STONE APPEALS COURT__________________________________________

)SAVIORS ELECTRONICS INC., )

APPELLANT, ))

v. ) No. ST-17-02)

Lori BRIMES and Rick BRIMES, )individually and P.P.A. Coral BRIMES, )

APPELLEES. )__________________________________________)

OPINION

Before Bristol, Cranston and Warwick, J.J.

Warwick, J. delivered the opinion of the court:

Appellees Lori Brimes, Rick Brimes, and Coral Brimes, brought suit in the Stone

Superior Court against Appellant Saviors Electronics Inc. (“SEL”). Appellees claimed that the

SEL-manufactured model MACH 5 lithium-ion battery cells in their SEL-manufactured NEGAN

laptop caused a fire that burned down Appellees’ home and caused then to suffer physical injury.

Appellees sought to prove their claim under a res ipsa loquitur theory of liability. A jury found

for Appellees under a res ipsa loquitur theory of liability, and awarded damages. Appellant

appeals the verdict to this Court on two grounds, First, SEL argues that the trial court judge

improperly denied its motion in limine to exclude Appellees’ expert evidence and erred in

refusing to issue an adverse inference instruction to the jury. Second, SEL argues that the trial

court judge improperly denied its motion for a directed verdict.

For the reasons stated below, this Court AFFIRMS the decision below.

Facts and Background

The fire and official investigation.

The incident at issue in this case occurred on April 21, 2013 when a large portion of

Appellees’ home, located at 55 Eazy Street, in the town of Alexandria, in the state of Stone, was

consumed by an aggressive fire. Appellees allege that their three-year-old son Coral Brimes was

watching a video on his NEGAN model laptop when the computer allegedly ignited and caused

him to sustain catastrophic burns over 55% of his body. His father Rick Brimes suffered severe

burns to roughly 35% of his body, and his mother Lori Brimes experienced second degree burns

to her hands when she carried Coral from the fire. SEL manufactures all components in the

NEGAN laptop.

On April 21, 2013, Lori, Rick and Coral returned home from a trip to the grocery store at

about 8:00 p.m. Rick brought the groceries in through their front door, which is on the south side

of their home and which leads directly into the living room. He placed the groceries on the

kitchen floor, which is in the center of the house. Rick and Coral claim that they then went into

the breakfast nook, which is located in the back of the house between the kitchen and the Florida

room (a Florida room is a screened-in porch or solarium). At about 8:30 p.m., Rick and Coral sat

down at a plastic card table in the northeast corner of the breakfast nook, and began to use the

NEGAN laptop. Rick later testified that he forgot to put the groceries away.

Lori testified at trial that she remembers seeing Rick sitting at the card table in the

breakfast nook with their son, Coral, who was sitting to his right at the same table. She testified

that the pair was watching a video on the laptop. At this point, Lori went to the basement to do

laundry. Rick testified that he nodded off to sleep while he was sitting at the table, but that he

awoke suddenly to find himself on fire and saw that Coral was also on fire. Rick testified that he

did not see flames anywhere else in the room and had no idea how the fire started.

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Lori has testified at various points that she was in the basement folding laundry sometime

between 8:30 and 9:00 p.m. when she either “noticed the lights in the basement flicker” or

“heard a small explosion which brought [her] attention to the basement stairs leading up to the

breakfast nook.” Lori testified that she does not recall smelling anything unusual, but that when

she looked towards the basement stairs, she noticed an “orange glow” at the top, coming from

the breakfast nook. When she reached the bottom of the basement stairs, she looked up the

stairway and saw Rick near the top of the steps “completely covered in flames from head to toe

with both his shirt and pants on fire.” She could not see Coral. Lori ran up the stairs to the

breakfast nook. She testified that “it felt like the entire room was in flames,” but that she could

not say for sure whether there were flames anywhere else other than on Rick’s clothing.

After running up the stairs into the breakfast nook, Lori claims she heard Rick yell, “Get

Coral. Get the baby!” Lori ran to her left to unlock and open the door that led from the breakfast

nook to the outdoor deck on the west side of the house. When she turned back to her right after

unlocking and opening the outside door, she saw Coral sitting on a chair at the card table crying

and completely covered in flames. Lori testified that she cannot recall whether there were flames

anywhere else in the room when she ran over to grab Coral.

Lori testified that she grabbed Coral under his arms and burned her hands trying to carry

him. She dropped him several times on the way out, but was finally able to carry Coral outside

through the breakfast nook door. Lori also testified that she did not notice whether there was fire

anywhere else in the house, including in the Florida room. A person standing in the breakfast

nook can see into the Florida room through five small windows in the interior wall that divides

the two rooms. Lori testified that as she ran out of the house carrying Coral, she did not look

back into either the breakfast nook or Florida room.

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The Alexandria Fire Department (“AFD”) arrived at about 9:10 p.m., and put the fire out

after about twenty minutes. The next morning, AFD investigator Abraham Flord and State Fire

Marshall Eugene Portah conducted an examination of the fire scene. Both investigators reached

the same preliminary conclusion that the fire started in the northeast corner of the Florida room.

