Under the Malfunction Theory in a Products Liability Case, Can a Plaintiff Plead Both Specific and Non-Specific Defects?

In O’Brien v. Cessna Aircraft Company, (298 Neb.109), the Supreme Court of Nebraska examined this complicated question.

Patrick O’Brien (“O’Brien”) was employed as a commercial pilot flying mail overnight in Nebraska. In February 2007, he was seriously injured when the Cessna 208B Caravan (“Caravan”) he was flying crashed through the roof of a metal building and into a utility pole during an approach to the Alliance, Nebraska airport. It happened at 2:25 in the morning, in heavy fog and below freezing temperatures. O’Brien remembers nothing of the crash. He theorizes that ice accumulated on the aircraft during flight, resulting in an ice contaminated tail stall (“ICTS”) that caused the crash. O’Brien sued the aircraft’s designer and manufacturer, Cessna Aircraft Company (“Cessna”), and the designer and manufacturer of the aircraft’s pneumatic deicing system, Goodrich Aerospace Company (“Goodrich”), asserting claims of strict liability, negligence, and fraudulent misrepresentation. Cessna and Goodrich alleged the accident was the result of O’Brien’s negligent operation of the aircraft. The lower court returned a general verdict in favor of the Defendants, saying O’Brien had not met the necessary burden of proof. O’Brien appealed.

O’Brien alleged multiple errors in the appeal. The focus here is the malfunction theory in the products liability case. O’Brien sought to present circumstantial evidence that the Caravan was defective because it was “susceptible to ICTS.” Many of O’Brien’s assignments of error include the argument that he was prevented from showing the Caravan was “susceptible to ICTS” or had a “propensity to suffer ICTS.” Cessna argued that O’Brien’s susceptibility theory identifies no specific defect and is so vague as to be meaningless. The trial court did not instruct the jury on O’Brien’s susceptibility theory, reasoning in part that it had not been sufficiently pled.

The central question in strict liability in tort is whether the product was defective. Defects are usually design defects, manufacturing defects, or warning defects. The best means of proving a defect is expert testimony pointing to a specific defect. But in lieu of proving a specific defect, plaintiffs may prove an unspecified defect in the warranted product through circumstantial evidence using what is commonly referred to as the malfunction theory.

The malfunction theory permits a fact finder to infer negligence from the circumstances of the incident, without direct evidence of the wrongful act. Under the malfunction theory, a plaintiff may prove a product defect circumstantially, without proof of a specific defect, when the incident causing the harm was of a kind that would ordinarily occur only as the result of a product defect and the incident was not solely the result of causes other than a product defect existing at the time of sale or distribution.

The malfunction theory is narrow in scope. It states that it is not necessary for the plaintiff to establish a specific defect so long as there is evidence of some unspecified dangerous condition or malfunction from which a defect can be inferred—the malfunction itself is circumstantial evidence of a defective condition. The malfunction theory does not alter the basic elements of the plaintiff’s burden of proof and is not a means to prove proximate cause or damages.

O’Brien’s argument that the Caravans are “susceptible to ICTS” is an attempt to prove an unspecified defect in the aircraft through circumstantial evidence. This court has not extended the malfunction theory into the context of strict liability product defect claims. Plus, it is unavailable to O’Brien here because he did not plead the theory and the applicability of such a theory is negated by his assertion of specific defects.

A plaintiff who wishes to rely on the malfunction theory to establish an unspecified defect must plead and prove that the incident causing the harm was of a kind that would ordinarily occur only as the result of a product defect. O’Brien’s amended complaint included no such allegations and, instead, identified many very specific design defects that allegedly caused the aircraft to crash. Given the nature of the crash, it is doubtful O’Brien could satisfy the burden of the malfunction theory, but his failure to plead the malfunction theory at all prevents him from relying on it to prove a nonspecific defect that the aircraft was susceptible to ICTS.

The Supreme Court of Nebraska affirmed the lower court’s ruling.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado