Exum v. General Electric Co.
819 F.2d 1158 (D.C. Cir. 1987)

MIKVA, Circuit Judge:

Appellant Reginald Exum suffered first- and second-degree burns while using a french fryer designed and marketed by General Electric ("GE''). He sued the company under several theories, the most important of which for purposes of this appeal is negligent design. At the close of Exum's case, the trial court directed a verdict for General Electric. Exum contends in this appeal that the trial court erroneously excluded ... evidence of similar accidents....

Mr. Exum was 19 years old and a new employee at a Wendy's franchise on June 10, 1983, the date of the accident giving rise to this suit. One of Exum's duties was filtering the hot grease used in his employer's GE Model 811 french fryer (the "Model 811''). This task required Exum to lift a six-pound pan containing 15 pounds of grease at a temperature of 350 degrees and pour the grease through a paper cone filter into a second pan placed on the floor.

Exum is asthmatic and carries with him a pressurized asthma inhaler. As he poured the grease through the filter, the inhaler dropped from his shirt pocket into the scalding liquid. An explosion occurred, and Exum was burned and scarred on his face, neck, and chest....

The premise of Exum's negligent design theory was that the Model 811 is an obviously and unreasonably dangerous machine. At trial, Exum hoped to show that the company was unreasonable to market an industrial french fryer requiring the use of two open pans when a safer fryer with a closed filtration system could have been created by installing an inexpensive manual siphon. In support of this theory, Exum sought to introduce evidence of other cases in which young employees of Wendy's had been burned seriously while filtering grease with the Model 811. The trial court first made a tentative decision to admit evidence of these other incidents, but ultimately it excluded the evidence. The court reasoned that all but one of the other cases were not sufficiently similar to Mr. Exum's to be relevant, because they did not involve an employee's accidentally dropping an object into the grease. The court excluded the remaining case on the rationale that because it occurred after Exum's accident, it could not be used to show either notice or dangerousness....

Our analysis of District of Columbia law also leads us to disagree with the trial court's evidentiary rulings. Exum offered about 15 case files detailing incidents in which young employees were burned while filtering grease with the Model 811. In one of the cases, the victim, like Exum, had dropped an object in the grease; the other incidents involved slightly different and sundry fact patterns--for example, spillages.

Exum argued that the evidence was admissible on either of two theories. First, the other incidents tended to show that the model 811 is dangerous. Second, the incidents put GE on notice of the dangerousness of its design. The trial court found that the prior incidents were not relevant under either theory. We may reverse that ruling only for abuse of discretion.

In appraising the relevancy of similar incidents in product liability cases, courts have required the other incidents to be "substantially similar'' to the case at bar. How substantial the similarity must be is in part a function of the proponent's theory of proof. "If dangerousness is the issue, a high degree of similarity will be essential. On the other hand, if the accident is offered to prove notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of a kind which should have served to warn the defendant.'' 1 Weinstein & Berger, Weinstein's Evidence 401[10], at 401-66-67.

There is without doubt a high degree of similarity between Exum's case and the incident in which a Wendy's employee was injured by dropping an object into the hot grease in the Model 811. In fact, the court excluded that case not on substantial similarity grounds but because it occurred after June 10, 1983, the date of Exum's accident. However, although subsequent incidents cannot be introduced to prove the manufacturer had notice, they are relevant to show dangerousness. It therefore was an abuse of discretion not to admit evidence of this particular incident.

The other incidents appear relevant to show both dangerousness and notice. In order to determine whether the Model 811 was negligently designed and marketed, a jury would have to balance " 'the likelihood of harm, and the gravity of harm if it happens, against the burden of precaution which would be effective to avoid the harm.''' The similar incidents could have aided the jury in its calculations of one side of the balance--the likelihood and the gravity of harm arising from the use of the Model 811. Cf. Bailey v. Southern Pacific Transportation Co., 613 F.2d 1385 (5th Cir. 1980) (admission of evidence of prior train collisions; fact that they occurred at different times in the day and involved cars going in the opposite direction were factors going to the weight of the evidence); Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d 613 (8th Cir.1983) (evidence of consumer complaints held relevant to show dangerousness of tampon over manufacturer's objection that the complaints didn't refer to symptoms of toxic shock syndrome). Since the incidents are admissible on a dangerousness theory, they are, a fortiori, also admissible under a theory of notice, which imposes a less rigorous requirement of similarity. Certainly these other accidents were "of a kind which should have served to warn'' GE of the risks of an open system fryer....


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