COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68213 and 68228 THE CINCINNATI INSURANCE CO., : ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION MR. COFFEE, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : AUGUST 31, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case Nos. CV-262656 [Appeal No. 68213] and CV-263362 [Appeal No. 68228] JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: JAMES S. WERTHEIM, ESQ. HUNTER S. HAVENS, ESQ. Ulmer & Berne 800 Leader Building Suite 900 Cleveland, OH 44114 1300 East 9th Street Cleveland, OH 44114-1583 WARREN S. GEORGE, ESQ. Uhlinger & Keis 75 Public Square, #800 Cleveland, OH 44113 - 2 - PATTON, C.J. On December 12, 1990, a fire caused serious damage to a building owned by plaintiffs James and Martha Bertsch. The building contained a small business operated by plaintiff Just My Style Boutique and a rented upstairs apartment. The property owners' insurance company, plaintiff Cincinnati Insurance Co., hired a fire investigation expert to determine the cause of the fire. The fire investigation expert concluded the fire spontaneously started in a faulty electric cord of a coffeemaker manufactured by defendant Mr. Coffee, Inc. An electrical engineer examined the remains of the coffeemaker and determined that individual strands inside the power cord of the coffeemaker had separated, causing a short circuit that ignited the insulating cord. Although the coffeemaker had been plugged in to an electric socket, it was not in use at the time of the fire. The owners, Cincinnati Insurance Co., plaintiff Metropolitan Property and Casualty Company (the tenant's insurer), the business, and plaintiff Motorists Mutual Insurance Co. (the business' insurer) filed actions against defendant seeking damages and subrogation on claims of products liability, failure to warn, breach of express and implied warranties, design defects and negligence. The cases were consolidated and plaintiffs elected to try the action solely on the theory of a manufacturing defect. Plaintiffs presented testimony by two experts: a fire investigator - 3 - and an electrical engineer specializing in cause and origin of fires. The fire investigator examined the apartment shortly after the fire and, after determining the area containing the most damage, concluded the fire had started on the east side of a credenza located by the north wall of the apartment. He based his conclusion on evidence of arcing -- beaded bits of molten metal that form on the ends of wires that have been energized and welded together -- present on a coffeemaker found on the credenza. The fire investigator found evidence of two other arcs in the apartment: one by a breaker panel; the other in the ceiling conduit. He called in the electrical engineer who examined the other arcs and eliminated them as possible points of origin for the fire. The electrical engineer noted the arcing in the breaker panel could not have been the origin of the fire because the evidence showed electricity was running through the panel at the time the fire reached the height of the breaker panel, an impossibility had an arc occurred there first and tripped the breaker. As to the ceiling conduit, the electrical engineer found the wires had not been connected to the power source at the time of the fire. He noted the wires had been cut cleanly, most likely by wirecutters, and bore no evidence of arcing. Both experts agreed a defect located high within the throat of the coffeemaker cord caused the fire. The electrical engineer - 4 - stated, "It is my opinion that the cause of the fire was a failure of the line cord into the vicinity of the grommet of the Mr. Coffee drip coffeemaker." The fire investigator stated, "*** The Mr. Coffee was identified as the item that caused the fire from a failure of the power cord." At the close of plaintiffs' evidence, the trial court directed a verdict in favor of the defense. The trial court found the testimony of George Kramerich, plaintiffs' expert on electrical engineering, failed to show the product was defective when it left Mr. Coffee's hands: "It is the Court's view that the Plaintiffs' case must be made on the testimony of the electrical engineer, Dr. Kramerich. *** I believe the question was posed: Could you say that the cord was in a defective condition when it left the Defendant, Mr. Coffee's control? And I believe the answer was no." The court referred to the following testimony by Kramerich: Q. Okay. So there is nothing in the conclusions of your report that states that there was a problem with the coffeemaker when it left the hands of Mr. Coffee that resulted in this fire, correct? A. Correct. Plaintiffs filed separate appeals which we have consolidated for review. Civ. R. 50 governs the manner in which a trial judge may grant a directed verdict and provides in relevant part: * * * (4) When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in - 5 - favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. When considering a motion for a directed verdict, the trial court must neither consider the weight of the evidence nor the credibility of the witnesses because the motion does not present factual issues, but a question of law. O'Day v. Webb (1972), 29 Ohio St.2d 215, paragraph three of the syllabus; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court must withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day, supra, paragraph four of the syllabus. In order to establish a claim of product liability, the plaintiff must prove (1) that there was, in fact, a defect in the product manufactured and sold by the defendant; (2) that such defect existed at the time the product left the hands of the defendant; and (3) that the defect was the direct and proximate cause of the plaintiff's loss. Lonzerick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227; State Auto Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, paragraph two of the syllabus; Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48. If direct evidence is unavailable, a defect in a manufactured product existing at the time the product left the manufacturer may - 6 - be proven by circumstantial evidence. Friedman v. General Motors Corp. (1975), 43 Ohio St.2d 209, syllabus. The plaintiff must show by a preponderance of the evidence that the loss was caused by a defect and not other possibilities, although not all other possibilities need be eliminated. State Auto Mut. Ins. Co. v. Chrysler