Court File and Parties

COURT FILE NO.: CV-16-544140

DATE: 20240528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SCOTT PELTON Plaintiff

– and –

MAYTAG LIMITED, MAYTAG CORPORATION, IVENSYS CANADA INC., SCHNEIDER ELECTRIC S.E., SCHNEIDER ELECTRIC SYSTEMS CANADA INC., SCHNEIDER ELECTRIC CANADA INC., ROBERTSHAW CONTROLS COMPANY, and WHIRLPOOL CORPORATION Defendants

COUNSEL:

Mark Mason and Talia Feder, for the Plaintiff, Scott Pelton

David Elmaleh and Aaron Rosenberg, for the Defendants, Robertshaw Controls Company, and Whirlpool Corporation

HEARD: November 24, 25, 26, 27, 28, 2023

BEFORE: Justice J. S. Shin Doi

Reasons for Decision

[1] The plaintiff, Scott Pelton (“Mr. Pelton” or the “Plaintiff”) seeks damages caused by water which leaked from his Maytag dishwasher (the “Dishwasher”) manufactured by the defendant Whirlpool Corporation (“Whirlpool”). Mr. Pelton alleges that the water inlet valve in the Dishwasher, specifically the plastic component of the solenoid valve manufactured by the defendant Robertshaw Controls Company (“Robertshaw), was defective and failed. Mr. Pelton argues that the defective valve allowed water to escape from the Dishwasher and flooded his home. Mr Pelton submits that Whirlpool and Robertshaw (collectively, the “Defendants”) are jointly and severally liable for manufacturing a defective product. Mr. Pelton further submits that in the alternative, the Defendants are liable for not warning consumers that a solenoid valve could fail and cause a leak because of a freezing event.

[2] I dismiss Mr. Pelton’s action against the Defendants. The Defendants are not liable for manufacturing a defective product. Mr. Pelton did not prove on a balance of probabilities that there was a defect in the solenoid valve of the Dishwasher, namely, plastic degradation, which caused the leak. The Defendants’ plastic expert indicated that there was no defect in the plastic. The Defendants’ theory that a freezing event caused the plastic to break is plausible given the temperatures at the material time and the fact that the Dishwasher was installed against an exterior wall. Also, the plastic in the valve was 18 years old by the time it was tested and there was a small number of newer valves tested in comparison to the subject valve. The Fournier Transform Infrared Spectroscopy (“FTIR”) testing did not indicate degradation of the plastic. Additional testing of the plastic was not done. The Defendants are not liable for not warning consumers that a solenoid valve could fail and cause a leak because of a freezing event. The risk of a failure of a solenoid valve is remote and a solenoid valve in the Dishwasher is not an inherent danger. While the risk of a failure of the valve during a freezing event was known, the risk was remote.

Facts

[3] The parties agreed on a Statement of Facts, an excerpt of which is set out as follows.

[4] Mr. Pelton and his wife purchased their house in Toronto (the “House”) on or about August 31, 2001, and they moved in shortly thereafter. Mr. Pelton, his wife, and two children (the “Pelton Family”) continue to reside in the House. The House is a single family, detached two-storey residential home with a finished basement. The House was constructed in the 1920s, and there were no known modifications done to the exterior walls or insulation prior to the flood. The House has a footprint of approximately 22 feet by 32 feet. The main entrance is on the west side, with a side entrance to the basement stair landing on the north side. The House was constructed with conventional lumber framing, supported on an existing foundation system. Exterior walls were constructed in a solid two wythe masonry configuration, combined with horizontal siding. The main floor walls were constructed from brick masonry, which also create the gable walls of the second floor. The joists are framed into the wall, with concrete surrounding the joists. The floors and roof with the dormers are constructed from lumber framing. The interior walls and ceiling finishes consisted of gypsum lathe and plaster, and gypsum wall board.