Flord and Portah both wrote in the “Preliminary Conclusions” portion of their reports that “[t]he

most probable fire spread scenario was a fire originating in the Florida room in the north of the

house and expanding to the breakfast nook and kitchen area moving towards the south end of the

house.” Both reports note that the fire also extended out of the windows on the west and east

sides of the house, to Appellees’ garage and yard. Homes in the area are spaced very far apart,

and no neighbors reported hearing anything unusual prior to the start of the fire.

Both investigators also wrote that “[t]he most probable source and form of heat and of

ignition is not known at this time . . . The most probable material ignited is not known at this

time . . . The most probable ignition sequence is not known at this time.” At trial, both

investigators testified that because the fire was so intense, it was very difficult to make any sense

out of the remains. Although both investigators testified that they originally believed the fire

started in the Florida room near a large, heavy wooden table, due to inconsistencies in the

evidence, both backed off that conclusion in their reports. Specifically, both investigators testified

that Appellees’ claims that no one was in the Florida room when the fire began may indicate that

the fire did not start there, as it would be difficult for Rick and Coral to have suffered such serious

burns if they were not in the room in which the fire began. Thus, both inspectors noted in the

“Final Conclusion” portion of their reports that the official cause and origin of the fire remains

“undetermined,” and that “based on evidence gathered and witness statements, the potential fire

origin area encompasses a portion of the breakfast nook and Florida room.”

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Portah’s report included a rough sketch of the home. In this sketch, he identified the

possible fire origin area, the fire damage area, and the placement of items that he noticed or that

Appellees told him about. See Appendix. Both investigators also took photos the morning

following the fire. These photos show wider shots of the breakfast nook and Florida room. These

photos show the burned remains of an air conditioner in the breakfast nook, burned grocery bags

just outside the breakfast nook in the kitchen, and the general burned remains of the breakfast nook

and Florida room.

At trial, Portah specifically testified that if Rick and Coral were sitting at the card table in

the breakfast nook, he had to expand his area of possible origin to include the breakfast nook

because he could otherwise not explain how Rick and Coral were so badly burned. He noted that

people normally run away from fire, not toward it, and they do not normally remain near a fire.

Portah also included the following in his report:

While doing this investigation we found the remains of one NEGAN model laptop computer, a box of empty shotgun shells, shotgun wadding, primers, and shot. Police investigators also told me that they found three boxes with 250 rounds each of “Remington 12-gauge rounds.” Our team also found what was left of what appeared to be a large wooden table and chair set. The placement of the table was evident because of the clean marks on the hardwood floor in the Florida Room. The burned remains of NEGAN laptop were located near melted plastic remains in the northeast corner of the breakfast nook. After looking at the scene as a whole, I initially determined that the area of origin was the northeast corner of the Florida room close to the table, approximately where the shotgun shells, wadding, primers, and shot were found. However, no evidence as to the cause of the fire could be found, including gunpowder. Had gunpowder been present, it could have been burned off. No gunpowder residue was present.

After the fire was extinguished, Portah also recorded a short interview with Lori Brimes.

During the interview, when Portah asked, “Lori, can you think of any potential causes for the

fire,” Lori stated: “I was in the basement, but I believe that Rick was loading shotgun shells at

the time because he told me that he intended to load shells to go hunting the next day with his

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friend Tyrese.” She explained that while she had never seen all the shotgun shell loading

equipment in one place, it was usually kept in a room in the basement. Lori said the same thing

to police officer Merle Dockson, one of the first responders on the scene. That night, Lori also

told her neighbor Glen Green, who came over during the fire to see if everyone was okay, that

Rick was loading shotgun shells at the time of the fire.

Lori recanted these statements when she was questioned in her deposition. During her

deposition, she initially claimed that she did not tell Portah that Rick was loading shotgun shells

at the time of the fire. When she heard her recorded statement, she responded by saying “I cannot

possibly imagine why I would say such a thing because Rick does not even own a shotgun and

did not intend to go hunting the next day . . . I mean yeah he used to hunt years ago but he

doesn’t anymore. I must have just been in shock and not thinking straight.”

Subsequent interference with the fire scene.

About two weeks after the fire, Appellees retained an attorney. Appellees stated that they

retained an attorney because they believed they would need help navigating the insurance

process for their fire claim. The attorney hired a private fire scene investigator, a former fire

marshal named Carol Welsh. Welsh visited the fire scene on May 7, 2013 and removed various

items, including what she believed to be the remains of the SEL NEGAN laptop identified in

Portah’s and Flord’s reports. She did not take photographs of the scene or prepare a sketch or

diagram to memorialize the location and condition in which she found the laptop. Welsh testified

at trial that she believed that the laptop’s condition when she collected it from the fire scene was

altered from the night on which the fire occurred, probably due to the water used to put out the

fire, as well as actions of the various investigators and first responders, who had to disturb the

scene to make sure the fire was out and conduct a preliminary investigation.

