclusively on the Celica. Haynes concluded that the fire was caused by an electrical arcing, but does not know where or why the arcing occurred or which components were involved. He admits that, based on his examination and the reports of Kupinski and Bartello, there is no evidence left — either because the evidence was consumed by the fire or made unavailable after the fire — to determine specifically the point of origin of the fire or the reason for such electrical arcing. Haynes claims there are dozens of viable theories that would explain the origin and cause of the fire — viz., outside debris accumulation on the electrical components of the engine, a loose connection, worn wiring insulation or a mistake made by a mechanic during routine maintenance. He does not believe, however, that a manufacturing or design defect caused the electrical arcing or the fire. Haynes believes the fire originated in the engine compartment, near the top left side of the engine where battery voltage was constantly available without the key switch being in the on position. Haynes further deduced that a short-circuit occurred in the power circuit wiring and generated a spark that ignited the surrounding plastic materials. The fire then, according to Haynes, propagated into the engine compartment and allowed other components such as fuel and other combustible materials to ignite and destroy the vehicle and the garage. Haynes does not, however, know for certain what caused the fire, believes the leading theory is the debris-accumulation theory and believes there is no way to know the cause of the fire for certain due to the lack of available evidence.
Haynes does not claim to be a fire expert and has no degrees, certifications or formal training in the field of fire investigation. He has worked on ten prior car fire cases.
Haynes concluded that the headlight circuit had been left on so battery power had been available, which allowed wiring to short-circuit near the top of the engine compartment. This power then became an arc that generated temperatures of 1900 degrees Fahrenheit and ignited surrounding materials with flash points of 500 degrees Fahrenheit.
Haynes believes the debris-accumulation theory is the leading explanation for the fire because, based on his experience, the location of the Celica increased the possibility that external debris had accumulated in its electrical components.
State Farm wrote a letter to defendant on September 14, 2001 stating that the 2000 Toyota Celica had been involved in a fire, giving defendant an "opportunity to inspect" the Celica and providing "advance notice of [the] potential subrogation claim" against defendant. (Def.'s Ex. T.) The letter, however, did not mention that the fire had taken place in a garage or the then location of the Celica. Defendant responded on October 1, 2001 via letter asking, inter alia, that the Celica be preserved, for copies of all information regarding the loss and for a "[s]tatement of how and where the incident occurred". (Def.'s Ex. U.) On October 9, 2001 State Farm wrote to defendant stating that the "claim handling is not yet concluded", providing the location of the Celica at a salvage yard and notifying defendant that all proofs of the loss would be sent upon conclusion of State Farm's handling of the claim. (Def.'s Ex. V.) State Farm sent defendant another letter dated October 19, 2001 — not received by defendant until October 31, 2001 — that notified defendant of this claim and stated that "[t]he evidence [was] being held for [defendant's] inspection." (Def.'s Ex. W.) Enclosed in the letter was a copy of Bartello's report, which described the facts leading up to the fire, such as the fact that the Celica had been parked in the garage, the result of the fire and the alleged cause of the fire. This was the first time defendant had been informed that the fire occurred while the Celica was parked in a garage building. At no time did NYCM notify defendant of a subrogation claim or of the destruction of the garage prior to filing this lawsuit.
Thomas Bush inspected the Celica on behalf of defendant and issued a report on November 7, 2001. Bush did not investigate the garage but concluded that the fire had not originated in the Celica and had been caused by an external source such as the structure in which the vehicle was housed. Bush recommended that defendant investigate the structure to determine the exact cause and origin of the fire. However, it was then impossible for defendant to examine the garage because it had been demolished without a notice or warning sent to defendant.
The date on which the garage was demolished is in dispute. Plaintiffs do not give a date on which the garage was destroyed and only provide November 15, 2001 as the date on which the Town of Niagara issued a demolition permit. Furthermore, plaintiffs' counsel at oral arguments on May 28, 2003 admitted that there was a question as to when the demolition occurred and did not put forward a date. Defendant, based on the depositions of the Sykeses, claims the garage was destroyed sometime in October 2001, possibly as early as October 11, 2001.
Gary Sykes claims plaintiff NYCM gave permission to demolish the garage three to four weeks after the fire and the garage was demolished during the third week of October. (Gary Sykes Dep. at 229: 1-7.) Cynthia Sykes believes the garage had been destroyed by October 11, 2001. (Cynthia Sykes Dep. at 300: 18-22.)