[5] Robertshaw is a corporation incorporated pursuant to the laws of the State of Delaware, USA. Robertshaw Global Headquarters is in Itasca, Illinois, USA. Robertshaw is a global leader in the appliance controls industry. It designs, engineers, manufactures, and sells product solutions for appliances. Robertshaw was, at all material times, in the business of manufacturing and distributing components for home and commercial appliances. Robertshaw’s products include sophisticated controls for commercial and home appliances, including controls for clothes washers and dryers, dishwashers, refrigerators, electric and gas cooking, ice makers, fluid dispensing, storage water heaters, gas valves for space/central heating, and automotive/off road temperature and fluid controls. Robertshaw employs over 6,000 employees in 14 countries, has three engineering centres and 12 manufacturing plants.

[6] Whirlpool is a corporation incorporated pursuant to the laws of the State of Delaware, USA, with its principal place of business in Benton Harbor, Michigan. It is in the business of, inter alia, manufacturing dishwashers, refrigerators, and other household appliances. Whirlpool was, at all material times, the manufacturer of “Maytag” branded dishwashers.

[7] The Dishwasher was manufactured by Whirlpool, with the various components being assembled in a Whirlpool factory warehouse in Jackson, Tennessee. The precise date of when the Dishwasher was manufactured is unknown, but it was sometime in 2004. The Dishwasher was branded with the “Maytag” label and bore model number MDB6600AWB and serial number 22310699EC. A solenoid valve is a component of the Dishwasher.

[8] Whirlpool purchased the solenoid valve, which was installed in the Dishwasher, from Robertshaw. For the purposes of this trial, Robertshaw is deemed to be the manufacturer of the solenoid valve. The solenoid valve was manufactured some time in 2004 in a manufacturing plant in Matamoros, Mexico (just across the border from Brownsville, Texas). The factory was owned by Robertshaw’s predecessor. After the solenoid valve was manufactured, it was shipped to Whirlpool’s plant in Jackson for installation in the Dishwasher. The solenoid valve was installed in the Dishwasher by Whirlpool personnel.

[9] The solenoid valve is an electrically operated component. The purpose of the solenoid valve is to allow water into the machine at a specific flow rate when power is applied to the coil. When no power is applied to the coil or solenoid, no water should flow. The bracket of the solenoid valve is steel plated. When the solenoid valve is closed, and not in operation, there would be water pressure on the inlet side of the valve. One component of the solenoid valve is the plastic guide tube. The guide tube is made from nylon 66 with 18 percent fibres of glass filling in it as reinforcement.

[10] The guide tube of the solenoid valve was manufactured in the U.S. at a Robertshaw plant. The guide tube was manufactured using plastic pellets purchased from a Robertshaw supplier. The rated pressure for the solenoid valve is 175 pounds per square inch (“PSI”). Most domestic water supplies run from anywhere between 50 PSI and 125 PSI. Robertshaw solenoid valves undergo quality control and validation testing. It is generally done by high pressure, high temperature water cycle testing.

[11] After its assembly, the Dishwasher was sold to Sears Canada (“Sears”). Mr. Pelton purchased the Dishwasher from Sears after the Pelton Family moved into the House. Mr. Pelton cannot recall the precise date when he purchased the Dishwasher. The Dishwasher replaced an original dishwasher that had been in use at the House. Sears performed the complete installation of the Dishwasher, including connecting it to the water supply line.

[12] The Dishwasher was located against an exterior wall in the kitchen of the main floor of the House. The Pelton Family had no issues with the original dishwasher which was in the House before purchasing the Dishwasher. Mr. Pelton purchased the Dishwasher because he felt it was time to buy a new dishwasher. The Pelton Family had no water leaks or water leak issues with the original dishwasher. Mr. Pelton has no experience installing dishwashers.

[13] The water loss that is the subject of this action was discovered on January 12, 2014. Mr. Pelton and his family were on vacation in Florida at the time of the flood. They were away from the House from December 31, 2013 to January 12, 2014. During this period away from the House, Mr. Pelton did not shut off the main water supply to the House.

[14] At the time of the vacation, it was Mr. Pelton’s practice to turn the thermostat down to 65 degrees Fahrenheit (or 18.3 degrees Celsius) before going away in the winter. Mr. Pelton does not recall whether he turned the temperature down on his thermostat before he left on vacation. Mr. Pelton believes that the House thermostat functioned properly while the Pelton Family was on vacation. The Pelton Family were to return to Toronto on Sunday, January 12, 2014.