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Welsh visited the fire scene for the second time on May 10, 2013. This time, while at the

fire scene, Welsh discovered and collected shotgun shell remains and some burned wiring. On

this date, Welsh did take some digital photographs of the scene, but she did not photograph the

burned wire before removing it from its location. Although she testified that she photographed

the shotgun shells in place before removing them, she was not able to produce these

photographs. She believes that she accidentally deleted them. She testified that she brought both

the wiring and the shotgun shells back to her office, but that both items were physically

consumed during lab testing.

Welsh then returned to the fire scene again on May 11, 2013 to “search for any other

evidence of computer components.” Welsh testified that she had identified the NEGAN laptop as

the target of her investigation as early as May 7, 2013, and that she continued to return to the site

for the specific purpose of preserving any evidence relating to the NEGAN computer. On May

11, Welsh collected the remains of a power cord for a NEGAN laptop and the remains of a single

lithium-ion battery cell. Photos that Welsh took of the cell and provided to SEL indicate that the

cell was severely burned. These photos of the cell also show evidence of venting, as the cell had

a protruding center pin. Welsh also took photos of the area in which she found this battery cell.

Those photos show that at least four of the six MACH 5 model battery cells contained in the

battery pack of the NEGAN laptop were present in the remains of the fire. Welsh did not collect

these four other battery cells; she testified that she did not notice the cells in the remains at the

time and only discovered them when she later examined the photos, well after the fire scene was

cleared. From the photos of these cells, however, the cells appear to be intact and did not appear

to have vented. Evidence from previous thermal runaway incidents involving 2004, 2005, and

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2006 MACH 4 batteries demonstrates that if any of the cells in the battery pack vented, all of the

cells would have been damaged in some way.

Notice to SEL.

Appellees’ entire fire-damaged home, including any physical evidence remaining within

it, was cleared away and destroyed in late July 2013. Appellees did not provide SEL with notice

of the fire and their claim until Appellees filed suit in February 12, 2014, more than six months

after the fire scene had been destroyed and almost a year after the fire occurred. By the time SEL

received notice of this litigation, the following evidence, among other items, had been destroyed

without any written or recorded documentation of their condition: the physical walls of

Appellees’ home, the electrical wiring, floors, floor coverings, furniture, the remains of an

electrical outlet in the breakfast nook, a window air conditioner and its power cord in the

breakfast nook, any power tools in the house, and the other MACH 5 battery cells from the

NEGAN laptop.

Rick Brimes and Coral Brimes statements.

Rick gave a recorded statement to Portah on the night of the fire, in which he denied

knowing how or why the fire started. At his deposition, Rick testified that he had bought shotgun

shells and plastic wadding with the intent to try loading shotgun shells at some time in the future,

but he denied having a shotgun shell loading press, black powder, or primers. When he was

shown photographs of the Florida room from after the fire, Rick admitted that he had bought

three boxes of live 12-gauge shotgun shells, each containing 250 shells for a Remington shotgun,

and that those had been sitting on the wooden table in the Florida room next to a bag of plastic

wadding and a bag of empty shotgun shells. Rick denied owning any firearms at the time of the

fire, and testified that a shotgun he had previously owned was stolen more than a year earlier. A

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police report corroborated this testimony. Rick also denied interacting with those materials the

night of the fire.

Rick also testified that aside from the above materials, the only items in the Florida room

were a large heavy wooden dining room table with six chairs, some stackable plastic chairs, a

stack of ceramic bathroom tiles, a tile cutter, a ceiling fan, and a carpet covering the wood deck

floor. Rick testified that the only items in the breakfast nook were a blue plastic barrel of rice, a

plastic card table with plastic folding chairs, and a metal and glass light fixture in the ceiling.

The bags of groceries were also on the floor of the kitchen, just outside the breakfast nook. The

breakfast nook floor was ceramic tile with no floor-covering treatment. The same ceramic tile

covered the adjoining kitchen floor and the landing at the top of the steps leading to the basement

from the breakfast nook.

Coral Brimes was deposed as well, and testified that when other children ask him what

happened to him, he tells them that, “I got burned,” “A laptop exploded,” and “NEGAN did it to

me.” Although he was three at the time of the fire, when asked “Can you tell me anything else

about the laptop that night, what happened with it, if anything?” Coral responded, “NEGAN

exploded and I was caught on fire . . . But mom’s lucky. She only got her hands burned.”

The NEGAN laptop.

SEL manufactures the NEGAN laptop computer that Rick and Coral were using when the

fire began. Like most modern laptops, NEGAN laptops are powered by lithium-ion batteries.

SEL manufactured its first commercial lithium-ion battery cell in 1999, called the MACH 1,

which powered all of its laptops. Over the years, SEL made insignificant manufacturing and

design improvements in each of its new model batteries. In 2006, SEL began receiving reports of

fires allegedly caused by MACH 4 batteries. SEL’s hired an expert, Shane Walker, who

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investigated the potential cause for the fires. Walker discovered that the fires were caused by a

process called “thermal runaway,” which can occur in rare circumstances if metal particulate

contaminates a lithium-ion battery cell. This metal particulate contamination was most common

in MACH 4 lithium-ion batteries manufactured in 2004, 2005, and 2006.