Corp., supra, at 157; State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 6. The sole issue on appeal is whether the trial court erred by directing a verdict on the second prong of the test set forth in State Auto Mut. Ins. Co. v. Chrysler Corp., supra. We believe reasonable minds could differ as to whether plaintiffs produced evidence sufficient to allow a reasonable juror to infer a defect existed in the coffeemaker at the time it left Mr. Coffee. The parties agree the use of circumstantial evidence to prove the existence of a defect at the time the product left a defendant's hands is controlled by the court's decision in State Farm Fire & Cas. Co. v. Chrysler Corp., supra. In that case, the plaintiff purchased a Chrysler automobile that immediately began experiencing electrical problems. Several repairs were made, including the removal of the instrument panel to correct a rattling noise. About five months after purchase, the automobile inexplicably caught fire. An expert concluded the fire was electrical in nature and started under the dashboard, but could not determine the precise cause due to extensive damage in the wiring. Because of this failure to identify whether the defect existed at - 7 - the time the automobile left Chrysler, the trial court directed a verdict against the plaintiffs. The supreme court affirmed the directed verdict, finding no evidence to show whether the defect existed at the time of manufacture. The court reaffirmed the principle that circum- stantial evidence may be used to show the existence of a defect at the time of manufacture, but found the evidence in that case merely left the question of the existence of the defect open to specu- lation. Id. at 9. The court looked at the evidence of repairs and the conclusions of the experts who eliminated other possibilities and held: "Yet, even when construed in favor of plaintiffs, this evidence does not permit reasonable minds to conclude that the source of the fire was a manufacturing defect in the electrical wiring present when the automobile left the hands of the manufacturer. That is, while reasonable minds might differ as to whether the electrical system developed a defect -- upon which there is substantial evidence, and which is supported by appli- cation of the consumer expectation test--they cannot differ upon the evidence presented, absent some speculation, as to whether some defect was present when the vehicle left the hands of the manufacturer. It is equally likely that the defect arose as the result of negligent repair when [the dealer] removed the dashboard of the Mowen vehicle." Id. (emphasis in original) Unlike State Farm Fire & Cas. Co. v. Chrysler Corp., the jury did not have to speculate whether the defective wiring existed when Mr. Coffee shipped the coffeemaker. Where there is no evidence of tampering or abuse, the malfunction of a part may create the - 8 - inference of a defect existing at the time of manufacture. State Auto Mutual Ins. Co. v. Chrysler Corp., supra (inherent defect in original equipment evidenced by outward rupture of brake hose); Cincinnati Ins. Co. v. Volkswagen of America, Inc. (1985), 29 Ohio App.3d 58 (shorting and arcing of main electrical cable harness installed by manufacturer). Plaintiffs' evidence created a very strong inference that a defect existed at the time the product left Mr. Coffee. The tenant testified she purchased the coffeemaker about six months before the fire. She only used the coffeemaker eight to ten times, and in that period she did not drop, damage or abuse it. This testimony established the coffeemaker was in essentially the same condition at the time of the fire as it had been when first purchased. In addition, the expert concluded the coffeemaker malfunctioned because a wire severed up in the throat of the electric cord, inside the coffeemaker. In his opinion, even had the tenant admitted dropping or damaging the coffeemaker, any resulting damage could not have been the cause of the fire because the cord severed so high up within the coffeemaker. We believe this testimony sufficient to create a strong inference that a defect existed at the time the coffeemaker left Mt. Coffee. The infrequent use of the coffeemaker, lack of evidence showing any alteration or damage to the coffeemaker, and testimony concerning the origin of the defect, could cause reasonable minds to differ on whether the defect existed at the - 9 - time of manufacture. Indeed, the lack of any evidence suggesting fault or abuse by the tenant made it highly unlikely a defect could have arisen after the coffeemaker left Mr. Coffee. Hence, despite the absence of expert testimony on the issue, we believe the jury could reasonably infer the existence of the defect. Mr. Coffee suggests there may be other possibilities chiefly because plaintiffs' experts conducted a sloppy investigation and failed to eliminate other likely causes of the fire. For example, it says the experts failed to inspect a space heater in the bathroom or other electrical appliances in the apartment as possible origins of the fire. This argument is irrelevant because the trial court specifically directed the verdict solely because plaintiffs failed to prove the defect existed at the time the product left Mr. Coffee, not because no defect existed at all. Moreover, even if the thoroughness of the investigation were relevant, the testimony shows plaintiffs' experts considered Mr. Coffee's possibilities and rejected them. The electrical engineer stated, "*** the space heater was inspected and rejected as a probable cause." Some of the appliances showed no evidence of arcing. Other appliances were in rooms that suffered less fire damage, indicating they had not been exposed to fire for the same period of time as areas near the origin of the fire. Still others were in areas whose burn patterns indicated they were not near the origin of the fire. - 10 - Finally, we note the thoroughness the experts' investigation is a matter for the jury since it goes to the credibility of their testimony. O'Day v. Webb, supra, at paragraph three of the syllabus. It could not properly form the basis of the directed verdict. Accordingly, we find the trial court erred by directing a verdict in favor of Mr. Coffee. The assigned error is sustained. Judgment reversed and remanded for further proceedings. - 11 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J. O'DONNELL, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .