PRODUCTS LIABILITY SEMINAR
CASES & MATERIALS
PROFESSOR McNICHOLS
FALL 2007
THE UNIVERSITY OF OKLAHOMA LAW CENTER
© 2007
TABLE of CONTENTS
CURRENT LAW INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I.
OVERVIEW OF STRICT TORT LIABILITY & WARRANTY
Restatement (Second) Torts Sec. 402A & 402B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Uniform Commercial Code Sec. 2-318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) . . . . . . . . . . . . . . . . . . . . . 12
Kirkland v. General Motors, 521 P.2d 1353 (Okla. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
John Wade, On the Nature of Strict Tort Liability for Products Liability,
44 Miss. L. J.825 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
O'Brien v. Muskin Corporation, 463 A.2d 298 (N.J.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
II.
THE MEANING OF "UNREASONABLY DANGEROUS" CONSUMER EXPECTATIONS
Atkins v. Arlan's Department Store, 522 P.2d 1020 (Okla. 1974) . . . . . . . . . . . . . . . . . . . . . . . 45
Ewen v. McLean Trucking Co., 706 P.2d 929 (Ore. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Lamke v. Futorian Corp., 709 P.2d 684 (Okla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Woods v. Fruehauf Trailer Corp., 765 P.2d 770 (Okla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Gaines-Tabb v. I.C.I. Explosives, U.S.A. Inc., U.S.A. Crt. App.
160 F.3d 613 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Delaney v. Deere & Co., 999 P.2d 930 (KA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
III.
THE MEANING OF "UNREASONABLY DANGEROUS" RISK/UTILITY & VARIATIONS
Soule v. General Motors Corp., 34 Cal.Rptr.2d 607, 882 P.2d 298 . . . . . . . . . . . . . . . . . . . . . . 79
Pruitt v. General Motors Corp., 86 Cal.Rptr.2d 4 (Cal.App.2d Dist. 1999) . . . . . . . . . . . . . . . . 87
Jackson v. General Motors Corp., 60 S.W. 3d 800 (Tenn. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 89
Potter v. Chicago Pneumatic Tool Co., 694 1316 A.2d (Conn. 1997) . . . . . . . . . . . . . . . . . . . . 93
i
Lee v. Martin, 45 S.W.3d 860 (Ark. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Denny v. Ford Motor Co., 87 N.Y.2d 248, 662 N.E.2d 730, 639 N.Y.S.2d
25 1995 WL 722844 (N.Y. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
IV.
DESIGN DEFECT - STATE OF THE ART
Roberts v. Rich Foods, Inc., 138 N.J. 365, 754 A.2d 1365
(N.J. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Lenhardt v. Ford Motor Co., 683 F.2d 1097 (Wash. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10 Cir. 1976)
(Okla. law) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
V.
CAUSATION
Gaines-Tabb v. I.C.I. Explosives, U.S.A., Inc., 160 F.3d 613 (1998) . . . . . . . . . . . . . . . . . . . 131
VI.
WARNINGS
Duane v. Oklahoma Gas & Electric Co., (Okla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
VII.
PLAINTIFF'S CONDUCT - MISUSE & ASSUMPTION OF RISK
Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla. 1976) . . . . . . . . . . . . . . . . . . . . . 137
Smith v. United States Gypsum, 612 P.2d 251 (Okla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 139
VIII.
PLAINTIFF'S CONDUCT - COMPARATIVE RESPONSIBILITY
McKinnie v. Lundell Mfg. Co., Inc., 825 F. Supp. 834 (W.D. Tenn. 1993) . . . . . . . . . . . . . . 143
IX.
APPENDIX A
Restatement 3rd of Torts: Products Liability (1997) (Selected Sections) . . . . . . . . . . . . . . . . A-1
ii
I.
OVERVIEW OF STRICT LIABILITY & WARRANTY
RESTATEMENT (SECOND) OF TORTS
TOPIC 5. STRICT LIABILITY
§ 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer has not bought the product from or entered into
any contractual relation with the seller.
See Reporter's Notes.
Caveat:
The Institute expresses no opinion as to whether the rules stated in this Section may not apply
(a) to harm to persons other than users or consumers;
(2) to the seller of a product expected to be processed or otherwise substantially changed before
it reaches the user or consumer; or
(3) to the seller of a component part of a product to be assembled.
Comment:
a. This Section states a special rule applicable to sellers of products. The rule is one of strict
liability, making the seller subject to liability to the user or consumer even though he has exercised all
possible care in the preparation and sale of the product. The Section is inserted in the Chapter dealing
with the negligence liability of suppliers of chattels, for convenience of reference and comparison with
other Sections dealing with negligence. The rule stated here is not exclusive, and does not preclude
liability based upon the alternative ground of negligence of the seller, where such negligence can be
proved.
b. History. Since the early days of the common law those engaged in the business of selling
food intended for human consumption have been held to a high degree of responsibility for their
products. As long ago as 1266 there were enacted special criminal statutes imposing penalties upon
victualers, vintners, brewers, butchers, cooks, and other persons who supplied "corrupt" food and drink.
In the earlier part of this century this ancient attitude was reflected in a series of decisions in which the
courts of a number of states sought to find some method of holding the seller of food liable to the
ultimate consumer even though there was no showing of
negligence on the part of the seller.
These decisions represented a departure from, and an exception to, the general rule that a
supplier of chattels was not liable to third persons in the absence of negligence or privity of contract. In
the beginning, these decisions displayed considerable ingenuity in evolving more or less fictitious
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theories of liability to fit the case. The various devices included an agency of the intermediate dealer or
another to purchase for the consumer, or to sell for the seller; a theoretical assignment of the seller's
warranty to the intermediate dealer; a third party beneficiary contract; and an implied representation that
the food was fit for consumption because it was placed on the market, as well as numerous others. In
later years the courts have become more or less agreed upon the theory of a "warranty" from the seller to
the consumer, either "running with the goods" by analogy to a covenant running with the land, or made
directly to the consumer. Other decisions have indicated that the basis is merely one of strict liability in
tort, which is not dependent upon either contract or negligence.
Recent decisions, since 1950, have extended this special rule of strict liability beyond the seller
of food for human consumption. The first extension was into the closely analogous cases of other
products intended for intimate bodily use, where, for example, as in the case of cosmetics, the application
to the body of the consumer is external rather than internal. Beginning in 1958 with a Michigan case
involving cinder building blocks, a number of recent decisions have discarded any limitation to intimate
association with the body, and have extended the rule of strict liability to cover the sale of any product
which, if it should prove to be defective, may be expected to cause physical harm to the consumer or his
property.
c. On whatever theory, the justification for the strict liability has been said to be that the seller,
by marketing his product for use and consumption, has undertaken and assumed a special responsibility
toward any member of the consuming public who may be injured by it; that the public has the right to
and does expect, in the case of products which it needs and for which it is forced to rely upon the seller,
that reputable sellers will stand behind their goods; that public policy demands that the burden of
accidental injuries caused by products intended for consumption be placed upon those who market them,
and be treated as a cost of production against which liability insurance can be obtained; and that the
consumer of such products is entitled to the maximum of protection at the hands of someone, and the
proper persons to afford it are those who market the products.
d. The rule stated in this Section is not limited to the sale of food for human consumption, or
other products for intimate bodily use, although it will obviously include them. It extends to any product
sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate
user or consumer. Thus the rule stated applies to an automobile, a tire, an airplane, a grinding wheel, a
water heater, a gas stove, a power tool, a riveting machine, a chair, and an insecticide. It applies also to
products which, if they are defective, may be expected to and do cause only "physical harm" in the form
of damage to the user's land or chattels, as in the case of animal food or a herbicide.
e. Normally the rule stated in this Section will be applied to articles which already have
undergone some processing before sale, since there is today little in the way of consumer products which
will reach the consumer without such processing. The rule is not, however, so limited, and the supplier
of poisonous mushrooms which are neither cooked, canned, packaged, nor otherwise treated is subject to
the liability here stated.
f. Business of selling. The rule stated in this Section applies to any person engaged in the
business of selling products for use or consumption. It therefore applies to any manufacturer of such a
product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant. It is not
necessary that the seller be engaged solely in the business of selling such products. Thus the rule applies
to the owner of a motion picture theatre who sells popcorn or ice cream, either for consumption on the
premises or in packages to be taken home.
The rule does not, however, apply to the occasional seller of food or other such products who is
not engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one
occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an
automobile who, on one occasion, sells it to his neighbor, or even sells it to a dealer in used cars, and this
even though he is fully aware that the dealer plans to resell it. The basis for the rule is the ancient one of
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the special responsibility for the safety of the public undertaken by one who enters into the business of
supplying human beings with products which may endanger the safety of their persons and property, and
the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is
lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third
person, or even to his buyer, in the absence of his negligence. An analogy may be found in the provision
of the Uniform Sales Act, § 15, which limits the implied warranty of merchantable quality to sellers who
deal in such goods; and in the similar limitation of the Uniform Commercial Code, § 2-314, to a seller
who is a merchant. This Section is also not intended to apply to sales of the stock of merchants out of the
usual course of business, such as execution sales, bankruptcy sales, bulk sales, and the like.
g. Defective condition. The rule stated in this Section applies only where the product is, at the
time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be
unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition,
and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of
proof that the product was in a defective condition at the time that it left the hands of the particular seller
is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that
it was then defective, the burden is not sustained.
Safe condition at the time of delivery by the seller will, however, include proper packaging,
necessary sterilization, and other precautions required to permit the product to remain safe for a normal
length of time when handled in a normal manner.
h. A product is not in a defective condition when it is safe for normal handling and consumption.
If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to
remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from
abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable.
Where, however, he has reason to anticipate that danger may result from a particular use, as where a drug
is sold which is safe only in limited doses, he may be required to give adequate warning of the danger
(see Comment i.e.), and a product sold without such warning is in a defective condition.
The defective condition may arise not only from harmful ingredients, not characteristic of the
product itself either as to presence or quantity, but also from foreign objects contained in the product,
from decay or deterioration before sale, or from the way in which the product is prepared or packed. No
reason is apparent for distinguishing between the product itself and the container in which it is supplied;
and the two are purchased by the user or consumer as an integrated whole. Where the container is itself
dangerous, the product is sold in a defective condition. Thus a carbonated beverage in a bottle which is
so weak, or cracked, or jagged at the edges, or bottled under such excessive pressure that it may explode
or otherwise cause harm to the person who handles it, is in a defective and dangerous condition. The
container cannot logically be separated from the contents when the two are sold as a unit, and the liability
stated in this Section arises not only when the consumer drinks the beverage and is poisoned by it, but
also when he is injured by the bottle while he is handling it preparatory to consumption.
i. Unreasonably dangerous. The rule stated in this Section applies only where the defective
condition of the product makes it unreasonably dangerous to the user or consumer. Many products
cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves
some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and
castor oil found use under Mussolini as an instrument of torture. That is not what is meant by
"unreasonably dangerous" in this Section. The article sold must be dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely
because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey,
containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not
unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing
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something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous
merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but
bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.
j. Directions or warning. In order to prevent the product from being unreasonably dangerous,
the seller may be required to give directions or warning, on the container, as to its use. The seller may
reasonably assume that those with common allergies, as for example to eggs or strawberries, will be
aware of them, and he is not required to warn against them. Where, however, the product contains an
ingredient to which a substantial number of the population are allergic, and the ingredient is one whose
danger is not generally known, or if known is one which the consumer would reasonably not expect to
find in the product, the seller is required to give warning against it, if he has knowledge, or by the
application of reasonable, developed human skill and foresight should have knowledge, of the presence
of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for
other reasons, warning as to use may be required.
But a seller is not required to warn with respect to products, or ingredients in them, which are
only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time,
when the danger, or potentiality of danger, is generally known and recognized. Again the dangers of
alcoholic beverages are an example, as are also those of foods containing such substances as saturated
fats, which may over a period of time have a deleterious effect upon the human heart.
Where warning is given, the seller may reasonably assume that it will be read and heeded; and a
product bearing such a warning, which is safe for us if it is followed, is not in defective condition, nor is
it unreasonably dangerous.
k. Unavoidably unsafe products. There are some products which, in the present state of human
knowledge, are quite incapable of being made safe for their intended and ordinary use. These are
especially common in the field of drugs. An out-standing example is the vaccine for the Pasteur
treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is
injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of
the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve.
Such a product, properly prepared, and accompanied by proper directions and warning, is not defective,
nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of
which for this very reason cannot legally be sold except to physicians, or under the prescription of a
physician. It is also true in particular of many new or experimental drugs as to which, because of lack of
time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps
even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug
notwithstanding a medically recognizable risk. The seller of such products, again with the qualification
that they are properly prepared and marketed, and proper warning is given, where the situation calls for
it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he
has undertaken to supply the public with an apparently useful and desirable product, attended with a
known but apparently reasonable risk.
l. User or consumer. In order for the rule stated in this Section to apply, it is not necessary that
the ultimate user or consumer have acquired the product directly from the seller, although the rule applies
equally if he does so. He may have acquired it through one or more intermediate dealers. It is not even
necessary that the consumer have purchased the product at all. He may be a member of the family of the
final purchaser, or his employee, or a guest at his table, or a mere donee from the purchaser. The liability
stated is one in tort, and does not require any contractual relation, or privity of contract, between the
plaintiff and the defendant.
"Consumers" include not only those who in fact consume the product, but also those who prepare
it for consumption; and the housewife who contracts tularemia while cooking rabbits for her husband is
included within the rule stated in this Section, as is also the husband who is opening a bottle of beer for
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his wife to drink. Consumption includes all ultimate uses for which the product is intended, and the
customer in a beauty shop to whose hair a permanent wave solution is applied by the shop is a consumer.
"User" includes those who are passively enjoying the benefit of the product, as in the case of passengers
in automobiles or airplanes, as well as those who are utilizing it for the purpose of doing work upon it, as
in the case of an employee of the ultimate buyer who is making repairs upon the automobile which he has
purchased.
Illustration:
1. A manufacture packs a can of beans, which he sells to B, a wholesaler. B sells the
beans to C, a jobber, who resells it to D, a retail grocer. E buys the can of beans from D, and
gives it to F. F serves the beans at lunch to G, his guest. While eating the beans, G breaks a
tooth, on a pebble of the size, shape, and color of a bean, which no reasonable inspection could
possibly have discovered. There is satisfactory evidence that the pebble was in the can of beans
when it was opened. Although there is no negligence on the part of A, B, C, or D, each of them
is subject to liability to G. On the other hand E and F, who have not sold the beans, are not liable
to G in the absence of some negligence on the part.
m. "Warranty." The liability stated in this Section does not rest upon negligence. It is strict
liability, similar in its nature to that covered by Chapters 20 and 21. The basis of liability is purely one
of tort.
A number of courts, seeking a theoretical basis for the liability, have resorted to a "warranty,"
either running with the goods sold, by analogy to covenants running with the land, or made directly to the
consumer without contract. In some instances this theory has proved to be an unfortunate one. Although
warranty was in its origin a matter of tort liability, and it is generally agreed that a tort action will still lie
for its breach, it has become so identified in practice with a contract of sale between the plaintiff and the
defendant that the warranty theory has become something of an obstacle to the recognition of the strict
liability where there is no such contract. There is nothing in this Section which would prevent any court
from treating the rule stated as a matter of "warranty" to the user or consumer. But if this is done, it
should be recognized and understood that the "warranty" is a very different kind of warranty from those
usually found in the sale of goods, and that it is not subject to the various contract rules which have
grown up to surround such sales.
The rule stated in this Section does not require any reliance on the part of the consumer upon the
reputation, skill, or judgment of the seller who is to be held liable, nor any representation or undertaking
on the part of that seller. The seller is strictly liable although, as is frequently the case, the consumer
does not even know who he is at the time of consumption. The rule stated in this Section is not governed
by the provisions of the Uniform Sales Act, or those of the Uniform Commercial Code, as to warranties;
and it is not affected by limitations on the scope and content of warranties, or by limitation to "buyer"
and "seller" in those statutes. Nor is the consumer required to give notice to the seller of his injury
within a reasonable time after it occurs, as is provided by the Uniform Act. The consumer's cause of
action does not depend upon the validity of his contract with the person from whom he acquires the
product, and it is not affected by any disclaimer or other agreement, whether it be between the seller and
his immediate buyer, or attached to and accompanying the product into the consumer's hands. In short,
"warranty" must be given a new and different meaning if it is used in connection with this Section. It is
much simpler to regard the liability here stated as merely one of strict liability in tort.
n. Contributory negligence. Since the liability with which this Section deals is not based upon
negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies.
Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a
failure to discover the defect in the product, or to guard against the possibility of its existence. On the
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other hand the form of contributory negligence which consists in voluntarily and unreasonably
proceeding to encounter a known danger, and commonly passes under the name of assumption to risk, is
a defense under this Section as in other cases of strict liability. If the user or consumer discovers the
defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and
is injured by it, he is barred from recovery.
Comment on Caveat:
o. Injuries to non-users and non-consumers. Thus far the courts, in applying the rule stated in
this Section, have not gong beyond allowing recovery to users and consumers, as those terms are defined
in Comment l. Casual bystanders, and others who may come in contact with the product, as in the case of
employees of the retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an
automobile, have been denied recovery. There may be no essential reason why such plaintiffs should not
be brought within the scope of the protection afforded, other than that they do not have the same reasons
for expecting such protection as the consumer who buys a marketed product; but the social pressure
which has been largely responsible for the development of the rule stated has been a consumers' pressure,
and there is not the same demand for the protection of casual strangers. The Institute expresses neither
approval nor disapproval of expansion of the rule to permit recovery by such persons.
p. Further processing or substantial change. Thus far the decisions applying the rule stated
have not gone beyond products which are sold in the condition, or in substantially the same condition, in
which they are expected to reach the hands of the ultimate user or consumer. In the absence of decisions
providing a clue to the rules which are likely to develop, the Institute has refrained from taking any
position as to the possible liability of the seller where the product is expected to, and does, undergo
further processing or other substantial change after it leaves his hands and before it reaches those of the
ultimate user or consumer.
It seems reasonably clear that the mere fact that the product is to undergo processing, or other
substantial change, will not in all cases relieve the seller of liability under the rule stated in this Section.
If, for example, raw coffee beans are sold to a buyer who roasts and packs them for sale to the ultimate
consumer, it cannot be supposed that the seller will be relieved of all liability when the raw beans are
contaminated with arsenic, or some other poison. Likewise the seller of an automobile with a defective
steering gear which breaks and injures the driver, can scarcely expect to be relieved of the responsibility
by reason of the fact that the car is sold to a dealer who is expected to "service" it, adjust the brakes,
mount and inflate the tires, and the like, before it is ready for use. On the other hand, the manufacturer of
pigiron, which is capable of a wide variety of uses, is not so likely to be held to strict liability when it
turns out to be unsuitable for the child's tricycle into which it is finally made by a remote buyer. The
question is essentially one of whether the responsibility for discovery and prevention of the dangerous
defect is shifted to the intermediate party who is to make the changes. No doubt there will be some
situations, and some defects, as to which the responsibility will be shifted, and others in which it will not.
The existing decisions as yet throw no light upon the questions, and the Institute therefore expresses
neither approval nor disapproval of the seller's strict liability in such a case.
q. Component parts. The same problem arises in cases of the sale of a component part of a
product to be assembled by another, as for example a tire to be placed on a new automobile, a brake
cylinder for the same purpose, or an instrument for the panel of an airplane. Again the question arises,
whether the responsibility is not shifted to the assembler. It is no doubt to be expected that where there is
no change in the component part itself, but it is merely incorporated into something larger, the strict
liability will be found to carry through to the ultimate user or consumer. But in the absence of a
sufficient number of decisions on the matter to justify a conclusion, the Institute expresses no opinion on
the matter.
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§ 402 B. Misrepresentation by Seller of Chattels to Consumer
One engaged in the business of selling chattels who, by advertising, labels, or otherwise,
makes to the public a misrepresentation of a material fact concerning the character or
quality of a chattel sold by him is subject to liability for physical harm to a consumer of the
chattel caused by justifiable reliance upon the misrepresentation, even though
(a) it is not made fraudulently or negligently, and
(b) the consumer has not bought the chattel from or entered into any contractual
relation with the seller. See Reporter's Notes.
Caveat:
The Institute expresses no opinion as to whether the rule stated in this Section may apply
(1) where the representation is not made to the public, but to an individual, or
(2) where physical harm is caused to one who is not a consumer of the chattel.
Comment:
a. The rule stated in this Section is one of strict liability for physical harm to the consumer,
resulting from a misrepresentation of the character or quality of the chattel sold, even though them is
representation is an innocent one, and not made fraudulently or negligently. Although the Section deals
with misrepresentation, it is inserted here in order to complete the rules dealing with the liability of
suppliers of chattels for physical harm caused by the chattel. A parallel rule, as to strict liability for
pecuniary loss resulting from such a misrepresentation, is stated in § 552 D.1
b. The rule stated in this Section differs from the rule of strict liability stated in § 402 A, which
is a special rule applicable only to sellers of products for consumption and does not depend upon
misrepresentation. The rule here stated applies to one engaged in the business of selling any type of
chattel, and is limited to misrepresentations of their character or quality.
c. History. The early rule was that a seller of chattels incurred no liability for physical harm
resulting from the use of the chattel to anyone other than his immediate buyer, unless there was privity of
contract between them. (See § 395, Comment a.) Beginning with Langridge v. Levy, 2 M. & W. 519,
150 Eng. Rep. 863 (1837), an exception was developed in cases where the seller made fraudulent
misrepresentations to the immediate buyer, concerning the character or quality of the chattel sold, and
because of the fact misrepresented harm resulted to a third person who was using the chattel. The
remedy lay in an action for deceit, and the rule which resulted is now stated in § 557 A. Shortly after
1930, a number of the American courts began, more or less
independently, to work out a further extension of liability for physical harm to the consumer of the
chattel, in cases where the seller made misrepresentations to the public concerning its character or
quality, and the consumer, as a member of the public, purchased the chattel in reliance upon the
misrepresentation and suffered physical harm because of the fact misrepresented. In such cases the seller
was held to strict liability for the misrepresentation, even though it was not made fraudulently or
negligently. The leading case is Baxter v. Ford Motor Co., 168 Wash. 456, 12 P. 2d 409, 88 A.L.R. 521
(1932), adhered to on rehearing, 168 Wash. 456, 15 P.2d 1118, 88 A.L.R. 527, second appeal, 179 Wash.
123, 35 P. 2d 1090 (1934), in which the manufacturer of an automobile advertised to the public that the
windshield glass was "shatterproof," and the purchaser was injured when a stone struck the glass and it
shattered. In the beginning various theories of liability were suggested, including strict liability in deceit,
and a contract resulting from an offer made to the consumer to be bound by the representation, accepted
by his purchase.
d. "Warranty." The theory finally adopted by most of the decisions, however, has been that of a
non-contractual "express warranty" made to the consumer in the form of the representation to the public
7
upon which he relies. The difficulties attending the use of the word "warranty" are the same as those
involved under § 402 A, and Comment m under that Section is equally applicable here so far as it is
pertinent. The liability stated in this Section is liability in tort, and not in contract; and if it is to be called
one of "warranty," it is at least a different kind of warranty from that involved in the ordinary sale of
goods from the immediate seller to the immediate buyer, and is subject to different rules.
e. Sellers included. The rule stated in this Section applies to any person engaged in the business
of selling any type of chattel. It is not limited to sellers of food or products for intimate bodily use, as
was until lately the rule stated in § 402 A. It is not limited to manufacturers of the chattel, and it includes
wholesalers, retailers, and other distributors who sell it.
The rule stated applies, however, only to those who are engaged in the business of selling such
chattels. It has no application to anyone who is not so engaged in business. It does not apply, for
example, to a newspaper advertisement published by a private owner of a single automobile who offers it
for sale.
f. Misrepresentation of character or quality. The rule stated applies to any misrepresentation of
a material fact concerning the character or quality of the chattel sold which is made to the public by one
so engaged in the business of selling such chattels. The fact misrepresented must be a material one, upon
which the consumer may be expected to rely in making his purchase, and he must justifiably rely upon it.
(See Comment j.) If he does so, and suffers physical harm by reason of the fact misrepresented, there is
strict liability to him.
Illustration:
1. A manufactures automobiles. He advertises in newspapers and magazines that the glass in his
cars is "shatterproof." B reads this advertising, and in reliance upon it purchases from a retail dealer an
automobile manufactured by A. While B is driving the car, a stone thrown up by a passing truck strikes
the windshield and shatters it, injuring B. A is subject to strict liability to B.
g. Material fact. The rule stated in this Section applies only to misrepresentations of material
facts concerning the character or quality of the chattel in question. It does not apply to statements of
opinion, and in particular it does not apply to the kind of loose general praise of wares sold which, on the
part of the seller, is considered to be "sales talk," and is commonly called "puffing"--as, for example, a
statement that an automobile is the best on the market for the price. As to such general language of
opinion, see § 542, and Comment d under that Section, which is applicable here so far as it is pertinent.
In addition, the fact misrepresented must be a material one, of importance to the normal purchaser, by
which the ultimate buyer may justifiably be expected to be influenced in buying the chattel.
h. "To the public." The rule stated in this Section is limited to misrepresentations which are
made by the seller to the public at large, in order to induce purchase of the chattels sold, or are intended
by the seller to, and do, reach the public. The form of the representation is not important. It may be
made by public advertising in newspapers or television, by literature distributed to the public through
dealers, by labels on the product sold, or leaflets accompanying it, or in any other manner, whether it be
oral or written.
Illustration:
2. A manufacturers wire rope. He issues a manual containing statements concerning its
strength, which he distributes through dealers to buyers, and to members of the public who may
be expected to buy. In reliance upon the statements made in the manual, B buys a quantity of the
wire rope from a dealer, and makes use of it to hoist a weight of 1,000 pounds. The strength of
the rope is not as great as is represented in the manual, and as a result the rope breaks and the
weight falls on B and injures him. A is subject to strict liability to B.
8
3. A manufactures a product for use by women at home in giving "permanent waves" to
their hair. He places on the bottles labels which state that the product may safely be used in a
particular manner, and will not be injurious to the hair. B reads such a label, and in reliance
upon it purchases a bottle of the product from a retail dealer. She uses it as directed, and as a
result her hair is destroyed. A is subject to strict liability to B.
i. Consumers. The rule stated in this Section is limited to strict liability for physical harm to
consumers of the chattel. The Caveat leaves open the question whether the rule may not also apply to
one who is not a consumer, but who suffers physical harm through his justifiable reliance upon the
misrepresentation.
"Consumer" is to be understood in the broad sense of one who makes use of the chattel in the
manner which a purchaser may be expected to use it. Thus an employee of the ultimate purchaser to
whom the chattel is turned over, and who is directed to make use of it in his work, is a consumer, and so
is the wife of the purchaser of an automobile who is permitted by him to drive it.
j. Justifiable reliance. The rule here stated applies only where there is justifiable reliance upon
the misrepresentation of the seller, and physical harm results because of such reliance, and because of the
fact which is misrepresented. It does not apply where the misrepresentation is not known, or there is
indifference to it, and it does not influence the purchase or subsequent conduct. At the same time,
however, the misrepresentation need not be the sole inducement to purchase, or to use the chattel, and it
is sufficient that it has been a substantial factor in that inducement. (Compare § 546 and Comments.)
Since the liability here is for misrepresentation, the rules as to what will constitute justifiable reliance
stated in §§ 537-545 A are applicable to this Section, so far as they are pertinent.
The reliance need not necessarily be that of the consumer who is injured. It may be that of the
ultimate purchaser of the chattel, who because of such reliance passes it on to the consumer who is in fact
injured, but is ignorant of the misrepresentation. Thus a husband who buys an automobile in justifiable
reliance upon statements concerning its brakes, and permits his wife to drive the car, supplies the element
of reliance, even though the wife in fact never learns of the statements.
Illustration:
4. The same facts as in Illustration 2, except that the harm is suffered by C, an employee
of B, to whom B turns over the wire rope without informing him of the representations made by
A. The same result.
9
UNIFORM COMMERCIAL CODE - §2-318
§ 2-318. Third Party Beneficiaries of Warranties Express or Implied
Note: If this Act is introduced in the Congress of the United States this section should be
omitted. (States to select one alternative.)
Alternative A A seller's warranty whether express or implied extends to any natural person who
is in the family or household of his buyer or who is a guest in his home if it is reasonable to
expect that such person may use, consume or be affected by the goods and who is injured in
person by breach of the warranty. A seller may not exclude or limit the operation of this section.
Alternative B
A seller's warranty whether express or implied extends to any natural person who may
reasonably be expected to use, consume or be affected by the goods and who is injured in person
by breach of the warranty. A seller may not exclude or limit the operation of this section.
Alternative C
A seller's warranty whether express or implied extends to any person who may
reasonably be expected to use, consume or be affected by the goods and who is injured by breach
of the warranty. A seller may not exclude or limit the operation of this section with respect to
injury to the person of an individual to whom the warranty extends. As amended 1966.
Official Comment
Prior Uniform Statutory Provision: None.
Purposes:
1. The last sentence of this section does not mean that a seller is precluded from excluding or
disclaiming a warranty which might otherwise arise in connection with the sale provided such exclusion
or modification is permitted by Section 2-316. Nor does that sentence preclude the seller from limiting
the remedies of his own buyer and of any beneficiaries, in any manner provided in Sections 2-718 or 2719.
To the extent that the contract of sale contains provisions under which warranties are excluded or
modified, or remedies for breach are limited, such provisions are equally operative against beneficiaries
of warranties under this section. What this last
sentence forbids is exclusion of liability by the seller to the persons to whom the warranties which he has
made to his buyer would extend under this section.
2. The purpose of this section is to give certain beneficiaries the benefit of the same warranty
which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any
technical rules as to "privity." It seeks to accomplish this purpose without any derogation of any right or
remedy resting on negligence. It rests primarily upon the merchant-seller's warranty under this Article
that
the goods sold are merchantable and fit for the ordinary purposes for which such goods are used rather
than the warranty of fitness for a particular purpose. Implicit in the section is that any beneficiary of a
warranty may bring a direct action for breach of warranty against the seller whose warranty extends to
him [As amended in 1966].
3. The first alternative expressly includes as beneficiaries within its provisions the family,
household and guests of the purchaser. Beyond this, the section in this form is neutral and is not
intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his
10
buyer who resells, extend to other persons in the distributive chain. The second alternative is designed
for states where the case law has already developed further and for those that desire to expand the class
of beneficiaries. The third alternative goes further, following the trend of modern decisions as indicated
by Restatement of Torts 2d § 402A (Tentative Draft No. 10, 1965) in extending the rule beyond injuries
to the person [As amended in 1966]. * * *
11
GREENMAN vs YUBA POWER PRODUCTS, INC.
Supreme Court of California, In Bank.
59 Cal.2d 57, 377 P.2d 897, 27 Cal. Rptr. 697(1963)
TRAYNOR, Justice.
Plaintiff brought this action for damages against the retailer and the manufacturer of a Shopsmith, a
combination power tool that could be used as a saw, drill, and wood lathe. He saw a Shopsmith demonstrated
by the retailer and studied a brochure prepared by the manufacturer. He decided he wanted a Shopsmith for
his home workshop, and his wife bought and gave him one for Christmas in 1955. In 1957 he bought the
necessary attachments to use the Shopsmith as a lathe for turning a large piece of wood he wished to make
into a chalice. After he had worked on the piece of wood several times without difficulty, it suddenly flew
out of the machine and struck him on the forehead, inflicting serious injuries. About ten and a half months
later, he gave the retailer and the manufacturer written notice of claimed breaches of warranties and filed a
complaint against them alleging such breaches and negligence.
After a trial before a jury, the court ruled that there was no evidence that the retailer was negligent or
had breached any express warranty and that the manufacturer was not liable for the breach of any implied
warranty. Accordingly, it submitted to the jury only the cause of action alleging breach of implied warranties
against the retailer and the causes of action alleging negligence and breach of express warranties against the
manufacturer. The jury returned a verdict for the retailer against plaintiff and for plaintiff against the
manufacturer in the amount of $65,000. The trial court denied the manufacturer's motion for a new trial and
entered judgment on the verdict. The manufacturer and plaintiff appeal. Plaintiff seeks a reversal of the part
of the judgment in favor of the retailer, however, only in the event that the part of the judgment against the
manufacturer is reversed.
Plaintiff introduced substantial evidence that his injuries were caused by defective design and
construction of the Shopsmith. His expert witnesses testified that inadequate set screws were used to hold
parts of the machine together so that normal vibration caused the tailstock of the lathe to move away from
the piece of wood being turned permitting it to fly out of the lathe. They also testified that there were other
more positive ways of fastening the parts of the machine together, the use of which would have prevented
the accident. The jury could therefore reasonably have concluded that the manufacturer negligently
constructed the Shopsmith. The jury could also reasonably have concluded that statements in the
manufacturer's brochure were untrue, that they constituted express warranties, [FN1] and that plaintiff's
injuries were caused by their breach.
FN1. In this respect the trial court limited the jury to a consideration of two statements in the
manufacturer's brochure. (1) 'WHEN SHOPSMITH IS IN HORRIZONTAL POSITION Rugged
construction of frame provides rigid support from end to end. Heavy centerless-ground steel tubing
insurers perfect alignment of components.' (2) 'SHOPSMITH maintains its accuracy because every
component has positive locks that hold adjustments through rough or precision work.'
The manufacturer contends, however, that plaintiff did not give it notice of breach of warranty within
a reasonable time and that therefore his cause of action for breach of warranty is barred by section 1769 of
the Civil Code. Since it cannot be determined whether the verdict against it was based on the negligence or
warranty cause of action or both, the manufacturer concludes that the error in presenting the warranty cause
of action to the jury was prejudicial.
12
Section 1769 of the Civil Code provides: 'In the absence of express or implied agreement of the parties,
acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal
remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of
the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a
reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable
therefor.'
Like other provisions of the uniform sales act (Civ.Code, *61 ss 1721- 1800), section 1769 deals
with the rights of the parties to a contract of sale or a sale. It does not provide that notice must be given of
the breach of a warranty that arises independently of a contract of sale between the parties. Such warranties
are not imposed by the sales act, but are the product of common-law decisions that have recognized them in
a variety of situations. [Cc] It is true that in many of these situations the court has invoked the sales act
definitions of warranties (Civ.Code, ss 1732, 1735) in defining the defendant's liability, but it has done so,
not because the statutes so required, but because they provided appropriate standards for the court to adopt
under the circumstances presented.[Cc]
The notice requirement of section 1769, however, is not an appropriate one for the court to adopt
in actions by injured consumers against manufacturers with whom they have not dealt.[Cc]'As between the
immediate parties to the sale (the notice requirement) is a sound commercial rule, designed to protect the
seller against unduly delayed claims for damages. As applied to personal injuries, and notice to a remote
seller, it becomes a booby-trap for the unwary. The injured consumer is seldom 'steeped in the business
practice which justifies the rule,' (James, Product Liability, 34 Texas L.Rev. 44, 192, 197) and at least until
he has had legal advice it will not occur to him to give notice to one with whom he has had no dealings.'
(Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1130, footnotes omitted.) It is true that in Jones
v. Burgermeister Brewing Corp., 198 Cal.App.2d 198, 202-203, 18 Cal.Rptr. 311 . . . the court assumed that
notice of breach of warranty must be given in an action by a consumer against a manufacturer. Since in those
cases, however, the court did not consider the question whether a distinction exists between a warranty based
on a contract between the parties and one imposed on a manufacturer not in privity with the consumer, the
decisions are not authority for rejecting the rule of the La Hue and Chapman cases, supra. (Peterson v. Lamb
Rubber Co., 54 Cal.2d 339, 343, 5 Cal.Rptr. 863, 353 P.2d 575; People v. Banks, 53 Cal.2d 370, 389, 1
Cal.Rptr. 669, 348 P.2d 102.) We conclude, therefore, the even if plaintiff did not give timely notice of
breach of warranty to the manufacturer, his cause of action based on the representations contained in the
brochure was not barred.
Moreover, to impose strict liability on the manufacturer under the circumstances of this case, it was
not necessary for plaintiff to establish an express warranty as defined in section 1732 of the Civil Code.
[FN2] A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to
be used without inspection for defects, proves to have a defect that causes injury to a human being.