Thermal runaway is a known but rare event in the lithium-ion battery industry. Thermal

runaway is usually caused by a metal particle contaminant that gets into the “jelly roll” of the

battery cell. The jelly roll is made by layering a positive anode, a separator, and a negative

anode. This three-layer sheet is then rolled to form the jelly roll and placed into the shell (or

“can”) of the battery. If metal particle contaminants are in the jelly roll, those particles can rub

against the separator, creating a hole in the separator that allows the positive and negative anodes

to come into contact, creating a short circuit. This short circuit can propagate, creating heat and

pressure. Lithium-ion battery cells are designed so that in the event of such a thermal runaway,

the pressure is directed through a center pin in the middle of the jelly roll to the positive end of

the battery cell, which is designed to open and let the pressurized gases out in a controlled way

so that the batteries do not explode. This process is called venting. Industry research conclusively

proved that when a lithium-ion cell vents, there is no way that enough pressure can build up to

cause an explosion. When a battery cell vents, gases and small particles of molten metal come

out; when expelled, these materials can ignite at temperatures upwards of 800 degrees Celsius.

The battery pack in NEGAN laptops is installed in such a way that if a battery were to vent, it

will release the built up gases to the sides of the computer rather than toward the user.

As a result of Walker’s findings, SEL issued extensive recalls of its 2004, 2005, and 2006

MACH 4 batteries and allocated significant resources towards redesigning its batteries and

modifying its manufacturing process to eliminate metal particulate contamination. Specifically,

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following the recall of the 2004, 2005, and 2006 MACH 4 batteries, SEL made six major

changes to the battery design and almost 100 changes to the manufacturing process to reduce the

chance of metal particle contamination. The MACH 5 batteries in the NEGAN laptop Appellees

owned were manufactured after SEL implemented all of these design and manufacturing process

improvements. Accordingly, for all relevant purposes, the MACH 5 battery in the NEGAN

laptop at issue here is not the same battery as the MACH 4 batteries that were subject to the prior

recalls, except that the cans of each battery are the same size and shape. There have been no

confirmed fires or thermal runaway incidents caused by the MACH 5 lithium-ion battery cells

since the new model batteries were released in 2010.

Walker testified at trial as an expert witness for SEL. Walker testified as to the details of

the MACH 5 battery redesign and manufacturing changes, as well as to the fact that since those

changes, there have been no confirmed reports of MACH 5 batteries catching fire or

experiencing thermal runaway problems. Walker also testified, however, that “if the NEGAN

laptop and its MACH 5 batteries were shown to have caught on fire, it would be because of some

manufacturing defect.”

Discussion

Spoliation

At trial, Appellees sought to have Welsh testify as an expert witness and to admit her

expert report in to evidence. In Welsh’s testimony and report, she concluded that the MACH 5

battery in the NEGAN laptop recovered in the breakfast nook suffered from thermal runaway

and directly caused the fire. She further concluded that the protruding center pin in the battery

cell she recovered and photographed indicates that some defect in the battery led to the thermal

runaway. SEL moved in limine to exclude this expert evidence. SEL argued that the court should

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exclude the evidence in order to remedy Appellees’ negligent spoliation of evidence that SEL

needed to defend against Appellees’ claim. The trial court judge denied that motion. At the close

of evidence, SEL requested a jury instruction, instructing the jury that they could draw an

adverse inference from Appellees’ spoliation of evidence. The trial court judge declined to issue

that instruction. SEL moved for a directed verdict, arguing that the trial court judge should not

submit the question to the jury under a res ipsa loquitur theory of liability. The trial court judge

denied that motion, and Appellees res ipsa loquitur claim proceeded to the jury. The jury found

for Appellees and awarded damages.

SEL appeals to this Court, arguing that the trial court judge had improperly denied its

motion in limine to exclude Appellees’ expert evidence and erred in refusing to issue an adverse

inference instruction to the jury. In Stone, as in many other jurisdictions, a trial court judge’s

decision regarding spoliation sanctions is reviewed for abuse of discretion. See, e.g., Dixon v.

Walker, 42 Stone 793, 794 (2016); Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995);

Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 186 (R.I. 1999). Thus, this Court must

determine whether the trial court could have imposed spoliation sanctions and if so, whether it

abused its discretion by refusing to do so.

Spoliation is defined as “[t]he intentional destruction, mutilation, alteration, or

concealment of evidence . . . .” Black’s Law Dictionary (10th ed. 2014); see also 89 C.J.S. Trial

§ 671. Although most jurisdictions define and analyze spoliation in a similar manner, this

Court has explicitly adopted the formulation put forth by the Supreme Court of Rhode Island,

which holds that “the deliberate or negligent destruction of relevant evidence by a party to

litigation may give rise to an inference that the destroyed evidence was unfavorable to that

party.” Hershel v. Meriwether Inc., 409 Stone 23, 27 (2010) (quoting Tancrelle v. Friendly Ice

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Cream Corp., 756 A.2d 744, 748 (R.I. 2000)). Decisions from other jurisdictions with an

analogous approach may also be helpful to this Court’s analysis.