[15] Mr. Pelton arranged for two people, Irene Kolodziej and Angelo Garaci, to check on the House while he and his family were in Florida. Ms. Kolodziej was a neighbour and Mr. Garaci was a friend. Ms. Kolodziej and Mr. Garaci were asked to check on the interior of the House and collect the mail. Mr. Pelton gave them each a key to the House. Ms. Kolodziej collected the mail for the House every day. Mr. Pelton believes that Mr. Garaci entered the House three or four times while the Pelton Family was on vacation to check the interior of the House. Mr. Garaci believes he entered the House every few days to check on the House. Mr. Pelton is not aware of when Mr. Garaci or Ms. Kolodziej attended the House while his family was on vacation other than on the date the flood was discovered, January 12, 2014. Ms. Kolodziej does not recall what days or times she entered the House. Ms. Kolodziej does not recall the last time she entered the House prior to January 12, 2014.

[16] During the time, the Pelton Family was in Florida, neither Ms. Kolodziej nor Mr. Garaci contacted Mr. Pelton to advise him of any problems in the House. Mr. Pelton believes that if either Ms. Kolodziej or Mr. Garaci noticed a water leaking in the House, they would have contacted him to advise him of the same. Mr. Pelton expected that Ms. Kolodziej and Mr. Garaci would have contacted him if they had observed a water leak in the House.

[17] During the morning of January 12, 2014, Ms. Kolodziej went to the House where she discovered a water leak in the kitchen. Ms. Kolodziej does not recall what time in the morning she was at the House on January 12, 2014. After discovering the flood on January 12, 2014, Ms. Kolodziej went to see her neighbour, Matina Mosun, to tell her about the flood. After being told about the flood, Ms. Mosun called Mr. Garaci to notify him of the flood. After being told about the flood, Mr. Garaci went to the House. At the request of Ms. Mosun, her husband Cyrus Mosun went to the House to shut off the water.

[18] During the mid-afternoon of January 12, 2014, the Pelton Family returned to Toronto by plane from Florida. Just after their plane landed in Toronto, Mr. Pelton switched his cell phone off airplane mode, and he received an email from Ms. Mosun. Ms. Mosun’s email to Mr. Pelton was date stamped January 12, 2014 at 11:41 a.m., and had the subject line: “Major water leak in your home”. Ms. Mosun’s email to Mr. Pelton stated that, when Ms. Kolodziej went to the House, she “discovered water pouring out of your dishwasher in the kitchen.” Ms. Mosun’s email also noted that Mr. Mosun attended the House and shut off the water.

[19] At the time of the flood, the Dishwasher was approximately 10 years old. Prior to the flood, the Pelton Family had no leaks or water loss issues with the Dishwasher. The Pelton Family never repaired or serviced the Dishwasher. Mr. Pelton believed it was not necessary. After its purchase from Sears and before the flood, the Dishwasher was never repaired or serviced. The water damage from the flood originated from the solenoid valve in the Dishwasher. The Dishwasher was not operating at the time of, or immediately before, the flood. Immediately before the flood, there was no power applied to the solenoid valve; in other words, the Dishwasher was not in use. At the time of the flood, there was no power applied to the solenoid valve.

[20] The solenoid valve was designed and manufactured to withstand more than 50,000 cycles. At the time of the flood, the Dishwasher was within its life expectancy. The life expectancy determines the timeframe within which a dishwasher is expected to properly function with “normal use.” From the time of its purchase until the date of the flood, the Dishwasher was used “normally.”

[21] The solenoid valve was not required to be cleaned, maintained, or serviced. The Pelton Family never altered or tampered with the solenoid valve after the purchase of the Dishwasher. There are no statistics on the failure rate of Robertshaw solenoid valves assembled in 2004 that are currently available given the passage of time, corporate restructuring, and technological upgrades.

[22] According to Mr. Garaci, on January 12, 2014, he observed the following at the House: the House looked and smelled like a greenhouse; the temperature of the House was like being in a greenhouse; there was condensation on the walls, windows, and ceilings on every floor; the main floor was flooded; the basement ceiling collapsed; and the entire basement was flooded.