Recognized first in the case of unwholesome food products, such liability has now been extended to a variety
of other products that create as great or greater hazards if defective. (Peterson v. Lamb Rubber Co., 54 Cal.2d
339, 347, 5 Cal.Rptr. 863, 353 P.2d 575 (grinding wheel); Vallis v. Canada Dry Ginger Ale, Inc., 190
Cal.App.2d 35, 42-44, 11 Cal.Rptr. 823 (bottle); Jones v. Burgermeister Brewing Corp., 198 Cal.App.2d 198,
204, 18 Cal.Rptr. 311 (bottle); Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d App.2d 602, 607, 6
Cal.Rptr. 320, 79 A.L.R.2d 290 (vaccine); McQuaide v. Bridgport Brass Co., D.C., 190 F.Supp. 252, 254
(insect spray); Bowles v. Zimmer Manufacturing Co., 7 Cir., 277 F.2d 868, 875, 76 A.L.R.2d 120 (surgical
pin); Thompson v. Reedman, D.C., 199 F.Supp. 120, 121 (automobile); Chapman v. Brown, D.C., 198
F.Supp. 78, 118, 119, affd. Brown v. Chapman, 9 Cir., 304 F.2d 149 (skirt); B. F. Goodrich Co. v. Hammond,
10 Cir., 269 F.2d 501, 504 (automobile tire); Markovich v. McKesson and Robbins, Inc., 106 Ohio App. 265,
13
149 N.E.2d 181, 186-188 (home permanent); Graham v. Bottenfield's Inc., 176 Kan. 68, 269 P.2d 413, 418
(hair dye); General Motors Corp. v. Dodson, 47 Tenn.App. 438, 338 S.W.2d 655, 661 (automobile);
Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 76-84, 75 A.L.R.2d 1 (automobile);
Hinton v. Republic Aviation Corporation, D.C., 180 F.Supp. 31, 33 (airplane).)
FN2. Any affirmation of fact or any promise by the seller relating to the goods is an express warranty
if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods,
and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor
any statement purporting to be a statement of the seller's opinion only shall be construed as a
warranty.'
Although in these cases strict liability has usually been based on the theory of an express or implied
warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract
between them, the recognition that the liability is not assumed by agreement but imposed by law [Cc] and
the refusal to permit the manufacturer to define the scope of its own responsibility for defective products
(Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 84-96[and] [Cc] make clear that the
liability is not one governed by the law of contract warranties but by the law of strict liability in tort.
Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial
transactions cannot properly be invoked to govern the manufacturer's liability to those injured by their
defective products unless those rules also serve the purposes for which such liability is imposed.
We need not recanvass the reasons for imposing strict liability on the manufacturer. They have been
fully articulated in the cases cited above. (See also 2 Harper and James, Torts, ss 28.15-28,16, pp. 1569-1574;
Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099; Escola v. Coca Cola Bottling Co., 24 Cal.2d
453, 461, 150 P.2d 436, concurring opinion.) The purpose of such liability is to insure that the costs of
injuries resulting from defective products are borne by the manufacturers that put such products on the
market rather than by the injured persons who are powerless to protect themselves. Sales warranties serve
this purpose fitfully at best. (See Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1124-1134.)
In the present case, for example, plaintiff was able to plead and prove an express warranty only because he
read and relied on the representations of the Shopsmith's ruggedness contained in the manufacturer's
brochure. Implicit in the machine's presence on the market, however, was a representation that it would safely
do the jobs for which it was built. Under these circumstances, it should not be controlling whether plaintiff
selected the machine because of the statements in the brochure, or because of the machine's own appearance
of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would
safely do the jobs it was built to do. It should not be controlling whether the details of the sales from
manufacturer to retailer and from retailer to plaintiff's wife were such that one or more of the implied
warranties of the sales act arose. (Civ.Code, s 1735.) 'The remedies of injured consumers ought not to be
made to depend upon the intricacies of the law of sales.[Cc] To establish the manufacturer's liability it was
sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be
used as a result of a defect in design and manufacture of which plaintiff was not aware that made the
Shopsmith unsafe for its intended use.
The manufacturer contends that the trial court erred in refusing to give three instructions requested by it.
It appears from the record, however, that the substance of two of the requested instructions was adequately
covered by the instructions given and that the third instruction was not supported by the evidence.
The judgment is affirmed.
GIBSON, C. J., and SCHAUER, McCOMB, PETERS, TOBRINER and PEEK, JJ., concur.
14
KIRKLAND v. GENERAL MOTORS CORPORATION
521 P.2d 1353 (Okla. 1974)
Motorist brought action against manufacturer of automobile which she had been driving for injuries
sustained in collision which allegedly occurred when seat collapsed and she fell backwards. The District
Court of Creek County, G. B. Chuck Coryell, J., rendered judgment in favor of the manufacturer and the
motorist appealed. The Supreme Court, Doolin, J. held that one who sells any product in a defective
condition unreasonably dangerous to user or consumer is strictly liable for physical harm caused thereby,
but the fact the motorist had been drinking prior to accident and that strong odor of liquor had been noticed
by five disinterested witnesses about wrecked automobile and in ambulance after accident established
motorist's abnormal use or misuse of automobile and such abnormal use or misuse constituted complete
defense to motorist's action to recover on theory of strict liability.
AFFIRMED.
William, V. C. J., concurred in result in part, dissented in part and filed opinion.
Irwin, J., dissented and filed opinion in which Davison, C. J., concurred.
Syllabus by the Court
1.
One who sells any product in a defective condition unreasonably dangerous to the user or consumer
is strictly liable for physical harm to his person or his property caused thereby, and this Manufacturers'
Products Liability is not based on any contractual relationship in the nature of implied warranty nor on
common law negligence.
2.
Because of the tortious origin and nature of the theory or remedy of Manufacturers' Products
Liability, and its independence of any contractual liability based on implied warranty, the applicable
limitation period is two (2) years, as designated in 12 O.S. 1971 § 95 "third" for actions for injury to the
rights of another or to personal property, and limitation commences to run from date of injury.
3.
To maintain a cause of action in Manufacturers' Products Liability the plaintiff must prove that the
product was the cause of the injury, that the defect existed in the product at the time it left the possession and
control of the manufacturer, assembler or supplier and that the defect made the product unreasonably
dangerous to the user or his property.
4.
The article sold must be dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its
characteristics.
5.
The plaintiff may prove his cause of action in Manufacturers' Products Liability by circumstantial
evidence and proper inferences drawn therefrom, since actual or absolute proof of the defect in a
sophisticated product may be within the peculiar knowledge or possession of the defendant.
6.
The defendant's due care and quality control may be rebuttal evidence to the conclusions attempted
or established by the plaintiff's circumstantial evidence.
15
7.
The theory of implied warranty recovery for injuries to person heretofore existing in this jurisdiction
is merged into the theory and doctrine of manufacturers' products liability, and except for Uniform
Commercial Code application, is no longer viable.
8.
Common law defenses used in connection with negligence and implied warranty recovery such as
lack of privity, assumption of risk and contributory negligence, used in their traditional common law sense
are not applicable to Manufacturers' Products Liability recovery.
9.
Responsibility for a defect resulting in harm to plaintiff must be proved by plaintiff and if two or
more defendants are named in an action for Manufacturers' Products Liability, particular, individual or joint
responsibility resulting in harm to plaintiff must be proved and the determination of which defendant, if one
or more is responsible for the defect in processing, assembling or distribution of a product, is made subject
to proof of fact by the trial court and jury.
10.
The doctrine of Manufacturers' Products Liability extends the liability for a defective product to any
user or consumer using the product for its intended use, and to any third party injured as a result of the defect.
11.
A showing that the injury to the plaintiff or his property was not caused by the defective product,
but by some conduct of the plaintiff is an available defense to preclude the plaintiff from recovery in a
Manufacturers' Products Liability action.
12.
An injury to the plaintiff resulting from the abnormal use of the product by the plaintiff is an
available defense which precludes the plaintiff from recovery in a Manufacturers' Products Liability action.
A showing that the plaintiff knew of a defect, unreasonably dangerous in nature, yet voluntarily used the
product, is an available defense to preclude the plaintiff from recovery for personal injuries and property
damage resulting from such use in a Manufacturers' Products Liability action.
__________
Appeal from the District Court of Creek County; G. B. Chuck Coryell, Trial Judge.
Action by plaintiff, Benita Helen Kirkland, against the defendant, General Motors Corporation, for
damages for personal injury. Appeal from a judgment of the district court of Creek County for defendant
by plaintiff.
AFFIRMED.
C. B. Savage, Tulsa, and Doyle Watson, Drumright, for appellant.
Rhodes, Hieronymous, Holloway & Wilson by Bert M. Jones, Tulsa, for appellee.
DOOLIN, Justice.
The issue for us in this case is the present and the future of products liability litigation in Oklahoma.
Much we do in this case may set the pattern of such litigation in Oklahoma and may determined whether this
young, vigorous and progressive State shall now meet the challenge of the mass advertising of today, its
hypnosis, and the pace and flow of the economics of the late twentieth century. Most of us were born in the
waning days of the use of either animal or steam power and today we find ourselves anticipating the wonders
of an age of jets, rockets, genetic science, and atomic energy. The law, likewise, finds itself confronted with
16
the problems of change, not only in the field of torts, but probably in all of its many and broad areas.
So be it.
The facts in the case before us are as follows:
Plaintiff was injured in an automobile accident occurring as she entered I-44 in Tulsa County at
approximately 3:00 a.m. on August 9, 1969, while driving her roommate's 1969 Buick Opel, which had been
manufactured by General Motors (GM) shortly before the accident. It developed that GM had mailed, on
September 29, 1969, a notice to all owners of Opels a "recall" letter indicating "the seat back adjustment
mechanism on your 1969 Opel may develop excessive clearance between the gears of the adjustor." She
testified that on the night of the accident as she entered I-44 the following occurred:
After I accelerated, I was driving casually along, very slowly, down the Skelly By-pass and
suddenly the Opel went out of control on me. It seemed that I had no support behind me and
I fell backward and I was looking at the ceiling and I did not know where I was going. I
could not control the car.
She further indicated that after falling backward she could not reach the steering wheel and did not
remember the head-on impact with an automobile in the opposite lane, recalling only the bump or jar as the
Opel struck the median.
During the trial GM introduced the seat from the automobile which Plaintiff was driving and its use
was demonstrated before the jury; an expert for the Defendant company testified that in his opinion the seat
was not defective and explained why. The defendant company also introduced evidence of five witnesses-two policemen, a fireman, an ambulance driver, and a wrecker operator--that within a short time of the
accident there was "a strong odor of alcohol" in the Plaintiff's car, about her person, and in the closed
ambulance. Plaintiff admitted she had drunk two beers about 5:30 p.m., a vodka and tonic about 8:30 p.m.
and another vodka and tonic about 1:00 a.m., prior to the accident.
Plaintiff's pleadings contain no allegation as to negligence of GM as such; she alleged that her
injuries were proximately caused by the defective seat adjustment present in the automobile in question. She
further alleged the automobile was being used for the purpose for which it was intended and that a breach
of implied warranty of fitness on GM's part was the direct and proximate cause of her injuries.
By way of answer, GM filed general and specific denial of liability and raised the affirmative
defenses of Plaintiff's contributory negligence in several particulars, including driving while intoxicated and
excessive speed at the time of the accident, and that Plaintiff was guilty of assumption of risk by her misuse
of the product.
Plaintiff's reply denied any and all negligence on her part, further denied that she was driving while
intoxicated, or at an excessive speed.
Trial proceeded and the jury returned Defendant's verdict.
We deal with products liability and in Marathon Battery Company v. Kilpatrick, Okl. 418 P.2d 900
(1965), have taken the next to the last step in adopting a strict liability theory for products other than food
and drink, broadening even more the traditional approaches of negligence and warranty recovery.
....
Finally, Oklahoma arrived at Marathon Battery Co. v. Kilpatrick, supra. Although, as stated before
in footnote 1 at least one state believes we have adopted strict liability; we do not believe that we have. True,
Marathon cites Greenman v. Yuba Power Products, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13
A.L.R.3d 1049 (1963), which Judge Murrah says has "shed the warranty guise * * * and given it an honest
label", headnotes 3, 4, and 2:
But Marathon still relies upon warranty:
17
....
The clear logic of Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960)
should prevail in Oklahoma:
....
It was Justice Traynor, who two years later gave this doctrine a label, "Strict Liability in Tort",
Greenman v. Yuba, supra; this theory of remedy we would adopt for Oklahoma, but would prefer to call it
"Manufacturers' Products Liability", recognizing its origin in tort principles and its background of implied
warranty liability and by so doing attempting to avoid the semantic confusion of and relationship of tort to
common law negligence. We would include in the definition of manufacturer--processors, assemblers, and
all other persons who are similarly situated in processing and distribution.
In order to avoid costly and multiplicious litigation, which is well illustrated by Williams v. Ford
Motor Company, Mo.App., 411 S.W.2d 443 (1967) and Williams v. Ford Motor Company, Mo.App., 454
S.W. 2d 611 (1970); a case twice dealing with the pitfalls of negligence, warranties, and strict liability, and
presumably still resting somewhere in the trial courts of Missouri for a third trial; we turn to some of the
practical applications raised by the adoption of strict liability in the areas of limitations, defenses, election
of remedies, parties, proofs, etc. We recognize that in these areas we embark on judicial innovation and
prospective overruling sometimes the source of criticism as dicta.. . .
We are persuaded that the limitation period to be applied in products liability actions is two (2) years,
12 O.S.1971 § 95 "Third", for we recognize the tortious origin and nature of the single cause of action,
Williams v. Ford Motor Company, Mo.App. 454 S.W.2d 611 (1970). The essential nature of an action based
upon products liability is an action for injury to personal property or for injury to personal property or for
injury to the rights of another. The action thus being primarily tortious in nature must be governed by 12
O.S.1971 § 95 "Third", and, as other such causes of action in tort, limitations should begin to run from the
date of injury. We are not unmindful of the limitation and requirement in 12A O.S.1971, 2-318, 12A
O.S.1971 2-607(3), and 12A O.S. 1971 2-725, but the reason for their non-application in strict liability
situations is stated in 2 Restatement of the Law, Torts 2d § 402A, comment m:
The rule stated in this Section is not governed by the provisions of the Uniform Sales Act,
or those of the Uniform Commercial Code, as to warranties; and it is not affected by
limitations on the scope and content of warranties, or by limitation to "buyer" and "seller"
in those statutes. Nor is the consumer required to give notice to the seller of his injury
within a reasonable time after it occurs, as is provided by the Uniform Act. The consumer's
cause of action does not depend upon the validity of his contract with the person from whom
he acquires the product, and it is not affected by any disclaimer or other agreement, whether
it be between the seller and his immediate buyer or attached to and accompanying the
product into the consumer's hands. In short, "warranty" must be given a new and different
meaning if it is used in connection with this Section. It is much simpler to regard the
liability here stated as merely one of strict liability in tort.
Turning again to Greenman:
. . . Rules defining and governing warranties that were developed to meet the needs of
commercial transactions cannot be invoked to govern manufacturer's liability to those
injured by their defective products unless those rules also serve the purposes for which such
liability is imposed.
18
See also Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minnesota Law Review 791
(1966) at page 829 as to notice to the Seller, page 831 as to Disclaimers, and page 834 as to Express
Representations.
By adopting manufacturers' products liability doctrines and principles for Oklahoma we acknowledge
the usefulness of all warranty theories, express or implied,and we also have noted the contribution made by
negligence doctrines to strict liability situations. We hold that it is no longer necessary to rely upon theories
of negligence or any form of warranty for recovery. The rationale for such a rule is founded upon public
interest in human safety or as stated in the concurring opinion in Escola v. Coca-Cola Bottling Co., 24 Cal.2d
453, 150 P.2d 436 (1944):
It is to the public interest to discourage the marketing of products having defects that are a
menace to the public. If such products nevertheless find their way into the market it is to
the public interest to place the responsibility for whatever injury that may occur upon the
manufacturer, who, even if he is not negligent in the manufacture of the product, is
responsible for its reaching the market. However intermittently such injuries may occur and
however haphazardly they may strike, the risk of their occurrence is a constant risk and a
general one. Against such a risk there should be general and constant protection, and the
manufacturer is best situated to provide such protection.
While concerning ourselves with limitations and their application, we mentioned § 402A of the
Restatement of Torts, Second Series. We turn again to this section and its application to proof; we would
adopt the standard of proof for Oklahoma set forth by the Restatement Second § 402A comment g and define
"unreasonably dangerous" as follows:
The article sold must be dangerous to an extent beyond that which would be contemplated
by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.
We specifically disapprove of the standard of proof adopted by Cronin v. J. B. E. Olson Corporation, 8
Cal.3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972).
By our adoption of manufacturers' products liability with its comparison to liability without fault in
such areas as workmen's compensation, respondeat superior, the vicious or fractious animal, etc., we do not
infer that the injury is of itself proof of the defect, or that proof of injury shifts the burden to the Defendant.
In Lyons v. Valley View Hospital, Okl., 341 P.2d 261 (1959), we said:
Cases are legion in which we have held that the mere happening of an accident raises no
presumption of negligence on the part of the defendant.
Nor does it raise any presumption of defectiveness in the article involved in an accident.
First of all Plaintiff must prove that the product was the cause of the injury; the mere possibility that
it might have caused the injury is not enough.
Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the
manufacturer, at the time the product left the manufacturer's possession and control. Thompson v. Trane Co.,
Okl., 500 P.2d 1329 (1972). If the action is against the retailer or supplier of the article, then the Plaintiff
19
must prove that the article was defective at the time of sale for public use or consumption or at the time it
left the retailer's possession and control.
Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to
his property as the term "unreasonably dangerous" is above defined.
Proper expert opinion of the defect and its existence at time of injury may suffice, but expert opinion
should not evade the factual determination of the proofs (First, Second and Third above) to be borne by the
Plaintiff. This Court has held expert opinion to the ultimate fact in issue usually is inadmissible.
The practicing lawyer identified with the Plaintiff will seldom be able to produce actual or absolute
proof of the defect so necessary in manufacturers' products liability since this information in the final
analysis is usually within the peculiar possession of the Defendant. Carefully prepared interrogatories or
depositions may be helpful to a Plaintiff, but more than likely Plaintiff may be forced to rely on
circumstances and proper inferences drawn therefrom in making his proof. We note that in some accidents
the surrounding circumstances and human experience should make Plaintiff's burden less arduous; he may
be able to sustain his burden, but more than likely if the Defendant is a manufacturer or assembler of some
highly complex product such as an automobile, human experience will play little or no part in reducing his
burden, and he will be relying upon the inference drawn from circumstantial evidence.
* * * *
Examination of the burden on the plaintiff reveals it to be a large and heavy one. Nor do we mean
to say, by speaking of the burden of proof assigned to the plaintiff, that he is relieved from proof of
causation, as that term is used and understood in the law of negligence, for he must prove that his injury has
been caused not necessarily by the negligence of the Defendant but by reason of a defect "built in" and
existing at the time of injury.
We do not say that the Defendant has no defenses; we will deal with them later. At this point suffice
it to say Defendant's due care and quality control may be but rebuttal evidence to Plaintiff's inferred
conclusions attempted or established by circumstantial evidence.
Since we adopt the theory of manufacturers' products liability, we should further define this theory
to eliminate the fictions and adaptations that have developed in connection with products liability evolution.
In a great many American jurisdictions, a Plaintiff may seek relief in products liability actions by using the
theories of negligence, breach of warranty or strict liability in tort, 63 Am.Jur.2d Products Liability, § 4 and
§ 206, et seq.
The guise of warranty was effectively disposed of in Greenman v. Yuba Power Products, Inc., supra,
by defining the theory of strict liability therein adopted as being founded in tort rather than contract,
grounded in the policy of protection of the consumer. In this opinion, we have pointed out why this Court
should distinguish the liability of the manufacturer for a defective product from any liability that is
contractual in nature, and support that distinction by quoting a portion of the Restatement of the Law, Torts
2nd, § 402A, comment m, and arguments put forth by the California court in the Greenman case, supra. Thus
we conclude, notwithstanding the interpretation placed on the Marathon case, supra, and prior authorities
of this jurisdiction (see footnote 5) that breach of implied warranty is no longer an appropriate remedy for
recovery in products liability actions except as provided in the Uniform Commercial Code. See also Moss
v. Polyco, Inc., 522 P.2d 622 (1974) together with the citations and arguments therein contained.
Although the theory of manufacturers' products liability herein embraced would not repudiate or be
so repugnant to a cause of action for a defective product based on negligence as to necessitate an election
of remedies, Sisler v. Jackson, supra, we believe that a defect, if shown as above described, would also
include a defect caused by some form of negligence. The negligence action for products liability may thus
be rendered unnecessary, In so holding, we are laying the groundwork for the elimination of troublesome
and unrealistic defenses often raised in the elimination of troublesome and unrealistic defenses often raised
in products liability actions based on negligence theory and for the erection of defenses which have a more
20
realistic relation to the cause of action for manufacturers' products liability described in this opinion. The
Restatement of the Laws, Torts 2nd, § 402A, comment m, states that the strict liability stated therein is more
in the nature of common law strict liability for possessors of dangerous animals or conduct of ultra-hazardous
activities, and does not rest on negligence. It is, therefore, strict in the sense that negligence is not a
necessary element for recovery. Thus, traditional negligence concepts should not, and do not, apply. The
Missouri court in the first Williams case cited above, Mo., 411 S.W.2d 443, stated that "The defendants'
liability for a defective product can no longer be measured by the principles of negligence . . ." See also
Bachner v. Pearson, Alaska, 479 P.2d 319 (beginning at 328) referring to Prosser on Torts, 3rd ed.,
beginning at page 538.
Although the manufacturers' products liability for injuries caused by defective products described
in this opinion is neither grounded in negligence or breach of implied warranty, responsibility for the defect
must still be traced to the proper Defendant. Where the product is of sophisticated design and construction,
or if the product reaches the consumer in a sealed container, varying degrees of difficulty are encountered
in tracking this responsibility. The fact that the plaintiff may not be able to ascertain whether the
manufacturer or some other party who handled the product before it reached the ultimate consumer is
responsible is a good reason for naming all of them as parties defendant, Nichols v. Nold, 174 Kan. 613, 258
P.2d 317 (1953). Several courts have held that this practice should be adopted, and that the parties defendant
should then determine between themselves where the final responsibility lies, Nichols v. Nold, supra (implied
warranty action); Loch v. Confair, 372 Pa. 212, 93 A.2d 451 (negligence action); Dement v. Olin-Mathieson
Chem. Corp., 282 F.2d 76 (5th Cir. 1960) (manufacturers of combination product); and, Vandermark v. Ford
Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1965). Prosser, in discussing the preceding cases
in regard to parties defendant at 50 Minnesota Law Review, beginning at 845, found these to be essentially
policy decisions, requiring the Defendants to determine the question of responsibility among themselves.
This procedure is entirely compatible with the methods of proof described above for products liability
recovery, and which Defendant is responsible for an alleged defect may be determined in the trial court, as
it frequently has been in Oklahoma actions. See Gosnell v. Zink, supra, (manufacturer held liable);
Transcontinental Bus System, Inc. v. Simmons, Okl., 367 P.2d 160 (1961) (user of product held liable);
Bower v. Corbell, Okl., 408 P.2d 307 (1965) (retail seller held liable).
The question of what persons are protected from defective products by the doctrine of manufacturers'
products liability seems to be settled by those authorities that have adopted or described the doctrine. Prosser
concludes that "any user or consumer of the product, in the broadest sense of the term, is protected by the
strict liability rule." Prosser goes on to cite authority for this conclusion 50 Minnesota Law Review 791 at
827 et seq. The restatement of the Law, Torts 2d, § 402A expressly provides that the doctrine is applicable
in the case of harm caused to the ultimate user or consumer, and the courts have generally reached the same
conclusion, 63 Am.Jr.2d Products Liability § 143. Leading cases such as Greenman, supra, have taken the
first step to hold the doctrine applicable to the consumer. The later California case of Cronin v. J. B. E.
Olson Corporation, supra, further extended the doctrine to an employee of the consumer, much as it has been
extended to protect most ultimate users and consumers by the cases cited by Prosser. Other recent decisions
have found the doctrine should also be applied for the protection of injured bystanders, Elmore v. American
Motors Corporation, 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84, and Caruth v. Marianai, 11 Ariz. App.
188, 463 P.2d 83. The full extent of the protection afforded by the doctrine of manufacturers' products
liability will be decided when this Court is presented appropriate fact situations.
Oklahoma authorities basing products liability on theories of negligence or implied warranty have
extended liability of manufacturers of defective products to various consumers and third parties (see
footnotes 4 and 5, ante), and in the Marathon case, supra, the Oklahoma court seems to extend liability for
latent defects to any person using the product for its intended purpose. The theory of manufacturers' products
liability adopted in this opinion retains the broad protection from defective products previously adopted by
this Court, and adheres to the preponderance of national authority in following the rule of the Restatement
21
Second § 402A that extends the liability for a defective product to the ultimate user or consumer.
This is not to declare manufacturers and suppliers of defective products absolute insurers of all users
and consumers whom they serve. As noted above in discussing proofs, causation of the injury by the
defective product beyond a mere possibility must be shown. If some act of the plaintiff caused the injury,
rather than the defective product itself, causation is missing, and the plaintiff may not recover; e.g., the
intoxication of the Plaintiff in the instant case. Although the fact of the Plaintiff that did in fact cause the
injury might have been negligent, it seems wise to avoid the semantic confusion of calling it contributory
negligence, especially since the action itself is not based on negligence. It seems better to lump this defense
in with the general causation requirement.
A second defense, well established in negligence cases, and applicable to manufacturers' products
liability is the defense of abnormal use. If the plaintiff is using the product for some purpose for which it
was not intended and is consequently injured, he should not recover. Although this, too, might go toward
denial of causation, it might as a matter of proof be an affirmative matter. See Prosser, 50 Minnesota Law
Review at 824.
Complicated semantic difficulties arise when the defense of assumption of risk is considered. In
order to avoid abuse of this legitimate defense, or confusion of same with its common law counterpart of the
same name, it should be narrowly defined as voluntary assumption of the risk of a known defect. This has
been otherwise referred to as contributory fault, Williams v. Ford Motor Company, Mo. App., 454 S.W.2d
611, and discussed in terms of contributory negligence, comment n, § 402A, Restatement of the Law, Torts,
Second, for the ". . .. defense which consists of voluntary and unreasonably encountering a known danger
. . . will, in general, relieve the defendant of strict liability." Prosser, The Law of Torts, 3rd Ed., § 78.
The recent enactment of the comparative negligence statutes by the Oklahoma Legislature, 23
O.S.1973 § 11 and § 12, has no application to manufacturers' products liability, for its application is
specifically limited to negligence actions. We have stated that manufacturers' products liability is not
negligence, nor is it to be treated as a negligence action, but a new theory of recovery. Likewise, we have
dealt elsewhere herein with pleas of contributory negligence and assumption of risk and their application to
negligence actions only, and not to manufacturers' products liability.
Applying, the argument and logic as heretofore developed in this opinion to the facts in this case
leads us to the following conclusions:
Giving the time-honored instructions of contributory negligence and assumption of risk as heretofore
known in negligence and implied warranty cases (numbers 3 and 8) was error -- but error of a harmless nature
-- for the issues were whether the product was defective and whether the Plaintiff misused the product (use
of product while intoxicated). Missouri-Kansas-Texas RR Co. v. Harper, 468 P.2d 1014 (Okl.1970) holds:
Judgment will not be disturbed because of allegedly erroneous instructions, unless it appears
reasonably certain that the jury was misled thereby . . . Salient test of reversible error in
instructions is whether jury was misled to the extent of rendering a different verdict than it
would have rendered, if alleged errors had not occurred.
See Sun-Ray DX Oil Co. v. Brown, 477 P.2d 67 (Okl.1970); Missouri-Kansas-Texas RR Co. v. Hayes, 445
P.2d 254 (Okl.1968).
Review of the evidence, including that of Plaintiff herself, indicates she was drinking as she put it
"vodka and tonic" on the night in question. A strong odor of liquor was noticed by five disinterested
witnesses about the wrecked auto and in the ambulance some time after the accident. This convinces us of
an abnormal use or misuse of the product and is a complete defense to strict liability theory -- the Defendant's
verdict was inevitable and the erroneous instructions, numbers 3 and 8, could not have misled the jury.
Statutory law in Oklahoma covering harmless error is to the same effect. 22 O.S.1961 § 1068, in
effect at the time of this incident, stated that no judgment should be set aside in any civil case by an appellate
22
court after examination of the entire record, including instructions to the jury, unless it appears that error has
been committed which has probably resulted in a miscarriage of justice. The entire record in the case under
consideration reveals no indication of a miscarriage of justice -- exactly the contrary appears. Early
Oklahoma cases have held:
Error, if any, in the giving or refusal of instructions, is not prejudicial, where on the whole
case the verdict and judgment are right; Shawnee Nat. Bank vs. Wootten & Potts, [24 Okl.
425] 103 P. 714; Mitchell vs. Altus State Bank, [32 Okl. 628] 122 P. 666; Horton v. Early,
[39 Okl. 99] 134 P. 346 [436] 47 L.R.A.,N.S., 314, Ann. Cas. 1915D, 825; Whitcomb vs.
Oller, [41 Okl. 331] 137 P. 709; Oklahoma City Const. Co. vs. Peppard [43 Okl. 121] 140
P. 1084; Gillis vs. First Nat. Bank [47 Okl.411] 148 P.994; Anderson vs. Guymon, [51 Okl.
233] 151 P. 863; Dunn vs. Modern Foundry & Machine Co., [51 Okl. 465] 151 P. 893;
Muskogee Electric Traction Co. vs. Cox, [49 Okl. 365] 153 P. 125.
We hold that under the peculiar facts and circumstances of the instant case the giving of the
contributory negligence and assumption of risk instructions, numbers 3 and 8, did not result in a miscarriage
of justice, but was harmless error. This conclusion, we note in passing, is limited to a peculiar fact situation
and has limited or no application to the usual products case where the proper instructions should be directed
to causation and/or strict liability defenses of (a) misuse or abnormal use of the products, and (b) voluntary
assumption of a known defect.
*
*
*
*
*
Because of the obvious impact of this decision and its effect on basic concepts of law, procedures
and rules in Oklahoma, we specifically hold that the law hereby established will be applied prospectively to
all cases for trial from and after the date the mandate issues herein; and may likewise be applied by the
appellate courts in cases which have been tried and are for decision on appeal where it would not prejudice
the rights of the litigants.
JUDGMENT AFFIRMED.
BERRY, HODGES, LAVENDER, BARNES AND SIMMS, J.J., concur.
DAVISON, C. J., and IRWIN, J., dissent.
WILLIAMS, V. C. J., concurs in result in part and dissents in part.
WILLIAMS, Vice Chief Justice (concurring in result in part and dissenting in part).
Although I am aware of the modern trend toward the doctrine of strict liability in tort and would
concur in its adoption in a proper case, I do not believe that this is such a case.
I do not agree with the majority that "The issue for us in this case is the present and future of
products liability litigation in Oklahoma." I am unable to find reference to such an issue anywhere in the
pleadings, trial proceedings or briefs on appeal.
*
*
* *
IRWIN, Justice (dissenting).
23
*
The majority opinion states that "the issue for us in this case is the present and the future of products
liability litigation in Oklahoma", and discusses in detail the practical applications raised by the adoption of
strict liability in the areas of limitation, defenses, parties, proofs, etc.
In my opinion, decisional law concerning manufacturers' products liability would be better developed
by resolving issues presented in each particular case and we should not determine in this case issues neither
presented nor necessary to decide. My opinion is in harmony with Edwards v. Hanna Lumber Company,
Okl., 415 P.2d 980; Eberle v. State ex rel. Department of Highways, Okl., 385 P.2d 868; In Re Fletcher's
Estate, Okl., 308 P.2d 304; and cases of similar import which, in effect, support the proposition that this
Court on appeal will not determine abstract questions of law.
I agree that the judgment of the trial court should be affirmed but I would affirm such judgment
under our present decisional law.
I respectfully dissent.
I am authorized to state that Chief Justice
DAVISON concurs in the views herein expressed.
WADE, "ON THE NATURE OF STRICT TORT LIABILITY FOR PRODUCTS"
44 Miss. L.J. 825 (1973)
INTRODUCTION
In the area of the tort liability of a manufacturer or other supplier of a chattel for injury or damage
caused by the chattel, strict liability in tort has swept the field in recent years. Privity of contract has
disappeared as a requirement. Negligence liability has survived but is now often treated as a secondary line
of attack to supplement the principal theory of strict liability and to fill in potential gaps or deficiencies.
This is not the occasion to trace the historical development -- in negligence, from Winterbottom to
MacPherson and beyond; in strict liability, from Mazetti to Heningsen to Greenman and Section 402A of
the Second Restatement. That recounting has been very adequately done on several occasions in the past.
The change from negligence to strict liability meant that it was no longer necessary to prove
negligence on the part of the defendant. The prototype case was that in which something went wrong in the
manufacturing process, so that the product had a loose screw or a defective or missing part or a deleterious
element, and was not the safe product it was intended to be. No longer was it necessary to prove negligence
on the part of some employee in the assembly line or in the system under which the line functioned or in
failing to inspect the finished product adequately. For the supplier, too, there was no need to prove that he
was negligent in failing to discover the dangerous condition of the product.
This suggests one of the prime reasons given for espousing the strict-liability approach. It is often
difficult, or even impossible, to prove negligence on the part of the manufacturer or supplier. True, res ipsa
loquitur often comes to the aid of the injured party. But it is normally regarded as a form of circumstantial
evidence, and this means that there must be a logical inference of negligence which is sufficiently strong to
let the case go to the jury. This is often not present, and strict liability eliminates the need of the proof. A
second reason is suggested by the phrase "spread the risk." The idea is that the loss should not be allowed
to remain with the injured party on whom it fortuitously fell, but should be transferred to the manufacturer,
who, by pricing his product, can spread it among all the consumers. The extent to which a manufacturer may
be free to "spread the risk" created by his product can be the subject of some debate. A different way of
expressing essentially the same idea is to say that the activity of making the particular product should pay
its own way, that the enterprise should bear the liability. Also similar is the argument regarding availability
of insurance. That type of first-party insurance for automobile accidents, which is sometimes called no-fault
insurance, is less available here, since the injured party would need to take out accident insurance in general;
24
on the otherhand, the manufacturer can more easily obtain appropriate liability insurance coverage. Another
argument involves the deterrent effect. Experience seems to demonstrate that if a manufacturer knows he
will be held liable for injuries inflicted by his product, that product will be safer than if he understands that
he can avoid liability by demonstrating the exercise of due care. There is also no good analogy to automobile
accidents here, since a driver who is not deterred by the likelihood of injury to himself is hardly likely to be
deterred by the thought of financial loss, especially if it would be covered by insurance.
Whatever the rationale, strict liability for products has become a significant portion of tort law. This
type of strict liability differs in several respects from the strict liability of the type arising from the case of
Rylands v. Fletcher (or that involving the keeping of dangerous animals). The latter type -- whether the test
is the penning up of a dangerous force seeking to get loose and cause mischief, or the making of a non-natural
use of the land, or the conducting of an ultrahazardous activity, or the conducting of an abnormally dangerous
activity -- involves the deliberate engaging in an activity which is known to create serious dangers which
cannot be eliminated by the exercise of ordinary care. The activity is one which is inappropriate to the place
in which it is being carried on, but which has so much utility that the courts have not wanted to call it
negligence. They have simply decided that it should pay its own way and compensate for the injuries which
it imposes. Its similarities to, and differences from, strict liability for products have not yet been clearly
worked out by the courts or fully analyzed by the commentators. Reference to some of them will be made
subsequently.
Tests For Applying Strict Liability
Strict liability for products is clearly not that of an insurer. If it were, a plaintiff would need only
to prove that the product was a factual cause in producing his injury. Thus, the manufacturer of a match
would be liable for anything burned by a fire started by a match produced by him, an automobile
manufacturer would be liable for all damages produced by the car, a gun maker would be liable to anyone
shot by the gun, anyone cut by a knife could sue the maker, and a purchaser of food with high calories would
have an action for his overweight condition and for an ensuing heart attack. The liability would be like that
created by a particularly stringent dramshop law.
There must be suitable ways of limiting the liability -- both as to its initial existence and as to its
scope and extent. The courts have had no difficulty in finding ways to do this. Scope and extent of liability
have usually been controlled by the concepts of proximate cause or risk (including abnormal use) and of
plaintiff's fault (including contributory negligence, assumption of risk, and misuse). Original existence of
liability is usually controlled by analyzing the nature of the product. It is this last approach which has proved
most fruitful in solving the issues. And it is here that much of the dispute -- and litigation -- has arisen.
The initial approach to the problem was in the language of the warranty cases. It was said that there
was an implied warranty that the goods were of merchantable quality, or were suitable for the purpose for
which they were sold. In the case of foodstuffs it was said that they must be wholesome. The reasonable
expectations of the buyer were utilized as guidelines in making the determination. But while the analogy was
helpful in the strict liability cases it was not fully suitable. The implied warranty arose in a commercial
setting. It involved primarily people who were contracting with each other. The suit was for commercial
damages, for loss of bargain, because the product did not perform as expected. Tort damages for injury
incurred were given only incidentally, as consequential damages. The test was not fully attuned to tort
recovery. In many situations, particularly involving design matters, the consumer would not know what to
expect, because he would have no idea how safe the product could be made.
In Greenman v. Yuba Power Products, Inc., the first case expressly to espouse strict liability in tort,
Justice Traynor declared that liability would exist when the product ." . . . proves to have a defect that causes
injury to a human being." This has been generally regarded as imposing a requirement that the product be
"defective."
25
Section 402A of the Second Restatement of Torts was initiated prior to Greenman, but was published
in official form subsequent to that case. This section requires that the product be "in a defective condition
unreasonably dangerous to the user or consumer or to his property." For some time, Greenman and the
Restatement were regarded as laying down the same test. But the Supreme Court of California has recently,
in the case of Cronin v. J.B.E. Olson Corp., held that there is a difference between them, and that the
California position is that the plaintiff needs to prove only that the product was defective, not that it was also
unreasonably dangerous. A re-evaluation of the test in the light of this case seems appropriate.
Quite obviously, what both sources are trying to say is that the product must be harmful or unsafe
because of something wrong with it. The something wrong may have come about quite unintentionally
because of miscarriage in the manufacturing process, so that the product was not what it was intended to be;
it may, on the other hand, have come about, even though the product was exactly as it was intended to be,
because of a poor design or the failure to attach a warning or suitable instructions. The California court
would read all of this into the single word "defective." The Restatement uses two expressions which may
seem redundant. They might have been joined together with an "or" rather than an "and." But they were not;
and this has created some problems of its own. Perhaps a review of the "legislative history" of the language
of section 402 can be helpful. As initially prepared by the Reporter, Dean Prosser, and as unanimously
approved by the Advisors, the section applied only to foodstuffs and the requirement was that the food be
"in a condition dangerous to the consumer." It was presented in this form to the Council 2 years later, and
the one word "dangerous" was there changed to read as it is in its present form. This is the way in which it
was first published in a form open to the public and in which it first came to the Institute floor. When the
issue was raised on the floor, Dean Prosser explained that the Council was worried about liability for a
product like whiskey, so that a "man who consumes it and gets delirium tremens" might recover because a
jury "might find that all whiskey is unreasonably dangerous to the consumer." The word "defective" was
added to ensure that it was understood that something had to be wrong with the product. The addition of the
word "defective" was attacked on the floor of the Institute by Reed Dickerson, on the ground that the
expression "unreasonably dangerous" was sufficient. Dean Prosser responded with an explanation of the
action of the Council and the statement that he had been indifferent to the change. Mr. Dickerson was
supported by Dean Lockhart and Professor Joiner, but the Institute, tired after what had been a lengthy
discussion of the section, decided by an uncounted voice vote not to make a change. It may be significant
that "defective condition" was defined in the comments in terms of being unreasonably dangerous, so that
the terms came close to being synonymous, one explaining the meaning of the other. Finally, it should be
noted that the decision had been made while the section applied only to foods (so that "defective" was
essentially the same as unwholesome), and that when the section was later broadened to include all products
no reference was made again to this issue. Bad designs and lack of warning are of less significance in regard
to food than they are in regard to many other products.
If the two terms are regarded as not entirely synonymous, and it is either tautological or requiring
too much to insist that the product be both defective and unreasonably dangerous, the question then arises
as to which term is the more appropriate. There are difficulties with either one alone, as an analysis will
show.
Thus, the term "defective" raises many difficulties. Its natural application would be limited to the
situation in which something went wrong in the manufacturing process, so that the article was defective in
the sense that the manufacturer had not intended it to be in that condition. To apply it also to the case in
which a warning is not attached to the chattel or the design turns out to be a bad one or the product is likely
to be injurious in its normal condition, is to use the term in a Pickwickian sense, with a special, esoteric
meaning of its own. It is not without reason that some people, in writing about it, speak of the requirement
of being "legally defective," including the quotation marks. To have to define the term to the jury, with a
meaning completely different from the one they would normally give to it, is to create the chance that they
will be misled. To use it without defining it to the jury is almost to ensure that they will be misled. In
26
addition, a product may be defective and still not be likely to cause injury. An automobile, for example, may
have something wrong with the ignition so that it will not start properly, or the clock or the radio may not
work correctly. If so, it is obviously defective, but it is not harmfully defective. Perhaps the adverb
"harmfully" needs to be added to the adjective. Without it, the test sounds more like one used in a
commercial setting than in a tort setting. It suggests the idea of an action on a sales contract for rescission
or for damages for loss of bargain. Finally, the term "defective" gives an illusion of certainty by suggesting
a word with a purported specific meaning rather than a term connoting a standard involving the weighing of
factors.
On the other hand, the term "unreasonably dangerous" raises difficulties of its own. It may suggest
an idea like ultrahazardous, or abnormally dangerous, and thus give rise to the impression that the plaintiff
must prove that the product was unusually or extremely dangerous. The California court suggests that it
carries connotations of negligence, and thus nullifies the effect of setting up strict liability for products
instead of requiring the plaintiff to prove negligence. It does, however, indicate more clearly that we are
dealing with a standard involving consideration of a number of factors.
There are other terms that might be used. For example, unsafe, or harmful, or injurious -- or, in the
case of foodstuffs, unwholesome. Like the original Restatement term "dangerous," these terms are subject
to the objection that they might create liability on the part of the manufacturer of an ordinary knife on the
ground that it cuts and therefore might injure somebody. The adverb "unreasonably" was added to the word
"dangerous." If it connotates too strongly the idea of negligence, perhaps another adverb like "undue" could
be used. In an earlier article, I had suggested the expression "not reasonably safe." Today, I think I would
offer the expression "not duly safe."
All of these terms seem to be much better than the word "defective." They are tort words, indicating
the idea of causing tortious damage to someone, rather than the idea of a contract action for failure to receive
what had been contracted for. They include the tort concept of creating a danger for a bystander, as well as
one for the consumer who had purchased the chattel and therefore had at least an indirect contractual
relationship.
Whatever word or phrase is used, a further explanation or indication of meaning is needed. In the
absence of authorities on strict liability, early commentators resorted to cases based on warranty liability -whether express or implied. They thus used contract language. How good did the product have to be? What
were the expectations of the parties? Are these actual expectations or reasonable ones? What might the
manufacturer expect the consumer to expect? This is all warranty language. It essentially is a contract
approach. It sounds as if the action is based on the ground that the buyer did not receive what he contracted
for, so that he is entitled either to return it and get his money back or to keep it and sue for the difference
between the value in its actual condition and the value it would have had if it had complied with his
reasonable expectations. True, if the product caused injury, recovery might be had to compensate for it. But
these are consequential damages, coming almost as an afterthought. Their availability may depend on the
rules of Hadley v. Basendale, rather than those of proximate cause in tort. Under the warranty approach,
there is no available basis for liability other than that for purchasers who might have had "expectations" from
the manufacturer or supplier.
All of this might have been justified in the days when strict tort liability was in its formative stage.
Now that strict liability has become the dominant theory, with a definite indication that the liability may
apply for any user whether he is a purchaser or not, and even for by-standers who would be endangered and
were injured by the product, it is time to abandon the warranty way of thinking and its terminology just as
we have abandoned other "impedimenta" of the warranty approach, such as required notice of defect within
a reasonable time, and disclaimers.
The time has now come to be forthright in using a tort way of thinking and tort terminology. There
are several ways of doing it, and it is not difficult. The simplest and easiest way, it would seem, is to assume
that the defendant knew of the dangerous condition of the product and ask whether he was then negligent in
27
putting it on the market or supplying it to someone else. In other words, the scienter is supplied as a matter
of law, and there is no need for the plaintiff to prove its existence as a matter of fact. Once given this notice
of the dangerous condition of the chattel, the question then becomes whether the defendant was negligent
to people who might be harmed by that condition if they came into contact with it or were in the vicinity of
it. Another way of saying this is to ask whether the magnitude of the risk created by the dangerous condition
of the product was outweighed by the social utility attained by putting it out in this fashion.
A possible initial impression that this is rank apostasy, amounting to an abandonment of the strictliability concept and a return to the negligence concept will be seen as erroneous on analysis. This suggested
approach is similar to negligence per se in some instances -- especially in the instance of the pure food laws.
If the statute makes it a crime to sell deleterious or unwholesome food, there are holdings that a sale of food
which is in that condition is negligence per se. It makes no difference that the defendant was not negligent
in letting the food get in an unwholesome condition and was not negligent in failing to find that it was
unwholesome. Selling unwholesome food is negligence in itself, without anything more. This, by accurate
analysis, is a form of strict liability. And it is strict liability, also, when a court declares, without the
existence of a statute, that it is negligence to sell a product which lacks the attribute of due safety. A court
clearly has this authority. If by doing this it is really establishing strict liability, we might as well call it that
and be accurate.
Incidentally, there is a real analogy here to the strict liability of the abnormally dangerous type.
Strict liability is imposed there without the need of finding negligence. But the same sort of balancing
process is used for determining whether to impose liability. There are several differences. One, the
usefulness of the defendant's conduct is such that it is not stigmatized as negligent; it is simply required to
pay its own way. Two, there is involved, not an intentional harm, but at least the intentional engaging in an
activity in which the potential harm is an unavoidable risk. And finally, the determination is made by the
court, not the jury; the factors involved raise such policy issues that the courts are not willing to trust them
to the jury. Here, too, we have something very like negligence per se; and other similarities to strict liability
for products can be observed.
To return to the relationship between negligence and strict liability for products, so far as the
manufacturer is concerned, it is only when something has gone wrong with the manufacturing process and
the product is not in the condition in which it was intended to be that there is any significant difference. In
the case of the improper design which makes the product dangerous, whatever is enough to show that it is
so dangerous that strict liability should apply (that it has a "defective design," to use the Cronin approach),
will also be enough to show negligence on the part of the manufacturer. Even if the manufacturer is not
aware of the danger created by the bad design, he is negligent in not learning of it. This is also true if the
product is unsafe because it did not carry a suitable warning or adequate instruction. The proof necessary
to establish strict liability will certainly be sufficient to establish negligence liability as well. Indeed, the
position of the California court in Cronin, in limiting the requirement to a defective product, would be much
more sustainable if the strict liability for products which it applies were confined to the product which has
its "defect" developed unintentionally in the manufacturing process, thus leaving the design and warning
cases to be handled under the negligence techniques. There are thus innate similarities between the actions
in negligence and in strict liability, and changing the terminology does not alter this. If there is agreement
that the determination of whether a product is unreasonably dangerous, or is not duly safe, involves the
necessary application of a standard, it will, like the determination of negligence or of strict liability for an
abnormally dangerous activity, require the consideration and weighing of a number of factors. I offer here
a revised list of factors which seem to me to be of significance in applying the standard:
(1)
The usefulness and desirability of the product -- its utility to the user and to the public as a
whole.
(2)
The safety aspects of the products -- the likelihood that it will cause injury, and the probable
seriousness of the injury.
28
(3)
The availability of a substitute product which would meet the same need and not be as unsafe.
(4)
The manufacturer's ability to eliminate the unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its utility.
(5)
The user's ability to avoid danger by the exercise of care in the use of the product.
(6)
The user's anticipated awareness of the dangers inherent in the product and their avoidability,
because of general public knowledge of the obvious condition of the product, or of the existence of
suitable warnings or instructions.
(7)
The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the
product or carrying liability insurance.
If these factors are to be weighed in the application of the standard, how are they actually to be
used in the trial of a case? This necessitates a consideration of the relative functions of judge and jury.
JUDGE AND JURY
In an action for negligence it is normally the function of the jury to determine whether the
defendant was negligent, subject, of course, to the authority of the judge to direct a verdict for the
defendant, if he finds that the jury could not reasonably find for the plaintiff. On the other hand, in an
action based on strict liability of the Rylands type, for an abnormally dangerous activity, the
determination as to whether strict liability will be imposed for the activity is held to be one for the judge,
not the jury -- for the reason that the decision involves issues of general social policy. In the products
cases the courts seem not to have approached the problem in this fashion. Instead, they seem to have
assumed that strict products liability is like negligence in this respect, so that a plaintiff, in order to
recover, must convince the jury that the product was "defective" or "unreasonably dangerous" or "not
duly safe," or whatever test is used. This generally works quite satisfactorily when the question is
whether the product was unsafe because of an error in the manufacturing process so that it was not in the
condition in which it was intended to be. The issue then seems more factual, of the kind the jury is
accustomed to handling. The difficulty comes when it is not just the single article which is to be classed
as unsafe because something went wrong in the making of it, but a whole group or class or type which
may be unsafe because of the nature of the design. It is here that the policy issues become very important
and the factors which were enumerated above must be collected and carefully weighed. It is here that the
court -- whether trial or appellate -- does consider these issues in deciding whether to submit the case to
the jury. If a plaintiff sues the manufacturer of a butcher knife because he cut his finger, on the sole
ground that the knife was so sharp that it was likely to cut human flesh, the court would probably take the
case out of the hands of the jury and not give it the opportunity to find that the knife was unsafe.
Similarly with an aspirin manufacturer, when an ordinary tablet stuck to the lining of the plaintiff's
stomach and caused a hemorrhage, or the manufacturer of the Pasteur treatment for rabies, when there
were untoward reactions. The problem in these cases is likely to be called one of law and decided by the
court. Court control of jury action is more extensive here than in the ordinary negligence action. And
yet, of course, if the court decides that it would be reasonable to allow the jury to find for the plaintiff,
the issue of lack of due safety will be submitted to the jury even in these cases.
When the issue of lack of due safety is submitted to the jury, what should be said in the
instructions? The instruction will obviously use the term or terms sanctioned in the state for expressing
the test -- e.g., unreasonably dangerous, not duly safe, defective (in the manufacture or design). But these
terms are usually not enough to give the jury an adequate impression as to the test which they are
applying. Something more is needed. Prior to Cronin, the California-approved instructions defined
unreasonably dangerous as being "dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its
characteristics." (Under Cronin, with the elimination of the requirement that the product be
29
unreasonably dangerous, this definition will apparently go out, but something at least similar will have to
be substituted; the term "defective" without any explanation, will provide practically no guidance to the
jury and may be quite misleading).
The California instruction is not unsatisfactory, but it has at least two drawbacks. First, it gives
something of an impression that the product must be specially or unusually dangerous. This, it would
seem, is the real reason why the court in Cronin discarded it. Second, like all definitions in terms of
consumer expectations it carries a flavor of commercial loss rather than tort injury and seems to confine
the scope of liability to those who "consume" the product. There is also a hint of reliance on an
undertaking by the defendant -- an element which does not need to be present.
The following may be offered as a substitute: "A [product] is not duly safe if it is so likely to be
harmful to persons [or property] that a reasonable prudent manufacturer [supplier], who had actual
knowledge of its harmful character would not place it on the market. It is not necessary to find that this
defendant had knowledge of the harmful character of the [product] in order to determine that it was not
duly safe." This language gives the tort flavor. It uses the familiar concept of a reasonable prudent man;
which juries have always been able to handle; but it differentiates clearly between negligence and strict
liability. It applies equally to manufacturing errors and bad designs. It is clearly objective in nature,
giving no hint of depending on the subjective expectations of either party.
Should the jury be told about the list of seven factors which were set forth above? The answer
should normally be no. The problem here is similar to that in negligence. The Restatement of Torts has
analyzed negligence, described it as a balancing of the magnitude of the risk against utility of the risk,
and listed the factors which go into determining the weight of both of these elements. This analysis is
most helpful and can be used with profit by trial appellate judges, and by students and commentators.
But it is not ordinarily given to the jury. Instead, they are told that negligence depends upon what a
reasonable prudent man would do under the same or similar circumstances. Occasionally, when one of
the factors has especial significance, it may be appropriate for the judge to make reference to it in
suitable language. For example, in factor number 6, if the dangerous condition of the product is perfectly
apparent, the judge might refer to this in telling the jury that they are to decide whether a reasonable
prudent man would put the product on the market, or whether its danger was so great that it ought not to
be marketed at all, despite the obviousness of the danger.
CONCLUSION
This article has treated only one element of the action of strict liability in tort for products -- the
subject of the nature of strict liability, or what kind of conduct on the part of a supplier will subject him
to strict liability. There are numerous other questions involved in an action for strict liability: the
question of cause in fact, or the matter of proof that the product was in an unsafe condition when it left
the defendant; the question of proximate cause -- foreseeability of the injury and scope of the risk created
by the dangerous condition; the question of interests protected -- whether they include physical harm
only, or also economic loss and loss of bargain; the question of the effect of plaintiff's fault -- assumption
of risk and contributory negligence; the question of parties involved -- parties plaintiff and parties
defendant; and the question of expansion of the concept of strict liability beyond sales to other types of
transactions such as bailments and leases and building contracts and service contracts. But the question
as to the nature of the strict liability is certainly the most important one, and the whole action is built on
it.
There presently exist three separate tort actions on which recovery can be had by an injured
consumer against a supplier of a product. They are negligence, breach of warranty, and strict liability.
All three are available in many states and at least two in most states. Where the state procedure permits,
a separate count on each theory may be brought in a single complaint. Each of the three theories may
30
have certain advantages and certain disadvantages for the plaintiff, who in filing the complaint chooses
among them. The confusion created by these conflicting advantages and disadvantages cannot really be
justified. As time goes on and we have more experience with the more recently developed theories, they
will surely begin to merge together into a single tort action. The action for breach of warranty (in the
non-privity situation) already seems to be fading into the action for strict liability, with the warranty
terminology and legal complications being elided. And the major real difference between negligence and
strict liability is the matter of scienter or knowledge of the dangerous condition of the product. In the
case of the pure-food statutes, this is taken care of by the doctrine of negligence per se. One who sells
unwholesome food is negligent. But the concept of negligence per se does not require a statute.
Negligence has steadily become objective. The time will probably come when courts are ready to declare
that one who supplies a product which is unduly unsafe is negligent per se. Selling a product which is
not duly safe is negligence within itself, and no more needs to be proved. Whether this is called
negligence or strict liability is not really significant.
At that time we would have a single cause of action which combines the desirable attributes of
the three types of action that are now available. There is one possible exception which may create a
serious problem. That is the question of the effect to be given to contributory fault on the part of the
plaintiff. Presently, the situation in this regard is "simply monstrous" -- to adopt an expression which
Judge Learned Hand liked to use on the Institute floor. If the plaintiff sues in negligence and the
defendant proves contributory negligence, the plaintiff can recover nothing. If on exactly the same facts
he merely changes his language and sues on the basis of strict liability, he recovers the full amount of his
damages. Both results may be unjust, and there is no justice in saying that they balance each other out.
A fair and consistent solution is urgently needed. That solution should be apparent on reflection. It is to
apply a system of comparative fault of the "pure type" and to apply it to strict liability as well as to
negligence. Fortunately, there is already real progress in this direction. Legislatures of a number of
states have recently adopted comparative negligence statutes, and the National Conference of
Commissioners on Uniform State Laws has established a special committee to work on a uniform
comparative fault act. At least one state supreme court has judicially adopted comparative negligence.
Will this action be the start of an important trend? But that is another story, and the end of one
article is not the place to begin another one.
1.
Section 552D , in tentative form at the tim e § 402B was adopted, was ultim ately rejected by the Am erican Law Institute. --Eds.
O'BRIEN v. MUSKIN CORPORATION
463 A.2d 298 (N.J. 1983)
The opinion of the Court was delivered by POLLOCK, J.
[1]
Plaintiff, Gary O'Brien, seeks to recover in strict liability for personal injuries sustained
because defendant, Muskin Corporation, allegedly marketed a product, an above-ground swimming pool,
that was defectively designed and bore an inadequate warning. In an unreported decision, the Appellate
Division reversed the judgment for defendants and remanded the matter for trial. We granted
certification, 91 N.J. 548, 453 A.2d 866 (1982), and now modify and affirm the judgment of the
Appellate Division. In reaching that result, we conclude that state-of-the-art evidence is relevant to riskutility analysis and admissible in a strict liability case involving a defectively designed product.
O'Brien sued to recover damages for serious personal injuries sustained when he dove into a
swimming pool at the home of Jean Henry, widow of Arthur Henry, now Jean Glass. Ultimately,
plaintiff sued as defendants not only Muskin Corporation, the manufacturer, but also Kiddie City Inc., the
distributor of the pool, charging them with placing a defectively designed pool in the stream of
31
commerce. Kiddie City filed a third-party complaint for contribution against the owners of the pool.
Defendants filed cross-claims for contribution and indemnification against each other, and Muskin filed a
cross-claim against the owners. At the beginning of the jury trial, the claims against Kiddie City were
dismissed with the consent of the parties. At the close of the plaintiff's case, the trial court determined
that he had failed to prove a design defect in the pool. Accordingly, at the close of the entire case, the
court refused to charge the jury on design defect. Instead, the court submitted the case to the jury solely
on the adequacy of the warning.
In response to special interrogatories, the jury found that Muskin had "manufactured a product
that was not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes or use,"
that the defect existed when the product left Muskin's control, and that the defect was a cause of
O'Brien's injury. The jury found further that O'Brien was a trespasser, rather than a social guest, at the
time of the accident, thus exculpating the Henrys. Finally, the jury found that O'Brien was guilty of
contributory negligence, and allocated fault for the injury as 15% attributable to Muskin and 85%
attributable to O'Brien. Thus, under New Jersey's comparative negligence statute, O'Brien was barred
from recovery. See N.J.S.A. 2A:15-5.1.... On appeal, the Appellate Division found that the trial court
erred in removing from the jury the issue of design defect. Consequently, that court reversed the
judgment against Muskin and remanded the matter for a new trial. The Appellate Division also
determined that plaintiff was a trespasser at the time of the accident and resolved that the issue of his
status need not be relitigated at a new trial. Furthermore, the court below vacated the consent judgment
dismissing the complaint and cross-claim against Kiddie City. Finally, the Appellate Division ruled that
at the re-trial the trial court should include a charge on the effect of the allocation of fault between
plaintiff and defendant. See Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980).
We agree that the status of the plaintiff need not be relitigated, but disagree with vacating the
dismissal against Kiddie City. For the reasons set forth in this opinion, we affirm the remand of the
matter for a new trial.
I
Muskin, a swimming pool manufacturer, made and distributed a line of above-ground pools.
Typically, the pools consisted of a corrugated metal wall, which the purchaser placed into an oval frame
assembled over a shallow bed of sand. This outer structure was then fitted with an embossed vinyl liner
and filled with water.
In 1971, Arthur Henry bought a Muskin pool and assembled it in his backyard. The pool was a
twenty-foot by twenty-four-foot model, with four-foot walls. An embossed vinyl liner fit within the outer
structure and was filled with water to a depth of approximately three and one-half feet. At one point, the
outer wall of the pool bore the logo of the manufacturer, and below it a decal that warned "DO NOT
DIVE" in letters roughly one-half inch high.
On May 17, 1974, O'Brien, then twenty-three years old, arrived uninvited at the Henry home and
dove into the pool. A fact issue exists whether O'Brien dove from the platform by the pool or from the
roof of the adjacent eight-foot high garage. As his outstretched hands hit the vinyl-lined pool bottom,
they slid apart, and O'Brien struck his head on the bottom of the pool, thereby sustaining his injuries.
In his complaint, O'Brien alleged that Muskin was strictly liable for his injuries because it had
manufactured and marketed a defectively designed pool. In support of this contention, O'Brien cited the
slippery quality of the pool liner and the lack of adequate warnings.
At trial, both parties produced experts who testified about the use of vinyl as a pool liner. One of
the plaintiff's witnesses, an expert in the characteristics of vinyl, testified that wet vinyl was more than
twice as slippery as rubber latex, which is used to line in-ground pools. The trial court, however,
sustained an objection to the expert's opinion about alternative kinds of pool bottoms, specifically
whether rubber latex was a feasible liner for above-ground pools. The expert admitted that he knew of
no above-ground pool lined with a material other than vinyl, but plaintiff contended that vinyl should not
32
be used in above-ground pools, even though no alternative material was available. A second expert
testified that the slippery vinyl bottom and lack of adequate warnings rendered the pool unfit and unsafe
for its foreseeable uses.
Muskin's expert testified that vinyl was not only an appropriate material to line an above-ground
pool, but was the best material because it permitted the outstretched arms of the diver to glide when they
hit the liner, thereby preventing the diver's head from striking the bottom of the pool. Thus, he concluded
that in some situations, specifically those in which a diver executes a shallow dive, slipperiness operates
as a safety feature. Another witness, Muskin's customer service manager, who was indirectly in charge
of quality control, testified that the vinyl bottom could have been thicker and the embossing deeper. A
fair inference could be drawn that deeper embossing would have rendered the pool bottom less slippery.
At the close of the entire case, the trial court instructed the jury on the elements of strict liability,
both with respect to design defects and the failure to warn adequately. The court, however, then limited
the jury's consideration to the adequacy of the warning. That is, the court took from the jury the issue
whether manufacturing a pool with a vinyl liner constituted either a design or manufacturing defect.
II
Strict liability law, a relatively recent but rapidly growing legal phenomenon, has received
uneven treatment from scholars, legislatures and courts. Underlying the various responses is a shared
concern about the allocation of the risk of loss upon manufacturers, distributors and others in the stream
of commerce for injuries sustained by the public from unsafe products.
[2-4] One of the policy considerations supporting the imposition of strict liability is easing the
burden of proof for a plaintiff injured by a defective product, a policy that is achieved by eliminating the
requirement that the plaintiff prove the manufacturer's negligence. Keeton, "Product Liability and the
Meaning of Defect," 5 St. Mary's L.J. 30, 34-35 (1973).... The necessity of proving a defect in the
product as part of the plaintiff's prima facie case distinguishes strict from absolute liability, and thus
prevents the manufacturer from also becoming the insurer of a product. See Caterpillar Tractor Co. v.
Beck, 593 P.2d 871, 877 (Alaska 1979); Birnbaum, "Unmasking the Test for Design Defect: From
Negligence [to Warranty] to Strict Liability to Negligence," 33 Vand.L.Rev. 593, 600 n. 32 (1980).
[5, 6] Fundamental to the determination of a products liability case, including one predicated on
a defective design or inadequate warning, is the duty of the manufacturer to foreseeable users. The duty
includes warning foreseeable users of the risks inherent in the use of that product, see Michalko, 91 N.J.
at 403, 451 A.2d 179, and not placing defective products on the market. Cepeda v. Cumberland
Engineering Co., Inc., 76 N.J. 152, 163, 386 A.2d 816 (1978); see Restatement (Second) of Torts § 402A
(1965). A manufacturer who breaches these duties is strictly liable to an injured party. That liability
reflects the policy judgment that by marketing its product, a manufacturer assumes responsibility to
members of the public who are injured because of defects in that product. Restatement (Second) of Torts
§ 402A comment c (1965).
[7 8] In determining whether a manufacturer has breached its duty, we focus on the product.
Michalko, 91 N.J. at 394, 451 A.2d 179; Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 238, 423 A.2d
925 (1981); Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 169, 406 A.2d 140 (1979); see
Wade, "On Product Design Defects and Their Actionability," 33 Vand.L.Rev. 551, 553 (1980). Under
strict liability, a manufacturer that produces defective products is liable even if those products are
carefully produced. Thus, the legal standard for evaluating whether a product is defective becomes the
touchstone of strict liability.
[9-11] Critical, then, to the disposition of products liability claims is the
meaning of "defect". The term is not self-defining and has no accepted meaning suitable for all strict
liability cases. Implicit in the term "defect" is a comparison of the product with a standard of evaluation;
something can be defective only if it fails to measure up to that standard. Birnbaum, supra, at 603.
33
Speaking generally, defects may be classified as design defects or manufacturing defects. In cases
alleging manufacturing defects, as distinguished from design defects, defining the standard, and thus the
meaning of "defect," is relatively easy. For example, the injury-causing product may be measured
against the same product as manufactured according to the manufacturer's standards. If the particular
product used by the plaintiff fails to conform to those standards or other units of the same kind, it is
defective. An apt illustration is a mass-produced product that comes off the assembly line missing a part.
The question in those cases becomes whether the product as produced by the manufacturer conformed to
the product as intended. See Cepeda, 76 N.J. at 169, 386 A.2d 816.
[12]
The considerations are
a more subtle when a plaintiff alleges that a product is defective due to any feature of its design,
including the absence or inadequacy of accompanying warnings. In design defect or failure-to-warn
cases, the product has been manufactured as intended and cannot be "defective" by comparison to a
standard set by the manufacturer. See Suter, 81 N.J. at 170, 406 A.2d 140. Rather, the standard to
measure the product reflects a policy judgment that some products are so dangerous that they create a
risk of harm outweighing their usefulness. From that perspective, the term "defect" is a conclusion rather
than a test for reaching that conclusion. Wade, supra, 33 Vand.L.Rev. at 552.
[13]
Although the appropriate standard might be variously defined, one definition, based on a
comparison of the utility of the product with the risk of injury that it poses to the public, has gained
prominence. To the extent that "risk-utility analysis," as it is known, implicates the reasonableness of the
manufacturer's conduct, strict liability law continues to manifest that part of its heritage attributable to
the law of negligence. See Suter, 81 N.J. at 171, 406 A.2d 140; see generally Birnbaum, supra, at 60910. Risk-utility analysis is appropriate when the product may function satisfactorily under one set of
circumstances, yet because of its design present undue risk of injury to the user in another situation.
Another standard is the consumer expectations test, which recognizes that the failure of the
product to perform safely may be viewed as a violation of the reasonable expectations of the consumer.
Suter, 81 N.J. at 170-71, 406 A.2d 140. In this case, however, the pool fulfilled its function as a place to
swim. The alleged defect manifested itself when the pool was used for diving.
[14]
As stated in Cepeda, some factors relevant in risk-utility analysis are:
(1)
The usefulness and desirability of the product--its utility to the user and to the
public as a whole.
(2)
The safety aspect of the product--the likelihood that it will cause injury, and the
probable seriousness of the injury.
(3)
The availability of a substitute product which would meet the same need and not
be as unsafe.
(4)
The manufacturer's ability to eliminate the unsafe character of the product
without impairing its usefulness or making it too expensive to maintain its utility.
(5)
The user's ability to avoid danger by the exercise of care in the use of the
product.
(6)
The user's anticipated awareness of the dangers inherent in the product
and their avoidability, because of general public knowledge of the obvious condition of the
product, or of the existence of suitable warnings or instructions.
(7)
The feasibility, on the part of the manufacturer, of spreading the loss by setting
the price of the product or carrying liability insurance. [76 N.J. at 174, 386 A.2d 816].
[15-17] By implication, risk-utility analysis includes other factors such as the "state-of-the-art"
at the time of the manufacture of the product. See Cepeda, 76 N.J. 174, 386 A.2d 816. The "state-of-theart" refers to the existing level of technological expertise and scientific knowledge relevant to a particular
industry at the time a product is designed. Robb, "A Practical Approach to Use of State of the Art
Evidence in Strict Products Liability Cases," 77 Nw.U.L.Rev. 1, 4-5 & n. 15 (1977). Although customs of
an industry may be relevant, Suter, 81 N.J. at 171-72, 406 A.2d 140, because those customs may lag
behind technological development, they are not identical with the state-of-the-art. See Michalko, 91 N.J.
34
at 397-98, 451 A.2d 179; Robb, supra, 77 Nw.U.L.Rev. at 4-5. A manufacturer may have a duty to make
products pursuant to a safer design even if the custom of the industry is not to use that alternative.
Michalko, 91 N.J. at 397, 451 A.2d 179.
[18,19] State-of-the-art relates to both components of
the risk-utility equation, Suter, 81 N.J. at 171-72, 406 A.2d 140. Although the focus is on the product,
our attention is drawn to the reasonableness of the manufacturer's conduct in placing the product on the
market. Id. In that regard, the risk side of the equation may involve, among other factors, risks that the
manufacturer knew or should have known would be posed by the product, as well as the adequacy of any
warnings. The utility side generally will include an appraisal of the need for the product and available
design alternatives. Furthermore, some products are unavoidably unsafe: the need for a product may be
great, but the existing state of human knowledge may not make it safe. Restatement § 402A, comment k.
With those products, the determination of liability may be achieved more appropriately through an
evaluation of the adequacy of the warnings. In brief, risk-utility analysis is not a petrified, but a dynamic
process. Where a particular product falls on the risk-utility continuum will depend on the facts of each
case. A toy that poses undue risks to infants may be viewed differently from a therapeutic device that
protects or prolongs life. As we proceed, we must, on a case-by-case basis, risk-utility analysis provides
the flexibility necessary for an appropriate adjustment of the interests of manufacturers, consumers, and
the public.
[20]
Although state-of-the-art evidence may be dispositive on the facts of a particular case, it
does not constitute an absolute defense apart from risk-utility analysis. See Beshada v. Johns-Manville
Products Corp., 90 N.J. 191, 202-05 & n. 6, 447 A.2d 539 (1982). The ultimate burden of proving a
defect is on the plaintiff, but the burden is on the defendant to prove that compliance with state-of-the-art,
in conjunction with other relevant evidence, justifies placing a product on the market. Compliance with
proof of state-of-the-art need not, as a matter of law, compel a judgment for a defendant. State-of-the-art
evidence, together with other evidence relevant to risk-utility analysis, however, may support a judgment
for a defendant. In brief, state-of-the-art evidence is relevant to, but not necessarily dispositive of, riskutility analysis. That is, a product may embody the state-of-the-art and still fail to satisfy the risk-utility
equation.
[21]
The assessment of the utility of a design involves the consideration of available
alternatives. If no alternatives are available, recourse to a unique design is more defensible. The
existence of a safer and equally efficacious design, however, diminishes the justification for using a
challenged design.
[22]
The evaluation of the utility of a product also involves the relative need for that product;
some products are essentials, while others are luxuries. A product that fills a critical need and can be
designed in only one way should be viewed differently from a luxury item. Still other products,
including some for which no alternative exists, are so dangerous and of such little use that under the risk
utility analysis, a manufacturer would bear the cost of liability of harm to others. That cost might
dissuade a manufacturer from placing the product on the market, even if the product has been made as
safely as possible. Indeed, plaintiff contends that above-ground pools with vinyl liners are such products
and that manufacturers who market those pools should bear the cost of injuries they cause to foreseeable
users.
[23]
A critical issue at trial was whether the design of the pool, calling for a vinyl bottom in a
pool four feet deep, was defective. The trial court should have permitted the jury to consider whether,
because of the dimensions of the pool and slipperiness of the bottom, the risks of injury so outweighed
the utility of the product as to constitute a defect. In removing that issue from consideration by the jury,
the trial court erred. To establish sufficient proof to compel submission of the issue to the jury for
appropriate fact-finding under risk-utility analysis, it was not necessary for plaintiff to prove the
existence of alternative, safer designs. Viewing the evidence in the light most favorable to plaintiff, even
if there are no alternative methods of making bottoms for above-ground pools, the jury might have found
that the risk posed by the pool outweighed its utility.
35
[24]
In a design-defect case, the plaintiff bears the burden of both going forward with the
evidence and of persuasion that the product contained a defect. To establish a prima facie case, the
plaintiff should adduce sufficient evidence on the risk-utility factors to establish a defect. With respect
to above-ground swimming pools, for example, the plaintiff might seek to establish that pools are
marketed primarily for recreational, not therapeutic purposes; that because of their design, including their
configuration, inadequate warnings, and the use of vinyl liners, injury is likely; that, without impairing
the usefulness of the pool or pricing it out of the market, warnings against diving could be made more
prominent and liner less dangerous. It may not be necessary for the plaintiff to introduce evidence on all
those alternatives. Conversely, the plaintiff may wish to offer proof on other matters relevant to the riskutility analysis. It is not a foregone conclusion that plaintiff ultimately will prevail on a risk-utility
analysis, but he should have an opportunity to prove his case.
[25]
In considering a motion to dismiss, the trial court should decide whether, viewing the
evidence in the light most favorable to the plaintiff, Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706
(1969), the jury might conclude that the plaintiff had proved the existence of a defect. If not, the court
could grant the motion as a matter of law. R. 4:37-2(b). Otherwise, the resolution of those facts under an
appropriate charge based on the risk-utility analysis is for the trier of fact. Cf. Freund v. Cellofilm
Properties, Inc., 87 N.J. 229, 432 A.2d 925 (1981); see Birnbaum, supra, at 638-39.
[26]
Our concurring and dissenting colleague, Justice Schreiber, disagrees with the majority
opinion in several respects. His opinion begins with the correct statement that the imposition of strict
liability in a products liability case requires proof of a defect in the product. We depart from our
colleague, however, because he believes that proof of a defect through risk-utility analysis is tantamount
to absolute, not strict, liability. The majority opinion concludes that risk-utility analysis is one means of
proving the existence of a defect. That is, under risk-utility analysis, if the risks outweigh the utility of
the product, it is defective.
A second difference between the two opinions is that Justice Schreiber would find that no matter
how dangerous a product may be, if it bears an adequate warning, it is free from design defects if there is
no known alternative. Under that hypothesis, manufacturers, merely by placing warnings on their
products, could insulate themselves from liability regardless of the number of people those products
maim or kill. By contrast, the majority concludes that the judicial, not the commercial, system is the
appropriate forum for determining whether a product is defective with the resultant imposition of strict
liability upon those in the commercial chain.
[27]
Still another difference between the opinions is that the majority finds a proper place for
both the court and jury in risk-utility analysis. See J. Wade, "On the Nature of Strict Liability for
Products," 44 Miss.L.J. 825, 838-41 (1973). If the minds of reasonable men could not differ on whether
the risks posed by a product outweigh its utility, or vice versa, then the court could make the appropriate
determination as a matter of law. Thus, as Professor Wade states, "[i]f a plaintiff sues the manufacturer
of a butcher knife because he cut his finger, on the sole ground that the knife was so sharp that it was
likely to cut human flesh, the court would probably take the case out of the hands of the jury and not give
it an opportunity to find that the knife was unsafe." If, however, there is a fact question whether the risks
outweigh the utility of the product, then the matter is for the trier of fact. Contrary to Justice Schreiber's
assertion, Professor Wade not only recognizes that some cases should be submitted to the jury, but
actually proffers a suggested charge and sets forth other charges as examples. Wade, supra, at 839-40.
Our colleague, however, would never permit the jury to resolve those fact issues.
With the deepest respect for Justice Schreiber, who was the author of the majority opinion in
Suter v. San Angelo Foundry & Machine Company, we believe that our reading is closer to the language
of Suter: "Although the considerations for the jury are somewhat comparable to those of the trial court,
their decisional functions differ. The court decides what protection should be given and the jury is
concerned with reaching a just result as between the parties." 81 N.J. 150, 173, 406 A.2d 140 (1979).
36
This approach, reflecting the current understanding of the trial bench, is expressed in different
forms in the Model Jury Charges, Products Liability, No. 5.27, May 1980, provided to all state court trial
judges, and in W. Dreier and H. Goldmann, Products Liability Law in New Jersey: A Practitioner's
Guide (N.J. Inst. for Continuing Legal Educ. 1982), distributed to those judges at the 1982 Judicial
College. Justice Clifford, in his concurring opinion, quotes the two publications and discusses apparent
differences between them. Post at 310. The fact remains, however, that both publications find proper
places for the judge and jury in determining the existence of a design defect through risk-utility analysis.
Finally, we disagree with that part of Justice Schreiber's opinion that purports to transplant into
strict liability for defective products, the subject of analysis in section 402A of the Restatement (Second)
of Torts, the principles pertaining to the strict liability for damages caused by abnormally dangerous
activities. Restatement (Second) of Torts §§ 519-20.
In concluding, we find that, although the jury allocated fault between the parties, the allocation
was based upon the consideration of the fault of Muskin without reference to the design defect. Perhaps
the jury would have made a different allocation if, in addition to the inadequacy of the warning, it had
considered also the alleged defect in the design of the pool.
[28]
All parties consented at trial to a dismissal of all claims against Kiddie City, on the
assumption that it did not manufacture the vinyl liner and that it was merely a conduit between the
manufacturer and the purchase. That assumption was based on Muskin's acknowledgment throughout the
pre-trial proceedings that it made the vinyl liner. In the course of the trial, the purchaser testified that all
parts of the pool, including the liner, arrived in Muskin boxes, but a Muskin witness testified, to
everyone's surprise, that the liner was not a Muskin product. To avoid possible prejudice to Muskin and
plaintiff, the Appellate Division vacated the dismissal of the claims as to Kiddie City. We believe the
appropriate disposition is to reinstate the dismissal as to Kiddie City and to preclude Muskin from
denying that it made the vinyl liner.
We modify and affirm the judgment of the Appellate Division reversing and remanding the
matter for a new trial.
CLIFFORD, J., concurring in result.
But for one paragraph in the majority opinion, ante at 304, which unfortunately--and
unnecessarily in this case--breathes life into the cadaver of the "consumer expectations" test for a design
defect, I join in the Court's disposition of this appeal. I continue to adhere to my views on that subject as
set forth with "vox clamantis in deserto" (Mark 1:3) in Suter v. San Angelo Foundry & Mach. Co., 81
N.J. 150, 178, 190, 406 A.2d 140 (1979) (concurring opinion), to this effect: using consumer
expectations as a gauge for determining defect limits liability to those situations in which the consumer
deems the product unsafe. This is contrary to a fundamental basis of strict liability because the consumer
simply does not have adequate information to know what to expect. See Escola v. Coca-Cola Bottling
Co., 24 Cal.2d 453, 466, 150 P.2d 436, 443 (1944) (Traynor, J., concurring).
Were that trifling gaffe my sole concern, I probably would not be moved to write. More
troublesome however, is Justice Schreiber's reading of the majority opinion, particularly his assertion that
today's decision takes Beshada v. Johns-Manville Prod. Corp., 90 N.J. 191, 447 A.2d 539 (1982), a step
farther along an intolerably extreme path. I share Justice Schreiber's thinly-disguised discomfort with
Beshada; and if I believed for one moment that our decision today advanced Beshada's exotic theory, I
would jump ship. It does not, so I do not.
State-of-the-art evidence is implicitly included in the factors employed in the risk/utility analysis
adopted in Cepeda v. Cumberland Eng'g Co., Inc., 76 N.J. 152, 172-75, 386 A.2d 816 (1978), whose use
is reaffirmed today, ante at 304-305.1 Whereas Beshada foreclosed the use of state-of-the-art as a
defense to a design-defect-warning case, today's majority opinion could scarcely be more unambiguous in
37
pointing out that state-of-the-art evidence is just one type of proof that may be relevant on the central
issue of defect and that it may, in certain instances, support a judgment for defendant. Ante at 305.
That leads indirectly to a lingering concern on a different aspect of the case, and that is the
respective function of judge and jury in the handling of the risk/utility analysis. Would that I could
persuade my colleagues to return to Judge Conford's lucid treatment of the subject in Cepeda, as follows:
Dean Wade suggests that before determining whether the case for liability should be given to the
jury the trial court should give consideration to whether a balanced consideration of the following factors
did not preclude liability as a matter of law:
[Thereupon, the seven risk/utility factors.]
If the case is sent to jury, since it would not always be appropriate for the court to include in the
instructions to the jury all seven of the factors mentioned above, Dean Wade suggests the following
model instruction:
"A [product] is not duly safe if it is so likely to be harmful to persons [or property] that a
reasonable prudent manufacturer [supplier], who had actual knowledge of its harmful character would
not place it on the market. It is not necessary to find that this defendant had knowledge of the harmful
character of the [product] in order to determine that it was not duly safe."
Subject to substituting the Section 402A language, "defective condition unreasonably
dangerous," for the Wade-preferred "not duly safe," we approve and adopt this instruction for
incorporation into a charge in an action against a manufacturer for strict liability in tort based upon the
design defect of a product. Such a charge would be usefully amplified by the judge calling to the
attention of the jury for their consideration any of the Wade factors mentioned above going into the
risk/utility analysis for which there is specific proof in the case and especial significance * * * [76 N.J. at
173-75, 386 A.2d 816 (citation and footnote omitted).]
Despite that recommended charge's many virtues--not the least of which, by any means, are its
crisp simplicity and clarity--it was rejected in Suter, supra, 81 N.J. at 177, 406 A.2d 140; see 81 N.J. at
183-84, 406 A.2d 140 (concurring opinion). I hasten to give reassurance that I do not here propose to
take up the cudgels once again in behalf of the "defective condition unreasonably dangerous" language of
Restatement (Second) of Torts § 402A (1965), having long since despaired of nudging this Court in the
direction of the "modern, enlightened trend of the law on this subject * * *." Freund v. Cellofilm, 87 N.J.
229, 248-51, 432 A.2d 925 (1981) (concurring opinion). Rather I suggest we should salvage what we can
from the unsettled state of our law in the area of how risk/utility should be treated by judge and jury, to
the end that trial judges will know what they should decide as matters of law and what they should give
to the jury in design-defect-strict-liability cases.
The Model Jury Charge discusses the matter as
follows:
Where the claimed design defect is not "self-evident," the trial judge may frequently become
engaged in a two-step process:
1. Depending upon the facts of the case, the trial judge may be required to make an initial
determination as to whether or not as a matter of law liability should be imposed upon the sellermanufacturer for violation of a duty to the injured consumer. [Suter] [81 N.J.] at 172, 177 [406 A.2d
140]. In making this evaluation the judge should apply the appropriate "risk-utility" factors set forth in
Cepeda v. Cumberland Engineering Company, Inc., 76 N.J. at 173-174 [386 A. 2d 816].
2. Once the trial judge determines that the case should be submitted to a jury, the appropriate
"risk-utility" factors should be given to the jury. Suter, 81 N.J. at 171-72 [406 A.2d 140]; Cepeda, 76
N.J. at 173-74 [386 A.2d 816]. [Model Jury Charges, Products Liability, No. 5.27, May 1980.]
On the other hand the materials distributed to every state-court judge at the last annual session of
the New Jersey Judicial College approach the problem this way:
i
Role of the Court (Risk/Utility Analysis)
38
* * * * * * * * * *
[The] risk/utility factors are not, standing alone, matters of proof or defense. These are the
factors for the trial court to consider in determining whether the plaintiff has met its burden of proof in
presenting a prima facie case, to wit, that a manufacturer, deemed to know the harmful propensities of its
product, violated its duty not to place a defective product into the stream of commerce. As a practical
matter, it is to be reasonably anticipated that one or more of the factors would be raised by either side in
the course of either proving or defending against the claim.
* * * * * * * * * *
ii
Role of Jury
Depending upon the proofs, some factors which may be considered by the jury in deciding the
reasonableness of the manufacturer's conduct include (1) the technological feasibility of manufacturing a
product whose design would have prevented or avoided the accident, given the known state of the art;
and (2) the likelihood that the product will cause injury and the probable seriousness of the injury. See
Cepeda, supra, 76 N.J. at 174 [386 A.2d 816]. Suter, [81 N.J.] at 171-72 [406 A.2d 140].
* * * * * * * * * *
Although the considerations for the jury are somewhat comparable to those of the trial court, their
decisional functions differ. The court decides what protection should be given and the jury is concerned
with reaching a just result as between the parties. Suter at 173 [406 A.2d 140].
* * * * * * * * * *
Note that the jury is not making a risk/utility analysis. It is considering two, or possibly three of
the several factors quoted in Cepeda and incorporated by reference in Suter's explanation of the Court's
role.
* * * * * * * * * *
[W. Dreier and H. Goldmann, Products Liability Law in New Jersey: A Practitioner's Guide (N.J. Inst.
for Continuing Legal Educ. 1982).]
Although neither the Model Jury Charge nor the Practitioner's Guide is considered binding
authority, our trial judges of course consult them. Their respective positions may not be irreconcilable
but neither do they fit neatly together. Particularly, one must wonder what it is that the Practitioner's
Guide would have the jury do with the risk/utility factors if not make a risk/utility analysis to determine
whether the product suffers from a design defect. I would lay the confusion created by the Practitioner's
Guide comment directly at Suter's doorstep. (In fairness to the authors, they disclaim adoption of the
position in the Practitioner's Guide as their own.)
My own preference would be to return to the Cepeda charge, set forth earlier in this opinion. If
the Court wishes to substitute something Suter-like for "defective condition unreasonably dangerous"-and I acknowledge that that appears to be the Court's wish--then that transposition could be managed
easily. My instinct is that with such a charge, we would make life easier for judges and jurors and bring
some needed stability to our products liability law. The Court does not today undertake to spell out a
recommended charge, but I do not disagree with its treatment of risk/utility as far as it goes. I therefore
join in the majority opinion with the single reservation expressed at the beginning of my concurrence.
SCHREIBER, J., concurring and dissenting.
Until today, the existence of a defect was an essential element in strict product liability. This no
longer is so. Indeed, the majority has transformed strict product liability into absolute liability and
delegated the function to making that determination to a jury. I must dissent from that conclusion
because the jury will not be cognizant of all the elements that should be considered in formulating a
policy supporting absolute liability, because it is not satisfactory to have a jury make a value judgment
with respect to a type or class of product, and because its judgment will not have precedential effect.
Our Court adopted the principle in the Restatement (Second) of Torts § 402A (1965) that the
seller of a product in a "defective condition unreasonably dangerous" (we have substituted the language
39
not reasonably safe) is subject to liability for harm to the ultimate user or consumer. See Suter v. San
Angelo Foundry & Mach. Co., 81 N.J. 150, 176, 406 A.2d 140 (1979); Cepeda v. Cumberland Eng'g Co.,
76 N.J. 152, 168-69, 386 A.2d 816 (1978). A plaintiff had to prove that the chattel that caused his injury
was defective. There had to be something wrong with it. As Dean Wade reminds us, the word
"defective" was added to the Restatement language "to ensure that it was understood that something had
to be wrong with the product." Wade, "On the Nature of Strict Tort Liability for Products," 44 Miss.L.J.
825, 830 (1973).
What is a defect? Defects fall within three categories: A flaw in the particular product, such as
an improper weld, is one class. A second group consists of design defects. Here there must be a showing
that there was an alternative, technologically feasible design available at the time the product was
designed. See Suter, 81 N.J. at 171-72, 406 A.2d 140; Wade, "On Product 'Design Defects' and Their
Action-ability," 33 Vand.L.Rev. 551, 573 (1980). The third class, which is closely analogous to the
second, involves inadequate warnings and instructions. In a technical sense this does not involve a defect
in the product. However, in the absence of reasonable warnings of the dangers of the product and
instructions on its use to avoid dangerous consequences, the product is not reasonably safe. The failure
to include adequate literature is functionally equivalent to a failure to design properly in that an
alternative adequate warning could have been given.
In design defect and inadequate warning cases
the product is produced as intended by the manufacturer, but is wanting in another respect. Further, both
have some incidents of negligent conduct. In both, the question is whether a manufacturer, assuming his
knowledge of the dangerous propensity of the product, acted as a reasonably prudent person in designing
the product as he did in light of existing alternatives or in giving the warning that he did.
In addition to establishing that the product was defective because of the flaw, design, or
inadequate warning, the plaintiff has the burden of proving that the product with its defect was not
reasonably safe, fit and proper. One way this burden can be met is by proving a failure to measure up to
consumer expectations.
In deciding whether a case should be submitted to the jury, a court must
engage in a risk-utility analysis. The purpose of this analysis is to enable the court to determine whether
the issues (existence of a defect, reasonable safety, and causation) should be submitted to the jury or
whether as a matter of law, even though a defect exists, the cause for strict product liability should be
dismissed because of public policy. Note in Justice Clifford's concurring opinion that he quotes
approvingly from Judge Conford's "lucid treatment of the subject in Cepeda." Ante at 308. Judge
Conford observed that risk-utility analysis is to be utilized by the court to determine whether liability is
to be precluded as a matter of law. Judge Conford did not say the court should or could also decide that
there was liability as a matter of law.
My research has disclosed no case where liability was imposed, utilizing the risk-utility analysis,
as a matter of law for an accident ascribable to a product in the absence of a defect (manufacturing flaw,
available alternative, or inadequate warning) other than in the absolute liability context. This Court has
sometimes held as a matter of public policy that the cause should not be submitted to the jury because the
utility of the product outweighed the risks. Illustrative situations are cases such as Brody v. Overlook
Hospital, 66 N.J. 448, 332 A.2d 596 (1975) (holding, as a matter of policy, hospital not liable for blood
used in transfusion that was infected with hepatitis); Baptista v. St. Barnabas Medical Center, 109 N.J.
Super. 217, 262 A.2d 902 (App.Div.) (refusing to hold hospital accountable on the basis of implied
warranty or strict liability in tort for injuries resulting from transfusion of incompatible blood), aff'd o.b.,
57 N.J. 167, 270 A.2d 409 (1970); and Magrine v. Krasnica, 94 N.J. Super. 228, 227 A.2d 539 (Hudson
County Ct.1967), aff'd sub. nom. Magrine v. Spector, 100 N.J. Super. 223, 241 A.2d 637 (App.Div.1968)
(refusing to hold dentist strictly liable for harm caused by defective hypodermic needle), aff'd on both
opinions below, 53 N.J. 259, 250 A.2d 129 (1969). Cf. Newmark v. Gimbel's Inc., 54 N.J. 585, 596-97,
258 A.2d 697 (1969) (distinguishing Magrine and holding that beauty parlor may be strictly liable for
injuries caused by defective permanent wave solution). Risk-utility factors to be considered by the court
40
may be summarized as follows: usefulness of the product, likelihood it will cause injury and seriousness
of the injury; availability of safer substitutes; manufacturer's ability to eliminate the danger; user's ability
to avoid the danger; user's knowledge of the danger; and feasibility of risk spreading.1
The purpose of strict product liability is to hold a manufacturer responsible for damages
attributable to a failure of the product to perform with reasonable safety. It is not to make the
manufacturer an insurer against all losses. Montgomery and Owen, "Reflections on the Theory and
Administration of Strict Tort Liability for Defective Products," 27 S.C.L.Rev. 803, 826 (1976). The strict
liability policy of encouraging manufacturers to market a safer product is generally inapplicable where
the product is unavoidably unsafe. Strict liability arose in part because of a basic presumption that
persons not abusing products are not usually injured unless the manufacturer failed in some respect in
designing, manufacturing or marketing the product. The strict liability theory was designed to facilitate
redress for the injured user or consumer because of the difficulty in proving negligence. This policy is
not advanced when imposing absolute liability. See id. at 827-28.
There are occasions where the court has determined as a matter of law because of policy reasons
that liability should be imposed even though there is no defect in the product. This is the absolute
liability model. The typical example is fixing absolute liability when an ultrahazardous activity causes
injury or damage. Liability is imposed irrespective of any wrongdoing by the defendant. McAndrews v.
Collerd, 42 N.J.L. 189 (E. & A. 1880). In this situation the ultimate determination is that the industry
should bear such costs, provided the jury has made the requisite findings on causation and damages.
Factors similar to those used in the risk-utility analysis for products liability are applied in the
ultrahazardous activity case. The Restatement (Second) of Torts lists these elements:
§ 520. Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be
considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of
others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
It is conceivable that a court could decide that a manufacturer should have absolute liability for a
defect-free product where as a matter of policy liability should be imposed. Suppose a manufacturer
produced toy guns for children that emitted hard rubber pellets--an obviously dangerous situation. A
court could reasonably conclude that the risks (despite warnings) out-weighed the recreational value of
the toy, that the manufacturer should bear the costs and that there should be absolute liability to a child
injured by the toy.
The Restatement also cautions that whether an activity is an abnormally dangerous one so that it
should be placed in the ultrahazardous category is to be settled by the court, not the jury. In its comment
it states:
The imposition of [absolute] liability, on the other hand, involves a characterization of the
defendant's activity or enterprise itself, and a decision as to whether he is free to conduct it at all
without becoming subject to liability for the harm that ensues even though he has used all
reasonable care. This calls for a decision of the court; and it is no part of the province of the jury
to decide whether an industrial enterprise upon which the community's prosperity might depend
is located in the wrong place or whether such an activity as blasting is to be permitted without
liability in the center of a large city. [3 Restatement (Second) of Torts § 520 comment 1, at 43
(1965)]
41
It is important to note that the risk-utility analysis is not submitted to the jury for the purpose of
determining absolute liability for a class or type of product. Dean Wade has explained that when a whole
group or class or type of a product may be unsafe, "the policy issues become very important and the
factors [the seven listed in the risk-utility analysis] must be collected and carefully weighed. It is here
that the court--whether trial or appellate--does consider these issues in deciding whether to submit the
case to the jury." 44 Miss.L.J. at 838. Accord Cepeda v. Cumberland Eng'g Co., 76 N.J. at 173-75, 386
A.2d 816; Suter v. San Angelo Foundry & Mach. Co., 81 N.J. at 172-73, 406 A.2d 140; see Green, "Strict
Liability Under Sections 402A and 402B: A Decade of Litigation," 54 Texas L.Rev. 1185, 1200, 1219
(1976).
When the case is submitted to the jury in strict liability, the jury must decide whether the product
is defective and reasonably safe, not whether as a matter of policy the manufacturer should be absolutely
liable. In determining questions of defectiveness and safety, some of the same risk-utility factors may be
pertinent.2 However, reference to any one of the factors is to be made only when it is relevant and may
be of assistance in deciding whether the product is defective and whether it is not reasonably safe. See
Dean Wade's comment:
Should the jury be told about the list of seven factors which were set forth above? The
answer should normally be no.... Occasionally, when one of the factors has especial significance,
it may be appropriate for the judge to make reference to it in suitable language. [44 Miss.L.J. at
840]
We observed in Suter:
Although the considerations for the jury are somewhat comparable to those of the trial court,
their decisional functions differ. The court decides what protection should be given and the jury
is concerned with reaching a just result as between the parties. [81 N.J. at 173, 406 A.2d 140]
In Beshada v. Johns-Mansville Prod. Corp, 90 N.J. 191, 447 A.2d 539 (1982), this Court held
that a manufacturer was assumed to know of a dangerous condition at the time of manufacture, even
though no one in the scientific community had knowledge of that danger. Despite that fact, the
manufacturer was deemed to have had a duty to warn of that condition and to be responsible for not
having done so. Id. at 209, 447 A.2d 539. By denying the state of the art defense, and in effect a warning
defense, the Court, relying substantially on "Risk Spreading" and "Accident Avoidance"--elements that
would be submitted to a court and not a jury--, sanctioned absolute liability. The Court thereby indicated
that the industry should bear the costs of the hazards incident to the use of asbestos, even though there
were no defects in the asbestos. Id. at 205-07, 447 A.2d 539.
Now the Court goes one step further and decides that a jury may speculate that, though there is
no manufacturing flaw, the duty to warn has been satisfied and the manufacturer could not possibly have
designed the item in a safer manner, the manufacturer can be absolutely liable because the jury finds that
the risk outweighs the product's usefulness. It is not appropriate to forsake uniformity of treatment of a
class or type of product by permitting juries to decide these questions. Nor is it appropriate for a jury to
make this value judgment in addition to resolving factual issues. Unless the jury is to consider the
feasibility of spreading the loss and the intricacies of cost avoidance, see Calabresi & Hirschoff, "Toward
a Test for Strict Liability in Torts," 81 Yale L.J. 1055 (1972), the jury will conduct its inquiry in the
absence of evidence of all the elements that should properly be considered in adopting a policy of having
the manufacturer spread the loss by setting the price to cover the costs of claims or insurance premiums.
The majority holds that the jury should have been permitted to decide whether the risks of aboveground swimming pools with vinyl bottoms exceed their usefulness despite adequate warnings and
despite unavailability of any other design. The plaintiff had the burden of proving this proposition.3 Yet
he adduced no evidence on many of the factors bearing on the risk-utility analysis. There was no
evidence on the extent that these pools are used and enjoyed throughout the country; how many families
obtain the recreational benefits of swimming and play during a summer;4 how many accidents occur in
42
the same period of time; the nature of the injuries and how many result from diving. There was no
evidence of the feasibility of risk spreading or of the availability of liability insurance or its cost. There
was no evidence introduced to enable one to gauge the effect on the price of the product, with or without
insurance. The liability exposures, particularly if today's decision is given retroactive effect, could be
financially devastating.
These factors should be given some consideration when deciding the policy question of whether
pool manufacturers and, in the final analysis, consumer should bear the costs of accidents arising out of
the use of pools when no fault can be attributed to the manufacturer because of a flaw in the pool,
unavailability of a better design, or inadequate warning. If this Court wishes to make absolute liability
available in product cases and not leave such decisions to the Legislature, it should require that trial
courts determine in the first instance as a matter of law what products should be subject to absolute
liability. In that event the court would consider all relevant factors including those utilized in the riskutility analysis.
The difference between absolute and strict liability is not one of semanties. Significantly
different elements are evaluated by different entities with different standards of review. As used in this
opinion, "strict liability" and "absolute liability" signify distinct and separate concepts. Strict liability is
imposed where there is a defect in a product due to an individual product flaw, an improper design or an
inadequate warning. See supra at 2-3. Irrespective of strict liability, a manufacturer or other seller may
nevertheless be liable in an appropriate case under absolute liability. Absolute liability is imposed
where, on the basis of policy considerations including risk-spreading, it is determined that a manufacturer
or other seller should bear the cost of injuries he causes to foreseeable users, regardless of the presence
or absence of any defect. In some circumstances a manufacturer may be liable though a product is free
from defects.
The majority's view of "strict liability" encompasses both strict liability and absolute liability.
Although the majority and I adopt the same formulaic statement that strict liability is imposed only where
there is a "defect," see ante at 304, the majority uses the term to include not only individual product flaw,
improper design and inadequate warning cases, but also a fourth category of cases in which the jury
decides that the risks outweigh the utility of the product. It follows from the majority's rationale that a
jury may be permitted to find that there is a "defect" whenever there is an accident involving a product.
I join in the result, however. There was proof that the pool liner was slippery and that the vinyl
bottom could have been thicker and the embossing deeper. As the majority states, a "fair inference could
be drawn that deeper embossing would have rendered the pool bottom less slippery." Ante at 303. The
plaintiff's theory was that the dangerous condition was the extreme slipperiness of the bottom. Viewing
the facts favorably from the plaintiff's frame of reference, I would agree that he had some proof that the
pool was incorrectly designed and therefore was defective. This issue, together with causation, should
have been submitted to the jury.
Other than as stated herein, I join in the majority's opinion and concur in the judgment reversing
and remanding the matter for a new trial.
CLIFFORD, J., concurring in the result.
For affirmance as modified--Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER,
POLLOCK and O'HERN--5.
Concurring and dissenting--Justice SCHREIBER--1.
1. The third and fourth factors em body state-of-the-art considerations:
(3) The availability of a substitute product which would m eet the sam e need and not be as unsafe.
(4) The m anufacturer's ability to elim inate the unsafe character of the product without im pairing its usefulness or m aking it too
expensive to m aintain its utility.
43
1. These factors were articulated by Professor W ade, 44 M iss.L.J. at 837-38, and we referred to them in Cepeda and Suter. The m ajority relies
upon them again today.
2. It is anom alous indeed that the m ajority relies on the M odel Jury Charges and the Practitioner's Guide. Those docum ents support the
proposition stated above. The M odel Jury Charge states only that "the appropriate 'risk-utility' factors should be given to the jury." (em phasis
added). The Judicial College m aterial reads:
N ote that the jury is not m aking a risk/utility analysis. It is considering two, or possibly three of the several factors quoted in Cepeda
and incorporated by reference in Suter's explanation of the C ourt's role. [W . D reier & H . Goldm an, Products Liability Law in N ew
Jersey: A Practitioner's G uide--I.C.L.E. 52 (1982)]
3. The court has, however, placed the burden of proving com pliance with the state of the art on the defendant. W hy this should be so is unclear.
O ur liberal discovery provisions enable a plaintiff to obtain all the inform ation known to the defendant and since the burden of proof of a defect
rests with the plaintiff, it is incongruous to shift that burden to the defendant when plaintiff charges that there is a design defect. See 2 R. H ursh &
H . Bailey, Am erican Law of Products Liability 2d § 9:17, at 300-01 (1974).
4. Justice Pashm an (then Judge) observed in N.J. Sports & Exposition Authority v. M cC rane, 119 N.J. Super. 457, 492, 292 A.2d 580 (Law
D iv.1971), aff'd, 61 N.J. 1, 292 A.2d 545, appeal dism issed sub nom. Borough of East Rutherford v. N .J. Sports & Exposition Authority, 409
U .S.943, 93 S.C t. 270, 34 L.Ed. 2d 215 (1972): "Sports are absolutely essential to the public welfare."
44
II.
THE MEANING OF “UNREASONABLY DANGEROUS” CONSUMER EXPECTATIONS
ATKINS v. ARLANS DEPT. STORE OF NORMAN, INC.
522 P.2d 1020 (Okla. 1974)
IRWIN, Justice:
Thomas Harrison Atkins, a minor, sustained accidental injuries when he was struck in the eye by
a dart thrown by another minor. Appellants commenced proceedings to recover damages for the injuries
and consequential damages against Appellees, Regents Sports Corporation, the manufacturer, and Arlans
Department Store, the retailer who sold the dart.
The trial court sustained Appellees' [defendants] demurrers to Appellants' [plaintiffs] petition and
dismissed the action. Plaintiffs appealed.
Plaintiffs proceeded on three general legal theories; (1) strict liability in tort, (2) breach of
warranty, and (3) negligence.
Plaintiffs alleged that a "Lawndart" game was purchased in the toy department of the retailer's
store and that it had been manufactured by defendant Regents Sports Corporation; that "Lawndart" is a
game where darts is a thirteen-inch metal shaft with a sharp protrusion; and that the twelve year old
plaintiff [Thomas] was playing with a group of boys when Brett, the ten year old son of the purchaser of
the "Lawndart" game, was preparing to throw the dart at the plastic ring. It was further alleged that
Thomas was standing behind Brett and away from the plastic ring; that when Brett threw the dart, it was
thrown into a vertical arc approximately 10 feet high and fell behind Brett; and that Thomas did not see
the dart, but when he looked up in response to a warning, the dart struck his eye and he sustained
injuries.
Plaintiff alleged that the defendant manufacturer "designed and manufactured a weighted
projectile with a sharp metal shaft protrusion possessing the inherently dangerous capability of
penetration of the human body and the skull and was therefore unsafe for its intended use;" and that both
defendants "expressly and impliedly warranted that the Lawndart game could be played with safety when
in truth and fact same was inherently dangerous to children."
Plaintiffs also alleged that defendants either knew of the dangerous capabilities of the lawndarts
or failed to test and discover the dangerous propensities of the darts; that defendants failed to label the
lawndart game and warn of the dart's dangerous capabilities; and that defendants were negligent in
selling the lawndart game in a toy department for the purpose of merchandising it as a childrens' game.
Brett, the minor who threw the dart, was joined as an additional party defendant but plaintiffs
subsequently dismissed, without prejudice their action against him.
The Supreme Court of Illinois in Pitts v. Basille, 35 Ill.2d 49, 219 N.E.2d 472, in considering an
action where a minor was struck in the eye by a dart thrown by another minor, said:
There are many things used by children that may be said to be unsafe when used
for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy
Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of
their normal use. They are not, however, to be categorized as `dangerous
instrumentalities.' As was said by the Tennessee Court in Highsaw v. Creech, 17
Teen.App. 573, 69 S.W.2d 249, 252, `an air gun is not a dangerous instrumentality of
itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a
toy does not make of it a dangerous instrumentality in the sense that the term is generally
used.' In Morris v. Toy Box (1962), 204 Cal.App.2d 468, 22 Cal.Rptr. 572, 574-575, a
45
complaint brought by a minor against a retailer alleging that the retailer knew that the
intended user of a bow and arrow was the purchaser's ten-year-old boy was dismissed,
the court saying, `the bow and arrow has been in use by young and old alike for
thousands of years. * * * To us it is simply inconceivable that a 10-year-old boy, much
less his mother, would be unacquainted with the use of so common an article as the one
here in question.' See also, White v. Page (Ohio App.1950, 105 N.E.2d 652.
The Illinois Court affirmed the judgment of the trial court rendering judgment for the wholesaler
of the dart notwithstanding the jury verdict in favor of the minor.
In Maramba v. Neuman, 82 Ill.App.2d 95, 227 N.E.2d 80, the court held that a boomerang, which
is used by children, is not a dangerous instrumentality as such, merely because after it is thrown its flight
cannot be controlled, anymore than a baseball, a dart or many other articles, which are classified as toys,
can be held to be dangerous instrumentalities.
In Larsen v. General Motors Corp., 391 F.2d 495 [8th Cir., 1968], the court stated that almost
any chattel or commodity is capable of inflicting injury and when danger is obvious or known to user no
warning is necessary and no liability attaches for an injury occurring from reasonable hazards attached to
the use of the chattel or commodities. See Dixon v. Outboard Marine Corporation, Okl. (1970), 481
P.2d 151. A warning that the dart should not be thrown in the direction of anyone would have hardly
done more than to apprise even a minor of what he already knew; and the dart was not dangerous to the
extent beyond that which would be contemplated by the ordinary consumer with the ordinary knowledge
common to the community as to its characteristics.
There are many toys and playthings, perfectly harmless and inoffensive in themselves, but whose
common use can be perverted into a dangerous use or design, and there are very few of the most harmless
toys which cannot be used to injure another. The dart's propensities to cause injury is demonstrated by
the injury sustained but the fact that an injury was sustained does not necessarily mean that the
manufacturer or retailer are liable for those injuries.
Although plaintiffs alleged that the minor defendant, Brett, "was negligent in throwing the
lawndart over his head and causing same to fall behind him instead of throwing the dart in front of him,"
plaintiffs did not allege, inter alia, that a defect in the design or manufacture of the dart was the
proximate cause of the dark striking the minor plaintiff. The dart in question was not designed or
manufactured to be thrown at an individual but at a plastic ring or another target.
Plaintiffs' pleadings do not state a cause of action against the defendants, and the trial court did
not err in sustaining defendants' demurrers and dismissing the action. Certiorari granted; Decision of
the Court of Appeals, Division No. 2, reversed; and judgment of the trial court affirmed.
DAVISON, C. J., WILLIAMS, V. C. J., and BERRY, LAVENDER, BARNES, SIMMS AND
DOOLIN, J.J., concur.
NOTE
See also, SEAY v. GENERAL ELEVATOR COM PANY, 522 P.2d 1022 (Okla. 1974)
[An elevator passenger brought an action against the elevator's manufacturer and the company which serviced the
elevator seeking to recover damages for personal injuries allegedly sustained when the elevator's outer hallway doors closed in an
unduly fast manner on her right heel. The District Court, Oklahoma County, Carmon C. Harris, J., sustained the manufacturer's
demurrer to the passenger's evidence of faulty design and entered judgment on the jury verdict in favor of the maintenance
contractor. After Court of Appeals reversed, the passenger sought certiorari. The Supreme Court, Lavender, J., held that the
passenger's evidence failed to show that the elevator's design was unreasonably dangerous and therefore failed to establish a cause
of action and products liability against the manufacturer; that the passenger's case against the maintenance company was not a
proper one for application of the doctrine of res ipsa loquitur since the elevator had not been in the exclusive control of the
maintenance company at the time of the accident; that the evidence justified an instruction on the passenger's contributory
negligence; and that the defendants owed the passenger a duty to exercise only ordinary care. Judgment of Court of Appeals
vacated; judgment of trial court affirmed.]
46
EWEN v. MCLEAN TRUCKING COMPANY
706 P.2d 929 (Ore. 1985)
LINDE, Justice.
Plaintiff is the guardian ad litem of Sophie S. Ewen, who was struck by a truck while crossing a
street intersection. In addition to negligence actions against the trucking company and the driver,
plaintiff brought a "product liability civil action," ORS 30.900, against International Harvester Company,
the manufacturer of the truck, alleging that its defective design prevented the driver from seeing
pedestrian traffic immediately in front and to the right of the truck. Plaintiff had judgment on a jury
verdict against International Harvester, which was affirmed on appeal. Ewen v. McLean 70 Or.App. 595,
689 P.2d 1309 (1984).
Defendant's petition for review brings before this court a single issue, whether the following
instruction was reversible error:
"A product is dangerously defective when it is in a condition unreasonably dangerous to
the user.
"Unreasonably dangerous in this context means dangerous to an extent beyond that
which would be contemplated by the ordinary purchaser of this type of product in the
community. Purchaser and users in [sic] anyone who may reasonably be expected to be affected
by the product, such as a pedestrian."
Defendant objected at trial and argued on appeal that the expectations of a pedestrian are not a test of
dangerousness to a "user or consumer" within the meaning of the product liability law. The Court of
Appeals noted that in Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974), this court
had treated the test of reasonable consumer expectation as equivalent to a test whether a reasonable
seller, with knowledge of the dangerous characteristic in question, would market the product. From this,
the Court of Appeals inferred that in effect the jury is to evaluate the allegedly defective product from
the perspective of a "reasonable person," and that "whether the jury is instructed to view the product
from the perspective of the `reasonable manufacturer' or the `reasonable consumer' or the `reasonable
pedestrian' is of little moment." 70 Or. App. at 604, 689 P.2d 1309 (footnote omitted). It therefore
concluded that the quoted instruction was not erroneous. We reverse the decision of the Court of
Appeals and remand the case to the circuit court.
ORS 30.920 provides:
"(1) One who sells or leases any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm or damage to property caused
by that condition, if:
"(a) The seller or lessor is engaged in the business of selling or leasing such a product;
and
"(b) The product is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold or leased.
"(2) The rule stated in subsection (1) of this section shall apply, even though:
"(a) The seller or lessor has exercised all possible care in the preparation and sale or
lease of the product; and
"(b) The user, consumer or injured party has not purchased or leased the product from
or entered into any contractual relations with the seller or lessor.