As a threshold matter, to prove that spoliation occurred, the party alleging spoliation

must show that the opposing party knew that litigation was likely, and knew that the despoiled

evidence was relevant to that litigation. See 89 C.J.S. Trial § 671; see also Berrios v. Jevic

Transp., Inc., No. PC-04-2390, 2013 R.I. Super. LEXIS 18, at *8 (R.I. Super. Jan. 18, 2013)

(citing Booker v. Mass. Dep’t of Pub. Health, 612 F.3d 34, 46 (1st Cir. 2010)). Spoliation

“occurs along a continuum of fault–ranging from innocence through the degrees of negligence

to intentionality.” R.I. Hosp. Trust Nat’l Bank v. E. Gen. Contractors, Inc., 674 A.2d 1227,

1234 (R.I. 1996) (quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988)); see

also Kurczy v. St. Joseph Veterans Assoc., Inc., 820 A.2d 929, 947 (R.I. 2003). “A showing of

bad faith on the part of the despoiler is not necessary to permit the spoliation inference, even

though it may strengthen the inference.” Farrell, 727 A.2d at 186. The trial court found that

SEL met its threshold burden of demonstrating that spoliation occurred; Appellees have not

challenged that finding. SEL concedes that Appellees’ destruction of the evidence was not

intentional. SEL further concedes that Appellees did not act in bad faith. Appellant, however,

contends that the spoliation was, at a minimum, negligent

When one party to a case has destroyed evidence, the trial court may act to prevent unfair

prejudice to the aggrieved party and to deter future litigants from destroying evidence. Berrios,

2013 R.I. Super. LEXIS 18, at *48 n.12 (observing that spoliation sanctions should be designed

to deter future spoliation and cure any resulting prejudice to the non-spoliating party). Further,

“the doctrine of spoliation merely permits an inference that the destroyed evidence would have

been unfavorable to the despoiler, and is by no means conclusive.” Tancrelle, 756 A.2d at

13

749 (quoting N.H. Ins. Co. v. Rouselle, 732 A.2d 111, 114 (R. I. 1999)). Thus, a trial court has

the authority to exclude other evidence or inferences drawn from the despoiled evidence, or to

give adverse inference instructions; SEL requested both sanctions in this case. See Tancrelle,

756 A.2d at 749; see also Farrell, 727 A.2d at 185.

Courts consider five factors when determining what, if any, sanctions to apply against a

despoiling party:1 “(1) whether the defendant was prejudiced as a result of the loss of the

evidence; (2) whether the prejudice can be cured; (3) the practical importance of the evidence;

(4) whether the [despoiler acted] in good faith or bad faith; and (5) the potential for abuse if the

evidence is not excluded.” Hershel, 409 Stone at 28 (quoting Farrell, 727 A.2d at 185); see also

Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 365 (D. Mass. 1991) (adopting the same five

factors from Lewis v. Darce Towing Co., 94 F.R.D. 262, 266–67 (W.D. La. 1982)); Tracy v.

Cottrell ex rel. Cottrell, 524 S.E.2d 879, 889 (W. Va. 1999) (identifying other courts that use the

same five-factor test). The trial court judge in this case considered these five factors, concluding

that they did not warrant the exclusion of Appellees’ evidence or an adverse inference jury

instruction. This Court will review the trial court judge’s application of the five factors and his

decision not to impose any sanctions, giving appropriate deference to the trial court.

SEL argues that the trial court abused its discretion in declining to impose sanctions. First

SEL argues that the fire scene evidence is central to this case and without it, SEL is severely

prejudiced in its ability to defend itself. SEL was unable to have an expert “examine the

charring” or other debris in the house to confirm or refute the fire investigators’ conclusions. See

Dodson v. Ford Motor Co., No. PC 96-1331, 2006 R.I. Super. LEXIS 113, at *26-31 (R.I. Super.

1 Some jurisdictions consider “the party’s degree of control, ownership, possession or authority over the destroyed evidence” when determining whether to apply sanctions. Tracy v. Cottrell ex rel. Cottrell, 524 S.E.2d 879, 890 (W. Va. 1999). In our courts, this element is not considered. Dixon, 42 Stone at 792.

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Ct. Aug. 17, 2006). SEL argues that if it had the opportunity to have an expert visit and

investigate the scene – as Appellees’ expert did – it could have comprehensively documented the

fire scene. Most importantly, SEL’s expert could have sifted through the debris for important

evidence, including the four other battery cells from the NEGAN laptop battery, reconstructed

the fire scene, diagrammed and traced the branch circuit wiring in the home, and collected and

tested other materials. Thus, SEL argues that sanctions are necessary to prevent it “from

suffering unfair prejudice” caused by Appellees’ improper destruction of the fire scene evidence.

