Beard, Kevin L.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 16Number 1 Fall, 1985 Article 121985Recent Developments: Virgil v. "Kash N'Karry":Circumstantial Evidence Sufficient in ProductsLiabilityKevin L. BeardFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationBeard, Kevin L. (1985) "Recent Developments: Virgil v. "Kash N'Karry": Circumstantial Evidence Sufficient in Products Liability,"University of Baltimore Law Forum: Vol. 16 : No. 1 , Article 12.Available at: http://scholarworks.law.ubalt.edu/lf/vol16/iss1/12conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer." Zauderer, 105 S.Ct. at 2277. Ohio argued that a prophylactic rule was needed to prohibit attorneys from using legal advice in false or misleading advertisements. However, the Supreme Court found that the prophylactic ban was not the least restrictive way to secure the state's interests in preventing public deception. The Supreme Court noted that the Federal Trade Commission carries out a similar mission in eliminating unfair or deceptive advertisements in commerce, and found that distinguishing deceptive from nondeceptive -legal-advertisements would be no more difficult. Id. at 2278-80. The Court concluded that an attorney--lPay not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of others. Similarly, the Supreme Court struck down Ohio's restrictions on the use of il-lustrations in attorney advertisements. The Court noted that "the use of illustra-tions or pictures in advertisements serves important communicative functions: it at-tracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly." Id. at 2280. Since commercial illustrations are entitled to the first amendment pro-tection of verbal commercial speech, the state had the burden of showing a sub-stantial government interest justifying the restriction. The Court found that the state's interest that attorneys maintain dignity did not justify the abridgement of their first amendment rights. Further-more, since advertising could be policed 24-The Law ForurnlFal4 1985 on a case-by-case basis, the prophylactic ban on all illustrations in printed attorney advertisements was unconstitutional. Zauderer finally challenged the state's disclosure requirements in contingent fee advertisements. Under the Ohio disci-plinary rules, an attorney must state that the client may have to bear certain ex-penses even if he loses. Zauderer felt this compulsion violated his first amendment rights. The Supreme Court found that since commercial speech was principally justified by its value to consumers, Zau-derer's protected interest in not providing factual information in his advertising was minimal, and his interest was adequately protected by the requirement that the dis-closures be reasonably related to the state's interest in preventing deception of consumers. The Court then found that the Ohio requirement of disclosure in contingent fee ads was rationally related to the state's goals. The Court noted that a layman may not be aware of the distinc-tion between "legal fees" and "costs," and may wrongfully feel that he will entail no expenses. The Court concluded that Ohio's ruling was reasonable enough to support a requirement of disclosure, and did not violate the first amendment. The Supreme Court's opinion in Zau-derer protects an attorney's first amend-ment right to advertise, yet recognizes the state's interest in protecting the public from deception. While the state may no longer issue blanket bans to prevent an at-torney from offering legal advice or using illustrations in printed advertisements, the state may evaluate these ads on a case-by-case basis in order to ensure that the ads are not deceptive. The state may also compel the disclosure of specific informa-tion to prevent an ad from being decep-tive. As attorneys begin to exercise their constitutional rights, they should be aware of the potential of the state to create an advertising review board, and should en-deavor to prevent deceptive printed ad-vertisements from entering into the mar-ketplace of ideas. - Lawrence M. Meister Virgil v. "Kash N'Karry": CIRCUMSTANTIAL EVIDENCE SUFFICIENT IN PRODUCTS LIABILITY In a case of first impression, the Court of Special Appeals of Maryland has ruled that circumstantial evidence, in a prod-ucts liability action, is sufficient to estab-lish the existence of a defect, thereby en-abling the case to survive motions for a directed verdict and reach the jury. In Virgil v. "Kash N'Karry" Service Corpora-tion, 61 Md. App. 23, 484 A.2d 652 (1984), the court reversed in part a directed ver-dict, at the close of the claimant's case, en-tered by the Circuit Court for Howard County Guy J. Cicone, J. in favor of the defendant manufacturer, Aladdin Indus-tries, Incorporated and seller, "Kash N'Karry" Service Corporation. The court reversed the trial court with respect to the implied warranty of merchantability and strict liability in tort counts. The counts sounding in negligence, including failure