47
"(3) It is the intent of the Legislative Assembly that the rule stated in subsections (1) and
(2) of this section shall be construed in accordance with the Restatement (Second) or Torts sec.
402A, Comments a to m (1965). All references in these comments to sale, sell, selling or seller
shall be construed to include lease, leasing and lessor.
"(4) Nothing in this section shall be construed to limit the rights and liabilities of sellers
and lessors under principles of common law negligence or under ORS chapter 72."
As subsection (3) expressly states, the substantive formulas codified in subsections (1) and (2) are to be
"construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965)."
The present issue concurs Comment i, which reads in part:
"The article sold must be dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge common to the community
as to its characteristics."
This is the standard for defects sometimes called the "consumer contemplation test." Defendant argues
that even though a pedestrian may recover damages for injuries caused by a defective truck, the scope of
the rule does not bring the pedestrian into the class of consumers who have purchased a product with
ordinary knowledge of its characteristics and whose expectations determine whether the product is
dangerously defective. Neither plaintiff nor the Court of Appeals squarely maintains the contrary, that a
pedestrian is a "consumer" of trucks. Rather, plaintiff takes issue with some of the theoretical reasons
defendant offers for the consumer expectations test, and the Court of Appeals, as quoted above,
concluded that it was immaterial whether the jury was told to assume the perspective of a manufacturer a
consumer, or an injured pedestrian, because by the objective calculus employed by a hypothetical
reasonable person, each should arrive at the same measure of an alleged defect.
As a prediction of jury behavior, that may or may not be true. Trial by jury rests on the
assumption that jurors will do their best to follow the law as explained by the court and that accurate
instructions matter. Cf. Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 603-04, 642 P.2d 624 (1982).
Certainly counsel's battles over the supplemental instruction in this case suggest that trial lawyers thought
it would matter to the jurors from which perspective they should evaluate the alleged defect. The
question, in any event, is not what lawyers or judges may think on that subject, but what the legislators
who proposed and enacted ORS 30.920 thought.
ORS 30.920 was enacted in 1979. Its legislative history is reviewed at length in Vetri,
Legislative Codification of Strict Products Liability Law in Oregon, 59 Or. L. Rev. 363 (1981). In brief
summary, the initiative for codifying civil liability for injuries from defective products came from
business groups who were concerned about rising costs of liability insurance, which they attributed to the
unpredictability of potential exposure in what was then a rapidly evolving branch of the law. In part,
their sense of uncertainty concerned cases decided in other states which this court might or might not
follow. Both they and their insurers desired to stabilize the rules of liability. Other witnesses and
legislators, in turn, were concerned that legislation not reduce the financial protection under existing
Oregon law for persons injured by dangerous products.
Both sides agreed that, if there was to be legislation at all, the starting point was the law stated in
section 402A of the American Law Institute's Restatement, Second, Torts with its interpretive Comments,
although certain changes were necessary. Subsection 2(b), which eliminates any requirement of
contractual privity between a plaintiff and a defendant, was expanded to refer expressly to an "injured
party" other than a "user" or "consumer," and Comment n, concerning contributory negligence and
assumption of risk, was removed from the list of Comments incorporated by reference.
The question that concerns us in the present case is what significance the legislators attached to
the consumer contemplation test stated in the Restatement's Comment i, quoted above. Although
Comment i, like the others, was not set out in the bill but was only incorporated by reference, its
substance did not go unnoticed. In the Senate, the chief proponent of the proposal to codify Comments a
48
to m spoke of the confusion created by courts in "moving away from the provisions of 402A." Senate
Floor Debates on S.B. 422, 60th Or. Legis. Ass'y (May 29, 1979), tape 22, side 1, at 809 (Sen. M.
Ragsdale). Opponents warned that the bill would reverse or overrule any prior decisions that were
contrary to Comments a through m. Witnesses before the House Judiciary Committee were more
specific. A witness for the Portland Chamber of Commerce stated:
"The Oregon Supreme Court eroded away the rules when it refused to accept the
consumer oriented rule anymore. Instead, it substituted what is called a seller oriented rule for
the definition of unreasonably dangerous. The Supreme Court stated it is not what the consumer
expects that is important; it is what a reasonably prudent manufacturer would do, knowing of the
potential danger. Some people think that is a much more liberal rule. Some consumers think it is
a much more restrictive rule, and not the rule they would like."
Minutes, House Committee on The Judiciary 9 (June 19, 1979--Statement of Roland E. Banks, Jr.).
Another witness, whom Professor Vetri characterizes as a plaintiffs' attorney, thought that adoption of
Comment i would make no great change in Oregon law because this court had treated the expectations of
a reasonable consumer as equivalent to the standard of reasonable care of a manufacturer who markets a
product knowing of its dangerous condition, and that acceptable instructions could be phrased in either or
both forms. Id. at 30 (statement of Jim Griswold). No further committee report or floor discussion
addressed these alternative views of the extent of change, if any, made by enacting Comment i. The case
to which the foregoing testimony referred was Phillips v. Kimwood Machine Co., supra. In Phillips,
Justice Holman wrote for the court:
"A dangerously defective article would be one which a reasonable person would not put
into the stream of commerce if he had knowledge of its harmful character. The test, therefore, is
whether the seller would be negligent if he sold the article knowing of the risk involved. Strict
liability imposes what amounts to constructive knowledge of the condition of the product.
On the surface such a test would seem to be different than the test of 2 Restatement
(Second) of Torts § 402A, Comment i, of `dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it.' This court has used this test in the
past. * * *" (Footnotes omitted. Emphasis in original.)
269 Or. 492-93, 525 P.2d 1033. The opinion asserted that the two statements of the test are "not
necessarily different standards," quoting a federal court's opinion to the effect that they are "two sides of
the same standard." Id., at 493, 525 P.2d 1033, quoting Welch v. Outboard Marine Corp., 481 F.2d 252,
254 (5th Cir. 1973). It continued:
"To elucidate this point further, we feel that the two standards are the same because a seller
acting reasonably would be selling the same product which a reasonable consumer believes he is
purchasing. That is to say, a manufacturer who would be negligent in marketing a given product,
considering its risks, would necessarily be marketing a product which fell below the reasonable
expectations of consumers who purchase it."
Phillips v. Kimwood, supra, 296 Or. at 493, 525 P.2d 1033. Justice Holman ended this passage of the
Phillips opinion with the observation that to describe a dangerous defect as a condition which would
make it unreasonable to market the product with knowledge of its harmful character had the advantage of
preserving "familiar terms and thought processes with which courts, lawyers, and jurors customarily
deal." Id.
Clearly the court regarded a focus on the "reasonableness" of marketing the product, knowing of
its dangers, not as a departure from the Restatement's Comment i but as another way to explain it.5 In the
court's view, it might be an advantage to bring the definition of a dangerously defective product back into
the "familiar terms and thought processes" associated with common law negligence, as indeed this
alternative phrasing did, although one may question whether jurors in fact share the familiarity of courts
and lawyers with those terms. Moreover, the quoted testimony on behalf of the Portland Chamber of
49
Commerce suggested that those who knew the Phillips version of the test did not agree whether if
favored plaintiffs or defendants in products liability cases, some people thinking that it was "a much
more liberal rule," and some consumers viewing it as "a much more restrictive rule, and not the rule that
they would like." After the initial alarm raised by opponents during the first Senate debate of the bill,
Comment i and the fate of its rephrasing in Phillips seem not to have remained major points of
contention. This could be because those who followed the issue concluded that enactment of Comment i
made no change in the law, or it could be that those who thought the Phillips phrasing preferable
regretted its loss but did not think it was worth fighting over in view of gains made elsewhere in the bill.
[1,2] In any event, the "consumer contemplation" test of Comment i was brought to the attention
of the legislature, and it was enacted. It follows at least that a jury in a product defect case should
receive some instruction phrased so as to focus on what extent of risk an ordinary consumer would
contemplate when purchasing a product with the knowledge of its characteristics common to the relevant
community. We do not prescribe the specific form of jury instructions. As we said in Ireland v.
Mitchell, 226 Or.. 286, 294, 359 P.2d 894 (1961), "A trial judge is not a mere automaton whose function
is limited to reciting the words approved by statute or by the Supreme Court." The instruction can be
given in different ways that are consistent with the statute. We leave trial courts free to choose the words
that they think will best explain the law to the jury that has heard the particular case before the court.
Whether any role remains for the instruction approved in Phillips v. Kimwood Machine Co., supra, 269
Or. at 501 n. 14, 525 P.2d 1033, is not before us in this case because no such instruction was asked or
given. Rather, we have reviewed the discussion before the legislature for the light it sheds on the
assumption of the Court of Appeals that it is immaterial what perspective is chosen for evaluating an
allegedly dangerous product because all "objective" tests ultimately reduce themselves to the perspective
of a hypothetical "reasonable person." Whatever the jurisprudential merits of that view may be, it
negates the importance that the proponents of ORS 30.920, rightly or wrongly, attached to the consumer
contemplation test of Comment i.
[3] An instruction based on Comment i was given in this case. The instruction left out some
words that are used in the Comment and added other words that are not there. In referring to the extent
of a product's danger that "would be contemplated by the ordinary purchaser of this type of product in the
community," the instruction somewhat elliptically omitted reference to the consumer's knowledge of the
characteristics of the product, an element that appears in Comment i; but that is secondary to defendant's
criticism of the instruction. As we have said, the law does not oblige every judge to repeat the identical
words of a prescribed formula in instructing every jury. The crux of defendant's objection, rather, is that
the last sentence of the instruction extended the "consumer contemplation" test of Comment i to include
the expectations of anyone who might reasonably be expected to be affected by the product,"including a
pedestrian."
We conclude that the statement is too broad. The word "consumer," as used in Comment
i, does not include everyone who might be affected by the product. If the reporters, advisers, consultants,
and other experts who participate in the preparation of the Restatements want to invoke the general
judgment of an ordinary reasonable person, they know how to say so. See e.g., Restatement Second,
Torts §§ 11, 12 (1965) (define "Reasonably Believes" and "Reason to Know"); § 283 ("Conduct of a
Reasonable Man; The Standard"); and § 291 ("Unreasonableness; How Determined * * *". ORS
30.920(2)(b) implicitly allows an "injured party" other than a user or consumer to recover if the product
causing the injury is defective and unreasonably dangerous within the meaning of ORS 30.920(1), but we
have seen no indication that the legislature meant this reference to the "injured party" to alter the test for
defects stated in Comment i.
[4,5] The instruction therefore was erroneous. We have given serious consideration to the
question whether the error was so prejudicial as to require reversal. It can be argued that when the
product is a vehicle to be used in traffic, the expectations of a driver and of a pedestrian as to the
visibility of pedestrians from the driver's sear are unlikely to be so different as to lead a jury to a different
50
result. If the instruction had only made a passing reference to the expectations of a pedestrian,
submerged in otherwise correct instructions, perhaps it might be unlikely to have affected the outcome.
See Smith v. Holst, 275 Or. 29, 549 P.2d 671 (1976). But here the erroneous proposition that a purchaser
or user includes anyone expected to be affected by the product, "such as a pedestrian," was singled out
for a supplemental instruction at plaintiff's request and over defendant's advance objection. Plaintiff
stressed the expectation of an "ordinary pedestrian" beyond that of a purchaser or driver in closing
argument. Plaintiff obviously regarded the point as important at trial. We are in no position to say that
in fact it was unimportant.
The decision of the Court of Appeals is reversed and the case is remanded to the circuit court for
further proceedings.
5. This appears also from Justice Howell's opinion for the Court a m onth before Phillips v. Kim wood M achine Co., 269 O r. 485, 525 P.2d 1033
(1974), in Roach v. Kononen/Ford M otor Co., 269 O r. 457, 465, 525 P.2d 125 (1974):
"H owever, be all this as it m ay, it is generally recognized that the basic difference
between negligence on the one hand and strict liability for a design defect on the other is that in strict liability we are talking about the
condition (dangerousness) of an article which is designed in a particular way, while in negligence we are talking about the
reasonableness of the m anufacturer's actions in designing and selling the article as he did. The article can have a degree of
dangerousness which the law of strict liability will not tolerate even though the actions of the designer were entirely reasonable in view
of what he knew at the tim e he planned and sold the m anufactured article. As Professor W ade points out, a way of determ ining whether
the condition of the article is of the requisite degree of dangerousness to be defective (unreasonably dangerous; greater degree of
danger than a consum er has a right to expect; not duly safe) is to assum e that the m anufacturer knew of the product's propensity to
injure as it did, and then to ask whether, with such knowledge, som ething should have been done about the danger before it was sold. In
other words, a greater burden is placed on the m anufacturer than is the case in negligence because the law assum es he has knowledge of
the article's dangerous propensity which he m ay not reasonably be expected to have, had he been charged with negligence." (Em phasis
added.)
The parenthetical phases that we have em phasized in this quotation repeat the "consum er expectation" standard of C om m ent i, and in the
surrounding text the court plainly thought that it was explaining the sam e standard.
LAMKE v. FUTORIAN CORP.
709 P.2d 684 (Okla. 1985)
Person who was burned when cigarette fell and ignited sofa brought manufacturers' products
liability action against cigarette manufacturer and sofa manufacturer. The District Court, Oklahoma
County, Joe Cannon, J., dismissed action, and plaintiff appealed. The Supreme Court, Hodges J., held
that: (1) plaintiff did not allege sufficient facts to state cause of action in manufacturers' products liability
against manufacturers, and (2) accident did not occur through any negligence of manufacturers.
Affirmed.
Doolin, V.C.J., dissented and filed opinion in which Wilson and Kaugel, JJ., joined.
HODGES, Justice.
Appellant-Plaintiff Lamke appeals from judgments of the trial court in which demurrers to her
Third Amended Petition were sustained as to her cause of action against Appellees-Defendants Philip
Morris Incorporated and Futorian Corporation. The trial court expressly dismissed the plaintiff's action
against these defendants, and these consolidated appeals followed.
This lawsuit has its genesis in a fire which allegedly started when a cigarette manufactured by
Philip Morris Incorporated fell and ignited a sofa manufactured by Futorian Corporation while Mrs.
Lamke [appellant-plaintiff] was on the sofa. It resulted in severe burns to much of mrs. Lamke's body.
She brought this action against these two defendants, along with other defendants not parties to this
appeal, alleging that defects in the manufacturers' respective products rendered those products
unreasonably dangerous, and caused her injuries. After the trial court sustained the manufacturers'
separate demurrers to her Third Amended Petition, it dismissed the plaintiff's action against them,
foreclosing any right to further amend.1
51
....
Plaintiff premises her claim against each defendant on strict liability under Manufacturers'
Products Liability, and upon negligence. With regard to the strict liability claim, both defendants argue
that the petition does not allege that the plaintiff's injuries resulted from a defect which rendered the
defendant's product "unreasonably dangerous" as required by Kirkland v. General Motors Corp., 521
P.2d 1353 (Okla. 1974). In Kirkland we defined the phrase "unreasonably dangerous" to mean:
"The article sold must be dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge common to community as to its
characteristics."
[4] That test, applied in this context, means that if Morris' cigarette was more likely, than
expected by the consumer, to cause this fire because of defects, then it was unreasonably dangerous. By
the same token, if the sofa was more likely, than expected by the ordinary consumer, to ignite because of
some defect, the sofa was unreasonably dangerous. That the product be rendered "unreasonably
dangerous" by the defect is an essential requirement for pleading a cause of action in Manufacturers'
Products Liability, Kirkland, supra. Thus, if the plaintiff has not sufficiently alleged that the cigarette
was more likely, than would be expected by the ordinary consumer, to be set ablaze, she has not alleged a
cause of action under this theory.
As to the cigarette manufacturer, the plaintiff alleged that the cigarettes did not meet this
consumer expectation test because they were not
". . .manufactured with the state of the art and were dangerous to an extent beyond that
contemplated by the ordinary user, including the plaintiff, in that other cigarettes
manufactured before, at or near, and after the time of manufacture of said cigarettes did
not have added to them chemicals as alleged above, were not manufactured with paper as
alleged above, and would not have caused ignition of the couch in question; and in that
said cigarettes did not incorporate manufacturing techniques such as represented in
patents on file with the U.S. Patent Office, many of which said patents were presented
directly to and rejected by defendant Philip Morris. Two of such patents are attached
hereto as Exhibits `A and B.'"
The plaintiff had previously alleged that the cigarettes were defective because they had
additional chemicals and special paper which prolonged burning, increased the intensity of the fire of the
cigarettes and caused the cigarette to ignite the couch. She also alleged that the cigarette should have
been self-extinguishing.
None of the plaintiff's allegations, if deemed true, establish that these cigarettes were more likely
to cause the fire in question than might be anticipated by the ordinary consumer. In her brief, plaintiff
argues that she established this fact since she says this cigarette was not an "ordinary" cigarette, but had
been chemically treated to increase its intensity and prolong its fire between puffs. That argument is not
supported by the allegations of the petition.
[5,6] Plaintiff did not allege that "ordinary" cigarettes had not been so treated, nor that the
defendant's cigarettes were different from the cigarettes with which the ordinary consumer is familiar.
The plaintiff alleges only that at the time of the manufacture of these cigarettes there were other
cigarettes which had not been treated chemically as had the defendant's cigarettes. Apparently, the
plaintiff would hold the manufacturer responsible if his product is not as safe as some other product on
the market. That is not the test in these cases. Only when a defect in the product renders it less safe than
expected by the ordinary consumer will the manufacturer be held responsible.
This is particularly true in cases such as the instant case where the "defect" alleged is the failure
to minimize an obvious danger which is inherent in the product itself. In order for a cigarette to be used,
it must burn. The simple allegation that the cigarette should have been self-extinguishing or that some
52
other cigarettes would not have burned as long, nor as intensely, does not establish that the cigarettes
involved in this case were more likely to cause the fire than might be expected by the consumer.
The plaintiff has not alleged sufficient facts to state a cause of action in Manufacturers' Product
Liability against defendant Philip Morris.
[7] By the same analysis, the plaintiff's petition is insufficient with regard to Manufacturers'
Products Liability on the part of the sofa manufacturer. Plaintiff alleges only that the sofa was
"unreasonably dangerous" because it was not sufficiently flame retardant, and because Futorian
Corporation issued no warning as to this defect. No allegations are made which would support a
conclusion that the ordinary consumer expects a sofa to be flame retardant to the degree suggested by the
plaintiff, and the petition, if deemed true, does not establish that the sofa in question was any more likely
to be ignited than is expected by the ordinary consumer.
[8,9] Plaintiff also claims, in addition to an action for Manufacturers' Products Liability, that
defendants negligently caused the accident and resulting injuries. Plaintiff alleges the defendant, Philip
Morris, added certain chemicals into the manufacturing process in order to promote prolonged burning of
their cigarettes. Likewise, they claim the defendant, Futorian Corporation, negligently manufactured and
sold a sofa that was not flame retardant.
It is common knowledge a lighted cigarette is potentially dangerous. It can cause fire and if
accidently placed on a couch can create a flame and burn. It is apparent in this case the unfortunate
accident did not occur through any negligence of the defendants. There was no duty on the part of
defendants to warn the plaintiff of an obvious fact.
There are no standards by which a cigarette manufacturer is required to make a cigarette that if
left unattended will not burn. Nor is a sofa maker required to manufacture a flame retardant product. So
the allegations of a faulty design and the creation of an inherently dangerous instrumentality must fail.
The trial court properly sustained the demurrers of the defendants to plaintiff's petition.
JUDGMENT AFFIRMED.
SIMMS, C.J., and LAVENDER, HARGGRAVE, OPALA and SUMMERS, JJ., concur.
DOOLIN, V.C.J., and WILSON and KAUGER, JJ., dissent.
DOOLIN, Vice Chief Justice, dissenting.
The majority of this Court has today blunted the development of strict liability under Products
Liability cases in this state particularly as to chemical additives and the like.
The petition states that plaintiff purchased a sofa designed and manufactured by Futorian.
Plaintiff fell asleep on the sofa while smoking, after which the sofa ignited. The sofa is alleged to be a
defective product because it was not flame-retardant and because no warning was given as to its
flammability. Futorian is also alleged to have been negligent in designing and constructing the sofa and
in failing to warn plaintiff of its flammability. The negligence of Futorian, or the defect of its sofa, is
alleged to be a proximate cause of plaintiff's injuries.
The petition also states that plaintiff purchased cigarettes designed and manufactured by Phillip
Morris. One of these cigarettes is alleged to be a proximate cause of the fire. The cigarette is said to be a
defective product because it was designed to burn longer and hotter than an ordinary cigarette, and
because no warning was given as to this unreasonably dangerous design. The cigarette is also said to be
defective because Phillip Morris is able to design a much safer cigarette. Phillip Morris is also alleged to
have been negligent in designing such a cigarette, in failing to warn plaintiff that it was not selfextinguishing, in failing to test the cigarette for its burning characteristics, and in designing it to burn
hotter than an ordinary cigarette.
Plaintiff has thus pled both a cause of action in Manufacturers' Products Liability and one in
negligence.
Plaintiff also seeks punitive damages from Phillip Morris for allegedly manufacturing cigarettes
known to be unreasonably dangerous, known to cause death and injury, and known to be far removed
53
from the state of the art of the cigarette manufacturing industry, in reckless and willful disregard for the
safety of persons and property.
The defendants' demurrers must be overruled if the facts pleaded will support any theory of
recovery. Johnson v. Steward.2 I find that the demurrers should have been overruled. I would reverse.
To determine whether plaintiff's petition stated a cause of action in Manufacturers' Products
Liability, we must compare the necessary elements with the allegations.
The first element the plaintiff must allege if "that the product was the cause of the injury."3
Plaintiff's petition states that the cigarette manufactured by Phillip Morris ignited the sofa manufactured
by Futorian. The burning sofa caused her injuries. The first element was properly alleged.
The second element is "that the defect existed in the product, if the action is against the
manufacturer, at the time the product left the manufacturer's possession and control."4 The petition states
that both manufacturers designed their respective products in a manner which was inherently defective,
or at least defective when the products were sold without warnings. Since the defects were alleged to be
in the design of the products, the second element has been properly alleged.
The third element is "that the defect made the article unreasonably dangerous to [the plaintiff]
or his property."5 In this element lies the crucial issue on appeal. The Plaintiff has alleged facts which
she contends make the products unreasonably dangerous. Both manufacturers argue that their products
are not unreasonably dangerous as a matter of law.
We defined the term "unreasonably dangerous" in Kirkland v. General Motors Corp.6
. . . . Plaintiff alleges that both the sofa and the cigarette were unreasonably dangerous because of the
defective designs and because of both defendants' failure to supply proper warnings about their productss'
dangers.
The cigarette manufactured by Phillip Morris is alleged to have been dangerous to an extent
beyond that which would be contemplated by an ordinary consumer with the ordinary knowledge
common to the community as to its characteristics. Plaintiff alleges that Phillip Morris adulterated the
cigarette with chemicals designed to make the cigarette burn longer and hotter than an ordinary cigarette
would. She also alleges that the paper which formed the outer shell of the cigarette was "highly porous,"
which is said to make the cigarette burn longer and hotter. Assuming these facts to be true, we cannot
say as a matter of law that the cigarette was not unreasonably dangerous.
Phillip Morris argues that a cigarette must be lit and must burn in order to fulfill its ordinary
purpose. Since a cigarette must be hot enough to burn its tobacco and paper, it is argued that the danger
is obvious to an ordinary consumer.
The argument does not meet plaintiff's allegations. Plaintiff does not content that all cigarettes
are unreasonably dangerous. In comment i of the Restatement [Second] of Torts, § 402A, it is said,
"Good tobacco is not unreasonably dangerous," to which we might add, tobacco containing "unexpected
chemicals" may be unreasonably dangerous. It is for a jury to decide.
A product which is unreasonably dangerous without warnings may not be unreasonably
dangerous is proper warnings are provided. If an ordinary consumer is provided with information as to a
product's dangerous characteristics, the consumer can use the product safely or choose not to purchase
the product at all. By giving a proper warning, the manufacturer is increasing the knowledge of the
community as to that product's characteristics. The plaintiff alleges that Phillip Morris failed to provide
adequate warnings about the excessive flammability of its cigarette. If indeed the cigarette manufactured
by Phillip Morris were designed in a manner which made it dangerous to an extent beyond that which is
contemplated by the ordinary consumer, then Phillip Morris had a duty to warn consumers of the
dangerous characteristics of its product.7
The sofa manufactured by Futorian is also alleged to have been unreasonably dangerous.
Plaintiff alleged that Futorian designed the sofa to be sold without flame-resistant fabric. At first blush,
it would appear that an ordinary consumer with ordinary knowledge common to the community would
54
expect a sofa to ignite if a cigarette were dropped on the surface of its fabric. If most sofas were made
with flame-resistant fabric, however, an ordinary consumer might very well expect a sofa to merely
scorch. The point is, we should not say as a matter of law that ordinary consumers expect sofas to have
or not to have flame-resistant fabrics. Ordinary knowledge common to the community changes as
technology and science changes the community's environment. Whereas a couch manufactured in 1950
might be expected to ignite easily, a couch made in 1970 or 1980 or 1990 might be expected to have
different characteristics. The very existence of safer fabrics might cause the community to expect sofas
in general to be safer than they once were. We should not say as a matter of law that an ordinary
consumer expects a sofa to ignite when confronted with the glowing ember of a cigarette. The jury can
supply that answer.
Lest I be misunderstood, I do not imply that all safety devices available must be incorporated into
every product or that manufacturers are insurers for all injuries caused by their products. I do not suggest
that each advance in the state of the art creates a new burden for product manufacturers. I would hold
that the general acceptance by an industry of a new standard of safety, and a corresponding rise in the
expectation of consumers as to the safety of that industry's standard of safety to fall below the
community's expectations. Since the reasonableness of a product's dangerousness is defined by consumer
expectations, a design was considered safe does not become defective when the design later improves.
Thus an automobile manufactured in 1920 does not become defective merely because cars made in 1980
are designed more safely. But a car made in 1980 from a 1920 design would be unreasonably dangerous.
The plaintiff also asserts a negligence theory against each defendant. Although the negligence
theory may be superfluous because Manufacturers' Products Liability rests a lesser burden to the
plaintiff, it is still a viable theory.8 However, a negligence action is no longer necessary for plaintiff to
claim punitive damages against Phillip Morris.9
How has the majority blunted the development of Manufacturers' Products Liability in
Oklahoma?
I believe the majority opinion has not considered the role and effect chemical additives,
polymers, fire inhibiting fabrics and manufacturers' techniques play in assembling or manufacturing
products of today. A plaintiff is entitled to prove, if he can, the dangers of such items. A myriad of
products and processes are available and used or incorporated into such ordinary items as food, clothing,
materials, fabrics, hardware, etc. The use of face masks, inhalers, goggles, protective clothing, and many
other devices by firemen, police or servicing personnel gives abundant evidence actionable dangers,
unknown to former generations, exist in our homes, buildings, automobiles, aircraft and our every
surroundings.
WILSON and KAUGER, JJ., join in dissenting opinion.
1. Lam ke does not raise any error in the trial court's order dism issing the case as opposed to allowing additional am endm ents, although the record
does not contain an affirm ative election by her to stand upon the last version of the petition. Accordingly, we need not consider whether the trial
court erred in its dism issal order. Ireland v. H all, 295 P.2d 775 (O kla. 1956).
2. 397 P.2d 907 (O kl. 1965). A general dem urrer adm its the truth of the allegations of the petition. The petition m ust be liberally construed in
favor of the pleader for purposes of the dem urrer. IF the petition states any fact entitling plaintiff to any relief it is error to sustain the general
dem urrer.
3. Kirkland v. General M otors Corp., 521 P.2d 1353, 1363 (O kl. 1974).
4. Kirkland, supra.
5. Id.
6. 521 P.2d 1353, 1362-63 (O kl. 1974).
55
7. Smith v. United States Gypsum Co., 612 P.2d 251 (O kl.1980).
8. See, Kirkland, 521 P.2d at 1365.
9. Thiry v. Arm stong W orld Industries, 661 P.2d 515 (O kl. 1983).
WOODS v. FRUEHAUF TRAILER CORPORATION
765 P.2d 770 (Okla. 1988)
LAVENDER, J.:
Appellant Leonard Woods was employed by a transport company which delivered gasoline from
refineries to retailers. Woods owned his own truck but was supplied with the tanker trailer by his
employer. On the date in question in this case Woods was supplied with a tanker trailer which had been
manufactured by appellee Fruehauf Trailer Corporation. This tanker trailer has been built specifically for
the purpose of transporting materials such as gasoline. Woods' employer had added piping, valves and
hoses so that the tanker trailer could be unloaded by gravity into underground storage tanks or could be
unloaded by use of a pump into storage facilities above ground. Woods had a pump located on his truck
for use in pumping the gasoline into above ground facilities.
On the date in question Woods was ordered to pick up a load of gasoline at a refinery for
delivery to appellee Pier 51, Inc. Woods received a load of 8,504 gallons of gasoline at the refinery and
hauled the load to Pier 51's facility on Lake Keystone near Tulsa. The gasoline storage facilities
belonging to Pier 51 were above ground. The facilities consisted of three tanks, two with a capacity of
four thousand gallons and one with a three thousand gallon capacity. All three tanks were interconnected
at ground level by a one inch line equipped with gate valves so that the small tank could be used as a
reserve and gasoline could be transferred from it to the others as their levels were pumped down. The
tanks were cylindrical and placed on their sides with an upspout for loading located at the top and near
the front of the tanks. The only method provided for reaching the loading ports was a fifty-five gallon
barrel. The tanks were set on a bed of gravel.
When Woods arrived at the Pier 51 facilities he drove his truck and tanker rig to the tanks and
positioned the equipment to unload the gasoline via the truck mounted pump into the tanks. Woods was
told, however, that the man with the keys to unlock the caps on the tank upspouts was not yet at work.
Woods waited for this individual to arrive. During this period of time Woods requested gauge charts for
the tanks. These charts gave gallonage figures for incremental levels of gasoline in the tanks. Woods
was told that these charts were in the possession of the bookkeeper and no further effort was made to
provide these charts to him. When the keys to the locks on the tanks were provided to him Woods
proceeded to unload the gasoline into the tanks. Since the tanks were not equipped with any method to
determine level except by manually placing a stick down into the tank and measuring in inches, Woods
placed the discharge hose fitted with an aluminum down spout into the upspout of a tank and proceeded
to pump gasoline into the tank until he could see gasoline begin to come out of the top of the upspout. At
that point Woods would cut the engine on his truck which in turn cut the power take-off driven pump.
Woods would then close the value on his truck, and using the fifty-five gallon barrel would climb up to
remove the hose and transfer it to the next tank. By this method Woods filled both large tanks and had
proceeded to fill the small tank. The small tank filled up faster than expected and more gasoline
overflowed. Woods cut the engine and proceeded to remove the hose from the small tank. As he was
doing so gasoline on the ground underneath him ignited and Woods was severely burned in the ensuing
fire.
56
Woods and his wife brought the present action against Fruehauf Trailer Corporation on a
products liability theory alleging that the tanker trailer was unsafe for the purpose of hauling and
unloading gasoline into the above ground facilities. The action against Pier 51, Inc., was brought under
negligence theory on the allegation that Pier 51 was negligent in failing to provide Woods with a way to
measure the tank levels and in failing to inform him of problems such as the tank interconnections and in
failing to provide reasonably safe facilities. Woods also sought recovery against the manufacturer of the
pump which he used to transfer the gasoline.
The matter was tried to a jury. Following the conclusion of Woods' case, demurrers from all
defendants were sustained as against the claims brought by Woods' wife. A demurrer to the evidence
was sustained as to the manufacturer of the pump and the manufacturer was dismissed. A demurrer to
the evidence to support a claim for punitive damages was also sustained as to appellee Fruehauf. The
remaining demurrers by appellees Fruehauf and Pier 51 were overruled. At the conclusion of the trial the
court denied motions for directed verdict by both appellees. The jury subsequently returned a verdict for
Woods against Fruehauf and awarded him six million dollars in damages. The jury also found Pier 51
liable but calculated that Woods' contributory negligence in the matter was thirty percent. The jury
found Woods' damages as against Pier 51 to be six million dollars and further awarded four hundred
thousand dollars in punitive damages. Appellees subsequently moved for mistrial, for judgment N.O.V.,
for remittitur and for new trial. The trial court took these motions under advisement.
The trial court subsequently denied the motions for mistrial, for judgment N.O.V. and for
remittitur. The motions for new trial were granted as to both Fruehauf and Pier 51 on the basis that the
court had incorrectly instructed the jury concerning failure to warn as a basis for Fruehauf's liability
under products liability theory and because the court felt that the jury had failed to understand its
instructions and had rushed to verdict. These later reasons were in turn based on written questions
presented by the jury and on one observation made by the bailiff.
Appellant Woods has appealed arguing that the trial court's grants of new trial were erroneous.
Appellees Fruehauf and Pier 51 have filed cross-appeals challenging the trial court's denial of motions for
directed verdict and for judgement N.O.V.11 We shall first deal with the cross-appeals.
I.
It is well established that a motion for directed verdict or motion for judgment N.O.V. raises the
question of whether there is any evidence to support a judgment for the party against whom the motion is
made.12 In ruling on such a motion the trial court must consider as true all the evidence and all the
inferences reasonably drawn therefrom favorable to the party against whom the motion is made and any
conflicting evidence favorable to the movant must be disregarded.13
A.
Fruehauf argues that the evidence presented at trial will not support a judgment under products
liability theory because, as a matter of law, the evidence failed to establish that Fruehauf should have
equipped the tanker trailer with safety devices or that Fruehauf had a duty to warn potential users of
dangers resulting from failure to use such devices. The first argument is based on the proposition that the
tanker trailer is not a finished product and that the duty to attach safety devices would attach at a later
point in assembly of the tanker unit. The second argument is premised on the assertion that there is no
duty to warn of an obvious danger and that gasoline constitutes such a danger.
....
The definition of "unreasonably dangerous" adopted by this Court was taken from comment g to
the Restatement of Torts 2d §402A, and defines "unreasonably dangerous" as requiring that:
57
The article sold must be dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics.
Fruehauf here argues that the "ordinary consumer who purchases" a tanker trailer does not
include the general public but should be read in this case to refer to those who would purchase such a
product in the ordinary course of affairs. Fruehauf's argument is that an "ordinary consumer" of a tanker
trailer is one who would be in the business of hauling the materials which the tanker trailer is designed to
carry.
The distinction to be made regarding who constitutes an ordinary consumer of a specific product
is of important consequence. In the case of Lamke v. Futorian Corporation14 this Court stated:
Only when a defect in the product renders it less safe than expected by the ordinary
consumer will the manufacturer be held responsible.
This is particularly true in cases such as the instant case where the defect alleged is the
failure to minimize an obvious danger which is inherent in the product itself. . .
Thus if the ordinary consumer of a tanker trailer is one who is familiar with the hazards associated with
loading, transporting and unloading gasoline, an alleged "defect" may not render the product less safe
than expected where the same "defect" may render the product unsafe as to the general public. On this
point we must agree with Fruehauf that the proper definition of ordinary consumer in a products liability
action is one who would be foreseeably expected to purchase the product involved. We find this
definition to be in line with the pronouncements which declare that a manufacturer must anticipate the
forseeable uses of his product.15
In the present case Woods presented expert testimony to the effect that the tanker trailer here
involved could not be safely unloaded unless it was equipped with an automatic shutoff nozzle similar to
the type employed in ordinary use for filling gasoline tanks on automobiles. The evidence also showed
that nozzles existed which could be modified for use at the high flow rates necessary for handling
gasoline in large volumes. From this evidence Woods claims a duty has been established to require
Fruehauf to either equip its tankers with such nozzles or to warn potential consumers of the dangers of
failure to use such nozzles in unloading the tanker.
However, as indicated in Lamke v. Futorian16 the proper question here is whether the evidence
established that the failure to so equip or to warn regarding use of the tanker rendered it less safe than
expected by one who would foreseeably be using the tanker for a foreseeable purpose. Here we find that
the evidence presented in the case fails to support the judgment for Woods under products liability
theory. There is no question but that Woods was a foreseeable user and that his use of the tanker was a
foreseeable use. Woods was an experienced truck driver who at the time of the accident had been
hauling gasoline for two years and had been trained in using the tanker trailer by a more experienced
driver. Woods testified that with a conversion chart he could tell how much gasoline a receptacle tank
would hold. The evidence showed that the tanker was divided into five compartments of varying
gallonage and that the pump operated at a specific flow rate. From this evidence one inescapable
conclusion can be drawn; that if the empty volume of the receptacle tank was determined prior to the
start of unloading it could be filled without overflow by either matching the gallonage to a compartment
value, or by running the pump for a predetermined time at a known flow rate. There is no evidence to
contradict the feasibility of this procedure.
