In Florida, a plaintiff in a products liability action can receive an inference at trial that the product in question was defective if the product malfunctioned during normal use. Derosier v. Cooper Tire & Rubber Co., 819 So.2d 143, fn. 2 (Fla. 4th DCA 2002), citing Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981). This inference that a product is defective applies even if the product is lost, destroyed or damaged as a result of the malfunction. Cassisi, 396 So.2d at 1148. The defendant may rebut an inference of product defectiveness by showing that the product's malfunction was caused by: (i) the product's age; (ii) the length of time of the product's use; (iii) the severity of its use; (iv) the state of its repair; (v) the product's expected useful life; and, (vi) whether the product was subjected to any abnormal operations. Id. at 1152.
In Derosier, plaintiffs filed suit against Cooper Tire for breach of warranty, strict liability and negligence due to a tire blow-out involving a three month-old tire. Cooper defended alleging misuse, arguing that plaintiffs' motor vehicle collision was due to plaintiffs' vehicle operating on a flat tire. Derosier, 819 So.2d at 144.
Neither plaintiffs, nor the defendants, were able to locate the failed tire. Cooper moved for summary judgment on the basis of spoliation of evidence. According to Cooper, without the missing tire they could not establish that the product was not defective and therefore Cooper could not properly defend the suit. The trial court granted Cooper's motion for summary judgment based on spoliation of evidence and the plaintiffs appealed. Id. at 143-44.
On appeal, the Fourth District agreed with plaintiffs and reversed. The appellate court disagreed with Cooper's argument that due to the loss of the tire tread, Cooper could not defend against the products liability claim. Id. at 145. The court noted that Cooper's expert was prepared to testify that misuse and/or abnormal operation by the plaintiffs would operate as a "defense against a Cassisi inference" that the tire was defective if it malfunctioned during normal operation." Id.
Florida's Third District Court of Appeals also applied the inference of defect in an auto acceleration case in Miller v. Allstate Ins. Co., 650 So.2d 671 (Fla. 3d DCA 1995). In Miller, the plaintiff was severely injured when her new car crashed into a wall. According to the plaintiff, her vehicle's accelerator stuck, causing an unavoidable collision with the retaining wall. Id. at 672. The Third District in Miller recognized that plaintiff's vehicle was only a few months old at the time of the accident. The court also noted that plaintiff testified that she operated the vehicle in a normal fashion on the night of the accident. Id. at 675. Plaintiff also described the sticking of the accelerator which caused the loss of control and resulting collision. Based on this evidence, the court in Miller found it was "sufficient under the terms of Cassisi to invoke the products defect inference and for [plaintiff's] case to proceed to the jury. Id. citing Worsham v. A.H. Robins Co., 734 F.2d 676 (11th Cir. 1984)(Cassisi applied); Parke v. Scotty's Inc., 584 So.2d 621 (Fla. 1st DCA 1991); Thrasher v. Koehring Co., 543 So.2d 754 (Fla. 3d DCA 1988); Marcus v. Anderson/Gore Homes, Inc., 498 So.2d 1051 (Fla. 4th DCA 1986).
Miller is important as it recognizes that the testimony of the person using the defective product concerning "the circumstances of the accident is a generally accepted method of evidence for establishing proof of defect." Miller at 675, quoting Cassisi 396 So.2d at 1150, fn. 21. Of course plaintiffs in product defect cases will want to develop expert testimony, where appropriate, to support their theory of liability. Still, the cases above illustrate the importance of the testimony of the end user of the defective product when establishing liability.