Mason (Mo Lawyer's Weekly)

Wal-Mart Hit For $3.6 Million In Sale Of Defective Product

Boy Died When Electric Fan Set Room On Fire

By Chris Brown

The parents of a 14-month-old boy who was killed in a house fire have won a $3.6 million products liability verdict against Wal-Mart.

The plaintiffs contended that the fire was started by a nine-inch table fan, and that the fan's manufacturer was negligent in failing to equip it with a "thermal cut-out" that would have shut down the fan before the fire started.

The plaintiffs included Wal-Mart in the products liability case because the manufacturer, a Taiwanese corporation with no foothold in the United States, was judgment-proof.

Wal-Mart denied that it sold the fan, and argued that the boy's father was at fault because he left the boy alone in the bedroom behind a closed door with the fan running.

The retailer also denied that the fan started the fire or was defective.

The jury awarded a $6 million verdict and assessed 60 percent of the fault to the defendants, 40 percent to the parents.

"These thermal cut-outs are found everywhere now, on all kinds of appliances," said J. Kent Emison of Lexington, who represented the plaintiffs along with Michael W. Blanton. "They're on coffee makers, space heaters, dishwashers -- most appliances, in fact.

"And they're very inexpensive -- only about 25 cents apiece. This fire could have been prevented for just a quarter."

Michael J. Jerde of Kansas City, who represented Wal-Mart, declined to comment on the case.

A full verdict report on the case, Mason, et ux. v. Han Chi Hang Co. Ltd., et al., appears on Page 5.

Alone In Bedroom

The fire happened during the night of July 25, 1995. At about 9:30 p.m., the father entered the boy's bedroom and found him asleep on the floor. Not wanting to wake him up, he decided to leave him there, and placed a pillow under his head. And because it was a warm night, he placed a nine-inch table fan on the floor about three feet from the boy. He then left the room, closed the door, and went down to the basement, where he and his wife slept on warm nights.

At about 5:15 a.m., the father woke up and went upstairs to get ready for work. As he mounted the stairs, he could smell a faint odor of smoke, although the fire alarm had not sounded. There was also a small amount of smoke coming from under the door to the boy's room. When the father opened the door, a dark cloud of smoke and super-heated air hit him in the face and knocked him back. The room was on fire, and a bed had been completely consumed down to the metal frame. The boy was dead; the cause of death was determined to be asphyxiation from the fire.

Retail Defendant

The state fire marshal's investigation determined that the fan overheated and caused the fire, said Emison.

As a result, suit was filed against the manufacturer of the fan, Han Chi Hang Co. Ltd. of Taiwan, and against two retail stores, Wal-Mart and Place's Discount Stores.

Emison noted that there must be a substantive reason justifying the naming of a retail store as defendant in a products liability suit.

"The usual case is where there is some negligence on the part of the store that contributed to the injury," he said. "But it is also proper to name a store if there is some doubt that the plaintiff will be able to get full recovery from the manufacturer."

Such doubt quickly arose in this case, said Emison. Although the Taiwanese manufacturer filed an answer, it refused to respond to any discovery requests, including requests for information as to insurance coverage.

Emison also noted that a retail seller can move to be dismissed from a case under the retail seller statute (Sect. 537.762 RSMo) if full recovery can be made from the manufacturer -- and that neither Wal-Mart nor Place's Discount Stores tried to make use of this remedy.

"We don't add a retail store as a defendant unless there's a reason to have them in there," he said.

Emison initially named both retail stores because the boy's grandmother, who purchased the fan in 1985 or 1986, couldn't remember where she had made the purchase.

"She knew she had bought it at either Wal-Mart or Place's Discount Stores," said Emison. "So we named them both and then tried to figure out which one it was."

The buyer for Place's Discount testified that Place's had never sold fans manufactured by Han Chi Hang Co.

The buyer for Wal-Mart, on the other hand, admitted that the company had sold fans made by the company, and had sold fans that were "identical" to the one at issue in the case.

