The Mountain Club Owner's Association v. Graybar Electric Company, Inc.

Filing 75

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 1/27/2016 DENYING 68 Defendant's Motion for Summary Judgment. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE MOUNTAIN CLUB OWNER’S
ASSOCIATION,

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v.
GRAYBAR ELECTRIC COMPANY,
INC., and DOES 1-50,

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MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

Plaintiff,

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CIV. NO. 2:13-1835 WBS KJN

Defendants,
v.
GENERAL CABLE CORPORATION,
Third-Party Defendant.

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Plaintiff The Mountain Club Owner’s Association brought
this action against defendant Graybar Electric Company, Inc.
(“Graybar”), arising out of an electrical fire at plaintiff’s
property located in Kirkwood, California.

Graybar and third-

party defendant General Cable Corporation (“General Cable”) now
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move for summary judgment on plaintiff’s manufacturing defect

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claim pursuant to Federal Rule of Civil Procedure 56.

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I.

Factual & Procedural History

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Plaintiff is a homeowners’ association and the owner of

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property located at 1399 Kirkwood Meadows Drive in Kirkwood,

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California (the “property”).

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(Docket No. 40).)

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subcontractor who installed it during the construction of the

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property in 1999.

(Second Am. Compl. (“SAC”) ¶ 1

Graybar allegedly supplied electric cable to a

(Id. ¶¶ 8-10.)

Plaintiff claims that because

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of a manufacturing defect, the cable in the ceiling above unit

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314, which fed a chandelier, had inadequate insulation.

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¶¶ 12-20.)

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insulation caused a leakage of electric current, which produced

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heat and resulted in a high impedance electric fault that ignited

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the wood framing of the unit’s ceiling.

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(Docket No. 71-4).)

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million dollars in damage to the property.

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(Id.

Plaintiff asserts that this lack of sufficient

(O’Connor Decl. ¶¶ 6-12

The ensuing fire allegedly caused over $6
(SAC ¶ 13.)

Plaintiff filed suit against Graybar alleging strict

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product liability based on a manufacturing defect in the electric

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cable.

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against General Cable, the cable’s manufacturer.

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49.)

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parties”) now move for summary judgment on plaintiff’s

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manufacturing defect claim.

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II.

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(Id. 15-20.)

Graybar filed a third-party complaint
(Docket No.

Graybar and General Cable (collectively, the “moving

(Docket No. 68.)

Legal Standard
Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”
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Fed. R. Civ.

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable trier of fact to enter a verdict in the non-moving

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party’s favor.

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248 (1986).

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must view the evidence in the light most favorable to the non-

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moving party and draw all justifiable inferences in its favor.

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Id. at 255.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

In deciding a summary judgment motion, the court

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The party moving for summary judgment bears the initial

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the non-

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate specific

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facts showing that there is a genuine issue for trial.”

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324 (citation omitted).

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party must “do more than simply show that there is some

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metaphysical doubt as to the material facts.”

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Id. at

To carry this burden, the non-moving

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Matsushita Elec.
“The

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge” ruling on a motion for summary

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judgment.

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III.

Id. at

“Credibility determinations, the weighing of the evidence,

Id.

Discussion

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Plaintiff’s strict product liability claim is

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predicated on the allegation that “[t]he subject cable was

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defectively manufactured and unreasonably dangerous.”

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¶ 18.)

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from the manufacturer’s intended result or from other ostensibly

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identical units of the same product line.”

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Co., 20 Cal. 3d 413, 429 (1978).

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comes off the assembly line in a substandard condition it has

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incurred a manufacturing defect.”

(SAC

A manufacturing defect occurs when a product “differs

Barker v. Lull Eng’g

“For example, when a product

Id.

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A plaintiff prevails on a manufacturing defect claim by

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establishing that there was a defect in the manufacture or design

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of the product and that such defect was a proximate cause of the

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injury.

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177 (1976).

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at the time of manufacture.

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Corp., 214 Cal. App. 4th 173, 190 (2d Dist. 2013).

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Dimond v. Caterpillar Tractor Co., 65 Cal. App. 3d 173,
Plaintiff must show that the alleged defect existed
Garrett v. Howmedica Osteonics

Evidence of a manufacturing defect can be either direct

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or circumstantial, id. at 182, and the defect may be shown by

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inference from circumstantial evidence, Vandermark v. Ford Motor

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Co., 61 Cal. 2d 256, 260 (1964); Elmore v. Am. Motors Corp., 70
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Cal. 2d 578, 584 (1969).