The conclusion to be drawn is that the tanker could be operated safety as equipped when put into
the flow of commerce. The safety equipment and warnings contemplated by the testimony presented by
Woods would thus appear to come within the area spoken of in Futorian as an attempt to minimize an
58
obvious danger, i.e. spillage of highly flammable liquid, inherent in the use of the product for the purpose
of transporting such a liquid. In this case the evidence that the tank could have been made "safer" does
not establish that it was less safe than would be expected by the ordinary consumer.
Where, as here, the plaintiff fails to present evidence to prove the necessary elements of an
action a motion for directed verdict should have been sustained.17 The trial court's ruling denying
appellee Fruehauf's motion for directed verdict is REVERSED.
*
*
* *
*
LAVENDER, OPALA, WILSON, SUMMERS, J.J. and BACON, S.J., concur; HARGRAVE, V.C.J.,
concurs in Part A; dissents in Part B; HANSEN, S.J., concurs in Part B; dissents in Part A; SIMMS, J.,
dissents - I would affirm the action of this trial court in granting each defendant's motion for new trial.
HODGES, J., disqualified; KAUGER, J., rescued.
_____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____
11.
Appellees have also alleged error in the trial court's failure to sustain their dem urrers to the evidence presented in W oods' case in chief.
Any error on this point was waived when both appellees subsequently presented evidence in support of their defenses. M essler v. Sim m ons Gun
Specialties, Inc., 687 P.2d 121, 130 (O kla. 1984).
12.
M oses v. H aney, 725 P.2d 866 (O kla. 1986); G owins v. M errell, 541 P.2d 857 (O kla. 1975); Sadler v. T. J. H ughes Lum ber Co., Inc.,
537 P.2d 454 (O kla. App. 1975).
13.
M essler v. Sim m ons Gun Specialties, Inc., supra, note 1; M oses v. H aney, supra, note 2.
14.
709 P.2d 684, 686 (O kla. 1985).
15.
Sm ith v. U .S. Gym sum Co., 612 P.2d 251 (O kla. 1980); Fields v. Volkswagen of Am erica, Inc., 555 P.2d 48 (O kla. 1976).
16.
Supra, note 5.
17.
D avis v. City of H enryetta, 402 P.2d 902 (O kla. 1965).
GAINES-TABB v. I.C.I. Explosives, U.S.A, Inc.
United States Court of Appeals, Tenth Circuit, 1998
160 F.3d 613
Before SEYMOUR, Chief Judge, and EBEL and BRISCOE, Circuit Judges.
EBEL, Circuit Judge
Individuals injured by the April 19, 1995, bombing of the Alfred P. Murrah Federal Building
("Murrah Building") in Oklahoma City, Oklahoma, filed suit against the manufacturers of the ammonium
nitrate allegedly used to create the bomb. The plaintiffs' complaint set forth theories of negligence,
negligence per se, negligent entrustment, negligent infliction of emotional distress, intentional infliction
of emotional distress, manufacturers' products liability, ultrahazardous or abnormally dangerous activity,
and fraud and deceit. The district court dismissed the complaint for failure to state a claim upon which
relief may be granted, and the plaintiffs appealed. We affirm
Specifically, we hold that: plaintiffs cannot state a claim for negligence or negligence per se
because they cannot show, as a matter of law, that defendants' conduct was the proximate cause of their
59
injuries; they cannot state a claim for negligence per se under one of the state statutes at issue because
ammonium nitrate is not an "explosive" covered by the statute; they cannot state a claim for
manufacturers' products liability because there is no adequate allegation that the product at issue was
unreasonably dangerous due either to a defective design or a failure to warn; and their remaining claims
are waived for failure to argue them on appeal.
*619 BACKGROUND
On April 19, 1995, a massive bomb exploded in Oklahoma City and destroyed the Murrah Building,
causing the deaths of 168 people and injuries to hundreds of others. On May 10, 1995, plaintiffs filed this
diversity action, on behalf of themselves and all persons who incurred personal injuries during, or may claim
loss of consortium or wrongful death resulting from, the bombing, against ICI Explosives ("ICI"), ICI's parent
company, Imperial Chemical Industries, PLC, and another of Imperial Chemical's subsidiaries, ICI Canada.
[FN1]
FN1. Imperial Chemical Industries, PLC and ICI Canada were allowed to join in ICI's motion to
dismiss after ICI's motion had been granted. On this basis, the district court dismissed Imperial
Chemical Industries, PLC and ICI Canada without any particularized discussion of their separate
roles. Because none of the parties sought to differentiate among the three defendants in this appeal,
we proceed without discussing any potentially separate allegations against the various defendants.
ICI manufactures ammonium nitrate ("AN"). Plaintiffs allege that AN can be either "explosive grade" or
"fertilizer grade." According to plaintiffs, "explosive-grade" AN is of low density and high porosity so it will
absorb sufficient amounts of fuel or diesel oil to allow detonation of the AN, while "fertilizer-grade" AN is
of high density and low porosity and so is unable to absorb sufficient amounts of fuel or diesel oil to allow
detonation.
Plaintiffs allege that ICI sold explosive-grade AN mislabeled as fertilizer- grade AN to Farmland
Industries, who in turn sold it to Mid-Kansas Cooperative Association in McPherson, Kansas. Plaintiffs
submit that a "Mike Havens" purchased a total of eighty 50-pound bags of the mislabeled AN from MidKansas. According to plaintiffs, "Mike Havens" was an alias used either by Timothy McVeigh or Terry
Nichols, the two men tried for the bombing. Plaintiffs further allege that the perpetrators of the Oklahoma
City bombing used the 4000 pounds of explosive-grade AN purchased from Mid-Kansas, mixed with fuel
oil or diesel oil, to demolish the Murrah Building.
Plaintiffs' Third Amended Complaint presented theories of negligence, negligence per se, negligent
entrustment, negligent infliction of emotional distress, intentional infliction of emotional distress,
manufacturers' products liability, strict liability for ultrahazardous or abnormally dangerous activity, and
fraud and deceit. In an extensive opinion, the district court granted ICI's motion to dismiss the complaint for
failure to state a claim upon which relief could be granted. See Gaines-Tabb v. ICI Explosives USA, Inc.,
995 F.Supp. 1304 (W.D.Okla. July 2, 1996). Imperial Chemical and ICI Canada subsequently moved to join
ICI's motion to dismiss. Plaintiffs did not oppose Imperial Chemical/ICI Canada's motion to join. The
district court granted the motion and dismissed the action as to all defendants. Plaintiffs appeal.
ANALYSIS
. . . . [w]e conclude that Oklahoma courts would apply Oklahoma law to the claims in this case.
I. Negligence
Plaintiffs allege that ICI was negligent in making explosive-grade AN available to the perpetrators
of the Murrah Building bombing. Under Oklahoma law, the three essential elements of a claim of negligence
are: "(1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly perform
that duty, and (3) the plaintiff's injury being proximately caused by the defendant's breach." Lockhart v.
Loosen, 943 P.2d 1074, 1079 (Okla.1997). The district court held that ICI did not have a duty to protect
plaintiffs and that ICI's actions or inactions were not the proximate cause of plaintiffs' injuries. Although
causation is generally a question of fact, "the question becomes an issue of law when there is no evidence
from which a jury could reasonably find the required proximate, causal nexus between the careless act and
60
the resulting injuries," Henry v. Merck and Co., 877 F.2d 1489, 1495 (10th Cir.1989). Because we determine
that there is a failure of causation as a matter of law, we need not discuss whether under Oklahoma law
defendants owed plaintiffs a duty of care.
"[W]hether the complained of negligence is the proximate cause of the plaintiff's injury is dependent
upon the harm (for which compensation is being sought) being the result of both the natural and probable
consequences of the primary negligence." Lockhart, 943 P.2d at 1079 (emphasis omitted). Under Oklahoma
law, "the causal nexus between an act of negligence and the resulting injury will be deemed broken with the
intervention of a new, independent and efficient cause which was neither anticipated nor reasonably
foreseeable." Minor v. Zidell Trust, 618 P.2d 392, 394 (Okla.1980). Such an intervening cause is known
as a "supervening cause." Id. To be considered a supervening cause, an intervening cause must be: (1)
independent of the original act; (2) adequate by itself to bring about the injury; and (3) not reasonably
foreseeable. See id.; Henry, 877 F.2d at 1495. "When the intervening act is intentionally tortious or
criminal, it is more likely to be considered independent." Id.
"A third person's intentional tort is a supervening cause of the harm that results--even if the actor's
negligent conduct created a situation that presented the opportunity for the tort to be committed--unless the
actor realizes or should realize the likelihood that the third person might commit the tortious act." Lockhart,
943 P.2d at 1080 (quotation and emphasis omitted). If "the intervening act is a reasonably foreseeable
consequence of the primary negligence, the original wrongdoer will not be relieved of liability." Id. at 1079
(emphasis omitted). "In determining questions relating to the foreseeability element of proximate cause, the
courts have uniformly applied what might be termed a practical, common sense test, the test of common
experience." 57A Am.Jur.2d Negligence § 489 (1989).
Oklahoma has looked to the Restatement (Second) of Torts § 448 for assistance in determining
whether the intentional actions of a third party constitute a supervening cause of harm. See Lay v. Dworman,
732 P.2d 455, 458-59 (Okla.1986). Section 448 states:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to
another resulting therefrom, although the actor's negligent conduct created a situation which afforded an
opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent
conduct realized or should have realized the likelihood that such a situation might be created, and that a
third person might avail himself of the opportunity to commit such a tort or crime.
Comment b to § 448 provides further guidance in the case before us. It states:
There are certain situations which are commonly recognized as affording temptations to which a
recognizable percentage of humanity is likely to yield. So too, there are situations which create temptations
to which no considerable percentage of ordinary mankind is likely to yield but which, *621 if they are
created at a place where persons of peculiarly vicious type are likely to be, should be recognized as likely
to lead to the commission of fairly definite types of crime. If the situation which the actor should realize
that his negligent conduct might create is of either of these two sorts, an intentionally criminal or tortious
act of the third person is not a superseding cause which relieves the actor from liability. [FN2]
FN2. See also Restatement (Second) of Torts, § 442 for considerations important in determining
whether an intervening force is a superseding cause.
Thus, under comment b, the criminal acts of a third party may be foreseeable if (1) the situation
provides a temptation to which a "recognizable percentage" of persons would yield, or (2) the temptation is
created at a place where "persons of a peculiarly vicious type are likely to be." There is no indication that
a peculiarly vicious type of person is likely to frequent the Mid-Kansas Co-op, so we shall turn our attention
to the first alternative.
We have found no guidance as to the meaning of the term "recognizable percentage" as used in §
448, comment b. However, we believe that the term does not require a showing that the mainstream
population or the majority would yield to a particular temptation; a lesser number will do. Equally, it does
not include merely the law-abiding population. In contrast, we also believe that the term is not satisfied by
61
pointing to the existence of a small fringe group or the occasional irrational individual, even though it is
foreseeable generally that such groups and individuals will exist.
We note that plaintiffs can point to very few occasions of successful terrorist actions using
ammonium nitrate, in fact only two instances in the last twenty-eight years--a 1970 bombing at the University
of Wisconsin-Madison and the bombing of the Murrah Building. [FN3] Due to the apparent complexity of
manufacturing an ammonium nitrate bomb, including the difficulty of acquiring the correct ingredients (many
of which are not widely available), mixing them properly, and triggering the resulting bomb, only a small
number of persons would be able to carry out a crime such as the bombing of the Murrah Building. We
simply do not believe that this is a group which rises to the level of a "recognizable percentage" of the
population. Cf. Restatement (Second) of Torts § 302B, cmt. d (1965) ("Even where there is a recognizable
possibility of the intentional interference, the possibility may be so slight, or there may be so slight a risk of
foreseeable harm to another as a result of the interference, that a reasonable man in the position of the actor
would disregard it.").
FN3. In the complaint, Plaintiffs allege in a general way the detonation of AN fertilizer bombs in
"Europe and especially Northern Ireland" prior to 1970 and the unsuccessful attempt in the United
States to use AN to bomb certain facilities in New York.
As a result, we hold that as a matter of law it was not foreseeable to defendants that the AN that they
distributed to the Mid-Kansas Co-op would be put to such a use as to blow up the Murrah Building. Because
the conduct of the bomber or bombers was unforeseeable, independent of the acts of defendants, and
adequate by itself to bring about plaintiffs' injuries, the criminal activities of the bomber or bombers acted
as the supervening cause of plaintiffs' injuries. Because of the lack of proximate cause, plaintiffs have failed
to state a claim for negligence.
....
III. Manufacturers' products liability
Plaintiffs assert that ICI is strictly liable for manufacturing a defective product. We read their complaint
as alleging both that the AN was defectively designed because, as designed, it was more likely to provide
explosive force than an alternative formula, and that ICI failed to issue adequate warnings to MidKansas that
the AN was explosive grade rather than fertilizer grade so that Mid-Kansas could take appropriate
precautions in selling the AN.
"In Oklahoma, a party proceeding under a strict products liability theory--referred to as
manufacturer's products liability--must establish three elements: (1) that the product was the cause of the
injury, (2) that the defect existed in the product at the time it left the manufacturer, retailer, or supplier's
control, and (3) that the defect made the product unreasonably dangerous." Daniel v. Ben E. Keith Co., 97
F.3d 1329, 1332 (10th Cir.1996) (citing Kirkland v. General Motors Corp., 521 P.2d 1353, 1363
(Okla.1974)). "Unreasonably dangerous" means "dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics." Kirkland, 521 P.2d at 1362-63; see also Restatement (Second) of Torts
§ 402A cmt. I (1965). A product may be unreasonably dangerous because it is defectively designed or
manufactured, or because it is not accompanied by the proper warnings regarding use of the product. See
Holt v. Deere & Co., 24 F.3d 1289, 1292 (10th Cir.1994); Attocknie v. Carpenter Mfg., Inc., 901 P.2d 221,
227 (Okla.App.1995).
As the basis of their defective design claim plaintiffs contend that ICI could have made the AN safer
by using an alternate formulation or incorporating additives to prevent the AN from detonating. Plaintiffs'
suggestion that the availability of alternative formulas renders ICI strictly liable for its product contradicts
Oklahoma law. "Apparently, the plaintiff would hold the manufacturer responsible if his product is not as
safe as some other product on the market. That is not the test in these cases. Only when a defect in the
product renders it less safe than expected by the ordinary consumer will the manufacturer be held
responsible." Lamke v. Futorian Corp., 709 P.2d 684, 686 (Okla.1985); see also Woods v. Fruehauf Trailer
62
Corp., 765 P.2d 770, 775 (Okla.1988) ("[T]he evidence that the tank could have been made 'safer' does not
establish that it was less safe than would be expected by the ordinary consumer."); Armijo v. Ex Cam, Inc.,
656 F.Supp. 771, 773 (D.N.M. Feb.6, 1987) ("The mere fact that a product is capable of being misused to
criminal ends does not render the product defective."), aff'd, 843 F.2d 406, 407 (10th Cir.1988). The
"ordinary consumer" is "one who would be foreseeably expected to purchase the product involved." Woods,
765 P.2d at 774. As plaintiffs acknowledge, the ordinary consumer of AN branded as fertilizer is a farmer.
There is no indication that ICI's AN was less safe than would be expected by a farmer. [FN10] See Duane
v. Oklahoma *625 Gas & Elec. Co., 833 P.2d 284, 286 (Okla.1992) ("A product is not defective when it is
safe for normal handling and consumption....").
FN10. We recognize that Oklahoma has indicated that manufacturers' products liability principles
extend to protect bystanders. See Moss v. Polyco, Inc., 522 P.2d 622, 626 (Okla.1974). The
bystander plaintiff, however, must still prove that the product was less safe than expected by an
"ordinary consumer" of the product. See Karns v. Emerson Elec. Co., 817 F.2d 1452, 1457 (10th
Cir.1987) (interpreting Oklahoma law).
Similarly, plaintiffs have failed to state a claim regarding ICI's alleged failure to warn Mid-Kansas
that the AN was explosive grade rather than fertilizer grade. "Under Oklahoma law, a manufacturer may
have a duty to warn consumers of potential hazards which occur from the use of its product." Rohrbaugh v.
Owens-Corning Fiberglas Corp., 965 F.2d 844, 846 (10th Cir.1992) (citing McKee v. Moore, 648 P.2d 21,
23 (Okla.1982)). If the manufacturer does not fulfill this duty, the product may be unreasonably dangerous.
See Karns v. Emerson Elec. Co., 817 F.2d 1452, 1457 (10th Cir.1987); Steele v. Daisy Mfg. Co., 743 P.2d
1107, 1108-09 (Okla.App.1987); Smith v. United States Gypsum Co., 612 P.2d 251, 253-54 (Okla.1980).
Interpreting Oklahoma law, this court has held that the duty to warn extends only to "ordinary consumers and
users of the products." See Rohrbaugh, 965 F.2d at 846; see also Woods, 765 P.2d at 774. Under this
rationale, defendants had no duty to warn the suppliers of its product of possible criminal misuse. See Port
Authority of N.Y. and N.J. v. Arcadian Corp., 991 F.Supp. 390, 408-10 (D.N.J. Dec.19, 1997) (under New
York and New Jersey law, manufacturers of ammonium nitrate had no duty to warn distributors, retailers,
dealers, or other suppliers of possibility that product could be criminally misused).
IV. Remaining Issues
In their opening brief, plaintiffs did not argue why we should reverse the dismissal of their claims
for negligent entrustment, negligent infliction of emotional distress, intentional infliction of emotional
distress, ultrahazardous or abnormally dangerous activity, or fraud and deceit. Instead, at the end of their
brief plaintiffs attempt to adopt all arguments made in the district court for any issues they did not
specifically address on appeal. As we have discussed, adopting arguments made in trial court filings is not
acceptable appellate argument. Consequently, we consider plaintiffs' objections to the district court's rulings
on these issues to be waived.
CONCLUSION
We AFFIRM the dismissal of plaintiffs' complaint for failure to state a claim upon which relief may
be granted.
Delaney v. Deere & Co.
999 P.2d 930 (KA 2000)
Syllabus by the Court
In a products liability action, the United States Court of Appeals for the Tenth Circuit,
Stephanie K. Seymour, C.J., certified two questions to the Supreme Court. In answer to the certified
questions we hold: (1) K.S.A. 60-3305(c) applies only to a manufacturer's duty to warn and (2)
Kansas does not follow the portion of Comment j of the Restatement (Second) of Torts § 402A
63
which provides that a product bearing an adequate warning is not in defective condition. While
Kansas agrees that an adequate warning does not foreclose a finding that a product is defectively
designed, it does not adopt Comment l of the Restatement (Third) of Torts § 2.
DAVIS, J.:
The United States Court of Appeals for the Tenth Circuit certifies two questions to this court
in connection with a products liability lawsuit filed by Gene Delaney against Deere and Company
and John Deere Limited (Deere). Delaney sued Deere for injuries he received when a large round
hay bale fell from a homemade bale fork attached to a Deere front-end loader that Delaney was
operating, crushing him. The district court granted summary judgment in favor of Deere. Delaney
appealed and on its own motion, the Tenth Circuit Court of Appeals certified two questions to this
court concerning the manufacturer's duty to warn of obvious dangers and the legal effect of an
adequate warning.
Certified Questions:
1. Does K.S.A. 60-3305(c) apply to a manufacturer's duty to warn or protect against hazards on a
multiple use product, or only to the duty to warn, as implied by Siruta?
2. Does Kansas follow the portion of Comment j of the Restatement (Second) of Torts § 402A, which
provides that a product bearing an adequate warning is not in defective condition, or instead, would
Kansas now adopt Comment l [of the Restatement (Third) of Torts § 2], which provides that an
adequate warning does not foreclose a finding that a product is defectively designed?
The Certification of State Law Question Order from the Tenth Circuit is set forth in full:
"Plaintiff-appellant Gene Delaney appeals the district court's grant of summary judgment to
defendants-appellees Deere and Company and John Deere Limited ('Deere'). The district court
dismissed Mr. Delaney's product liability claims on the basis that Kan. Stat. Ann. § 60-3305(c)
(1994), does not require a manufacturer to either warn or protect against hazards that are open and
obvious, and that Restatement (Second) of Torts § 402A comment j establishes as a matter of law
that an adequate warning precludes a finding that a product is in defective condition. For the reasons
stated herein, we certify the following questions to the Supreme Court of Kansas and retain appellate
jurisdiction:
"Does Kan. Stat. Ann. § 60-3305(c) apply to a manufacturer's duty to warn or protect
against hazards on a multiple use product, or only to the duty to warn, as implied by
Siruta?
"Does Kansas follow the portion of comment j of the Restatement (Second) of Torts
§ 402A, which provides that a product bearing an adequate warning is not in
defective condition, or instead, would Kansas now adopt comment l, which provides
that an adequate warning does not foreclose a finding that a product is defectively
designed?
"Background
"Mr. Delaney seeks recovery of damages for personal injuries he sustained when a large
hay bale fell on him while he was operating a tractor with a front-end loader designed and
manufactured by Deere. Mr. Delaney claims the design of the tractor/loader was defective and
64
unreasonably dangerous and was not accompanied by adequate warnings.
"Mr. Delaney began using the tractor at issue in 1971 and purchased it in 1978 for use in
his oil field business. He purchased the loader at issue in 1979 for the same use. The loader has
the following warning, which he read and understood at the time of purchase:
'WARNING
'To Prevent Bodily Injury
'1. Do not handle round bales with loader unless special John Deere round bale clamp is
installed. Without clamp, bale can fall on operator when loader is raised.'
"At the time, Mr. Delaney was not in a business involving handling round bales. He does
not remember re-reading the warning in 1990 when he returned to farming. Beginning in 1990,
he sometimes moved round bales using the front-end loader with homemade bale forks nearly
identical to those sold by Deere dealers. In doing so, he did not use the bale clamp mentioned in
the warning, but instead lifted the bales a foot and a half off the ground with the loader. Despite
the warning, Mr. Delaney alleges that this was a known and recognized farming practice.
"On the day of the accident, Mr. Delaney was moving bales using the bale fork on the
front-end loader. As he drove the tractor in reverse, looking backward over his shoulder, one of
the tractor's tires hit a stone post. The loader then rose in the air from its low position, and the
hay bale fell on him. Mr. Delaney asserts that, at the time of the accident, his hand was on a
different control lever than that used to raise the loader. He remembers this because the lever he
used did not have a knob on it as did the levers for the loader. Thus, he believes that he did not
accidentally cause the loader to rise.
"Mr. Delaney's expert, John Sevart, testified in his deposition that the loader could not
have risen by itself without Mr. Delaney activating the control lever. However, Mr. Sevart
submitted a supplemental report on May 14, 1997, after the deadline to file expert reports, which
contradicted his deposition testimony. He wrote this report after he learned that, unknown to Mr.
Delaney, the loader on Mr. Delaney's tractor had risen on its own on two prior occasions.
Kenneth Rupp and Frank Smith revealed this information in their depositions on April 9, 1997.
Deere filed its summary judgment motion on June 27, 1997.
"After large round bales were introduced in 1972, Deere designed and marketed special
equipment to eliminate the risk of injury from bale drops or rolldowns. This equipment included
the bale clamp described in the warning, as well as a bale fork and a bale hugger. Because the
tractor and loader at issue are multiple use products and are used for much more than hauling
large round bales, Deere did not make such equipment a standard attachment to its loaders.
"Discussion
"A.
....
The district court held that, under Kan. Stat. Ann. § 60- 3305(c), a manufacturer has no
duty to protect against patent, open, or obvious risks. Section 60-3305 provides:
'In any product liability claim any duty on the part of the manufacturer or seller of
the product to warn or protect against a danger or hazard which could or did arise
65
in the use or misuse of such product, and any duty to have properly instructed in
the use of such product shall not extend: (a) To warnings, protecting against or
instructing with regard to those safeguards, precautions and actions which a
reasonable user or consumer of the product, with the training, experience,
education and any special knowledge the user or consumer did, should or was
required to possess, could and should have taken for such user or consumer or
others, under all the facts and circumstances;
'(b) to situations where the safeguards, precautions and actions would or should
have been taken by a reasonable user or consumer of the product similarly situated
exercising reasonable care, caution and procedure; or
'(c) to warnings, protecting against or instructing with regard to dangers, hazards
or risks which are patent, open or obvious and which should have been realized by
a reasonable user or consumer of the product.'
....
"The district court also held that Restatement (Second) of Torts § 402A comment j bars
Mr. Delaney's claims. The portion of comment j upon which the court relied provides: 'Where
warning is given, the seller may reasonably assume that it will be read and heeded; and a product
bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is
it unreasonably dangerous.' The district court found that, had the warning been followed by Mr.
Delaney (i.e., had he used the bale clamp), the loader would have been safe for use, and thus
concluded that the loader was neither in defective condition nor unreasonably dangerous.
"The portion of comment j at issue has never been explicitly adopted by a state court in Kansas,
although this Court in Wheeler v. John Deere Co., 862 F.2d 1404, 1413 (10th Cir.1988), implied
that when Kansas adopted § 402A in Brooks v. Dietz, [218 Kan. 698] 545 P.2d 1104, 1108
(Kan.1976), all of the comments of § 402A were adopted as well.
"The recent Restatement (Third) of Torts: Products Liability § 2, promulgated in 1997,
takes issue with the contested portion of § 402A comment j. The reporters refer to the
'unfortunate language' of the comment and state that the comment 'is inconsistent with the
judicial abandonment of the patent danger rule and with those cases that take the position that a
warning will not absolve the manufacturer from the duty to design against dangers when a
reasonable, safer design could have been adopted that would have reduced or eliminated the
residuum of risk that remains even after a warning is provided.'
"Reporters' Note to § 2, cmt. d, Part IV.D. Comment l of § 2 states that '[w]arnings are not
... a substitute for the provision of a reasonably safe design.'
"Because no Kansas court has directly addressed this conflict between comment j of §
402A and comment l of § 2, we are reluctant to encroach upon Kansas' authority to determine its
citizens' rights and remedies by opining about the authority that either provision carries."
Accordingly, the 10th Circuit Court of Appeals certified the above questions to this court
pursuant to K.S.A. 60-3201.
1. Does K.S.A. 60-3305(c) apply to a manufacturer's duty to warn or protect against
hazards on a multiple use product, or only to the duty to warn, as implied by Siruta?
[1] As noted by the 10th Circuit Court of Appeals, Kansas law recognizes three ways in which a
product may be defective: (1) a manufacturing defect; (2) a warning defect; and (3) a design
66
defect. See Savina v. Sterling Drug, Inc., 247 Kan. 105, 114, 795 P.2d 915 (1990). The first
certified question considers whether K.S.A. 60-3305(c) applies to all three types of defective
product claims or only to the duty to warn.
In its grant of summary judgment to Deere, the district court first relied upon the pertinent
provisions of K.S.A. 60-3305:
"In any product liability claim any duty on the part of the manufacturer or seller of
the product to warn or protect against a danger or hazard which could or did arise
in the use or misuse of such product, and any duty to have properly instructed in
the use of such product shall not extend:
....
(c) to warnings, protecting against or instructing with regard to dangers, hazards
or risks which are patent, open or obvious and which should have been realized by
a reasonable user or consumer of the product." (Emphasis added.)
The district court reasoned that K.S.A. 60-3305 specifies "any duty to warn or protect,"
and that "the statute provides that when its stated conditions are met with adequate warnings, the
defendant [Deere] has neither a duty to warn or to protect against dangers." The district court
granted judgment to Deere because according to its interpretation of K.S.A. 60-3305(c) the "
duties of a 'manufacturer" do not include warning or safeguarding against patent, open, or
obvious risks which a reasonable user should have realized.
Delaney argues that K.S.A. 60-3305(c) applies to a duty to warn. According to Delaney,
while Deere cannot be liable for failure to warn of a patent, open, or obvious danger, Deere may
still be liable for a design or manufacturing defect even though the danger caused by that defect
may be patent, open, or obvious.
The first certified question dealing with the application and scope of K.S.A. 60-3305(c) is
one of statutory interpretation.
....
K.S.A. 60-3305 is not a model of clarity. It provides that any duty on the part of the
manufacturer shall not extend "to warnings, protecting against or instructing with regard to
dangers, hazards or risks which are patent, open or obvious and which should have been realized
by a reasonable user or consumer of the product." Delaney argues that the phrase "protecting
against or instructing with regard to" modifies the word "warnings." Accordingly, K.S.A.
60-3305(c) provides that a manufacturer or seller has no duty to give a warning which protects
against or a warning which instructs with regard to a patent, open, or obvious danger. Deere,
however, pointing to the introductory language in K.S.A. 60-3305, argues that subsection (c)
provides three alternatives--a manufacturer or seller has no duty to warn of obvious danger, to
protect against obvious danger, or to instruct with regard to obvious danger.
The language used by the legislature in K.S.A. 60-3305 has caused confusion among
courts and legal commentators alike.
Does K.S.A. 60-3305(c) apply only to warnings defects or does it apply more broadly to
warnings, design, and manufacturing defects? Other than a general recognition that the KPLA
was patterned after the Model Uniform Product Liability Act (MUPLA), 44 Fed.Reg. 62,714 et
seq. (1979), Kansas legislative history provides little help in the interpretation of K.S.A. 60-3305.
However, based upon an analysis of the statute with existing case law and a consideration of
67
provisions of the MUPLA, we are able to conclude that the legislature intended that K.S.A.
60-3305(c) apply to warnings only.
An interpretation limiting K.S.A. 60-3305(c) to warnings is supported by the express
provisions of the statute. Had the legislature intended for the phrase "warnings, protecting against
or instructing with regard to" to list three alternatives, the correct phrase would have been
"warning, protecting against or instructing" rather than the plural "warnings" used. The use of
"warning" singular would have made "warning" an adverb, as in "protecting against" and
"instructing" rather than a noun, as the word "warnings" is. If the word "warnings" is merely one
of three alternatives, the statute should then make sense if the other two alleged alternatives
"protecting against or instructing with regard to" are removed. However, when treated in that
fashion, the phrase states that a manufacturer's or seller's duty shall not extend to "warnings ...
dangers, hazards or risks" and makes little, if any, sense. Moreover, the legislature already used
the phrase "warn or protect" in K.S.A. 60-3305. Had the legislature intended for the phrase in
K.S.A. 60-3305(c) "warnings, protecting against or instructing with regard to" to encompass three
alternatives, the language would be redundant.
It is generally understood that the duty to warn encompasses two separate duties; the duty
to provide a warning to dangers inherent in use and the duty to provide adequate instructions for
safe use. See 3 American Law of Products Liability 3d, § 32.20. This general understanding
supports the conclusion that "protecting against or instructing with regard to" modifies warnings,
making it clear that it applies to both the duty to protect the consumer by warning of dangers and
instructing with regard to use.
A second reason for our decision that K.S.A. 60-3305(c) applies only to warnings hinges
on the language employed in the statute as compared to the other statutes that make up the KPLA,
K.S.A. 60-3301 et seq. The KPLA was enacted in 1981 and is based on the MUPLA. See Patton
v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. at 756, 861 P.2d 1299. In Patton, we noted that the
purpose of the KPLA was "to limit the rights of plaintiffs to recover in product liability suits
generally and to judge a product for an alleged defect only when it is first sold." 254 Kan. at 752,
869 P.2d 606.
In order to achieve that purpose, the KPLA contains provisions which limit in different
ways the ability of a plaintiff to recover. K.S.A. 60- 3303 provides that a product seller "shall not
be subject to liability" for harm caused after the "useful safe life" of the product has expired.
K.S.A. 60-3304 provides that a product is "not defective" under certain circumstances where it
was in compliance with regulatory standards when manufactured. K.S.A. 60-3306 provides that a
seller "shall not be subject to liability" under circumstances set forth. In contrast to these express
provisions for nonliability and nondefectiveness, K.S.A. 60-3305 covers only instances where the
duty of the manufacturer does not extend. Had the legislature intended to completely foreclose
the responsibility of the manufacturer to take any steps whatsoever to protect the consumer
against a patent, open, and obvious defect, it is difficult to believe that it would not have clearly
stated this intention as it did in other provisions of the Act.
Deere argues that because the purpose of the KPLA is to restrict the rights of plaintiffs to
recover, K.S.A. 60-3305 should be read consistent with that purpose as a broad restriction. We do
not agree. It is true that one of the purposes of the KPLA is to restrict the ability of plaintiffs to
recover. However, both Delaney's and Deere's interpretations of K.S.A. 60-3305(c) serve this
68
purpose by restricting the ability of plaintiffs to recover for dangers which are patent, open, or
obvious. The difference is merely one of degree.
Moreover, the MUPLA states that its goals are to "provide a fair balance of the interests
of both product users and sellers and to eliminate existing confusion and uncertainty about their
respective legal rights and obligations." 44 Fed.Reg. at 62,716. It further states that "[t]he
fulfillment of these goals should help, first, to assure that persons injured by unreasonably unsafe
products will be adequately compensated for their injuries and, second, to make product liability
insurance more widely available and affordable, with greater stability in rates and premiums." 44
Fed.Reg. at 62,716. The interpretation advanced by Deere would create an imbalance and
frustrate the goals of the MUPLA.
Applying K.S.A. 60-3305(c) to manufacturing and design defects is contrary to a
common-sense reading of the statute and is contrary to the espoused philosophy underlying the
MUPLA which provided some of the rationale for the Kansas Legislature to adopt the KPLA. See
Patton, 253 Kan. at 756, 861 P.2d 1299. Adopting an interpretation that would foreclose any
action where a danger is open and obvious goes far beyond providing a fair balance of the
interest of both product users and sellers. Rather, such an interpretation would tend to discourage
product safety by allowing manufacturers and sellers to market products with open and obvious
dangers to the consumer where a defect is capable of reasonable correction. We are convinced
that if the legislature had meant to turn its back on the modern rule and categorically eliminate
any duty on the part of the manufacturer to safeguard against open and obvious dangers, it would
have done so in a more explicit manner than the language used in K.S.A. 60-3305(c).
The conclusion that K.S.A. 60-3305(c) applies to warning claims makes sense when
considered in the above context. As noted by the MUPLA, "a manufacturer should be able to
assume that the ordinary product user is familiar with obvious hazards--that knives cut, that
alcohol burns, that it is dangerous to drive automobiles at high speed." 44 Fed.Reg. at 62,725.
The vast majority of states addressing the issue have found this to be a well-reasoned rule.
....
This interpretation is also consistent with our rejection of the open and obvious danger
rule in Siruta. In that case, we emphasized that "[s]imply because the hazard on a piece of
equipment is open and obvious does not prevent it from being dangerous to the operator or
consumer." 232 Kan. at 664, 659 P.2d 799. The view that a manufacturer has no liability for a
danger which is open and obvious is contrary to the modern rule that in a case alleging defective
design, the obviousness of the product's danger is merely one factor to consider in the analysis of
whether a particular design is reasonable. See 2 American Law of Products Liability 3d § 28:82.
Although still recognized in a few jurisdictions, the open and obvious rule barring recovery in a
design defect case has much less support nationally.
....
We understand Deere's assertion that the legislature's use of the phrase "warn or protect"
in the introductory portion of K.S.A. 60-3305 signifies an intent that all three subsections include
the two separate duties to warn and to protect. The 10th Circuit Court of Appeals highlighted this
argument in its certification order by stating:
"We are thus left with the difficulty of how to reconcile the introductory
paragraph of § 60-3305, which refers to any duty 'to warn or protect against' a
danger, with .... [t]he interpretation ... that § 60- 3305(c) only applies to a duty to
69
warn [which] seems to render meaningless the phrase 'or protect against,'...
contrary to 'the elementary canon of construction that a statute should be
interpreted so as not to render one part inoperative.' "
While reconciliation of these seemingly disparate sections of the K.S.A. 60-3305 is
difficult, we must observe that the canon of construction referred to above is subject to the more
fundamental canon that the intent of the legislature governs where it can be ascertained. The
plain language of K.S.A. 60-3305(c) signifies an intent to limit its application to warnings.
Adoption of the construction suggested by Deere would render much of the language used in the
subsection redundant and unnecessary. Moreover, the language used by the legislature in K.S.A.
60-3305 is inconsistent with language used in other statutes where the legislature's purpose was
to completely exempt manufacturers and sellers from liability. In context and consistent with
existing law, we believe that legislative intent of K.S.A. 60-3305(c) was to limit its application to
warnings only.
For the above reasons, we conclude that K.S.A. 60-3305(c) applies only to warnings. As
noted in Siruta, "[t]he fact that the danger is patent and obvious may be an important factor in
determining whether plaintiff's fault contributed to his own injury" but such is not a statutory bar
under the provisions of K.S.A. 60-3305(c). See 232 Kan. at 664, 659 P.2d 799.
(2) Does Kansas follow the portion of Comment j of the Restatement (Second) of Torts §
402A, which provides that a product bearing an adequate warning is not in defective condition, or
instead, would Kansas now adopt Comment l of the Restatement (Third) of Torts § 2, which
provides that an adequate warning does not foreclose a finding that a product is defectively
designed?
