Dewitt v. Eveready Battery Co.6/28/2002
obile on this day, or by the use of the car between delivery and the happening of the incident. Nor is there anything to suggest that any external force or condition unrelated to the manufacturing or servicing of the car operated as an inducing or even concurring factor. Id. at 409-10, 161 A.2d at 97-98.
The New Jersey court cited several cases to support its holding and noted that " lthough these latter cases sound in negligence, the test for finding a jury question in them is even more stringent. Circumstantial evidence sufficient to create a jury question as to the negligence of a manufacturer or dealer would clearly justify the same result where the issue is breach of warranty." Id. at 412, 161 A.2d at 99.
The court's holding in Henningsen, allowing use of circumstantial evidence to establish a defect, has subsequently been referred to both as the "malfunction theory" and as the "indeterminate defect theory." The Pennsylvania Superior Court discussed this theory in detail in several cases:
When advancing a theory of strict product liability, a plaintiff has the burden of showing that the product was defective, that the defect was the proximate cause of his or her injuries and that the defect existed at the time the product left the manufacturer. Woodin v. J.C. Penney Co., Inc., 427 Pa. Super. 488, 490, 629 A.2d 974, 975 (1993)[, appeal denied, 537 Pa. 612, 641 A.2d 312 (1994)]. In certain cases of alleged manufacturing defects, however, the plaintiff need not present direct evidence of the defect. When proceeding on a malfunction theory, the plaintiff may "present a case-in-chief evidencing the occurrence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction." O'Neill v. Checker Motors Corp., 389 Pa. Super. 430, 435, 567 A.2d 680, 682 (1989). From this circumstantial evidence, a jury may be permitted to infer that the product was defective at the time of sale. . . .
. . . Although proof of a specific defect is not essential to establish liability under this theory, the plaintiff cannot depend upon conjecture or guesswork. "The mere fact that an accident happens, even in this enlightened age, does not take the injured plaintiff to the jury." Stein v. General Motors Corp., 58 [Pa.] D. & C.2d 193, 203 (Bucks [County] 1972), aff'd [per curiam], 222 Pa. Super. 751, 295 A.2d 111 (1972). [Woodin v. J.C. Penney Co., Inc.], 427 Pa. Super. at 492, 629 A.2d at 975-976.
The malfunction theory,
thus, does not relieve the burden of establishing a defect. However, " he malfunction itself is circumstantial evidence of a defective condition . . . ." D'Antona v. Hampton Grinding Wheel Co., Inc., 225 Pa. Super. 120, 124, 310 A.2d 307, 309 (1973). Ducko v. Chrysler Motors Corp., 433 Pa. Super. 47, 50-51, 639 A.2d 1204, 1205-06 (1994) (citations omitted); accord Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489, 495-96 (Pa. Super. 1997), appeal denied, 556 Pa. 676, 727 A.2d 131 (1998).
Thus, in a products liability case the plaintiff seeks to prove, through whatever means he or she has available under the circumstances of the case, that a product was defective when it left the hands of the manufacturer. In some cases, the plaintiff may be able to prove that the product suffered from a specific defect by producing expert testimony to explain to the jury precisely how the product was defective and how the defect must have arisen from the manufacturer or seller. In cases of a manufacturing defect, such expert testimony is certainly desirable from the plaintiff's perspective, but it is not essential. The plaintiff, even without expert testimony articulating the specific defect, may be able to con
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