## Facts

- Terry Midcap purchased a kitchen gas range from Sears, Roebuck and Co. (“Sears”).
- The Midcaps received propane gas service from Southern States Milford Cooperative, Inc. (“Southern States”).
- A propane leak developed at the stove connection and later caused an explosion at the Midcap home.
- The explosion killed Terry Midcap and destroyed the residence.
- Maria Midcap (individually and as administratrix of Terry Midcap’s estate) and the Midcaps’ children brought survival and wrongful-death claims against Sears and Southern States; Allstate Insurance Company filed a related subrogation action, and the cases were consolidated.
- A central disputed fact at trial was who installed the range: plaintiffs contended Sears installed it; Sears contended an independent contractor installed it.
- Plaintiffs sought a “missing evidence” adverse-inference instruction against Sears based on Sears’s failure to produce an installation service ticket and failure to call the installer as a witness; the Superior Court gave the instruction.
- As to Southern States, plaintiffs argued the propane supplier had a duty to check gas connections and offered evidence about “GAS Check,” a voluntary propane-industry inspection program used by some suppliers.
- The Superior Court permitted testimony describing the GAS Check program but barred plaintiffs’ expert from testifying that GAS Check itself was the propane-supply industry’s standard of care.
- After a multi-week jury trial in the Delaware Superior Court, the jury returned a verdict for plaintiffs against Sears (over \$3.1 million) and a defense verdict for Southern States.
- Sears appealed the judgment against it; plaintiffs and Southern States raised cross-appeal issues.

## Issues

1. Whether the Superior Court erred by giving a missing-evidence adverse-inference jury instruction against Sears based on the absence of an installation service ticket and installer testimony, and whether any error required a new trial.
2. Whether the Superior Court erred by limiting expert testimony that the voluntary GAS Check program constituted the applicable standard of care for propane suppliers, and whether the judgment for Southern States should be disturbed.

## Decision

- The Delaware Supreme Court reversed the judgment against Sears and remanded for a new trial because the missing-evidence adverse-inference instruction was given without an adequate factual and legal foundation and was prejudicial in a case turning on disputed circumstantial proof of installation.
- The Court affirmed the judgment in favor of Southern States, holding the trial court acted within its discretion by allowing evidence about the GAS Check program while preventing plaintiffs’ expert from treating a voluntary program as the legal standard of care.
- Overall disposition: affirmed in part; reversed in part and remanded.

## Legal Principles

- A missing-evidence (or missing-witness) adverse-inference instruction is not automatic; it requires a proper foundation, including that the evidence is within the party’s control or uniquely available to that party, is not equally available to the opponent, and that the circumstances justify permitting an inference of unfavorable content.
- Trial courts have discretion over jury instructions, but giving an adverse-inference instruction without the required predicate facts is an abuse of discretion and warrants reversal when the instruction likely affected the verdict on a disputed central issue.
- Evidence of industry customs, practices, or voluntary safety programs may be admissible to inform the jury’s evaluation of reasonable care, but a voluntary program that is not mandated by government and is not uniformly applied does not, by itself, define the legal standard of care.
- Trial courts may allow an expert to explain a voluntary program and its use in the industry while restricting the expert from presenting that program as the controlling standard of care when the record does not support that equivalence.
- When an instructional error has a substantial likelihood of influencing the jury in a close liability case, the proper remedy is reversal and a new trial as to the affected party.

## Conclusion

In *Sears, Roebuck and Co. v. Midcap*, 893 A.2d 542 (Del. 2006), the Delaware Supreme Court reversed and remanded for a new trial on the claims against Sears because the Superior Court improperly instructed the jury that it could draw an adverse inference from allegedly missing installation evidence, while affirming the defense verdict for Southern States because the trial court reasonably allowed testimony describing the voluntary GAS Check program but prevented plaintiffs’ expert from treating that voluntary program as the propane-supply industry’s legal standard of care.


Sears, Roebuck and Co. v. Midcap, 893 A.2d 542 (2006)