We turn now to the question of whether Kansas law follows the portion of Comment j of
the Restatement (Second) of Torts § 402A, which provides that a product bearing an adequate
warning is not in defective condition, or whether Kansas instead would adopt Comment l of the
Restatement (Third) of Torts § 2 (1997), which provides that an adequate warning does not
foreclose a finding that a product is defectively designed. A complete answer to this second
question involves consideration of Kansas law in relation to the Restatement (Second)of Torts §
402A and the Restatement (Third) of Torts § 2.
Kansas Law and Comment j, Restatement (Second) of Torts § 402A.
Does Kansas follow the following italicized portion of Comment j to the Restatement
(Second) of Torts § 402A: "Where warning is given, the seller may reasonably assume that it will
be read and heeded; and a product bearing such a warning, which is safe for use if it is followed,
is not in defective condition, nor is it unreasonably dangerous "?
Deere observes that this court has previously embraced a portion of Comment j in
Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038 (1984), and argues that
given the opportunity this court would adopt Comment j in its entirety.
Wooderson was a strict products liability action against Ortho Pharmaceutical
Corporation for harm caused by claimant's ingestion over a period of years of the oral
contraceptive Ortho-Novum 1/80. Among other issues raised on appeal, we resolved the question
regarding causation by relying on a portion of Comment j, Restatement (Second) of Torts § 402A:
70
" 'Comment j [to § 402A] provides a presumption that an adequate warning would
be heeded. This operates to the benefit of a manufacturer where adequate
warnings in fact are given. Where warnings are inadequate, however, the
presumption is in essence a presumption of causation.' (Citation omitted.)." 235
Kan. at 410, 681 P.2d 1038.
A critical distinction between the case we now consider and Wooderson is that the
Wooderson claim arose within the context of Comment k of the Restatement (Second) of Torts §
402A instead of Comment j. Comment k involves a product which is faultlessly designed and
manufactured but nevertheless unreasonably dangerous within the meaning of § 402A if not
accompanied by proper warnings. See Restatement (Second) of Torts § 402A Comment k. Unlike
Comment j, Comment k assumes that maximum manufacturing and design safety has been
reached in the manufacture and sale of the product. In such situations, an adequate warning is the
only method a manufacturer or seller has for making its product reasonably safe for use. In these
circumstances, the issue becomes one concerning the adequacy of the warning given.
Unlike Wooderson, there is no assumption in this case that maximum manufacturing and
design safety has been reached in the manufacture and sale of the tractor/loader. The issue
dividing the parties in this case is design safety, an issue that simply did not exist in Wooderson.
Nothing contained in the Wooderson opinion suggests that this court would, under the facts of
this case, adopt Comment j in its entirety.
Deere also argues that the 10th Circuit Court of Appeals in Wheeler v. Deere, 862 F.2d
1404 (10th Cir.1976), implied that this court adopted § 402A and all of Comment j by reason of
our decision in Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976). While this court in Brooks
adopted strict liability, our holding related exclusively to the main text of § 402A: "We have
concluded the time has come for this court to adopt the rule of strict liability as set out in § 402A
of the Restatement, supra, and we therefore so hold." 218 Kan. at 702, 545 P.2d 1104. Thus, as
the 10th Circuit Court of Appeals pointed out in its certification order, this court has never dealt
directly with that portion of Comment j and the question presented is one of first impression.
Comment j § 402A of the Restatement (Second) of Torts has generated considerable
comment and criticism. The Restatement reporters alone have written volumes in criticism of
Comment j and support of the Restatement (Third) Comment l. See Henderson and Twerski, A
Proposed Revision of Section 402A of the Restatement (Second) of Torts, 77 Cornell L.Rev. 1512
(1992); Henderson, Restatement Third, Torts: Products Liability: What Hath the ALI Wrought?,
64 Def. Couns. J. 501 (1997); Henderson and Twerski, The Politics of the Products Liability
Restatement, 26 Hofstra L.Rev. 667 (1998); Twerski, In Defense of the Products Liability
Restatement: Part I, 8 Kan. J.L. & Pub. Pol'y. 27 (1998); Twerski, In Defense of the Products
Liability Restatement: Part II, 8 Kan. J.L. & Pub. Pol'y. 54 (1998). Other commentators have
discussed the problems with Comment j as well. See, e.g. Latin, "Good" Warnings, Bad
Products, and Cognitive Limitations, 41 U.C.L.A. L.Rev. 1193 (1994); Owen, Defectiveness
Restated: Exploding the "Strict" Products Liability Myth, 1996 U. Ill. L.Rev. 743 (1996);
Twerski, Weinstein, Donaher, and Piehler, The Use and Abuse of Warnings in Products
Liability-- Design Defect Litigation Comes of Age, 61 Cornell L.Rev. 495 (1976).
The reporters of the Restatement (Third) of Torts fault Comment j because it "allows a
defendant to escape liability for inadequate design by simply warning against risks." See
71
Henderson and Twerski, The Politics of the Products Liability Restatement, 26 Hofstra L.Rev. at
689 (1998). Delaney, noting this criticism, argues that this court should reject Comment j
because it constitutes "poor public policy" and constitutes a blanket grant of immunity to
unreasonably dangerous and defective products.
Deere counters with the argument that the intent of Comment j was never to grant blanket
immunity to unreasonably dangerous and defective products. According to Deere, a product that
is "unreasonably dangerous and defective" can never be rendered safe through an adequate
warning. Deere emphasizes that Comment j by using the words "which is safe for use" means
that a product defective in design or in its manufacturing is subject to liability notwithstanding
the adequacy of the warning given. However, inclusion of the phrase "which is safe for use if it is
followed" indicates to this court that under Comment j a warning concerning risks or hazards,
which warning would have prevented injury or damage if followed, renders the product safe or
"not in defective condition, nor unreasonably dangerous."
The thrust of the criticism leveled at Comment j is that it allows an adequate warning to
absolve the manufacturer of its duty to design against dangers when a reasonably safer design
could have been adopted that would have reduced or eliminated the residuum of risk that remains
even after a warning is provided. A manufacturer or seller is allowed to produce a product with
an unsafe design and still escape liability through the use of a warning.
The Massachusetts Supreme Court in Uloth v. City Tank Corp., 376 Mass. 874, 384
N.E.2d 1188 (1978), highlighted the problems involved with allowing the use of warnings to
substitute for a reasonably safe design:
"An adequate warning may reduce the likelihood of injury to the user of a product
in some cases. We decline, however, to adopt any rule which permits a
manufacturer or designer to discharge its total responsibility to workers by simply
warning of the dangers of a product. Whether or not adequate warnings are given
is a factor to be considered on the issue of negligence, but warnings cannot
absolve the manufacturer or designer of all responsibility for the safety of the
product....
"Moreover, a user may not have a real alternative to using a dangerous product, as
where a worker must either work on a dangerous machine or leave his job.
(Citations omitted.) Further, a warning is not effective in eliminating injuries due
to instinctual reactions, momentary inadvertence, or forgetfulness on the part of a
worker. One of the primary purposes of safety devices is to guard against such
foreseeable situations. Twerski, Weinstein, Donaher & Piehler, The Use and
Abuse of Warnings in Products Liability--Design Defect Litigation Comes of Age,
61 Cornell L.Rev. 495, 509 (1976).
"Balanced against the somewhat limited effectiveness of warnings is the
designer's ability to anticipate and protect against possible injuries. If a slight
change in design would prevent serious, perhaps fatal, injury, the designer may
not avoid liability by simply warning of the possible injury. We think that in such
a case the burden to prevent needless injury is best placed on the designer or
manufacturer rather than on the individual user of a product. 'In today's world, it is
often only the manufacturer who can fairly be said to know and to understand
when an article is suitably designed and safely made for its intended purpose....'
72
(Citations omitted.)" 376 Mass. at 879-81, 384 N.E.2d 1188.
The rule adopted in Comment j is also inconsistent with this court's longstanding rejection
of the open and obvious danger rule. See Siruta v. Hesston Corp. 232 Kan. 654, 659 P.2d 799
(1983); Restatement (Third) of Torts § 2, Reporters' Note to Comment d, Part IV. D (noting the
inconsistency between Comment j and the judicial abandonment of the patent, open, and obvious
danger rule); see also Annot., 35 A.L.R.4th 861. In Siruta, we stated that "[s]imply because the
hazard on a piece of equipment is open and obvious does not prevent it from being dangerous to
the operator or consumer." 232 Kan. at 664, 659 P.2d 799. Similarly, just because there is a
warning on a piece of equipment, the warning does not prevent the equipment from being
dangerous. A patent and obvious danger may be an important factor in determining whether
plaintiff's fault contributed to his or her own injury but does not foreclose the inquiry of whether
the product was defectively designed.
For the above stated reasons, we decline to adopt that portion of Comment j which holds
that a product bearing a warning which is safe for use if the warning is followed is not in a
defective condition or unreasonably dangerous.
Would Kansas now adopt Comment l, [Restatement (Third) of Torts § 2] which provides
that an adequate warning does not foreclose a finding that a product is defectively designed?
Comment l states, in its entirety:
"l. Relationship between design and instruction or warning. Reasonable designs
and instructions or warnings both play important roles in the production and
distribution of reasonably safe products. In general, when a safer design can
reasonably be implemented and risks can reasonably be designed out of a product,
adoption of the safer design is required over a warning that leaves a significant
residuum of such risks. For example, instructions and warnings may be ineffective
because users of the product may not be adequately reached, may be likely to be
inattentive, or may be insufficiently motivated to follow the instructions or heed
the warnings. However, when an alternative design to avoid risks cannot
reasonably be implemented, adequate instructions and warnings will normally be
sufficient to render the product reasonably safe. Compare Comment e. Warnings
are not, however, a substitute for the provision of a reasonably safe design.
"The fact that a risk is obvious or generally known often serves the same function
as a warning. See Comment j. However, obviousness of risk does not necessarily
obviate a duty to provide a safer design. Just as warnings may be ignored, so may
obvious or generally known risks be ignored, leaving a residuum of risk great
enough to require adopting a safer design. See Comment d.
"Illustration:
"14. Jeremy's foot was severed when caught between the blade and compaction
chamber of a garbage truck on which he was working. The injury occurred when
he lost his balance while jumping on the back step of the garbage truck as it was
moving from one stop to the next. The garbage truck, manufactured by XYZ
Motor Co., has a warning in large red letters on both the left and right rear panels
that reads 'DANGER-DO NOT INSERT ANY OBJECT WHILE COMPACTION
73
CHAMBER IS WORKING-KEEP HANDS AND FEET AWAY.' The fact that
adequate warning was given does not preclude Jeremy from seeking to establish a
design defect under Subsection (b). The possibility that an employee might lose
his balance and thus encounter the shear point was a risk that a warning could not
eliminate and that might require a safety guard. Whether a design defect can be
established is governed by Subsection (b)." (Emphasis added.)
Deere observes that the adoption of Restatement of Torts (Third) § 2, Comment l would
be contrary the existing Kansas law in the field of products liability. We agree.
Comment l incorporates the definition of design defect contained in § 2(b) of the Third
Restatement in order to determine whether a product is defective. Adoption of Comment l
necessarily includes both the concept of reasonable alternative design and risk/utility analysis in
determining design defect.
Restatement (Third ) of Torts § 2 provides that a product
"(b) is defective in design when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and the omission of
the alternative design renders the product not reasonably safe."
Application of the above definition under the Third Restatement is set forth in Comment
f. The definition starts with a reasonable alternative design and identifies a broad range of factors
which may be considered in determining whether an alternative design is reasonable and whether
its omission renders the product not reasonably safe. See Comment f. The factors include, among
others, the magnitude and probability of the foreseeable risk of harm, the instructions and
warnings accompanying the product, the nature and strength of consumer expectations regarding
the product; the likely effects of the alternative design on production costs; the effects of the
alternative design on product longevity, maintenance, repair, and esthetics; and the range of
consumer choice among products are factors that may be taken into account. See Restatement
(Third) of Torts § 2, Comment f.
Thus, the Third Restatement exclusively adopts a risk/utility analysis in determining
whether a design defect exists, with consumer expectation considered only as one element in the
analysis. In Comment g, the Restatement concludes that consumer expectations do not play a
determinative role in determining defectiveness.
Kansas, however, adheres to the consumer expectations test. In Lester v. Magic Chef, 230
Kan. 643, 641 P.2d 353 (1982), this court adopted the consumer expectations test set forth in
Comment i of the Restatement (Second) of Torts, § 402A as the standard for measuring design
defects in Kansas. This test defines an unreasonably dangerous product as one which is
"dangerous to an extent beyond that which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the community as to its characteristics."
Restatement (Second) of Torts, § 402A, Comment i. In so doing, we rejected an alternative
risk-utility analysis based on Barker v. Lull Engineering Co., 20 Cal.3d 413, 431, 143 Cal.Rptr.
225, 573 P.2d 443 (1978). That test would have provided that in evaluating the adequacy of a
product's design a jury should consider as relevant factors (1) the gravity of the danger posed by
the challenged design; (2) the likelihood that such danger would occur; (3) the mechanical
74
feasibility of a safer alternative design; and (4) the adverse consequences to the product and to
the consumer that would result from an alternative design. 230 Kan. at 659, 641 P.2d 353.
(Prager, J., dissenting.) However, the case was a close one, with four justices favoring the
consumer expectations test and three in favor of the risk/utility test as the standard. See 230 Kan.
at 654-662, 641 P.2d 353. We have since continually reaffirmed that the consumer expectations
test is the test in Kansas with regard to design defects. See Barnes v. Vega Industries, Inc., 234
Kan. 1012, 1014, 676 P.2d 761 (1984); Betts v. General Motors Corp., 236 Kan. 108, 115, 689
P.2d 795 (1984); Jenkins v. Amchem Products, Inc., 256 Kan. 602, 630, 886 P.2d 869 (1994).
Certainly, the consumer expectations test has its failings. See Lester, 230 Kan. at 655,
641 P.2d 353 (Prager, J., dissenting). In his dissent, Justice Prager noted that the consumer
expectations test does not address situations where the consumer cannot be said to have had
expectations with regard to the safety of many features of complexly made products. 230 Kan. at
655-56, 641 P.2d 353. In Jenkins, 256 Kan. at 623, 886 P.2d 869, we also noted the California
Supreme Court's opinion in Soule v. General Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d 607,
882 P.2d 298 (1994), criticizing the use of the consumer expectations test in complex products
liability cases, and stated that it would be "worthy of discussion" had we not otherwise disposed
of the issue.
The consumer expectations test is that standard in Kansas for determining whether a
design defect exists. However, we also recognize the validity of risk/utility analysis as a guide in
determining the expectations of consumers in complex cases. In Potter v. Chicago Pneumatic
Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997), the Connecticut Supreme Court upheld the
consumer expectations test but authorized the incorporation of risk utility factors to help the jury
in its determination of what an ordinary consumer would reasonably expect. 241 Conn. at
220-21, 694 A.2d 1319. The Potter court quoted the Supreme Court of Washington in
Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774 (1975):
"In determining the reasonable expectations of the ordinary consumer, a number
of factors must be considered. The relative cost of the product, the gravity of the
potential harm from the claimed defect and the cost and feasibility of eliminating
or minimizing the risk may be relevant in a particular case. In other instances the
nature of the product or the nature of the claimed defect may make other factors
relevant to the issue."
We are convinced that in products liability cases, consumer expectations play a dominant
role in the determination of defectiveness. Addressing this concern, Professor Marshall Shapo
observed in his comments upon the Third Restatement's failure to recognize the efficacy of
consumer expectations, Shapo, Defective Restatement Design, 8 Kan. J.L. & Pub. Pol'y 59, 60
(1998):
"A broad concern about the [Third] Restatement as published stems from its
single-minded emphasis on a risk/utility test. This seems to me, by itself, is an
impoverished concept. It is impoverished especially insofar as the reporters ruled
out consumer expectations as an independent test. They thereby ignored the
centrality of what we all know as people and what I would hope that you would
recognize as judges: the centrality of product portrayals and images and their role
in creating consumer motives to purchase or encounter products."
75
While we acknowledge some of the weaknesses of the consumer expectations test
highlighted in Lester and our comments in Jenkins, it is not for us to speculate whether this court,
in an appropriate case, would modify the consumer expectations test as the Connecticut Supreme
Court did in Potter.
Another important problem with the adoption of Comment l is that the Restatement
(Third) of Torts mandates the submission of a reasonable alternative design in most cases to
determine whether there is a design defect. The Third Restatement defines a product as defective
in design where "the foreseeable risks of harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe." Restatement (Third) of Torts § 2(b).
In adopting this rule, the authors of the Restatement noted:
"Assessment of a product design in most instances requires a comparison between
an alternative design and the product design that caused the injury, undertaken
from the viewpoint of a reasonable person. That approach is also used in
administering the traditional reasonableness standard in negligence."
The authors also noted that
"the test is whether a reasonable alternative design would, at reasonable cost, have
reduced the foreseeable risks of harm posed by the product, and, if so, whether the
omission of the alternative design by the seller or a predecessor in the distributive
chain rendered the product not reasonably safe." Restatement (Third) of Torts § 2,
Comment d.
Kansas law has been clear in allowing evidence of the feasibility of an alternative design
in the trial of a design defect. See Betts, 236 Kan. at 115, 689 P.2d 795; Siruta, 232 Kan. at 667,
659 P.2d 799. However, Kansas has consistently held that evidence of a reasonable alternative
design may but is not required to be introduced in a design defect action. See Jenkins, 256 Kan.
at 636, 886 P.2d 869. Kansas has not used the concept of reasonable alternative design to become
the standard by which the questioned product is measured.
In Betts, we stated that while the final test is one of consumer expectations,
"[i]n a products liability case involving a claimed design defect, the parties at the
trial may present evidence as to the degree of the likelihood of harm from an
intended and reasonably foreseeable use of the product and the feasibility of a
safer design. Likewise, evidence may be introduced as to the importance of the
need or needs served by the product and its design, the technical and economic
feasibility and practicability of serving those needs with a safer design, and the
availability of other products, if any, to serve the same needs." 236 Kan. at
115-16, 689 P.2d 795.
The Third Restatement's requirement that a plaintiff produce a reasonable alternative
design has been harshly criticized. See Vargo, The Emperor's New Clothes: The American Law
Institute Adorns a "New Cloth" for Section 402A Products Liability Design Defects--A Survey of
the States Reveals a Different Weave, 26 U. Mem. L.Rev. 493 (1996); Vandall, State Judges
76
Should Reject the Reasonable Alternative Design Standard of the Restatement (Third), Products
Liability, Section 2(b), 8 Kan. J.L. & Pub. Pol'y 62 (1998); Westerbeke, The Reasonable
Alternative Design Requirement, 8 Kan. J.L. & Pub. Pol'y 66 (1998). Vandall states that the
reasonable alternative design requirement is not supported by public policy or economic analysis
because the cost of processing a case will make it economically impossible to produce a
reasonable alternative design in a small products liability case. 8 Kan. J.L. & Pub. Pol'y at 63.
Further, contrary to the view of the authors of the Third Restatement that the majority of states
require a reasonable alternative design to establish a design defect, research by John F. Vargo
indicates that very few states in fact have this requirement. See 26 U. Mem. L.Rev. at 550-553.
Vargo, in his exhaustive review examines the Restatement (Third) of Torts' claim that
"reasonable alternative design" is the majority rule in this country and concludes that, far from a
majority rule, only three states require reasonable alternative design and five do so by statute. See
Appendix IV and related textual support for author's conclusions, 26 U. Mem. L.Rev. at 951,
501-951.
Our own research also reflects that a majority of jurisdictions in this country do not
require a reasonable alternative design in product liability actions. It is clear in Kansas that
evidence of a reasonable alternative design may be presented but is not required. We adhere to
this principle and believe that it represents the majority rule in this country. Moreover, we
believe the focus in such actions must remain on the product which is the subject of the
litigation. In Garst v. General Motors Corporation, 207 Kan. 2, 20, 484 P.2d 47 (1971), a case
decided before our adoption of the Restatement (Second) of Torts § 402A, we noted that with
regard to negligent design, it was "insufficient merely to assert that a different design would have
alleviated or averted the plaintiff's injuries."
In rejecting Comment l, we agree that as the foreword to the Third Restatement makes
clear, the new Restatement "goes beyond the law." Hazard, Foreword to Restatement (Third) of
Torts, xv, xvi (1997). Rather than simply taking a photograph of the law of the field, the Third
Restatement goes beyond this to create a framework for products liability. We have examined
Comment l and find it wanting. The adoption of Comment l necessarily involves the adoption of
the reasonable alternative design standard and an exclusive risk/utility analysis of that reasonable
alternative design to determine whether the subject product is defective. This is contrary to the
law in Kansas.
To summarize the law in Kansas, whether a design defect in a product exists is
determined using the consumer expectations test. A plaintiff must show that the product is both
in a defective condition and dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchased it, with the ordinary knowledge common to the
community as to its characteristics. See Lester, 230 Kan. at 649-654, 641 P.2d 353. Betts, 236
Kan. at 115-16, 689 P.2d 795. Evidence of a reasonable alternative design may be introduced but
is not required. Siruta, 232 Kan. at 667-68, 659 P.2d 799; Jenkins, 256 Kan. at 636, 886 P.2d
869. The fact that a hazard is open and obvious or has been warned against are factors to be
considered in analyzing whether a product is defective or unreasonably dangerous. The ultimate
determination remains whether the product is defective and dangerous beyond a reasonable
consumer's expectations.
Thus, in response to the second question posed by the 10th Circuit Court of Appeals, we
answer that while Kansas does not follow the portion of Comment j of the Restatement (Second)
77
of Torts § 402A, which provides that a product bearing an adequate warning is not in defective
condition, we also do not adopt Comment l of the Restatement (Third) of Torts § 2, which
provides that an adequate warning does not foreclose a finding that a product is defectively
designed. While we hold that an adequate warning does not foreclose a finding that a product is
defectively designed, this does not signify an adoption or approval of Comment l or the
remainder of the Restatement (Third) of Torts.
78
III. THE MEANING OF "UNREASONABLY DANGEROUS" RISK/UTILITY & VARIATIONS
SOULE v. GENERAL MOTORS CORPORATION,
34 Cal.Rptr.2d 607, 882 P.2d 298(Cal. 1994.)
BAXTER, Justice.
Plaintiff's ankles were badly injured when her General Motors (GM) car collided with another
vehicle. She sued GM, asserting that defects in her automobile allowed its left front wheel to break free,
collapse rearward, and smash the floorboard into her feet. GM denied any defect and claimed that the
force of the collision itself was the sole cause of the injuries. Expert witnesses debated the issues at
length. Plaintiff prevailed at trial, and the Court of Appeal affirmed the judgment.
We granted review to resolve three questions. First, may a product's design be found defective
on grounds that the product's performance fell below the safety expectations of the ordinary consumer
(see Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426-432, 143 Cal.Rptr. 225, 573 P.2d 443) if
the question of how safely the product should have performed cannot be answered by the common
experience of its users? Second, in an action for enhanced collision injuries caused by an uncrashworthy
vehicle, where a correct general instruction on legal cause is given, is it error to refuse a defense
instruction that any defect cannot be a legal cause of injury if the accident would have produced the same
injury even without the defect? Third, if the refusal is error, is it reversible per se? (See, e.g., Self v.
General Motors Corp. (1974) 42 Cal.App.3d 1, 10-11, 116 Cal.Rptr. 575.)
We reach the following conclusions: The trial court erred by giving an "ordinary consumer
expectations" instruction in this complex case. Moreover, the court should have granted GM's request
for a special instruction explaining its correct theory of legal cause. However, neither error warrants
reversal unless it caused actual prejudice, and both errors were harmless on this record. We will
therefore affirm the Court of Appeal's judgment.
FACTS
On the early afternoon of January 16, 1984, plaintiff was driving her 1982 Camaro in the
southbound center lane of Bolsa Chica Road, an arterial street in Westminster. There was a slight
drizzle, the roadway was damp, and apparently plaintiff was not wearing her seat belt. A 1972 Datsun,
approaching northbound, suddenly skidded into the path of plaintiff's car. The Datsun's left rear quarter
struck plaintiff's Camaro in an area near the left front wheel. Estimates of the vehicles' combined closing
speeds on impact vary from 30 to 70 miles per hour.1
The collision bent the Camaro's frame adjacent to the wheel and tore loose the bracket that
attached the wheel assembly (specifically the lower control arm) to the frame. As a result, the wheel
collapsed rearward and inward. The wheel hit the underside of the "toe pan"--the slanted floorboard area
beneath the pedals--causing the toe pan to crumple, or "deform," upward into the passenger compartment.
Plaintiff received . . . fractures of both ankles, and the more serious of these was the compound
compression fracture of her left ankle. . . . She walks with considerable difficulty, and her condition is
expected to deteriorate.
....
79
Plaintiff sued GM for her ankle injuries, asserting a theory of strict tort liability for a defective
product. She claimed the severe trauma to her ankles was not a natural consequence of the accident, but
occurred when the collapse of the Camaro's wheel caused the toe pan to crush violently upward against
her feet. Plaintiff attributed the wheel collapse to a manufacturing defect, the substandard quality of the
weld attaching the lower control arm bracket to the frame. She also claimed that the placement of the
bracket, and the configuration of the frame, were defective designs because they did not limit the wheel's
rearward travel in the event the bracket should fail.
The available physical and circumstantial evidence left room for debate about the exact angle and
force of the impact and the extent to which the toe pan had actually deformed. The issues of defect and
causation were addressed through numerous experts produced by both sides in such areas as
biomechanics, metallurgy, orthopedics, design engineering, and crash-test simulation.
Plaintiff submitted the results of crash tests, and also asserted the similarity of another real-world
collision involving a 1987 Camaro driven by Dana Carr. According to plaintiff's experts, these examples
indicated that Camaro accidents of similar direction and force do not generally produce wheel bracket
assembly failure, extensive toe pan deformation, or severe ankle injuries such as those plaintiff had
experienced. These experts opined that without the deformation of the toe pan in plaintiff's car, her
accident could not have produced enough force to fracture her ankles.
A metallurgist testifying on plaintiff's behalf examined the failed bracket from her car. He
concluded that its weld was particularly weak because of excess "porosity" caused by improper welding
techniques. Plaintiff's experts also emphasized the alternative frame and bracket design used by the Ford
Mustang of comparable model years. They asserted that the Mustang's design, unlike the Camaro's,
provided protection against unlimited rearward travel of the wheel should a bracket assembly give way.
GM's metallurgist disputed the claims of excessive weakness or porosity in the bracket weld.
Expert witnesses for GM also countered the assertions of defective design. GM asserted that the
Camaro's bracket was overdesigned to withstand forces in excess of all expected uses. According to
expert testimony adduced by GM, the Mustang's alternative frame and bracket configuration did not fit
the Camaro's overall design goals and was not distinctly safer for all collision stresses to which the
vehicle might be subjected. Indeed, one witness noted, at least one more recent Ford product had
adopted the Camaro's design.
A second major thrust of GM's defense was that the force of the collision, rather than any
product defect, was the sole cause of plaintiff's ankle injuries. Using the results of accident
reconstruction, computer simulations, and actual crash tests, GM sought to prove that the probable
collision force concentrated on the left front wheel of plaintiff's Camaro exceeded the "yield strength" of
any feasible weld or design.
By similar means, GM also sought to show that plaintiff's ankle injuries were not caused by the
upward movement of the toe pan, but by the inertial forward and downward motion of plaintiff's
unrestrained body and legs against the toe pan at the instant of impact. . . . . Based on their test results,
GM's witnesses opined that plaintiff's ankles had probably moved forward, struck the toe pan, and broken
before significant deformation of the toe pan occurred.
The court instructed the jury that a manufacturer is liable for "enhanced" injuries caused by a
manufacturing or design defect in its product while the product is being used in a foreseeable way. Over
GM's objection, the court gave the standard design defect instruction without modification. (See BAJI
No. 9.00.5 (7th ed. 1986).) This instruction advised that a product is defective in design "if it fails to
perform as safely as an ordinary consumer would expect when used in an intended or reasonably
foreseeable manner or if there is a risk of danger inherent in the design which outweighs the benefit of
the design." (Italics added.)
The jury was also told that in order to establish liability for a design defect under the "ordinary
consumer expectations" standard, plaintiff must show (1) the manufacturer's product failed to perform as
80
safely as an ordinary consumer would expect, (2) the defect existed when the product left the
manufacturer's possession, (3) the defect was a "legal cause" of plaintiff's "enhanced injury," and (4) the
product was used in a reasonably foreseeable manner. . . .
Plaintiff received an award of $1.65 million.
GM appealed. Among other things, it argued that the trial court erred by instructing on ordinary
consumer expectations in a complex design-defect case, and by failing to give GM's special instruction
on causation.
Following one line of authority, the Court of Appeal concluded that a jury may rely on expert
assistance to determine what level of safe performance an ordinary consumer would expect under
particular circumstances. Hence, the Court of Appeal ruled, there was no error in use of the ordinary
consumer expectations standard for design defect in this case. . . .
[t]he Court of Appeal affirmed the judgment. We granted review.
DISCUSSION
1. Test for design defect.
[1][2] A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or
design of its product causes injury while the product is being used in a reasonably foreseeable way.
(Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126-130, 104 Cal.Rptr. 433, 501 P.2d 1153 [Cronin ];
Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897
[Greenman ].) Because traffic accidents are foreseeable, vehicle manufacturers must consider collision
safety when they design and build their products. Thus, whatever the cause of an accident, a vehicle's
producer is liable for specific collision injuries that would not have occurred but for a manufacturing or
design defect in the vehicle. (Cronin, supra, 8 Cal.3d at p. 126, 104 Cal.Rptr. 433, 501 P.2d 1153.)
In Cronin, supra, a bread van driver was hurt when the hasp retaining the bread trays broke
during a collision, causing the trays to shift forward and propel him through the windshield. He sued the
van's producer, alleging that the hasp had failed because of the defective metal used in its manufacture.
The court instructed that the driver could recover if he proved a defect, unknown to him, which caused
injury while the van was being used as intended or designed. The manufacturer appealed the subsequent
damage award. It urged the court should have instructed that liability could not be imposed unless the
defect rendered the product "unreasonably dangerous."
We rejected this contention, holding that the "unreasonably dangerous" test derived from the
Restatement (see Rest.2d Torts, s 402A) is inapplicable in California. As we observed, the Restatement
defines "unreasonably dangerous" as "dangerous to an extent beyond that which would be contemplated
by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to
its characteristics." (Id., com. i, p. 352, italics added.) The original purpose of this formula, we
explained, was to make clear that common products such as sugar, butter, and liquor are not defective
simply because they pose inherent health risks well known to the general public. However, Cronin
indicated, the formula had been applied so as to force injured persons to prove both an actual defect and
"unreasonable" danger. (8 Cal.3d at pp. 132-133, 104 Cal.Rptr. 433, 501 P.2d 1153.)
This "double burden," Cronin reasoned, ran contrary to the purpose of Greenman, supra, to
relieve persons injured by defective products from proof of elements that ring of negligence. Instead,
Cronin concluded, an injured plaintiff should recover so long as he proves that the product was defective,
and that the defect caused injury in reasonably foreseeable use. (Cronin, supra, 8 Cal.3d at pp. 133-134,
104 Cal.Rptr. 433, 501 P.2d 1153.)
In Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443
(Barker), the operator of a high-lift loader sued its manufacturer for injuries he received when the loader
toppled during a lift on sloping ground. The operator alleged various design defects which made the
loader unsafe to use on a slope. In a pre-Cronin trial, the court instructed that the operator could recover
81
only if a defect in the loader's design made the machine " 'unreasonably dangerous for its intended use.' "
(Id., at p. 417, 143 Cal.Rptr. 225, 573 P.2d 443.) The operator appealed the defense verdict, citing the
"unreasonably dangerous" instruction as prejudicial error.
The manufacturer responded that even if the "unreasonably dangerous" test was inappropriate for
manufacturing defects, such as the substandard fastener material in Cronin, it should be retained for
design defects. This rule would not produce the undue double burden that concerned us in Cronin, the
manufacturer insisted, because unreasonable danger is part of the definition of design defect, not an
additional element of strict product liability. Without this limitation, the manufacturer contended, juries
would lack guidance when determining if a defect had sprung not from a mistake in supply or assembly,
but from a flaw in the product's specifications.
The Barker court disagreed. It reasoned as follows: Our concerns in Cronin extended beyond
double-burden problems. There we also sought to avoid the danger that a jury would deny recovery, as
the Restatement had intended, "so long as the product did not fall below the ordinary consumer's
expectations as to [its] safety...." (Barker, supra, 20 Cal.3d at p. 425, 143 Cal.Rptr. 225, 573 P.2d 443,
fn. omitted.) This danger was particularly acute in design defect cases, where a manufacturer might
argue that because the item which caused injury was identical to others of the same product line, it must
necessarily have satisfied ordinary consumer expectations. (Id., at p. 426, 143 Cal.Rptr. 225, 573 P.2d
443.)
Despite these difficulties, Barker explained, it is possible to define a design defect, and the
expectations of the ordinary consumer are relevant to that issue. At a minimum, said Barker, a product is
defective in design if it does fail to perform as safely as an ordinary consumer would expect. This
principle, Barker asserted, acknowledges the relationship between strict tort liability for a defective
product and the common law doctrine of warranty, which holds that a product's presence on the market
includes an implied representation " 'that it [will] safely do the jobs for which it was built.' " (20 Cal.3d
at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443, quoting Greenman, supra, 59 Cal.2d at p. 64, 27 Cal.Rptr.
697, 377 P.2d 897.) "Under this [minimum] standard," Barker observed, "an injured plaintiff will
frequently be able to demonstrate the defectiveness of the product by resort to circumstantial evidence,
even when the accident itself precludes identification of the specific defect at fault. [Citations.]" (20
Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443, italics added.)
However, Barker asserted, the Restatement had erred in proposing that a violation of ordinary
consumer expectations was necessary for recovery on this ground. "As Professor Wade has pointed out,
... the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating
design defectiveness because '[i]n many situations ... the consumer would not know what to expect,
because he would have no idea how safe the product could be made.' " (20 Cal.3d at p. 430, 143
Cal.Rptr. 225, 573 P.2d 443, quoting Wade, On the Nature of Strict Tort Liability for Products (1973) 44
Miss.L.J. 825, 829, italics added.)
Thus, Barker concluded, "a product may be found defective in design, even if it satisfies ordinary
consumer expectations, if through hindsight the jury determines that the product's design embodies
'excessive preventable danger,' or, in other words, if the jury finds that the risk of danger inherent in the
challenged design outweighs the benefits of such design. [Citations.]" (20 Cal.3d at p. 430, 143
Cal.Rptr. 225, 573 P.2d 443, fn. omitted.) Barker held that under this latter standard, "a jury may
consider, among other relevant factors, the gravity of the danger posed by the challenged design, the
likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the
financial cost of an improved design, and the adverse consequences to the product and to the consumer
that would result from an alternative design. [Citations.]" (Id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d
443.)
Barker also made clear that when the ultimate issue of design defect calls for a careful
assessment of feasibility, practicality, risk, and benefit, the case should not be resolved simply on the
82
basis of ordinary consumer expectations. As Barker observed, "past design defect decisions demonstrate
that, as a practical matter, in many instances it is simply impossible to eliminate the balancing or
weighing of competing considerations in determining whether a product is defectively designed or not...."
(20 Cal.3d at p. 433, 143 Cal.Rptr. 225, 573 P.2d 443.)
....
Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 184 Cal.Rptr. 891, 649 P.2d 224
(Campbell ) provided additional strong hints about the proper use of the ordinary consumer expectations
prong of Barker. Plaintiff Campbell, a bus passenger, was thrown from her seat and injured during a
sharp turn. She sued GM, the manufacturer of the bus, alleging that the vehicle was defectively designed
because there was no "grab bar" within easy reach of her seat. Campbell presented no expert testimony,
but she submitted photographs of the interior of the bus, showing where safety bars and handles were
located in relation to the seat she had occupied. At the conclusion of her case in chief, GM moved for
nonsuit, arguing that her evidence of design defect and proximate cause was not sufficient. The trial
court granted the motion, but we reversed.
We emphasized that in order to establish a design defect under Barker's ordinary consumer
expectations test, it was enough for Campbell to show "the objective conditions of the product" so that
the jurors could employ "[their] own sense of whether the product meets ordinary expectations as to its
safety under the circumstances presented by the evidence. . . . Since public transportation is a matter of
common experience, no expert testimony was required to enable the jury to reach a decision on this part
of the Barker inquiry." . . .
