The Appellate Division, First Department rendered a decision on an appeal that I worked on concerning the application of Speller v. Sears, Roebuck, & Co. -- proving a circumstantial evidence case within the products liability context.
In Ramirez v. Miller, the plaintiff was severely injured while attempting to exit a burning building by opening a door to the building's roof. The door was equipped with an alarm device and "panic bar" that the defendant Napco manufactured. The plaintiff claimed that he was unable to open the door with a key and that it would not open when he pushed on the panic bar. The plaintiff's investigator was able to photograph the device shortly after the accident, but the lock was destroyed thereafter and before defendant Napco was involved in the law suit.
That the device was missing, the case was a circumstantial one. In support of its summary judgment motion, defendant Napco proffered evidence from its expert that (1) an exemplar device demonstrated that the door was not defective, (2) the photographs actually showed that the locking mechanism worked, and most importantly, (3) there were several other alternative possible and plausible causes for the accident. This last opinions addressed issues with building management/tenant issues regarding access to the roof. The expert set forth several scenarios in which the evidence supported someone doing something to the door prior to the plaintiff's injury to prevent access to the roof.
The plaintiff's attorney in opposition merely concluded in his own affirmation that those alternative scenarios were highly unlikely. The plaintiff proferred no other proof to refute the opionion of Napco's expert. The Appellate Division, First Department concluded that each one of the scenarios was plausible and, thus, held that the plaintiff had failed to raise a triable issue of fact.
A helpful exercise in further clarifying the proof necessary to defend against a circumstantial evidence summary judgment motion is to compare the evidence proffered in Ramirez with the evidence proffered in Speller.
Unfortunately, the Court did not reach an intertwined issue of how the spoliation of the device played into this matter. Another party was presumed to have lost/destroyed to the device; however, it was Napco's additional contention that the plaintiff had an obligation to preserve the door. It would have been extremely interesting to see how the Court handled such an argument.
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