[23] Mr. Garaci believes the main floor flood caused the basement ceiling to collapse. When Mr. Pelton arrived at the House, he noticed the following: both the water and electricity had been shut off; there was water damage in the House. Specifically: water covered the whole main floor; there was water damage on kitchen cabinets and hardwood floors in the dining and living room; contents were damp throughout the House; there was water staining on wall surfaces on the main floor and 2^nd^ floor; the basement ceiling had collapsed; there was slushy water throughout the finished basement floor; the House was warm; the House was like being in a greenhouse; and there was condensation over the windows, walls, and ceilings on all three levels of the House.

[24] None of the pipes in the kitchen or main floor area burst on January 12, 2014, or at any time during the Pelton Family vacation. As recorded at Billy Bishop Toronto Centre Airport Station, the daily maximum, daily average, and daily minimum temperatures in Toronto in the days leading up to the discovery of the flood were as follows:

[25] As a result of the flood, the House sustained significant damage. For purposes of trial, the parties have agreed on damages in the amount of $250,000. The Defendants do not advance a claim for contributory negligence. Entitlement and quantum of interest, if any, and costs, if any, have not been agreed upon.

Expert Evidence

[26] The Plaintiff’s experts, 30 Forensic Engineering (Ben Desclouds and Robert D. Sparling) conducted a joint destructive examination on March 7, 2018 with the Defendants’ expert, Christopher Brand of ESi. During the examination, the experts performed visual and stereomicroscopy examinations of the valve, and destructive sectioning to locate the fracture. A second joint destructive examination was held on August 12, 2022.

[27] The Plaintiff produced expert reports dated July 8, 2020 and October 31, 2022 by 30 Forensic Engineering. It was the opinion of 30 Forensic Engineering that:

(a) The water loss was caused by a through-wall crack in a solenoid valve for a dishwasher that allowed water to escape continuously.

(b) The fracture surface indicated that the plastic insert in the valve had experienced significant chemical degradation.

(c) The chemical degradation occurred under normal operational conditions and a normal service environment (i.e., exposure to city water). Since the valve degraded under normal service conditions, the material chosen to construct the valve was not fit for its intended use as it contained insufficient stabilizers and/or antioxidants to withstand long-term continuous operation.

(d) The valve failure was a result of design and/or manufacturing defects in the plastic material.

[28] 30 Forensic Engineering confirmed in its report dated October 31, 2022, at page 54 (Master: F994),

The fracture surface exhibited little to no plastic deformation features, indicating embrittlement occurred through the entire thickness of the plastic. The embrittled plastic underwent cracking under normal operating pressures and forces that propagated from the inner wall of the incident insert toward the outer wall. The discolouration of the incident plastic insert and the craze cracking were indicative of plastic degradation of the material. Plastic degradation generally results in a loss of mechanical properties within a material…

The discolouration of the incident plastic insert and the craze cracking were indicative of plastic degradation of the material. Plastic degradation generally results in a loss of mechanical properties within a material. …

Based on our examination of the incident valve, the fracture formed in the plastic body of the valve as a result of plastic degradation, causing the release of water from the valve. Two common plastic degradation mechanisms could have contributed to the failure of the incident valve: thermal oxidative degradation; and environmental stress cracking.

[29] Mr. Brand in his expert report dated November 12, 2020, page 9 (Master F1017) states,

The discoloration of the polyamide is not homogeneous on the exposed surface. The dark discoloration coincides with the fracture and is more intense along certain lines…This discoloration of the fracture likely occurred after the fracture appeared. It is not unusual to see discoloration at a fracture face due to water flow after a fracture opens and flow occurs across the fracture face…. As materials age, it is not usual to see crazing on the affected surface. However, surface crazing in itself is not an indicator of imminent failure…Based upon the material analysis, there is no evidence of any manufacturing defects in the subject valve. The subject fracture is consistent with the internal pressure exceeding the pressure retention strength of the valve…One possible mechanism that will cause excessive pressure in a residential water system is freezing. Given that sub-freezing temperatures were recorded prior to the water loss (which is not atypical for Toronto, Ontario) freezing is a plausible cause of excessive internal pressure. The location of the dishwasher on an outerwall and the fact that the residence was not occupied prior to the discovery of the loss (due to residents’ vacation) increase the likelihood of a freeze event…

[30] Mr. Brand and a co-consultant, Mr. Mark Weiss, conclude at page 12 (Master F1020),

1. There is no evidence of any manufacturing defects in the subject valve.

2. The subject fracture is consistent with the internal pressure exceeding the pressure retention strength of the valve.

3. Given that sub-freezing temperatures were recorded prior to the water loss (which is not atypical for Toronto, Ontario) freezing is a plausible cause of excessive internal pressure.