Kurczy, 820 A.2d at 946. SEL contends that in cases predicated on a manufacturing defect

theory of product liability, “a party’s examination of . . . [the allegedly defective product] may be

critical to ascertaining, among other things, the presence of a defect.” Martinez Perez v. Hyundai

Motor Co., 440 F. Supp. 2d 57, 62 (D.P.R. 2006).

This Court agrees with the trial court, however, that SEL had sufficient evidence to

defend its position. Moreover, even if SEL suffered some prejudice, that prejudice can be cured

without the use of the sanctions sought by Appellant. Appellees’ investigator took pictures

during her investigation, which minimize any prejudice to SEL. See, e.g., Dodson, 2006 R.I.

Super. LEXIS 113, at *30 (finding the level of prejudice insufficient to justify exclusion where

plaintiffs’ expert’s photos documented the expert’s examination). Appellees admit that none of

the investigators photographed the exact positioning of the relevant evidence, but argue that

doing so would have been impossible. The fire marshal and AFD investigator did not know of

the NEGAN laptop as a potential source of the fire and did not specifically consider it in their

investigation. By the time Welsh was on the scene, first responders had already gone through the

property and delayered much of the debris there. As a result, relevant materials had already been

moved and impacted by water; additional photographs of the other battery cells and other

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materials would therefore be of limited use. That said, nothing prevented SEL from having its

own expert study all of the photographs produced and reaching his own conclusion.

SEL argues that permitting Appellees’ spoliation to go unsanctioned would encourage

future litigants to engage in abuse, particularly against a defendant with deep pockets like SEL.

“A fair trial requires that both parties be heard and that both parties be permitted wherever

possible to marshal and present evidence relevant to their positions in the litigation.” N.

Assurance Co. v. Ware , 145 F.R.D. 281, 284 (D. Me. 1993). SEL contends that a plaintiff is

typically going to be in the best position to know what evidence might be relevant, and to make

use of that evidence first.

Again, we disagree. The accidental spoliation of evidence in this case was not part of an

effort to suppress the truth. See State v. Roberts, 841 A.2d 175, 180 (R.I. 2003). Serious

sanctions such as those SEL requested are only appropriate when a despoiling party has acted

intentionally or in bad faith. See T atham v. Bridgestone Ams. Holding, Inc. , 473 S.W.3d 734,

739–40 (Tenn. 2015). Ultimately the decision to allow spoliation sanctions is “within the broad

discretion of the court.” Barnes v. Paulin, 52 A.D.3d 754, 755 (N.Y.S. 2008). This Court will not

disturb the decision of the trial court.

Res ipsa loquitur

At the close of evidence, SEL moved for a directed verdict, arguing that the trial court

judge should not submit the question to the jury under a res ipsa loquitur theory of liability. The

trial court judge denied that motion, and Appellees’ res ipsa loquitur claim proceeded to the jury.

The jury found for Appellees and awarded damages. SEL appeals to this Court, arguing that the

trial court judge improperly denied its motion for a directed verdict. In reviewing a decision on a

motion for directed verdict, “we must view the evidence adduced up until the time of the motion

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in the light most favorable to [the non-moving party], drawing therefrom all the reasonable

inferences that will support his claim, taking care neither to weigh the evidence nor to pass upon

the credibility of the witnesses.” Parrillo v. Giroux Co., 426 A.2d 1313, 1320 (R.I. 1981).

The fire’s cause and origin is a central issue in the case. At trial in Stone Superior Court,

the Appellees bore the burden to demonstrate that the SEL NEGAN laptop started the fire. SEL’s

ability to rebut Appellees’ proof on this issue rested on its ability to show that the fire started in a

location other than where the SEL NEGAN laptop was located, or was caused by something

other than the laptop.

This Court has adopted the formulation of res ipsa loquitur in the Restatement (Second)

of Torts § 328D, and generally follows the same formulation of the law as Rhode Island.2 The

doctrine of res ipsa loquitur allows a trier of fact to infer that a defendant’s negligence caused a

plaintiff’s harm. Cruz v. DaimlerChrysler Motor Corp., 66 A.3d 446, 451 (R.I. 2013) (citing

McLaughlin v. Moura, 754 A.2d 95, 98 (R.I. 2000)). Under the § 328D of the Restatement

(Second) of Torts, res ipsa loquitur permits an inference of negligence when:

(a) an event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”3

2 This Court finds case law from other jurisdictions that follow the Restatement (Second) of Torty § 328D persuasive. Because this Court has adopted the Rhode Island Supreme Court’s analysis specifically, cases from Rhode Island are especially persuasive. See King v. Cynthiana, Inc., 45 Stone 678, 679 (2011).3 Section 328D(1)(c) is not in dispute because Appellant has conceded that, viewing the facts in the light most favorable to Appellees, as is required on a motion for directed verdict, Appellant owed a general duty of care to Appellees.

