Author: Lee Hoyle
Editor: Brian A. Cafritz
In products liability cases, it seems that any entity that touches the product could have liability. Manufacturers, designers, installers, sellers, and repair companies all face exposure for defective products merely because of their relationships to the product. In such cases, defendants have long relied on the “empty chair” defense. The defense, which sounds more dramatic than it is, simply means that a defendant claims that someone else, someone not before the court, is responsible for the injuries. The defense survived a challenge before the Virginia Supreme Court, but the reasoning of the decision may complicate attempts to raise the defense in the future.
In Dorman v. State Indus., ___ Va. ___, 2016 Va. LEXIS 77 (June 16, 2016), the plaintiffs were several people who suffered carbon monoxide poisoning from a gas fired hot water heater, which they claimed was the result of the design of the heater. The plaintiffs brought suit against several defendants, but only the manufacturer remained at trial. The theories at trial were negligence and breach of warranty. The manufacturer denied liability on the grounds that the heater was improperly installed and maintained, even though the installer and maintenance companies were not named in the case.
At trial, the plaintiffs argued that the defendant could not argue the “empty chair” defense and point the finger at the installer or the maintenance company. They claimed that because Virginia follows Joint and Several Liability, any negligence of the manufacturer made it liable for the whole verdict. As a result, the negligence of another entity was not relevant unless such negligence constituted a superseding cause. Under Virginia law a superseding cause must completely cut off the chain of causation from the defendant’s acts to the injury. The Virginia Supreme Court had restricted the application of the superseding cause defense and had actually reversed several defense verdicts in recent years, noting that the superseding cause instruction should not have been given. The plaintiffs noted that their injuries could not have happened but for the design of the heater, so the actions of other entities could not be relevant or admissible. The trial court allowed the “empty chair” argument and then instructed the jury on superseding cause.
The Virginia Supreme Court unanimously determined that the defendant was allowed to argue that another entity’s actions caused the injuries. The majority held that the evidence was sufficient to allow the jury to find that the actions of the installer and building owner were superseding causes that relieved the manufacturer of liability. Interestingly, the dissent would have split the proverbial baby. The dissent agreed that the evidence was admissible, but only to show a lack of negligence on the manufacturer’s part. It argued that the superseding cause instruction should not have been granted, because the design of the heater was necessarily a cause of the injuries and the other entities’ actions could not, as a matter of Virginia law, have been a superseding cause.
On the surface, Dorman appears to be a win for products liability defendants in Virginia. The “empty chair” defense survived an existential threat, and the court held that the superseding cause instruction was properly given. However, the logic underlying the ruling may present problems moving forward. The majority’s decision that the “empty chair” evidence was admissible was based on the fact that the jury could find the other entities’ actions a superseding cause, but the court did not overrule recent cases disapproving of that defense. In other words, the majority ruling might be limited to the facts of that case, while the logic justifies limiting “empty chair” evidence solely to instances where the superseding cause defense is available. Because of the strict requirements to prove superseding cause, Dorman may actually make it more difficult to get “empty chair” evidence before a jury. Indeed, the dissent’s position might have been more beneficial to defendants, allowing the evidence without requiring a superseding cause instruction.
Moving forward, defendants seeking to rely on the “empty chair” defense must be prepared to argue superseding cause. The best way to do this will likely be to argue that Dorman holds that, at least where the argument is “empty chair,” the Dorman court held that the issue of superseding cause is a jury question. If you have any questions on how Dorman may impact your case, the products liability attorneys at KPM LAW are ready to answer any questions you may have.