4. A freezing hypothesis is feasible and has not been eliminated as a cause.

5. Given the lack of evidence of a manufacturing defect, the nature of the subject fracture, typical winter weather conditions at the subject home and the weather records around the time of the incident, freezing is the most likely cause of the subject incident.

[31] Mr. Brand and Mr. Gaurav Nagalia, an expert in plastics failure analysis and polymer chemistry and molding, further rebut the observations reported by 30 Forensic Engineering in an expert report dated March 30, 2023. They disagree that discoloration is indicative of material degradation. They submit that discoloration could be a result of hard water stains or corrosion product. They submit that 30 Forensic Engineering did not perform appropriate testing to analyze the discoloration and that the FTIR analysis did not show any changes in peak intensities, nor did it have any new peaks formed attributed to chemical bonding formed as part of degradation mechanism, when compared to FTIR spectra collected for exemplar plastic components. They further argue that the presence of crazing is not indicative of plastic degradation. They state that based on the FTIR and DSC analysis, the polyamide material making up the subject appears to be no different than the polyamide material making the exemplars. They also disagree that the brittle appearing fracture surface is evidence that polyamide material was degraded. They state that brittle fracture is associated with fast instantaneous energy being released in the component which could be a result of a freeze event from high stress developing with the subject part.

[32] They conclude at page 19 (Master F1044),

1. The opinions of ESi's report dated November 12, 2020 have not changed.

2. Based on ESi's examination of the subject valve and analysis there were no material or manufacturing defects identified. Additionally, there was no evidence of degradation in the polyamide material comprising the subject valve.

3. The visual appearance and brittle morphology of the fracture in the subject is consistent with the internal pressure exceeding the valve's pressure retention strength.

4. Given that sub-freezing temperatures were recorded prior to the water loss (which is not atypical for Toronto, Ontario) freezing is a plausible cause of excessive internal pressure.

5. The freezing hypothesis is feasible and has not been eliminated as a cause.

6. Given the lack of evidence of a manufacturing defect, the nature of the subject fracture, typical winter weather conditions at the subject home and the weather records around the time of the incident, freezing is the most probable cause of the subject incident.

Product Liability and Duty to Warn

[33] The categories of product liability claims and the principles were summarized by Justice Perell in Vester v. Boston Scientific Ltd., 2015 ONSC 7950 at paras 5 and 6,

For products liability claims, there are four established categories. First, manufacturers have a duty of care to consumers to see that there are no defects in manufacture that are likely to give rise to injury in the ordinary course of use: Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.). Second, manufacturers have a duty of care to warn consumers of dangers inherent in the use of the product of which the manufacturer has knowledge or ought to have knowledge: Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634 at para. 20; Lambert v. Lastoplex Chemicals Co., 1971 CanLII 27 (SCC), [1972] S.C.R. 569 at p. 574; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210. Third, manufacturers have a duty of care in designing the product to avoid safety risks and to make the product reasonably safe for its intended purposes: Ragoonanan v. Imperial Tobacco Canada Ltd. (2000), 2000 CanLII 22719 (ON SC), 51 O.R. (3d) 603 (S.C.J.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.). Fourth, there is a pure economic loss claim in negligence because manufacturers have a duty of care to compensate consumers for the cost of repairing a dangerous product that presents a real and substantial danger to the public: Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. Ltd., 1995 CanLII 146 (SCC), [1995] 1 S.C.R. 85.

All of these established categories are premised on the product causing harm or having the potential of causing harm to persons or property…

[34] In Farro v. Nutone Electrical Ltd. (1990), 1990 CanLII 6775 (ON CA), 72 O.R. (2d) 637 (C.A.), the Ontario Court of Appeal held that “a manufacturer has a duty to take reasonable care in the manufacture of his product, including all its component parts, and failure to take such reasonable care can result in liability to the ultimate user or consumer”.

[35] The Supreme Court of Canada in Hollis v. Down Corning Corp., set outs the general principles governing the duty to warn. It was held at para 20,

It is well established in Canadian law that a manufacturer of a product has a duty in tort to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge. This principle was enunciated by Laskin J. (as he then was), for the Court, in Lambert v. Lastoplex Chemicals Co., 1971 CanLII 27 (SCC), [1972] S.C.R. 569, at p. 574, where he stated:

Manufacturers owe a duty to consumers of their products to see that there are no defects in manufacture which are likely to give rise to injury in the ordinary course of use. Their duty does not, however, end if the product, although suitable for the purpose for which it is manufactured and marketed, is at the same time dangerous to use; and if they are aware of its dangerous character they cannot, without more, pass the risk of injury to the consumer.

[36] The Defendants argue that before liability for a failure to warn can arise, however, the danger to be warned against must be known to the defendant manufacturer or distributor, or the danger must be one that the defendant should have reasonably foreseen. The Defendants submit that the “duty is not to warn of remote or mere possible defects or dangers, but of only those which were known or the existence of which were likely or probable… the risk must be a probable and foreseeable one before a duty will arise” (Seamaid Fishing Ltd. v. 328174 B.C. Ltd. (1995), 58 A.C.W.S. (3) 157 (B.C.S.C)).

Analysis

Are the Defendants liable for manufacturing a defective product?

[37] The Defendants are not liable for manufacturing a defective product. When weighing the evidence, the Plaintiff did not prove on a balance of probabilities that there was a defect in the plastic material of the solenoid valve that caused the Dishwasher to flood the House.

[38] The Plaintiff’s strongest argument is that when the burst test was performed, the plastic polypropylene valve in every exemplar valve tested did not crack like the solenoid valve in the Dishwasher. The Plaintiff’s theory is that a different part of the valve would have broken as in the exemplars if the Dishwasher’s solenoid valve was subject to a pressure/freezing event. The Plaintiff’s expert, Mr. Sparling identified several observable factors that led him to conclude that the Dishwasher’s solenoid valve failed due to plastic degradation. He pointed to the presence of parallel cracks and a rough fracture surface which in his opinion indicates a slow leak instead of a freezing event. Mr. Sparling concluded that there was significant chemical degradation of the subject valve.

[39] However, the Plaintiff’s evidence falls short in proving chemical degradation. It is problematic that the tests were performed on exemplar valves purchased in 2022 on eBay when the incident valve was manufactured around 2004. I agree with the Defendants that those exemplar valves are not a good comparison to the incident valve which operated for 10 years, was stored in a box for 5 years before the first test, and then stored for another 3 years before the second test. The passage of time and the fact that the incident valve was not tested soon after the failure are of concern. By the time of the second test, the plastic in the valve was 18 years old and being compared to valves that were significantly newer.

[40] The Plaintiff’s case hinges on a finding that there was significant chemical degradation of the plastic insert of the valve due to insufficient oxidation or stabilizers that caused the valve to fail. The Plaintiff’s expert Mr. Sparling conceded on cross-examination that the FTIR chemical testing did not support the Plaintiff’s theory of the case. The FTIR analysis did not show any changes in peak intensities, nor did it have any new peaks formed attributed to chemical bonding formed as part of degradation mechanism, when compared to FTIR spectra collected for exemplar plastic components. Mr. Sparling explained that the FTIR chemical testing was not conclusive, and nylon can obscure a peak in a carbonyl bond. However, in my view, the FTIR chemical testing results of the plastic are very problematic to the Plaintiff’s case. The FTIR testing supports the Defendants’ position that there was no chemical degradation in the plastic of the incident valve.