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defectively designed or manufactured is a factual issue to be

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determined by the trier of fact.”

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Management Corp., 215 Cal. App. 3d 1611, 1626 (1989).

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Circumstantial evidence alone may create a genuine issue of

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material fact sufficient to defeat a motion for summary judgment.

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Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1029-

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1030 (9th Cir. 2006).

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“Whether or not a product was

Brooks v. Eugene Burger

The parties and their experts cite to the National Fire

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Protection Association’s NFPA 921: Guide for Fire & Explosion

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Investigations (2014 ed.) (the “NFPA”), which establishes

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“guidelines and recommendations for the safe and systematic

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investigation or analysis of fire and explosion incidents.”

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§ 1.2.1.

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copper conductors that were insulated with a common plastic

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insulator.

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in one or more directions, and insulators impede that flow.

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Damaged or insufficient insulation can cause leakage in the

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conductor’s electric current, causing the current to flow through

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the insulator.

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Id.

The electric cable above unit 314 contained three

Copper conductors allow the flow of electric currents

See generally id. chs. 9, 18-22.

The leakage current produces heat that burns and chars

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the insulation, and the insulation becomes carbonized.

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carbon is also a conductor of electricity, this may cause an

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electric arc--a high-temperature electric discharge “in the range

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of several thousand degrees.”

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through charred insulation is also known as “arcing through

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char.”

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direct flame or radiant heat, may be charred before being melted.

Id. §§ 9.9.4.1, 9.9.4.5.

Since

Arcing

Id. § 9.10.3 (“Insulation on conductors, when exposed to

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That char is conductive enough to allow sporadic arcing through

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the char.”).

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The moving parties argue that the fire on plaintiff’s

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property could not have been caused by electric arcing in the

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cable because there was evidence of arcing through char.

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contended that it was undisputed that arcing through char can

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never cause a fire and instead occurs only as a result of an

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external fire.

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Undisp. Material Facts ¶¶ 61-63 (Docket No. 71-1); Ward Decl. in

They

(See, e.g., Pl.’s Resp. to Defs.’ Statement of

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Supp. of Mot. for Summ. J. Ex. 5 (“Eberhardt Decl.”) ¶¶ 12-19

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(Docket No. 68-2); Reply at 1-3 (Docket No. 73).)

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the moving parties cite the NFPA and its companion guide, Fire

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Investigator: Principles & Practice to NFPA 921 and 1033 (4th ed.

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2016) (the “FIPP”).

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(“FIPP”) (Docket No. 73-1).)

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In support,

(See Ward Decl. in Supp. of Reply Ex. 12

However, it is not plaintiff’s experts’ theory that

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arcing through char was the sole cause of the fire.

Plaintiff’s

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experts concluded that a leakage current and a high impedance

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electrical fault, not “arcing through char,” had caused the fire

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on the property.

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Plaintiff’s expert Michael O’Connor opined that a lack of

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sufficient insulation in the electric cable, which was caused by

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a manufacturing defect, created a leakage of electric current.

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(See Butler Decl. Ex. B (“O’Connor Dep.”) at 13:17-14:1, 20:13-

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21:16 (Docket No. 71-2).)

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that degraded and charred the insulation between the copper

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conductors.

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then discharged more heat and caused further charring and

(Id.)

(E.g., O’Connor Decl. ¶¶ 6-12, Ex. E.)

That leakage current produced heat

This resulted in arcing through char, which

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carbonization of the insulation.

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(Id.)

O’Connor further found that the surface melting on the

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copper conductors showed evidence of arc faulting in the cable.

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(O’Connor Decl. Ex. E at 4.)

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circuit, is a flow of electric current that is not within a

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normal range.

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current faults.

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circuit breakers, which interrupt the power supply to stop

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further heating from the arc before a fire results.

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An arc fault, also known as a short

Arc faults can be either high-current or lowHigh-current arc faults can be detected by

Low-current arc faults, also known as high impedance

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faults, cannot be detected by conventional circuit breakers

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because their currents are too low to activate the breakers.

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low-current fault may therefore cause overheating without

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tripping a circuit breaker and ultimately ignite nearby

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combustible materials.