to warn, were affirmed by the court. The factual circumstances of the case involved the implosion of a pint-size thermos purchased at "Kash N'Karry" two or three months prior to the accident. Testimony by the plaintiff, Irma Virgil, revealed that the thermos was filled with coffee and a small amount of milk every weekday morning. The thermos was then carried to work, either by its handle or in a bag containing her shoes. On Saturdays, the thermos was carried downstairs to her den, where the plaintiff spent the day studying. Mrs. Virgil cleaned the thermos by fill-ing it at night with a solution of baking soda and warm water. In the morning, she would wash the thermos with a bottle brush. The label bore the words, "Easy to Keep Clean," but there were no instruc-tions on how to clean the thermos or what constituted a normal manner of cleansing the thermos. One Saturday morning the thermos imploded, causing the hot coffee and glass to be spewn into the face and eye of Mrs. Virgil. Mrs. Virgil testified that she did not drop, misuse, abuse, or damage the thermos in any way, but the plaintiff failed to present any expert "to give any scientific explanation for the im-plosion." !d. at 27, 484 A.2d at 654. The defendants, during the motion for a directed verdict and the appeal, main-tained that the plaintiff had failed to present any evidence that the thermos was defective at the time it was purchased. As the court explained, [t]o recover on either theory-implied warranty or strict liability-the plain-tiff in a products liability case must satisfy three basics from an evidentiary standpoint: (1) the existence of a de-fect, (2) the attribution of the defect to the seller, and (3) a causal relation between the defect and the injury. !d. at 30, 484 A.2d at 656. Thus, the crux of the case became whether the plaintiff's testimony, with re-gard to her proper handling of the ther-mos during the two-to-three month period between purchase and implosion, satisfied the "plaintiff's burden to establish that it is more probable than not that the defect existed at the time of sale." !d. at 32, 484 A.2d at 657. The court held that the plaintiffs met their burden in this case. Initially, the court rejected the defendant's contention that expert testimony was needed to es-tablish a defect stating, [e]xpert testimony is hardly necessary to establish that a thermos bottle that explodes or implodes when coffee or milk are poured into it is defective. When a product fails to meet the rea-sonable expectations of the user, "The inference is that there was some sort of a defect, a precise definition of which is unnecessary." [d. at 31, 484 A.2d at 656 (citing Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967». The court then discussed the sufficiency of the evidence presented. As stated in Jensen v. American Motors Corp., 50 Md. App. 226, 437 A.2d 242 (1981), proofofa defect must rise above surmise, conjec-ture or speculation, emphasizing that re-covery can not be based on the presump-tion of the accident happening. Dean Prosser, though, in The Fall of the Cita-del, 50 Minn. L. Rev. 791,843-844 (1966), declared that the addition of (Ivery little more in the way of other facts . . . may be enough" to give rise to an inference that product is defective from the mere occur-rence of an accident. With the above analysis in mind, the court held that, "[a]n inference of a defect may be drawn from the happening of an accident, where circumstantial evidence tends to eliminate other causes, such as product misuse or alteration." Virgil, 61 Md. App. at 32, 484 A.2d at 657. Title Insurance and Judgment Reports Our Owners' or Mortgagee Title Insurance policies are available to you and your clients. SAFECD TITLE INSURANCE COMPANY OF MARYLAND TITLE BUILDINGIST PAUL AND LEXINGTON STREETS BALTIMORE. MARYLAND 21202/(301) 727-3700 Fal~ 19851The Law Forum-25 The court distinguished the case sub judice from Jensen, supra. Jensen involved the loss of control of an automobile al-legedly due to a defect in the steering mechanism where the only evidence pro-duced was the plaintiffs' testimony that he heard the tires squeal. The court stated that the plaintiffs in Jensen failed to ne-gate other causes of the accident. In the area of products liability, involv-ing the theories of strict liability and im-plied warranty of merchantibility, the holding in this case has the potential to provide a "windfall" to plaintiffs. The practical effect of the decision will be to shift the essential burden of proof to the defendant. As it stands now, the plaintiff is required to testify that he bought the product and that he did not misuse or alter the product, thus, effectively shift-ing to the defendant the burden of prov-ing that the causal effect of the accident was not produced by the defendant. The decision has further eroded the rule of caveat emptor. With regard to strict liability, it now appears that in order to reach the jury, who most often will side with