17

Restatement (Second) of Torts § 328D(1) (Am. Law Inst. 1965). The Court has expressly

rejected the common law rule requiring the plaintiff to prove “that the defendant had exclusive

control of the instrumentality that harmed the plaintiff.” King v. Cynthiana, Inc., 45 Stone 678,

679 (2011) (quoting Cruz, 66 A.3d at 452).

Cruz v. DaimlerChrysler Motor Corp. provides an illustrative example of the limits of res

ipsa loquitur in a products liability case. 66 A.3d at 446. Nelson Cruz sued DaimlerChrysler

Motors Corporation and Ricky Smith Pontiac GMC, Inc. (“Ricky Smith”), a car dealership. Cruz

owned a 1996 Grand Caravan, manufactured by DaimlerChrysler and purchased from Ricky

Smith. Three years after he purchased the vehicle, both front airbags unexpectedly deployed,

causing him injury. Id. Cruz brought negligence and strict product liability claims against the

defendants, arguing that the vehicle must have been defective or else the airbags would not have

deployed in the absence of an impact while the car was stationary. Id. at 451. While the court

agreed that airbags do not typically spontaneously deploy absent negligence, the court held that

that is not enough “to show that the accident is of the kind that does not ordinarily occur without

negligence; the negligence must point to the defendant.” Id. at 542 (quoting Konicki v.

Lawrence, 475 A.2d 208, 210 (R.I.1984)). Because three years had passed since Cruz purchased

the vehicle from Ricky Smith, res ipsa loquitur could not support an inference that “the vehicle

was defective when it was sold.” Id.; see also Restatement (Second) Torts of § 328D cmt. f. The

Court rejected Cruz’s res ipsa loquitur claim because the evidence did not “sufficiently

eliminate[]” “other responsible causes.” Id. (citing Parrillo, 426 A.2d at 1320); see also

Restatement (Second) of Torts § 328D(1)(b).

“In most res ipsa loquitur cases . . . the cause of the plaintiff's injury is typically known,

leaving only the question whether an inference can be drawn from the occurrence and its

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surrounding circumstances.” Carnevale v. Smith, 404 A.2d 836, 840 (R.I. 1979). Although a

factfinder may draw an inference from a previously-drawn inference, “if a plaintiff intends to

meet its burden of proof by means of such pyramiding, the second or ultimate inference drawn

by the factfinder is permissible only if the first or prior inference has been established to the

exclusion of other reasonable inferences.” Id. at 840-41. The “ultimate inference” must rest on a

“foundation that logically has the probative force of established fact.” Id. at 841. In other words,

“an inference may rest upon a prior inference that has been established to the exclusion of all

other reasonable inferences.” Waldman v. Shipyard Marina, Inc., 230 A.2d 841, 845 (R.I. 1967).

Thus, this Court has declined to apply the doctrine of res ipsa loquitur in cases where the

plaintiff pointed to a particular cause of their injury, but could not produce direct evidence of the

defendant’s negligence or eliminate all other reasonable inferences as to that cause. King, 45

Stone at 679 (citing McLaughlin, 754 A.2d at 98); see also Enrich v. Windmere Corp., 616

N.E.2d 1081, 1085 (Mass. 1993); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003)).4

Although a plaintiff may not rely solely on pyramiding inferences to bring a claim under

a res ipsa loquitur theory, a plaintiff need not eliminate all other causes of the event that led to

the complained of injury. Parillo v. Giroux Co., 426 A.2d 1313, 1321 (R.I. 1981). Rather, a

plaintiff needs to show that the likelihood of causes other than the defendant’s negligence is so

low that a reasonable person could say that it was more likely than not that the defendant’s

negligence caused the plaintiff’s injury. Id.

Courts in other jurisdictions have considered cases like the one before this Court

involving fires allegedly originating in defective products. For example, in Enrich, the plaintiff

brought a product liability action for property damage sustained as a result of a fire in the family

4 This Court has not yet had the opportunity to consider whether Restatement (Third) of Torts: Prod. Liab. § 3 (Am. Law Inst. 1998) should be adopted, so this Court will continue to apply the Restatement (Second) of Torts § 328D.

19

room of his house that he alleged was caused by an electric cooling fan distributed by the

defendant. A witness testified that she had turned on the window fan just before the fire started.

616 N.E.2d at 1083. Fire officials testified that the fan caused the fire, but also testified that they

did not test the house wiring, fuse box, or any other electrical devices in the room where the fire

began. Id. The Massachusetts Supreme Judicial Court held that the defendant was not liable for

damages absent evidence that there was a defect in the fan at the time of purchase or that

defendant knew or had reason to know of a dangerous condition that caused fire; res ipsa loquitur

did not overcome the lack of evidence of negligence. Id. at 1081. Given that the fan’s design and

workings comprised information outside the jury’s common knowledge, the jury could not infer

the presence of a defect in the fan absent expert testimony. Id. at 1084. The court observed that

although plaintiff did not need to show the exact cause of the accident or exclude all other

possible causes, he did have to show that there was a greater probability than not that the

accident resulted from the defendant's negligence and that a verdict in his favor would not be

based on “speculation and conjecture.” Id. at 1085; see also Carnevale, 404 A.2d at 841.

