The Empty Chair

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Despite a plea from trial lawyers for guidance on when a defendant can cast blame on outsiders in a tort case, the Supreme Court of Virginia’s latest ruling on the issue of superseding cause is unlikely to resolve the issue.

The court ruled 5-2 on June 16 that a water heater manufacturer could point to an “empty chair” to argue that the negligence of other actors precluded any liability for the manufacturer in a car­bon monoxide poisoning trial.

Twenty-three people were injured when they were exposed to the odorless gas at a Blacksburg apartment in 2007. Tests showed that air handling equip­ment and the building design combined to rob the gas-fired water heater of the air needed for proper combustion.

Represented by Abingdon’s Mary Lynn Tate, four of the victims sued mul­tiple defendants seeking more than $100 million. Some defendants settled for con­fidential amounts.

State Industries Inc. – the maker of the water heater – said the blame be­longed elsewhere and took the products liability case to trial in Richmond Cir­cuit Court. A jury sided with State after hearing its “empty chair” arguments.

The jury also heard that there are about 60 million atmospheric gas water heaters operating in the United States. The Supreme Court ruled that state­ment by an expert was not improper in a breach of warranty case.

The case is Dorman v. State Industries Inc. (VLW 016-6-048).

Air-starved flame

The poisoning incident occurred just two days after the sophomores moved into the apartment in preparation for the fall term at Virginia Tech.

A combination of factors led to their exposure to carbon monoxide.

The gas water heater was an “atmo­spheric-vented” model which required adequate air circulation to operate properly. The apart­ment owner recently had installed carpeting in the units that blocked air circulation under the bedroom doors. A safety valve malfunctioned, causing the heater to run constantly.

Without enough air to burn properly, the gas flame in the water heater produced carbon monoxide.

Before and during the trial, Tate urged trial Judge Walter W. Stout III to block the “empty chair” defense. The evidence was sufficient to show that State’s conduct was a proximate cause of the victims’ injuries, Tate con­tended.

Without the water heater’s unsealed exhaust, the poi­son gas exposure could not have happened, the victims’ lawyer said.

State said the jury should be allowed to consider that improper installation and lack of maintenance super­seded any negligence in manufacturing.

Stout allowed the “empty chair” arguments, saying “the jury may deserve some explanation of why others aren’t here.”

Tort lawyers clash

The case prompted friend-of-the-court briefs from both the Virginia Trial Lawyers Association and the Vir­ginia Association of Defense Attorneys.

The VTLA contended trial judges needed some guid­ance.

There is “confusion in the bar not only regarding what constitutes a superseding cause, but the standard of re­view for analyzing intervening cause evidence to deter­mine whether, as a matter of law, it could amount to a superseding cause,” wrote William W.C. Harty of New­port News for the VTLA.

The VADA urged the court to resist the invitation “to rewrite established Virginia products liability law and to place Virginia as an outlier.” The VADA brief was au­thored by Robert L. Wise of Richmond.

The Supreme Court majority said the jury could have found a superseding cause of the incident from four out­side factors: An atmospheric heater was chosen even though the building design called for an electric heater, no one inspected to ensure proper air circulation, the in­stallation did not comply with a national code and the safety valve malfunctioned due to a lack of maintenance.

Accordingly, “the trial court did not abuse its discretion in admitting State’s evidence of superseding causation,” wrote Justice Cleo E. Powell for the majority.

Chief Justice Donald W. Lemons dissented, saying the jury should not have been allowed to consider the “emp­ty chair” defense. Lemons was joined by Senior Justice LeRoy F. Millette Jr.

The test for a superseding cause is whether non-par­ties engaged in “extraordinary unforeseeable actions,” Lemons wrote.

“Is it unforeseeable that routine maintenance might be negligently performed? Is it unforeseeable that a landlord or a tenant might install carpet in an apart­ment? I think not,” Lemons said.

State’s own expert admitted the backdraft and car­bon monoxide build-up would not have occurred with a closed exhaust design, Lemons said. State’s “empty chair” factors were merely intervening causes, not su­perseding causes, he said.

Jury instruction

The court approved the language of the jury instruc­tion on superseding cause. “A superseding cause breaks the chain of events so that the defendant’s original negli­gent act is not a proximate cause of the plaintiff’s injury in the slightest degree,” read part of the instruction.

The court said the instruction was consistent with earlier rulings on the subject.

The victims’ lawyer argued the instruction lacked any guidance on the burden of proof. The plaintiffs – and the VTLA – contended the jury should be told that the de­fendant shoulders the burden of showing that an “empty chair” actor was to blame.

The court declined to reach that question because plaintiffs’ counsel never offered an instruction to the tri­al judge that addressed the burden of proof issue.

Evidence of heater sales

The court was unanimous on allowing evidence of the number of atmospheric heaters in use.

“The number of atmospheric heaters sold was directly related to the issue of whether the atmospheric heat­er would ‘pass without objection in the trade,’” Powell wrote.

The court rejected the victims’ argument that the in­formation should have been kept from the jury based on the rule that evidence of absence of other injuries is not admissible in a negligence action.

State was represented by James H. Keale of New Jer­sey.

Neither Keale nor Tate responded to requests for com­ment.