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describes arcing through char as a low-current fault that “may be

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capable of igniting combustibles” if its current is insufficient

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to trip a protective device such as a circuit breaker.

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130.)

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See NFPA §§ 9.2.8.3, 9.9.3.2.

A

The FIPP

(FIPP at

Because there was evidence of arc faulting in the

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electric cable here, the cable did not trip its circuit breaker,

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and there was no evidence of a high-current arc fault, O’Connor

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concluded that the fire was caused by a low-current arc fault,

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also known as a high impedance fault.

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4-5.)

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duration and intensity had caused the nearby wood framing in the

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ceiling of unit 314 to become sufficiently heated so as to ignite

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it.

(O’Connor Decl. Ex. E at

He determined that on the day of the fire, the fault’s

(O’Connor Dep. at 96:9-16.)
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According to the NFPA, insulation can char--and

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therefore cause arcing--from either an electric current, such as

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leakage current or a high impedance fault, or from non-electrical

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means, such as an external fire.

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primary means by which carbonization is created is by flow of

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electric current or by thermal means not involving

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electricity.”); id. § 9.9.4.5.1 (stating that leakage current may

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cause charring, arcing, or the ignition of combustible materials

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around the arc); id. § 9.11 (“Melted electrical conductors can be

See NFPA § 9.9.4.5 (“The two

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examined to determine if the damage is evidence of electrical

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arcing or melting by fire.”); id. § 9.11–9.11.2 (discussing the

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types of evidence that indicate melting from electric arcing

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versus melting from an external fire).

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The moving parties cite a table in the FIPP that states

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that arcing through char is “always a result of fire.”

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131.)

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help determine whether the damage to [a] conductor is from the

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fire, arcing, or overload.”

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the text states that damage from arcing through char, “by itself,

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does not necessarily indicate whether [arcing through char] was

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or was not the cause of a fire.”

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describes arcing through char as a low-current arc fault that

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“may be capable of igniting combustibles” if the fault current

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does not activate a circuit breaker.

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the moving parties’ contention that arcing through char is always

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the result of fire, and never the cause of it, does not appear to

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be entirely true.

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(FIPP at

That table, however, provides only “general indicators to

(Id.)

With respect to the table,

(Id.)

The FIPP further

(Id. at 130.)

Accordingly,

The moving parties also rely on Hinckley v. La Mesa
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R.V. Center, Inc., 158 Cal. App. 3d 630 (1984), to argue that

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proof of a manufacturing defect requires a showing that the fire

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occurred shortly after the sale of the product.

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misplaced.

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establish that an accident occurred shortly after sale as an

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element of a manufacturing defect claim.

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instead emphasized that “the addition of other facts tending to

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show that the defect existed before the accident, such as its

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occurrence within a short time after sale, or proof of the

This reliance is

Hinckley did not state that a plaintiff must

The Hinckley court

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malfunction of a part for which the manufacturer alone could be

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responsible, may make out a sufficient case, and so may expert

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testimony.

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causes by satisfactory evidence.”

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emphases omitted).1

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So likewise may . . . elimination of other likely
Id. at 643 (citation and

The Ninth Circuit has stated that “expert opinion may

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defeat summary judgment if it appears the expert is competent to

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give an opinion and the factual basis for the opinion is

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disclosed.”

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1421, 1435 (9th Cir. 1995).

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structural, civil, electrical, and mechanical engineer and is the

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principal engineer and owner of a forensic engineering consulting

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firm.

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expert, Donald Perkins, is a certified fire investigator with

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over 40 years of professional experience in the field of fire

Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d
Here, O’Connor is a licensed

(O’Connor Decl. Ex. E at 6-10).

Plaintiff’s second

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The moving parties also argue that plaintiff has failed
to raise a triable issue regarding a manufacturing defect because
the cable at issue was manufactured and inspected pursuant to
industry standards. However, this is insufficient by itself to
conclude that as a matter of law no manufacturing defect exists.
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investigations.

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(Perkins Decl. ¶ 1 (Docket No. 71-3).)

Plaintiff’s experts based their opinions on their

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examinations of the burn patterns on plaintiff’s property, the

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ceiling of unit 314, the electric cable recovered from the fire

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scene, and the copper conductors that were exposed in the

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electric cable.