the injured plaintiff, evidence of an accident which injured the plaintiff is needed; coupled with the plaintiff's heart-felt assurances that he did not misuse, alter or even touch the product (i.e., "all of a sudden, it just blew up") will be suffi-cient proof. This case takes the position that a plaintiff's testimony will not be self-serving. It may be too much to ask of an injured party. - Kevin L. Beard New Hampshire v. Piper: OPENS DOORS TO BAR ADMISSION In Supreme Court of New Hampshire v. Piper, 105 S.Ct. 1272 (1985), the United States Supreme Court held that New Hampshire Supreme Court Rule 42, which limits bar admission to state resi-dents, violated the privileges and immuni-ties clause of the United States Constitu-tion, article IV, section 2, clause 1. By this ruling, the Court has affected the residency requirements for lawyers in at least twenty-seven states. Low, Lawyer Residency Re-quirement Axed by Supreme Court, The Daily Record, Mar. 12, 1985 at 4, col. 3. However, Maryland is not one of the states affected by this ruling. See, e.g., Rule 10 of Rules Governing Admission to the Bar of Maryland (deleted Jan. 22, 1982). In Piper, the appellee, Kathryn Piper, a resident of a town in Vermont, which was located about 400 yards from the New Hampshire border, passed the New Hamp-shire bar examination in 1980. She was in-26-The Law Forum/Fal~ 1985 formed by the New Hampshire Board of Bar Examiners, however, that before she could practice law in the state of New Hampshire she would have to become a resident of New Hampshire pursuant to New Hampshire Supreme Court Rule 42. Appellee requested from the Clerk of the New Hampshire Supreme Court a dispen-sation from the residency requirement, ex-plaining that her personal situation ne-gated the convenience of becoming a New Hampshire resident. The Clerk denied appellee's request. Piper than petitioned the New Hampshire Supreme Court for permission to become a member of the bar. The New Hampshire Supreme Court denied her request. The appellee filed the present action in the United States Dis-trict Court for the District of New Hamp-shire. The court ruled in 1982 that the New Hampshire residency requirement violated the privileges and immunities clause. New Hampshire v. Piper, 539 F. Supp. 1064 (D.N.H. 1982). The Court of Appeals for the First Circuit affirmed the ruling. New Hampshire v. Piper, 723 F.2d 110 (1st Cir. 1983). The Court in Piper begins by discussing the intent of the privileges and immunities clause. The clause, according to the Court, was intended to "fuse into one Nation a collection of independent, sovereign States." Toomer v. Witsell, 334 U.S. 385, 395 (1948). Consequently, it is "[0 Jnly with respect to those 'privileges' and 'immuni-ties' bearing on the vitality of the nation as a single entity that a State must accord resi-dents and nonresidents equal treatment." Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371,383 (1978). Therefore, the privileges and immunities clause only pro-tects fundamental rights. The Court determined that practicing law is a fundamental right protected by that clause. First, one of the purposes of the clause is "to create a national economic union." Piper, 105 S.Ct. at 1276. Since "the practice oflaw is important to the na-tional economy," it is a fundamental right which is protected. Piper, 105 S.Ct. at 1277. Second, the practice oflaw is a fun-damental right because in cases where "un-popular federal claims" are raised "repre-sentation by nonresident counsel may be the only means available for the vindica-tion offederal rights." Piper, 105 S.Ct. at 1277. In addition, the Court noted that the practice oflaw does not involve an exercise of state power as in In re Gnffiths, 413 U.S. 717 (1973), justifying a residency requirement. Piper, 105 S.Ct. at 1278. In-stead, a lawyer is a private businessman and not "an 'officer' of the State in any po-litical sense." Piper, 105 S.Ct. at 1278. Although the Court determined that practicing law is a fundamental right, the state can still discriminate against non-residents where: "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relation-ship to the State's objective." Piper, 105 S.Ct. at 1279. The Court determined, how-ever, that New Hampshire did not show substantial reasons that were substantially related to the state's objective to discrim-inate against nonresident attorneys. First, "[tJhere is no evidence to support the State's claim that nonresidents might be less likely to keep abreast of local rules and proce-dures." Piper, 105 S.Ct. at 1279. Second, "there is no reason to believe that a non-resident lawyer will conduct his practice 

Recent Developments: Virgil v.  Kash N\u27Karry : Circumstantial Evidence Sufficient in Products Liability

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Recent Developments: Virgil v. Kash N\u27Karry : Circumstantial Evidence Sufficient in Products Liability

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