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Mercer v. Pittway Corp.9/7/2000
d in connection with the smoke detector's performance limitations. The Mercers respond by arguing that BRK did not adequately preserve error on this contention in district court.
Upon our review, we conclude that BRK failed to preserve error on the issue of whether Nathan read the product warnings accompanying the model 83R detector that he purchased and installed in his home. The record shows, that in BRK's directed verdict motion, BRK made the statement that Nathan never completely read the product information of the model 83R that he purchased. BRK, however, did not explain how this fact established a lack of proximate cause concerning plaintiffs' failure to warn claim and did not otherwise alert the court to the issue. The district court also did not address this specific issue in ruling on BRK's directed verdict motion. We believe that BRK's mention of the alleged fact that Nathan did not read the model 83R product warnings was not sufficient to preserve error on this issue for purposes of our appellate review. Cf. Soo Line R.R. v. Dep't of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (concluding that random mention of an issue in party's appellate brief "without elaboration of supportive authority, is insufficient to raise the issue for [appellate] consideration"). Accordingly, we proceed to examine whether plaintiffs presented sufficient evidence to create a jury question on their failure to warn claim.
3. Application of law to facts.
Our inquiry is whether plaintiffs presented sufficient evidence to raise a jury issue regarding: (1) whether BRK had knowledge that the model 83R might not be as effective as a photoelectric detector at detecting certain types of household fires; (2) whether BRK knew of the possible danger caused by the 83R's ineffectiveness with respect to certain types of fires; and (3) whether BRK was negligent in failing to tell consumers of its knowledge. Upon our review of the record, we conclude that plaintiffs presented sufficient evidence on all of these points to generate a jury question concerning their failure to warn theory.
As noted above, BRK was aware that the model 83R ionization detector might have a delayed response time in detecting certain types of fires. BRK's receipt of certain consumer complaints concerning the alleged failure of the model 83R to alarm to smoke also put BRK on notice as to potential performance problems of its product. This evidence also establishes the reasonable foreseeability on the part of BRK of danger to consumers due to a failure of the model 83R to sound a timely alarm in the presence of smoke. The fact that BRK could reasonably foresee such danger triggered a duty on the part of BRK to warn consumers of the possible limitations of the model 83R to detect certain types of fires.
Additionally, the fact that the product insert pamphlet for the model 83R states that the detector "may not go off or give early enough warning in as many as 35% of all fires" is not necessarily determinative on plaintiffs' failure to warn claim. This is because the evidence showed that plaintiffs' detector was otherwise operable, and there were no closed doors to block the smoke from reaching the detector, which are main factors listed in the product information pamphlet as reasons a smoke detector may not alarm. Additionally, Nathan testified that smoke conditions prevented him from entering the children's room, but that he did not recall hearing the smoke detector alarm.
We conclude that plaintiffs therefore presented sufficient evidence to justify submitting their negligent failure to warn claim to the jury. Cf. Laaperi v. Sears, Roebuck & Co., 787 F.2d 726, 730 (1st Cir. 1986) (holding that whe
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