[41] Additional testing would have strengthened the Plaintiff’s case against the Defendants. Mr. Sparling noted the valve was yellowish in colour indicating degradation as compared to the exemplars, but he never conducted a “yellowing” test. The Defendants’ experts also allege that the Plaintiff’s expert did not employ sufficient examination techniques to characterize the fracture surface. Use of scanning electron microscopy for examination of fracture surfaces of plastics reinforced with glass fibers was highly advisable.

[42] The Defendants’ experts also criticized the Plaintiff’s Oxidative Onset Temperature data that the subject plastic component had little to no antioxidant stabilizers. They opined that testing for Oxidation Onset Temperature is not an appropriate test method for evaluating degradation in polymer materials.

[43] While the experts on both sides were highly knowledgeable, persuasive, and credible, the Defendants’ experts poked too many holes in the Plaintiff’s case and the factual matrix behind the testing of the solenoid valve was problematic. The Plaintiff failed to prove on the balance of probabilities, there was a defect in the plastic insert of the solenoid valve of the Dishwasher that caused the leak.

In the alternative, are the Defendants liable for not warning consumers that the solenoid valve could fail and cause a leak because of a freezing event?

[44] The Defendants are not liable for not warning consumers that the solenoid valve could fail and cause a leak because of a freezing event.

[45] The Plaintiff argues that in the Owner’s Manual for the Dishwasher, there are no warnings about freeze events or what a consumer should do to avoid water leaks. In the Installation Guide, there are no warnings about installing a dishwasher against an exterior wall or how to avoid water leaks. Neither of the Defendants communicated any warnings about freeze events. Mr. Pelton testified that if he was warned, he would have taken steps to avoid water damage.

[46] Given the number of solenoid valves manufactured each year and the number of reported failures, the risk of a failure is remote. Stefan Szewczyk, Director of Risk Engineering and former Director of Quality at Robertshaw, testified that in 2004, Robertshaw sold solenoid valves to Maytag/Whirlpool, GE, Frigidaire, and other big companies. He estimated that Robertshaw provided two million solenoid valves to Whirlpool for North America in 2004. Mr. Szewczyk testified that air pressure tests were conducted on valves for leakage to see the function of the water valve and a failed valve may be x-rayed. He stated Robertshaw tests five of every one thousand valves manufactured including burst testing of one of the five valves. Mr. Szewczyk further testified that there were no recalls for Robertshaw valves. It was submitted that Robertshaw manufactures ten million solenoid valves per year and that there were only 10 to 20 failures per year. The Plaintiff argues that failures may not have been reported to Whirlpool but there was no evidence supporting that argument.

[47] The evidence does not indicate any danger inherent in the use of the solenoid valve in the Dishwasher. The Defendants’ expert, Mr. Brand, described the testing of the valves and testified that the exemplar valves had an adequate safety factor given their maximum allowable operating pressure. He concluded that there is unlikely a design defect in the valve. He pointed out that valves can leak when subjected to elevated pressures in different ways. Four valves with multiple components were tested and the weak link can leak. The valves burst at 13 times, 10 times, and 8 times the allowable maximum operating pressure of the valve or 1600 pounds per square inch. Mr. Brand opined that it is a very high or reasonably high safety factor for pressure bearing components.

[48] The risk of a failure of the valve due to a freeze event that led to the leak in the House is remote. Mr. Szewczyk did testify that he performed freeze testing and knew solenoid valves would crack and burst when attached to a frozen copper pipe. However, the Defendants could not have known that the solenoid valve in the Dishwasher was the weakest link in the plumbing system of the House and would burst and flood the House during freezing temperatures in January 2014. The Dishwasher was located against an exterior wall of the House, the House was empty, and the temperatures were sub-freezing for a few days before the leak was discovered. There was a confluence of factors that may have led to the flooding of the House and damage to the property. It was not incumbent on the Defendants to warn of this remote event that is rooted in specific facts and circumstances.

Disposition

[49] The Plaintiff’s claim against the Defendants is dismissed for the reasons above. The Defendants are not liable for manufacturing a defective product and for not warning consumers that the solenoid valve in the Dishwasher could fail and cause a leak because of a freezing event.

[50] If the parties are not able to agree on costs, the parties may make written submissions on costs of up to 5 pages in length in 15 days.

Shin Doi J.

Released: May 28, 2024

Released: May 28, 2024