UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Union Mutual Fire Insurance

v. Civil No. 05-cv-170-JD

Opinion No. 2006 DNH 150

Hamilton Beach/Proctor-Silex, Inc.

O R D E R

Union Mutual Fire Insurance brings product liability claims

of negligence, strict liability, and breach of warranty, in a

subrogation action against Hamilton Beach/Proctor-Silex, Inc.

(“Hamilton Beach”), to recover for insurance coverage paid for

fire damage at the home of Paul and Josephine Brown. Union

Mutual contends that the fire was caused by a malfunctioning

toaster manufactured by Hamilton Beach. Hamilton Beach moves to

exclude the testimony of Union Mutual’s expert witnesses and also

moves for summary judgment. Although Union Mutual requested and

was granted an extension of time to respond to the motions, it

did not file a response to either motion.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party

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

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

An unopposed motion for summary judgment can only be granted

if the moving party is entitled to judgment on the merits of the

motion, viewed in light of Rule 56. See Carmona v. Toledo, 215

F.3d 124, 134 n.9 (1st Cir. 2000). When a party fails to

respond to a motion for summary judgment, however, “[a]ll

properly supported material facts set forth in the moving party’s

factual statement shall be deemed admitted. . . .” LR 7.2(b)(2). 

Discussion

Hamilton Beach moves for summary judgment on the ground that

Josephine Brown’s misuse of the toaster bars recovery under all

of Union Mutual’s claims. Alternatively, Hamilton Beach contends

that the opinions of Union Mutual’s expert witnesses, Robert Long

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1Although Union Mutual alleged in its complaint that

Hamilton Beach “breached its express warranties proximately

causing the fire and resulting damage,” it has not provided any

factual support for that claim in response to the motion for

summary judgment. In the absence of a factual record to support

the existence of express warranties, the court lacks a basis to

consider that claim. See Karak v. Bursaw Oil Corp., 288 F.3d 15,

22 (1st Cir. 2002) (“It is trite but true, courts, like the

Deity, are most frequently moved to help those who help

themselves.”) (internal quotation marks omitted). 

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and Michael Wald, are not admissible under Federal Rule of

Evidence 702. In the absence of expert opinion on the cause and

origin of the fire, Hamilton Beach contends that Union Mutual

cannot meet its burden of proof on any of its claims.

Union Mutual brings claims of negligence, strict product

liability, and breach of the implied warranty of merchantability

under New Hampshire law.1 As Hamilton Beach contends, under New

Hampshire law, comparative fault is an affirmative defense to

product liability claims of negligence, strict liability, and

breach of an implied warranty of merchantability. The New

Hampshire comparative fault statute, RSA 507:7-a, applies to all

tort actions, although it is construed differently with respect

to strict liability claims. Bohan v. Ritzo, 141 N.H. 210, 215-16

(1996). The statute also applies to claims of breach of the

implied warranty of merchantability in product liability cases. 

E. Mountain Platform Tennis v. Sherwin-Williams Co., Inc., 40

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F.3d 492, 501-02 (1st Cir. 1994) (discussing and applying New

Hampshire law).

Hamilton Beach provided the following factual record, which,

as is noted above, is unopposed. Paul and Josephine Brown lived

with their two children on Linden Road in Conway, New Hampshire. 

On January 13, 2005, a fire damaged their home, and Union Mutual

subsequently paid insurance benefits to the Browns. 

Before 8:00 on the morning of January 13, Mrs. Brown used

the toaster in the kitchen to make waffles for her two children. 

After taking the children to the bus stop, Mrs. Brown put a piece

of bread in the toaster and then went on to other things and

forgot the toast. At some time before this, Mr. Brown left for

work. Mrs. Brown left the house to go shopping with the toast

still depressed in the toaster.

The fire department received a report of smoke coming from

the Browns’ house and arrived there around noon. They found the

house engulfed in smoke with fire coming from the kitchen and

living room areas. The fire was extinguished within a few

minutes. The fire investigator interviewed Mrs. Brown and

inspected the scene. After finding a piece of charred bread

inside the toaster and observing burn patterns, the investigator

concluded that the fire started in the toaster.

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The toaster, which Mr. Brown had purchased at Wal-Mart, had

warnings that came with it, instructing users, among other

things, not to operate the toaster while it was unattended

because of the risk of fire. The Browns reported that they had

had problems with the toaster before the fire. They said that

the toaster carriage had repeatedly become stuck, causing the

item inside to burn. On one occasion, Mrs. Brown saw a three to

four inch flame coming out of the toaster. Mrs. Brown also

noticed that the toaster had been sticking on the morning of the

fire, and the children had reminded her that morning that they

needed a new toaster.

The comparative fault statute, RSA 507:7-d, provides as

follows:

Contributory fault shall not bar recovery in an action

by any plaintiff or plaintiff’s legal representative,

to recover damages in tort for death, personal injury

or property damage, if such fault was not greater than

the fault of the defendant, or the defendants in the

aggregate if recovery is allowed against more than one

defendant, but the damages awarded shall be diminished

in proportion to the amount of fault attributed to the

plaintiff by general verdict. The burden of proof as

to the existence or amount of fault attributable to a

party shall rest upon the party making such allegation.

The statute is construed slightly differently for strict

liability claims where “courts should look to ‘comparative

causation’ in evaluating damages.” Bohan, 141 N.H. at 216. If a

plaintiff is more than fifty percent at fault or the plaintiff

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was more than fifty percent the cause of the harm, the plaintiff

cannot recover. Weldy v. Town of Kingston, 128 N.H. 325, 334

(1986)

Hamilton Beach contends that even if the toaster were

defective and the defect caused the fire, Mrs. Brown’s continued

use of the toaster while it was unattended, after she knew that

it would stick and could cause a fire, is comparative fault that

precludes Union Mutual’s claims. In other words, Hamilton Beach

argues that Mrs. Brown’s continued use of the toaster while it

was unattended was more the cause of the fire than any defect in

the toaster. Hamilton Beach points out that if Mrs. Brown had

returned, repaired, or replaced the toaster or if she had watched

it during the toasting cycle, the fire would not have happened. 

Hamilton Beach further argues that the warnings provided with the

toaster about the risks of fire and the risks associated with

operating the toaster unattended preclude any causation or fault

on its part.

Although Hamilton Beach’s arguments are far from

overwhelming, the court has no alternative argument to consider. 

Given the undisputed facts, it appears that Mrs. Brown used the

toaster despite knowing of the fire hazard and that the toaster

then caused the fire. In these circumstances, no trialworthy

issue has been presented as to whether Mrs. Brown was more than

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fifty percent at fault or her conduct was more than fifty percent

the cause of the fire. Therefore, Hamilton Beach is entitled to

summary judgment based on comparative fault or causation. 

Because the motion for summary judgment is resolved on the

alternative ground of comparative fault, the court need not

consider the motion to exclude the testimony of Union Mutual’s

expert witnesses. That part of the motion for summary judgment

based on a lack of expert testimony is moot. 

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 26) is granted. The defendant’s

motion to exclude expert testimony (document no. 27) is

terminated.

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As all claims have been resolved in the defendant’s favor,

the clerk of court shall enter judgment accordingly and close the

case.

 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 21, 2006

cc: William N. Clark, Jr., Esquire

Kevin M. Fitzgerald, Esquire

John E. Friberg, Jr., Esquire

Steven J. Kelly, Esquire

Robert T. Mittelholzer, Esquire

Timothy L. Mullin, Jr., Esquire

John R. Slattery, Esquire

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