As a result, Place's Discount was let out of the case on summary judgment.

In addition to arguing that it did not sell the fan, Wal-Mart argued -- somewhat meekly -- that the fan did not cause the fire.

"Their expert denied the fan was the cause, but he didn't really offer an alternative," said Emison. "He just said he didn't know what started the fire."

But the most vigorously contested issues were: whether the fan was defective in design, and whether the father was negligent in leaving the boy alone in his room behind a closed door with the fan running.

25-Cent Part

On the design issue, Emison's expert testified that the fan lacked a 25-cent part, called a "thermal cut-out," that cuts off the motor of an electric appliance when heat reaches a dangerous level.

"Basically how these things work is, when the heat rises to a certain level, it breaks a circuit and shuts off the motor," he said.

The devices were developed in the 1950s and became common about a decade ago in response to coffee-maker fires, said Emison. They have now become common in all sorts of electrical appliances, including dishwashers, space heaters and toasters.

"They're in most household appliances by now," he said.

Emerson also noted that thermal cut outs are particularly important in small devices that don't draw enough current to trip a household circuit breakers when they overheat.

According to Emison, Wal-Mart's expert contended that the fan didn't need a thermal cut-out because it was driven by an "impedence motor" that doesn't get hot enough to start a fire under forseeable use.

The expert argued that a combination of circumstances would be necessary to cause the fan to start a fire. First, he said, the fan blades would have to become blocked, which would cause the motor to overheat. And second, something would have to intervene to prevent the heat from dissipating.

"The expert's testimony fit the most likely scenario for how the fire started," said Emison. "It was clear that something must have blocked the blades, and the fire marshal found a piece of blanket on the fan, leading to the theory that the boy somehow knocked the fan over and dragged a blanket over it."

The expert also argued that such circumstances were not foreseeable. But Emison managed to undercut this assertion by forcing the expert to admit that the fan could have been designed with a thermal cut-out, that the thermal cut-out would have cost less than 50 cents, that the fire would not have started if the fan had had a thermal cut out, and that an impedence motor was not able to prevent a fire under these circumstances.

"Their expert wanted to say that this was not a foreseeable event," he said. "But we argued that the actions that led to this fire were entirely foreseeable -- and that the fire could have been prevented by a 25-cent part."

Emison's expert also criticized the fan's design because the plastic it was made with did not include a fire retardant. "This fan was about 90 percent plastic," said Emison. "Just about the whole thing was plastic except the motor itself. But they used a cheaper form of plastic that lacks any fire retardant chemical in it.

"Our expert testified that there's a plastic available that's not quite as cheap that they could have used that would not have supported an open flame, that would not have been fuel for the fire."

Comparative Fault

Wal-Mart also argued that the father was at fault for leaving the boy in the room alone and closing the door before going downstairs.

Noting the 40 percent comparative fault assessed to his clients, Emison conceded that the defense had made headway with the jury on this issue.

"I told the jury that I was incensed that Wal-Mart was bringing up the issue of comparative fault in this case," he said. "There was nothing that the father did wrong. It was a hot night, he didn't want to wake his child so he left him on the floor, he didn't want him to fall down the stairs so he closed the door, he didn't want him to be hot so placed the fan nearby.

"He didn't know that the fan was a fire hazard. I contended it was the responsibility of the party that had greater knowledge, the defendants, to take steps to make sure a fire didn't happen."

Emison also objected to the submission of comparative fault to the jury, citing Teeter v. Missouri Highway and Transp. Comm., 891 S.W.2d 817 (Mo. Banc 1995), where "the Supreme Court recognized that comparative fault cannot be applied when one of [the plaintiffs] is potentially at fault.

"All of their comparative fault arguments in this case were against the father, not the mother," said Emison. "So I argued that a comparative fault submission was improper and that their only recourse was a contribution action against the negligent [plaintiff] following apportionment.

"This is a matter we will be taking up on appeal."