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¶ 2, Ex. D at 5-6.)

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the fire in this case.

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snow melt system because it was off at the time of the fire, the

(O’Connor Decl. ¶¶ 4-24, Ex. E; Perkins Decl.
They also ruled out other likely sources of
For example, they eliminated the roof

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chandelier because it hung too low beneath the ceiling, and the

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“pancake” junction box above the chandelier because it was only

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lightly damaged and there was no evidence of electric arcing

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inside the box.

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6-9.)

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(O’Connor Decl. ¶¶ 9-21; Perkins Decl. Ex. D at

The ceiling area of unit 314 where the electric cable

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was located was the only remaining possible cause of ignition

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that had not been ruled out.

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Ex. D at 8-9.)

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melting of the copper conductors inside the cable, plaintiff’s

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experts concluded that the fire originated from the electric

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cable, and that the cable’s electrical faulting was caused by

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insufficient insulation resulting from defective manufacturing.

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(E.g., O’Connor Decl. ¶ 6.)

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competent and they have sufficiently disclosed the factual bases

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for their opinions.

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(O’Connor Decl. ¶ 6; Perkins Decl.

Based on evidence of electrical faulting and

Plaintiff’s experts are thus

See Rebel Oil, 51 F.3d at 1435.

The moving parties counter with their own expert

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testimony that the electric arcing inside the cable could have

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occurred as a result of the fire, as opposed to having caused the
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fire.

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plaintiff’s evidence that the fire could not have originated in

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the pancake box above the chandelier.

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Ex. 6 (“Hunter Decl.”) ¶¶ 7-11.)

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counsel for the moving parties acknowledged that they do not

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contend that the pancake box had caused the fire.

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position was that it would be impossible here to prove that a

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high impedance fault had caused the fire.

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(Eberhardt Decl. ¶¶ 15-16.)

The court disagrees.

Their experts also dispute

(Id. ¶ 11 n.1; Ward Decl.

During oral argument, however,

Rather, their

The moving parties’ evidence has

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not established conclusively and as a matter of law that the fire

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was caused by something other than a high impedance fault in the

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cable.

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offered by plaintiff’s experts instead create triable issues of

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material fact as to whether the fire was caused by a high

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impedance fault in the cable that resulted from insufficient

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insulation due to defective manufacturing.

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F.3d at 1029-30 (9th Cir. 2006) (finding that circumstantial

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evidence alone may create a genuine issue of material fact

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sufficient to defeat a motion for summary judgment).

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The moving parties’ contentions disputing the conclusions

See Cornwell, 439

On “summary judgment the inferences to be drawn from

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the underlying facts” must “be viewed in the light most favorable

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to the party opposing the motion.”

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Here, the fire investigation report that was prepared immediately

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after the fire had concluded that “[t]he source of the fire is

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undetermined but could have been possibly caused by an electrical

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problem somewhere in the attic and dormer space above the living

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room of Unit 314.”

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faulting is known to be a possible cause of fire.

Matsushita, 475 U.S. at 587.

(Ward Decl. Ex. 4 at 2.)

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Further, arc
See FSRA §

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9.10.2.1 (“If the conductors were insulated prior to the faulting

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and the fault is suspected as the cause of the fire, it will be

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necessary to determine how the insulation failed or was removed

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and how the conductors came in contact with each other.”).

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Construing the evidence in the light most favorable to

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plaintiff, the court concludes that plaintiff has provided

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“sufficiently ‘specific’ facts from which to draw reasonable

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inferences about other material facts that are necessary elements

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of [plaintiff’s manufacturing defect] claim.”

Triton Energy

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Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995)

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(citation omitted).

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and depositions of plaintiff’s experts, the court thus finds that

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plaintiff has presented “concrete evidence from which a

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reasonable juror could return a verdict in [plaintiff’s] favor.”

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Anderson, 477 U.S. at 256.

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Based on the record, including the reports

Accordingly, the court must DENY the moving parties’

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motion for summary judgment on plaintiff’s manufacturing defect

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claim.

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IT IS THEREFORE ORDERED that Graybar Electric Company,

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Inc. and General Cable Corporation’s motion for summary judgment

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on plaintiff’s strict product liability manufacturing defect

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claim (Docket No. 68) be, and the same hereby is, DENIED.

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Dated:

January 27, 2016

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