Appellant SEL argues that Appellees cannot demonstrate that a house fire is an event that

does not occur absent negligence, cannot pinpoint the cause of the fire, and cannot prove that

Appellant’s negligence - that is, a defect in the laptop - caused the fire. Thus, SEL contends that

the trial court should not have allowed Appellees to put this series of pyramiding inferences to

the jury under a theory of res ipsa loquitur.

First, Appellant SEL argues that under § 328D(1)(a), the question is not whether a laptop

catching fire is the type of event that occurs absent negligence or a defect. Instead, SEL contends

that § 328D(1)(a) requires a court to seek to determine the cause of the fire itself. Therefore, this

Court should ask whether a house fire is the type of event that does not occur in the absence of

20

negligence. SEL asserts that a house fire can occur for many reasons, and that here, Appellees

have not put forth any evidence that there was a defect in their NEGAN laptop, that the laptop

itself caused the fire, or that the fire would not have occurred absent negligence. See Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004). SEL argues that Appellees have failed to

eliminate numerous other possible causes for the fire. See Shaun T. Mian Corp. v. Hewlett-

Packard Co., 237 S.W.3d 851, 866 (Tex. App. 2007). SEL further seeks to distinguish cases like

Parrillo and Cruz, arguing that in those cases, the source of the injury was definitively known;

the plaintiffs in those cases were only asking the factfinders to infer that some defect existed in

the product that caused the injury. Cruz, 66 A.3d at 451; Parrillo, 426 A.2d at 1318-19.

Additionally, SEL argues that Appellees cannot use res ipsa loquitur to overcome a

complete lack or direct or circumstantial evidence of SEL’s negligence. See Enrich, 616 N.E.2d

at 1083. SEL contends that in this case, as in Enrich, the presence of a defect cannot be inferred

in the absence of expert testimony because the jury does not possess the common knowledge to

conclude that “the mere occurrence” of a house fire, without more, means that SEL’s negligence

caused the fire. See id. at 1085; see also Carnevale, 404 A.2d at 841. The only evidence that the

MACH 5 battery cells failed is based on an inference that the cells must have failed because the

fire investigators have been unable to find another source of the fire. The state fire marshal and

AFD fire inspector did not eliminate other possible sources of the fire, however. Further, SEL

contends that the fact that the other four battery cells appear, from photos, to be intact, minimizes

the possibility that any of the cells vented prior to the house fire, and therefore actually argues

against the conclusion that a defect in the MACH 5 batteries caused the fire.

In contrast, Appellees contend that because there was no other fuel in the breakfast nook

where Rick and Coral were sitting, the laptop had to have been the cause and origin of the fire.

21

Lori Brimes testified at trial that other than the laptop, no material in either the breakfast nook or

the Florida room could be classified as a “fuel load” sufficient to create a fire of the magnitude

that occurred here. Although the fire inspectors did not pinpoint the cause and origin of the fire,

they did conclude that the fire started in an area that included the breakfast nook. The

investigators did not find any other external fuel load in the breakfast nook area. SEL’s

contention that gunpowder could have caused the fire is unfounded, because no gunpowder

residue was found in the home. The only likely cause of the fire are the MACH 5 battery cells,

which can vent materials that ignite at upwards of 800 degrees Celsius.

This Court finds that the only reasonable conclusion is that the fire originated with the

laptop. See Carnevale, 404 A.2d at 841. SEL’s own expert testified that the laptop would not

catch fire absent a defect. Moreover, expert testimony is not required for the jury to draw the

appropriate causal connection. Although laptops and lithium-ion batteries are complicated

devices, SEL’s expert, Walker, thoroughly explained the workings of both during his testimony.

A jury is capable of deciding whether to give credence to Appellees’ theory of the case based on

Walker’s expert testimony, the fire inspectors’ reports, Appellees’ testimony, and other evidence.

See Shaun T. Mian Corp., 237 S.W.3d at 867. This Court will not disturb the decision of the trial

court denying SEL’s motion for directed verdict.

Conclusion

For the reasons stated above, this Court AFFIRMS the verdict below.

So ordered. Dated: November 15, 2016.

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SUPREME COURT OF STONE__________________________________________

)SAVIORS ELECTRONICS INC., )

APPELLANT, ))

v. ) No. ST-17-02)

Lori BRIMES and Rick BRIMES, )individually and P.P.A. Coral BRIMES, )

APPELLEES. )__________________________________________)

NOTICE OF APPEAL

This Court hereby grants Appellant Saviors Electronics Inc.’s request for review of the

decision of the Stone Appeals Court. This Court will consider all issues raised in the court below.

______________________________Hershel BlueClerk

DATED: September 21, 2017.

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Appendix

Sketch of 55 Eazy Street (from Stone State Fire Marshal Eugene Portah, Report re: Fire on April 21, 2013, 55 Eazy Street).

A-1