Summary judgment may be granted if the evidence offered shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party is sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden to show that no genuine issue of material fact is present but the opposing party then must "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which it will bear the burden of proof at trial, summary judgment is appropriate because such failure to establish an essential element of the case renders all other facts immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
When assessing the record in making a summary judgment determination, a court must view all ambiguities and factual inferences in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). However, the nonmoving party "cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." FRCvP 56(e); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
In moving to dismiss this case, defendant asserts two claims, one invoking FRCvP 56 and FRE 702 — plaintiffs' lack of adequate expert evidence — and one invoking FRCvP 37 and 56 and this Court's discretion — spoliation. This Court need not evaluate plaintiffs' expert evidence pursuant to FRE 702 and the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), standard because, even assuming plaintiffs' experts meet the required standards and after viewing all ambiguities and factual inferences in the light most favorable to plaintiffs, plaintiffs cannot establish an essential element of their design or manufacturing defect claim. Furthermore, this Court need not address defendant's spoliation claims because, although this Court does believe plaintiffs negligently destroyed evidence and thereby prevented defendant from adequately defending this action, this action will be dismissed without the need for further evidence from defendant. This Court will address only defendant's claim pursuant to FRCvP 56 that plaintiffs have not and cannot meet their burden in establishing the elements of a manufacturing or design defect claim because the Court finds that plaintiffs' expert evidence fails to establish an element of plaintiffs' prima facie case. As such, plaintiffs have not met their burden and defendant's Motion will be granted.
Plaintiffs claim that the Celica was defectively designed or manufactured. Plaintiffs admit that they cannot identify the design or manufacturing defect so they must rely on circumstantial evidence to establish such. Buckley v. Gen. Motors Corp., 2004 U.S. Dist. LEXIS 5654, at *5 (S.D.N.Y. Apr. 2, 2004) (holding that circumstantial evidence may be used to prove a design defect); Sanchez v. Stanley-Bostitch, Inc., 2000 U.S. Dist. LEXIS 9676, at *4 (S.D.N.Y. July 13, 2000) (holding that circumstantial evidence may be used to prove a manufacturing defect); Halloran v. Virginia Chems. Inc., 361 N.E.2d 991, 993 (N.Y. 1977). To infer the existence of a defect from circumstantial evidence, a plaintiff (1) must prove that the product did not perform as intended and (2) must exclude all causes of the plaintiff's injuries not attributable to the defendant. Tiner v. Gen. Motors Corp., 909 F. Supp. 112, 118 (N.D.N.Y. 1995); Hollaran, at 993 (holding that, when the plaintiff has proved "that the product has not performed as intended and excluded all causes of the accident not attributable to defendant, the fact finder may, even if the particular defect has not been proven, infer that the accident could only have occurred due to some defect in the product or its packaging"). The burden then shifts to the defendant to come forward with evidence that the accident was not necessarily attributable to a defect in the product. Winckel v. Atl. Rentals Sales, 557 N.Y.S.2d 951, 953 (2d. Dept. 1990). If the defendant offers any such proof, the burden shifts back to the plaintiff to produce direct evidence of a specific defect. Ibid.
It is undisputed that plaintiffs have no direct evidence of a specific defect. This Court will assume arguendo that plaintiffs can meet the summary judgment standard in showing that the Celica has not performed as intended through their experts' testimonies that the fire was caused by an unknown electrical malfunction. Defendant claims, therefore, that plaintiffs must be able to exclude all causes of the accident not attributable to defendant for defendant to have the burden of showing that the fire was not necessarily a result of a defect in the Celica. In so arguing, however, defendant bears its own burden of offering some "evidence in admissible form establishing [that the fire] was not caused by a * * * defect" in the Celica. Sanchez, at *7. This Court finds that plaintiffs have not and cannot meet their burden and defendant has provided evidence in the form of depositions of plaintiffs' own experts that the fire was not caused by a defect in the Celica.
Defendant, due to plaintiffs' negligent destruction of the garage, are forced to rely on plaintiffs' experts' depositions and reports to come forward with evidence that the fire was not a result of a defect. In this case, plaintiffs' experts do provide such evidence.
Plaintiffs' electrical expert Haynes admits that there is no way to determine what caused the fire. He said there are at least a dozen causation theories that plaintiffs cannot definitively exclude due to the lack of adequate evidence. In particular, plaintiffs cannot, nor do they attempt to, exclude the debris-accumulation theory — the theory Haynes believes is the most likely — which is not attributable to defendant or to a defect in the Celica. There are several other potential causes that Haynes concedes are entirely unattributable to defendant that plaintiffs cannot exclude. Furthermore, plaintiffs' other experts, Kupinski and Bartello, are not qualified to nor can they exclude any causes of the accident — they cannot determine if the fire was a result of a defect of the Celica or an intervening cause. In fact, Kupinski, Bartello and Haynes all admit that the fire was most likely not caused by a design or manufacturing defect and they have no evidence that it was so caused. As such, defendant has come forward with evidence that the fire was not caused by a defect and plaintiffs have not met their burden in excluding all causes of the fire not attributable to defendant. Plaintiffs, therefore, have failed to establish this element of their prima facie case and defendant's Motion for Summary Judgment will be granted and plaintiffs' claims will be dismissed.
Accordingly, it is hereby ORDERED that defendant's Motion for Summary Judgment is granted and that plaintiffs' claims are dismissed.