"Indeed, it is difficult to conceive what testimony an 'expert' could provide. The thrust of the
first Barker test is that the product must meet the safety expectations of the general public as represented
by the ordinary consumer, not the industry or a government agency. '[O]ne can hardly imagine what
credentials a witness must possess before he can be certified as an expert on the issue of ordinary
consumer expectations.' " (Campbell, supra, 32 Cal.3d at pp. 126-127, 184 Cal.Rptr. 891, 649 P.2d 224,
quoting Schwartz, Foreword: Understanding Products Liability (1979) 67 Cal.L.Rev. 435, 480, italics
added.)
Had we ended our discussion at this point, it would have been clear that a product violates
ordinary consumer expectations only when the circumstances arouse such reasonable expectations based
on common experience of the product's users. However, dictum in the next paragraph of Campbell
injected ambiguity. . . We said, "The quantum of proof necessary to establish a prima facie case ... under
the first [i.e., ordinary consumer expectations] prong of Barker cannot be reduced to an easy formula.
However, if the product is one within the common experience of ordinary consumers" (italics added), it
will generally be enough for the injured plaintiff to show the circumstances of the accident and "the
objective features of the product which are relevant to an evaluation of its safety...." (32 Cal.3d at p. 127,
184 Cal.Rptr. 891, 649 P.2d 224.) One might infer from this passage that the ordinary consumer
expectations prong of Barker is not limited to product performance "within the common experience" of
the product's ordinary consumers.
Several subsequent Court of Appeal cases considered the point. In Bates v. John Deere Co.
(1983) 148 Cal.App.3d 40, 195 Cal.Rptr. 637, plaintiff caught his leg in a commercial cotton picker
while clearing debris from the moving machinery. He claimed the machine should have included an
emergency shutoff switch within reach of the remote position from which its sole operator periodically
had to undertake this debris-clearing task. Defense experts suggested that such a feature might induce a
false sense of security and make the machine even more dangerous.
The trial court properly found a design defect under the risk-benefit test, but defendant
challenged the court's additional use of the ordinary consumer expectations test. Although it saw no need
to decide the issue, the Court of Appeal agreed that "[w]e, too, find it difficult to apply the ... [consumer
expectations] test to these facts, in part because it is difficult to conceive that an ordinary consumer
83
would know what to expect concerning the safety design of a commercial cotton picker. . . . .
In Akers v. Kelley Co. (1985) 173 Cal.App.3d 633, 219 Cal.Rptr. 513 (Akers ). . .
the Court of Appeal affirmed. It declined to read Campbell as limiting the consumer expectations test to
products or accidents of common experience. (Akers, supra, 173 Cal.App.3d at p. 650, 219 Cal.Rptr.
513.) That test, said Akers, "is entirely appropriate in a case such as this one. There are certain kinds of
accidents--even where fairly complex machinery is involved-- which are so bizarre that the average juror,
upon hearing the particulars, might reasonably think: 'Whatever the user may have expected from that
contraption, it certainly wasn't that.'
....
The purposes, behaviors, and dangers of certain products are commonly understood by those
who ordinarily use them. By the same token, the ordinary users or consumers of a product may have
reasonable, widely accepted minimum expectations about the circumstances under which it should
perform safely. Consumers govern their own conduct by these expectations, and products on the market
should conform to them.
[3] In some cases, therefore, "ordinary knowledge ... as to ... [the product's] characteristics"
(Rest.2d Torts, supra, s 402A, com. i., p. 352), may permit an inference that the product did not perform
as safely as it should. If the facts permit such a conclusion, and if the failure resulted from the product's
design, a finding of defect is warranted without any further proof. The manufacturer may not defend a
claim that a product's design failed to perform as safely as its ordinary consumers would expect by
presenting expert evidence of the design's relative risks and benefits.3
However, as we noted in Barker, a complex product, even when it is being used as intended, may
often cause injury in a way that does not engage its ordinary consumers' reasonable minimum
assumptions about safe performance. For example, the ordinary consumer of an automobile simply has
"no idea" how it should perform in all foreseeable situations, or how safe it should be made against all
foreseeable hazards. (Barker, supra, 20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443.)
[4][5] An injured person is not foreclosed from proving a defect in the product's design simply
because he cannot show that the reasonable minimum safety expectations of its ordinary consumers were
violated. Under Barker ' s alternative test, a product is still defective if its design embodies "excessive
preventable danger" (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443), that is, unless "the benefits
of the ... design outweigh the risk of danger inherent in such design" (id., at p. 432, 143 Cal.Rptr. 225,
573 P.2d 443). But this determination involves technical issues of feasibility, cost, practicality, risk, and
benefit (id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443) which are "impossible" to avoid (id., at p. 433,
143 Cal.Rptr. 225, 573 P.2d 443). In such cases, the jury must consider the manufacturer's evidence of
competing design considerations (id., at pp. 433-434, 143 Cal.Rptr. 225, 573 P.2d 443), and the issue of
design defect cannot fairly be resolved by standardless reference to the "expectations" of an "ordinary
consumer."
[6] As we have seen, the consumer expectations test is reserved for cases in which the everyday
experience of the product's users permits a conclusion that the product's design violated minimum safety
assumptions, and is thus defective regardless of expert opinion about the merits of the design. It follows
that where the minimum safety of a product is within the common knowledge of lay jurors, expert
witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Use of
expert testimony for that purpose would invade the jury's function (see Evid.Code, s 801, subd. (a)), and
would invite circumvention of the rule that the risks and benefits of a challenged design must be carefully
balanced whenever the issue of design defect goes beyond the common experience of the product's
users.4
[7] By the same token, the jury may not be left free to find a violation of ordinary consumer
expectations whenever it chooses. Unless the facts actually permit an inference that the product's
performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in
84
the balancing of risks and benefits required by the second prong of Barker.
[8] Accordingly, as Barker indicated, instructions are misleading and incorrect if they allow a
jury to avoid this risk-benefit analysis in a case where it is required. (20 Cal.3d at p. 434, 143 Cal.Rptr.
225, 573 P.2d 443.) Instructions based on the ordinary consumer expectations prong of Barker are not
appropriate where, as a matter of law, the evidence would not support a jury verdict on that theory.
Whenever that is so, the jury must be instructed solely on the alternative risk-benefit theory of design
defect announced in Barker. . . . .
GM argues at length that the consumer expectations test is an "unworkable, amorphic, fleeting
standard" which should be entirely abolished as a basis for design defect. In GM's view, the test is
deficient and unfair in several respects: First, it defies definition. Second, it focuses not on the objective
condition of products, but on the subjective, unstable, and often unreasonable opinions of consumers.
Third, it ignores the reality that ordinary consumers know little about how safe the complex products
they use can or should be made. Fourth, it invites the jury to isolate the particular consumer, component,
accident, and injury before it instead of considering whether the whole product fairly accommodates the
competing expectations of all consumers in all situations (see Daly v. General Motors Corp., supra, 20
Cal.3d 725, 746-747, 144 Cal.Rptr. 380, 575 P.2d 1162). Fifth, it eliminates the careful balancing of
risks and benefits which is essential to any design issue.
In its amicus curiae brief, the Product Liability Advisory Council, Inc. (Council) makes similar
arguments. The Council proposes that all design defect claims be resolved under a single risk-benefit
analysis geared to "reasonable safety."
We fully understand the dangers of improper use of the consumer expectations test. However,
we cannot accept GM's insinuation that ordinary consumers lack any legitimate expectations about the
minimum safety of the products they use. In particular circumstances, a product's design may perform so
unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary
consumers. In such cases, a lay jury is competent to make that determination.
Nor are we persuaded by the Council's proposal. In essence, it would reinvest product liability
claims with the requirement of "unreasonable danger" that we rejected in Cronin and Barker.
When use of the consumer expectations test is limited as Barker intended, the principal concerns
raised by GM and the Council are met. Within these limits, the test remains a workable means of
determining the existence of design defect. We therefore find no compelling reason to overrule the
consumer expectations prong of Barker at this late date, and we decline to do so.7
[10] Applying our conclusions to the facts of this case, however, we agree that the instant jury
should not have been instructed on ordinary consumer expectations. Plaintiff's theory of design defect
was one of technical and mechanical detail. It sought to examine the precise behavior of several obscure
components of her car under the complex circumstances of a particular accident. The collision's exact
speed, angle, and point of impact were disputed. It seems settled, however, that plaintiff's Camaro
received a substantial oblique blow near the left front wheel, and that the adjacent frame members and
bracket assembly absorbed considerable inertial force.
An ordinary consumer of automobiles cannot reasonably expect that a car's frame, suspension, or
interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and
understanding inform such a consumer how safely an automobile's design should perform under the
esoteric circumstances of the collision at issue here. Indeed, both parties assumed that quite complicated
design considerations were at issue, and that expert testimony was necessary to illuminate these matters.
Therefore, injection of ordinary consumer expectations into the design defect equation was improper.
[11] We are equally persuaded, however, that the error was harmless, because it is not reasonably
probable defendant would have obtained a more favorable result in its absence. . . . We see no
reasonable probability that the jury disregarded the voluminous evidence on the risks and benefits of the
85
Camaro's design, and instead rested its verdict on its independent assessment of what an ordinary
consumer would expect. Accordingly, we conclude, the error in presenting that theory to the jury
provides no basis for disturbing the trial judgment.8
....
CONCLUSION
The trial court erred when it instructed on the consumer expectations test for design defect, and
when it refused GM's special instruction on causation. However, neither error caused actual prejudice.
Accordingly, the judgment of the Court of Appeal, upholding the trial court judgment in favor of
plaintiff, is affirmed.
KENNARD, GEORGE, WERDEGAR and BOREN, JJ., concur.
[The trial court, in instructing the jury that "[a]legal cause of injury is a substantial factor in
bringing about the injury", refused GM's request to instruct ththe jury that a design defect was not "a
substantial factor" in causing the plaintiff's "enhanced " injuries if the plaintiff would have received those
injuries with a non-defecive design. The Supreme Court decded that the instruction GM proposed was
correct and should have been given. It held, however, that there was no reversible error in this regard
because it was unlikely that the jury verdict was affected by the failure to give that instruction. Justice
Mosk wrote a concurring opinion. Justice Arabian wrote an opinion which concurred that there was
error regarding the instructions, but dissented on the ground that the error was not harmless.]
....
ARABIAN, Justice, concurring and dissenting.
I concur in the majority's holding that the trial court committed instructional error in two
respects, incorrectly charging the jury on the "consumer expectations" component of design defect
liability, and improperly refusing defendant General Motors' requested instruction on legal causation. I
cannot agree, however, with the conclusion that the latter error was harmless.
1.
In its statem ent of facts, the Court of Appeal adopted testim ony by an accident witness that at the m om ent of im pact, the D atsun had
slowed from 50 m iles per hour to between 15 and 25 m iles per hour, and the Cam aro was traveling about 30 m iles per hour. GM did not challenge
this factual assum ption in its petition for rehearing.
3.
For exam ple, the ordinary consum ers of m odern autom obiles m ay and do expect that such vehicles will be designed so as not to explode
while idling at stoplights, experience sudden steering or brake failure as they leave the dealership, or roll over and catch fire in two-m ile-per-hour
collisions. If the plaintiff in a product liability action proved that a vehicle's design produced such a result, the jury could find forthwith that the car
failed to perform as safely as its ordinary consum ers would expect, and w as therefore defective.
4.
Plaintiff insists that m anufacturers should be forced to design their products to m eet the "objective" safety dem ands of a "hypothetical"
reasonable consum er who is fully inform ed about what he or she should expect. H ence, plaintiff reasons, the jury m ay receive expert advice on
"reasonable" safety expectations for the product. However, this function is better served by the risk-benefit prong of Barker. There, juries receive
expert advice, apply clear guidelines, and decide accordingly whether the product's design is an acceptable com prom ise of com peting
considerations. O n the other hand, appropriate use of the consum er expectations test is not necessarily foreclosed sim ply because the product at
issue is only in specialized use, so that the general public m ay not be fam iliar with its safety characteristics. If the safe perform ance of the product
fell below the reasonable, widely shared m inim um expectations of those who do use it, perhaps the injured consum er should not be forced to rely
solely on a technical com parison of risks and benefits. By the sam e token, if the expectations of the product's lim ited group of ordinary consum ers
are beyond the lay experience com m on to all jurors, expert testim ony on the lim ited subject of what the product's actual consum ers do expect m ay
be proper. (See, e.g., Lunghi v. Clark Equipm ent Co., supra, 153 Cal.App.3d 485, 496, 200 Cal.Rptr. 387.)
7.
GM observes that som e other states have rejected the consum er expectation test. (E.g., Prentis v. Y ale M fg. Co. (1984) 421 M ich. 670,
365 N .W .2d 176, 185-186 [adopting pure negligence theory for product injury]; Turner v. General M otors Corp. (Tex.1979) 584 S.W .2d 844,
851.) But a substantial num ber of jurisdictions expressly recognize, consistent with B arker, that a product's design is defective if it either violates
the m inim um safety expectations of an ordinary consum er or contains dangers which outweigh its benefits. (E.g., M asaki v. General M otors Corp.
(1989) 71 H aw. 1, 780 P.2d 566, 578-579; D art v. W iebe M fg., Inc. (1985) 147 Ariz. 242, 709 P.2d 876, 878-880; Knitz v. M inster M achine Co.
86
(1982) 69 O hio St.2d 460, 432 N .E.2d 814, 818; see Palm er v. Avco D istributing Corp. (1980) 82 Ill.2d 211, 45 Ill.D ec. 377, 380, 412 N .E.2d
959, 962, 965.)
8.
In a separate argum ent, raised for the first tim e in GM 's brief on the m erits, both GM and the Council urge us to reconsider Barker 's
holding--em bodied in the standard instruction received by this jury--that under the risk-benefit test, the m anufacturer has the burden of proving that
the utility of the challenged design outweighs its dangers. (Barker, supra, 20 Cal.3d at pp. 431-432, 143 Cal.Rptr. 225, 573 P.2d 443.) W e
explained in Barker that placem ent of the risk-benefit burden on the m anufacturer is appropriate because the considerations which influenced the
design of its product are "peculiarly within ... [its] knowledge." (Id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443.) Furtherm ore, we observed, the
"fundam ental policies" of Greenm an dictate that a m anufacturer who seeks to escape design defect liability on risk- benefit grounds "should bear
the burden of persuading the trier of fact that its product should not be judged defective...." (Id. at pp. 431- 432, 143 Cal.Rptr. 225, 573 P.2d 443.)
GM argues that Barker unfairly requires the m anufacturer to "prove a negative"--i.e., the absence of a safer alternative design. The Council
suggests our "peculiar knowledge" rationale is unrealistic under liberal m odern discovery rules. W e are not persuaded. Barker allows the
evaluation of com peting designs, but it does not require proof that the challenged design is the safest possible alternative. The m anufacturer need
only show that given the inherent com plexities of design, the benefits of its chosen design outweigh the dangers. M oreover, m odern discovery
practice neither redresses the inherent technical im balance between m anufacturer and consum er nor dictates that the injured consum er should bear
the prim ary burden of evaluating a design developed and chosen by the m anufacturer. GM and the Council fail to convince us that Barker was
incorrectly decided in this respect.
PRUITT v. GENERAL MOTORS CORPORATION,
Court of Appeal, Second District, Division 6, California,1999
86 Cal.Rptr.2d 4)
Certified for Partial Publication. [FN*]
FN* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of part II.
As Modified June 23, 1999.
....
GILBERT, Acting P.J.
An automobile air bag deploys in a low impact collision injuring plaintiff driver. In her jury trial
against defendant respondent General Motors Corporation (GMC), appellant and plaintiff, Norma E. Pruitt
introduced evidence of a design defect in the air bag of her car. The trial court instructed the jury on theories
of risk/benefit and failure to warn. It refused an instruction on the consumer expectations test. The trial
court also excluded evidence of postmanufacture warnings. The jury rendered judgment for GMC. We
affirm.
FACTS
On March 22, 1995, Pruitt was driving her 1991 Chevrolet Beretta manufactured by GMC. The seatbelt and
shoulder harness were buckled. She turned left at an intersection and collided with an oncoming car. The
driver's side air bag deployed within an instant of impact.
Pruitt suffered three fractures of her lower mandible which required surgery. She sustained medical
expenses of $66,224.
In her product liability cause of action against GMC, Pruitt alleged that the air bag deployed in a
low speed collision causing her injuries.
At trial, the court granted Pruitt's motion to exclude expert testimony offered by GMC regarding the
expectations of an ordinary consumer and granted GMC's motion to preclude Pruitt's testimony about her
87
expectations concerning the safety of the air bag. Nevertheless, at trial Pruitt testified that she did not expect
the air bag to injure her.
The evidence was in conflict as to whether Pruitt would have suffered injury but for the deployment
of the air bag. Pruitt was 75 years old when the accident occurred. She had lost her teeth when she was 38
which caused extreme bone atrophy. Her doctors found that she had an extremely weak jaw. It was thus
very fragile and susceptible to injury.
The trial court instructed the jury on *6 products liability. (BAJI No. 9.00.) [FN1] It instructed on
the elements of failure to warn. (BAJI No. 900.7.) It also instructed on design defect. (BAJI No. 9.00.5.)
[FN2] To question No. 1 of the special verdict form, "Was there a defect in design or a failure to warn defect
in the 1991 Chevrolet Beretta?", the jury answered, "No."
FN1. "The plaintiff Pruitt seeks to recover damages based upon a claim of a defective product. [¶]
A product may be defective because of a defect in design or a failure to adequately warn the
consumer of a hazard involved in the foreseeable use of the product."
FN2. BAJI No. 9.00.5 states in part: "A product is defective in design: [¶] if there is a risk of danger
inherent in the design which outweighs the benefits of that design. [¶] In determining whether the
benefits of the design outweigh such risks you may consider, among other things, the gravity of the
danger posed by the design, the likelihood that such danger would cause damage, the mechanical
feasibility of a safer alternate design at the time of manufacture, the financial cost of an improved
design, and the adverse consequences to the product and the consumer that would result from an
alternate design."
DISCUSSION
I
Pruitt contends the jury should have been instructed on the consumer expectations test.
Pruitt requested and the trial court refused to instruct the jury that, "A product is defective in
design: if it fails to perform as safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner." (BAJI No. 9.00.5; see Barker v. Lull Engineering Co. (1978) 20 Cal.3d
413, 429, 143 Cal.Rptr. 225, 573 P.2d 443.)
Our Supreme Court discussed the application of the consumer expectation test in Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 567, 34 Cal.Rptr.2d 607, 882 P.2d 298: "[T]he consumer expectations
test is reserved for cases in which the everyday experience of the product's users permits a conclusion that
the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion
about the merits of the design. It follows that where the minimum safety of a product is within the common
knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would
or should expect. Use of expert testimony for that purpose would invade the jury's function (see Evid.Code,
§ 801, subd. (a)), and would invite circumvention of the rule that the risks and benefits of a challenged design
must be carefully balanced whenever the issue of design defect goes beyond the common experience of the
product's users. [Fn. omitted.]" (Italics added.)
The deployment of an air bag is, quite fortunately, not part of the "everyday experience" of the
consuming public. Minimum safety standards for air bags are not within the common knowledge of lay
jurors. Jurors are in need of expert testimony to evaluate the risks and benefits of the challenged design.
Even Pruitt's own expert testified that in designing air bags there are tradeoffs involving complex technical
issues. The trial court correctly refused to give the consumer expectations instruction.
In footnote 3 of Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 566- 567, 34 Cal.Rptr.2d 607,
882 P.2d 298, the court gave examples of when the consumer expectations test was appropriate: automobiles
88
that explode while idling at a stoplight or roll over and catch fire in a two-mile-per-hour collision. To this
we might add air bags inflating for no apparent reason while one is cruising down the road at 65 miles per
hour.
Professors James A. Henderson, Jr. and Aaron D. Twerski, commentators who served as reporters
of the Restatement Third of Torts, opine that "... California clearly limited the consumer expectations test
to res ipsa-like cases that do not require the application of a general standard *7 to determine defective
design. For all the rest--what are here referred to as classic design cases--risk-utility balancing is mandated."
(Achieving Consensus on Defective Product Design (1998) 83 Cornell L.Rev. 867, 899-900.)
Messieurs Henderson and Twerski state that in res ipsa-like cases, "liability attaches without the
necessity of identifying the type of defect that triggered the harm. It makes no difference if the product failed
due to a manufacturing or a design defect. [Fn. omitted.]" (The Politics of the Products Liability
Restatement (1998) 26 Hofstra L.Rev. 667, 677.)
Pruitt's reliance on Bresnahan v. Chrysler Corp. (1995) 32 Cal.App.4th 1559, 38 Cal.Rptr.2d 446
is misplaced. There plaintiff was injured in a low speed collision. Her air bag deployed forcing her left
elbow into the windshield's side pillar. She blamed the design of the air bag and windshield for her fractured
elbow.
After plaintiff's opening statement the trial court granted nonsuit on the ground that she failed to
state a prima facie case. The court of appeal reversed the judgment of nonsuit concluding that she had stated
a prima facie case under the risk-benefit test. The court also concluded that "[o]n the record presented" the
trial court erred in precluding plaintiff from proceeding under the consumer expectations test. (Bresnahan
v. Chrysler Corp., supra, 32 Cal.App.4th at p. 1569, 38 Cal.Rptr.2d 446.)
Subsequently, Chrysler appealed the verdict in favor of plaintiff in the same case. (Bresnahan v.
Chrysler Corp. (1998) 65 Cal.App.4th 1149, 76 Cal.Rptr.2d 804.) The court of appeal stated the verdict
could be upheld on the theory of failure to warn. Thus the court of appeal was not required to decide on the
appropriateness of the consumer expectations test. Nevertheless, the court stated that it saw nothing in the
record to cause the trial court to depart from the first Bresnahan opinion. (Id., at p. 1155, 76 Cal.Rptr.2d
804.)
The discussion of the consumer expectations test in both Bresnahan opinions is clearly dicta. It also
conflicts with our Supreme Court's discussion of the applicability of the test in Soule. We decline to follow
the Bresnahan opinions.
II [FN**]
FN** See footnote *, ante.
The judgment is affirmed. Costs are awarded to respondent.
YEGAN, J., and COFFEE, J., concur.
JACKSON v. GENERAL MOTORS CORPORATION
60 S.W. 3d 800 (Tenn. 2001)
FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, WILLIAM M. BARKER, JJ., joined.
Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, [FN1] this Court accepted
89
certification of the following question from the United States Court of Appeals for the Sixth Circuit:
....
In a products liability action under Tennessee law, may the plaintiff use the "consumer expectation
test" to prove that his seatbelt/restraint system was unreasonably dangerous because it failed to conform to
the safety standards expected by an ordinary consumer under the circumstances?
We conclude that the consumer expectation test as defined by Tenn.Code Ann. § 29-28-102(8) is applicable
to any products liability claim where the plaintiff intends to show that a manufacturer is liable for plaintiff's
injuries as a result of an unreasonably dangerous product.
I. Factual and Procedural Background
On August 21, 1992, plaintiff Mounce A. Jackson was driving eastward on Interstate 40 in Putnam
County, Tennessee, in his 1992 Pontiac Grand Prix automobile, manufactured by defendant General Motors
Corporation ("GM"). The plaintiff lost control of the vehicle on wet pavement, resulting in the vehicle
traveling across the median, through the westbound lanes, across a ditch, and up a bank. The front of the
vehicle crashed into a tree, whereupon the plaintiff was injured when his jaw hit the steering wheel of the
car. The plaintiff was wearing his seatbelt at the time of the accident, and plaintiff asserts that the driver's
seat was positioned as far away from the steering wheel as the adjustable seat track would allow. The
estimated speed of the vehicle at the time of the crash was 19-23 miles per hour. The plaintiff received
multiple fractures to the face as a result of the crash and consequently developed Temporomandibular Joint
Dysfunction (TMJ).
Jackson commenced a products liability action against GM on April 4, 1997, in the United States
District Court for the Middle District of Tennessee, asserting that the Pontiac's seatbelt was unreasonably
dangerous. On September 11, 1998, plaintiff filed a pleading which limited his claim against GM to strict
products liability based on the consumer expectation test provided in the Tennessee Products Liability Act
of 1978, codified at Tenn.Code Ann. §§ 29-28-101 to -108. On February 8, 1999, GM filed a motion for
summary judgment which was subsequently denied by the district court in a memorandum decision on the
grounds "that a seat belt system is a commonplace product about which an ordinary consumer would have
both *803 knowledge and minimum safety expectations based on everyday experience." After reviewing
the defendant's motion for reconsideration, the district court issued a second memorandum decision granting
the defendant's motion for summary judgment based upon a finding that the ordinary consumer had no basis
upon which to form an expectation of the safety provided by seat belts in similar automobile accidents.
Jackson appealed, and the United States Court of Appeals for the Sixth Circuit certified the following
question of law to this Court: In a products liability action under Tennessee law, may the plaintiff use the
"consumer expectation test" to prove that his seatbelt/restraint system was unreasonably dangerous because
it failed to conform to the safety standards expected by an ordinary consumer under the circumstances?
We accepted certification of this question, and, for the following reasons, conclude that the consumer
expectation test may be employed in any products liability action under Tennessee law whereupon the
plaintiff seeks to recover on the basis that the product is unreasonably dangerous.
II. Analysis
To answer this certified question of law, we must construe the Tennessee Products Liability Act of
1978. See Tenn.Code Ann. §§ 29-28-101 to - 108. Section 29-18-105 of the statute provides:
(a) A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by
the product unless the product is determined to be in a defective condition or unreasonably dangerous at the
time it left the control of the manufacturer or seller.
***
90
(d) A product is not unreasonably dangerous because of a failure to adequately warn of a danger or hazard
that is apparent to the ordinary user.
"Unreasonably dangerous" is defined in section 29-28-102(8) as dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics, or that the product because of its dangerous condition
would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the
manufacturer or seller knew of its dangerous condition.
We previously considered this statute and the consumer expectation test in Ray ex rel. Holman v.
BIC Corp., 925 S.W.2d 527 (Tenn.1996). In BIC, this Court, answering a Rule 23 certified question of law
from the Sixth Circuit, examined the Tennessee Products Liability Act of 1978 to determine whether, in
addition to the consumer expectation test, section 29-28-102(8) provided for a "risk-utility" test. We held
that the statute provided for two tests: the consumer expectation test and the prudent manufacturer test
(which involves risk-utility balancing). The plaintiff in BIC asserted that a disposable cigarette lighter was
unreasonably dangerous on the basis of the prudent manufacturer test. In resolving this issue, the Court
examined both tests under the definition of unreasonably dangerous, and concluded that "[o]ur statute does
not limit the application of either test to only certain types of actions. Nonetheless, the consumer
expectation test will be inapplicable, by definition, to certain products about which an ordinary consumer
can have no expectation." 925 S.W.2d at 533.
[1] The defendant contends that seat belts are complex products about which the ordinary consumer
cannot possibly formulate expectations regarding their safety and performance in automobile crashes.
Defendant suggests that Tennessee's prudent manufacturer test is the appropriate test to be applied when the
product at issue is complex beyond the knowledge of the ordinary consumer. As support for this argument,
the defendant points to other language in BIC stating that the consumer expectation test is ill- suited for
application to complex products:
For example, ordinary consumers would have a basis for expectations about the safety of a can
opener or coffee pot, but, perhaps, not about the safety of a fuel-injection engine or an air bag.... While the
statute does not limit applicability of the tests, the prudent manufacturer test will often be the only
appropriate means for establishing the unreasonable dangerousness of a complex product about which an
ordinary consumer has no reasonable expectation. 925 S.W.2d at 531.
. . . . 29-28-102(8) of Tennessee Code Annotated is silent as to any limitation on the application of
the consumer expectation test in products liability cases. Absent contrary indication in the statute, we read
Tennessee products liability law to permit application of the consumer expectation test in all products
liability cases in which a party intends to establish that a product is unreasonably dangerous. It does not
follow that, because the consumer expectation test may be applied in all such product liability cases, the
manufacturer will be subject to absolute liability. Whether a plaintiff is successful on a products liability
claim under the consumer expectation test will depend on whether the trier of fact agrees that the plaintiff's
expectation of product performance constituted the reasonable expectation of the ordinary consumer having
ordinary knowledge of the product's characteristics.
We are unwilling to accept the defendant's argument that ordinary consumers cannot form
expectations about the safety and performance of seat belts. The language in BIC upon which the defendant
relies merely explains that it may be difficult for a plaintiff to establish that the product is "dangerous to an
extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its characteristics," if the community has no ordinary
knowledge about the product's characteristics. See Tenn.Code Ann. § 29-28-102(8). Our intent in BIC was
not to limit the application of either test, but to hold that, in order to be successful under the consumer
expectation test, the plaintiff must present evidence that the ordinary consumer has an expectation regarding
the safety of the product. "What is determinative is what an ordinary purchaser would have expected." 925
91
S.W.2d at 531. The opinion in BIC clearly states that either the consumer expectation test or the prudent
manufacturer test, or both, may be applied in all cases where the product is alleged to be unreasonably
dangerous.
Our conclusion in this regard is supported by the case of General Motors v. Farnsworth, 965 P.2d
1209 (Alaska 1998), cited by plaintiff to support his contention that the consumer expectation test may be
applied to a products liability case involving a seat belt. The plaintiff in Farnsworth was a passenger in an
automobile accident, and was severely injured when she "submarined" below the lap belt of the seat belt
restraining system. The court held that "[w]hen a seat belt designed to be an instrument of protection,
becomes an instrument of life-threatening injury, a consumer is justified in concluding that it did not perform
as safely as promised. A seat belt is a familiar product whose basic function is well understood by the
general population." 965 P.2d at 1221. In support of its adoption of the consumer expectation test, the
Farnsworth court stated that the consumer expectation test "incorporates notions of the implied warranty of
fitness for reasonable use, a primary concept in the evolution of strict products liability." Id. (quotation
marks and citation omitted).
Our conclusion is also supported by Soule v. General Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d
607, 882 P.2d 298 (1994), relied upon by both parties in this case. In Soule, the Supreme Court of California
held that the trial court improperly gave the jury an instruction on the consumer expectation test in a product
liability case involving technical analysis of an automobile collision. In so holding, the Soule court held:
[A] complex product, even when it is being used as intended, may often cause injury in a way that does not
engage its ordinary consumers' reasonable minimum assumptions about safe performance. For example, the
ordinary consumer of an automobile simply has "no idea" how it should perform in all foreseeable situations,
or how safe it should be made against all foreseeable hazards.
34 Cal.Rptr.2d 607, 882 P.2d at 308. The Soule court rejected GM's argument, however, that the
consumer expectations test was necessarily unworkable when " 'crashworthiness,' a complex product, or
technical questions of causation are at issue," stating:
We fully understand the dangers of improper use of the consumer expectations test. However, we
cannot accept GM's insinuation that ordinary consumers lack any legitimate expectations about the minimum
safety of the products they use. In particular circumstances, a product's design may perform so unsafely that
the defect is apparent to the common reason, experience, and understanding of its ordinary consumers. In
such cases, a lay jury is competent to make that determination.
Id. at 309-10.
The ability to go forward on a claim that a product is unreasonably dangerous based on the consumer
expectation test requires that the plaintiff provide sufficient evidence to create a question of fact that the
product was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the community as to its characteristics." See
Tenn.Code Ann. § 29-28- 102(8). Once this question of fact is established, however, "[t]he general rule in
Tennessee is that the issue of whether a product is defective or unreasonably dangerous is one for the jury,"
Curtis v. Universal Match Corp., Inc., 778 F.Supp. 1421, 1427 (E.D.Tenn.1991). Under the consumer
expectation test, "a plaintiff is required to produce evidence of the objective conditions of the product as to
which the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety
under the circumstances presented *806 by the evidence." Arnold v. Dow Chemical Co., 91 Cal.App.4th
698, 110 Cal.Rptr.2d 722, 737 (2001).
The issue of whether the consumer expectation test applies to seat belts was addressed in
Cunningham v. Mitsubishi Motors Corp., No. C-3-88-582, 1993 WL 1367436, at * 1 (S.D.Ohio June 16,
1993). In Cunningham, the United States District Court for the Southern District of Ohio, Western Division,
held that the consumer expectation test was applicable in a wrongful death/products liability action where
the seatbelt was determined to have killed the driver in a twenty-to-thirty miles per hour automobile crash.
In its decision, the Cunningham court held:
92
[S]eat belts generally are familiar products for which consumers' expectations of safety have had an
opportunity to develop, and the function which they were designed to perform is well known. In recent
years, consumers have been bombarded with information regarding the importance of wearing seat belts
because of the protection which they provide.
***
[T]his Court is simply not willing to ... preclud[e] the use of the consumer expectation test in a
situation involving a familiar consumer product which is technically complex or uses a new process to
accomplish a familiar function. Many familiar consumer products involve complex technology. In
addition, manufacturers are constantly altering the methods in which products perform familiar functions.
Thus, to conclude that the consumer expectation test cannot be used because a product is technologically
complex or because a new process is used to achieve a familiar result would be to significantly reduce the
use of that test.... Because of their long usage and consumer familiarity with the measure of safety which seat
belts provide, consumer expectations do provide useful guidance.
Id. at * 3-4. The above statement in the Cunningham decision is significant because it recognizes
that the consumer expectation test does not depend necessarily on a product's complexity in technology or
use. Instead, Cunningham recognizes that successful application of the consumer expectation test by a
plaintiff simply requires a showing that the product's performance was below reasonable minimum safety
expectations of the ordinary consumer having ordinary, "common" knowledge as to its characteristics. This
entails a showing by the plaintiff that prolonged use, knowledge, or familiarity of the product's performance
by consumers is sufficient to allow consumers to form reasonable expectations of the product's safety.
III. Conclusion
In response to the certified question, we conclude that the consumer expectation test is applicable
to any products liability case in which a party seeks to establish that a product is unreasonably dangerous
under Tennessee law. We affirm our decision in Ray ex rel Holman v. BIC Corp. that the consumer
expectation test and the prudent manufacturer test are not exclusive of one another and therefore either or
both of these tests are applicable to cases where the product is alleged to be unreasonably dangerous.
However, we recognize here, as we did in BIC, that it may be difficult for plaintiffs in cases involving highly
complex products to establish that the product is dangerous to an extent beyond that which would be
contemplated by an ordinary consumer, even though the consumer expectation test may, technically, apply.
Having answered the certified question, the Clerk is directed to transmit a copy of this opinion in
accordance with Tennessee Supreme Court Rule 23(8). Costs in this Court are taxed to the respondent,
General Motors Corporation. 60 S.W.3d 800, Prod.Liab.Rep. (CCH) P 16,203
POTTER V. CHICAGO PNEUMATIC TOOL COMPANY
Supreme Court of Connecticut
241 Conn. 199; 694 A.2d 1319; 1997 Conn. LEXIS 158 (1997)
KATZ, Associate Justice. This appeal arises from a products liability action brought by the
plaintiffs13 against the defendants, Chicago Pneumatic Tool Company (Chicago Pneumatic), Stanley Works
and Dresser Industries, Inc. (Dresser). The plaintiffs claim that they were injured in the course of their
13
For purposes of this opinion, the plaintiffs are Joseph Gladu, David Thompson, Roy Tutt, Thomas Brayman and Jaime
Irizarry. They are among more than 400 individuals pursuing claims against the defendants. The named plaintiff, John Potter, is
not a party to this appeal, the action as it pertained to him having been withdrawn prior to trial.
93
employment as shipyard workers at the General Dynamics Corporation Electric Boat facility (Electric Boat)
in Groton as a result of using pneumatic hand tools manufactured by the defendants. Specifically, the
plaintiffs allege that the tools were defectively designed because they exposed the plaintiffs to excessive
vibration, and because the defendants failed to provide adequate warnings with respect to the potential
danger presented by excessive vibration.
...
The trial record reveals the following facts, which are undisputed for purposes of this appeal. The
plaintiffs were employed at Electric Boat as "grinders," positions which required use of pneumatic hand tools
to smooth welds and metal surfaces.14 In the course of their employment, the plaintiffs used various
pneumatic hand tools, including chipping and grinding tools, which were manufactured and sold by the
defendants. The plaintiffs' use of the defendants' tools at Electric Boat spanned approximately twenty-five
years, from the mid-1960s until 1987. The plaintiffs suffer from permanent vascular and neurological
impairment of their hands, which has caused blanching of their fingers, pain, numbness, tingling, reduction
of grip strength, intolerance of cold and clumsiness from restricted blood flow. As a result, the plaintiffs have
been unable to continue their employment as grinders and their performance of other activities has been
restricted. The plaintiffs' symptoms are consistent with a diagnosis of hand arm vibration syndrome. Expert
testimony confirmed that exposure to vibration is a significant contributing factor to the development of hand
arm vibration syndrome, and that a clear relationship exists between the level of vibration exposure and the
risk of developing the syndrome.
In addition to these undisputed facts, the following evidence, taken in favor of the jury's verdict, was
presented. Ronald Guarneri, an industrial hygienist at Electric *205 Boat, testified that he had conducted
extensive testing of tools used at the shipyard in order to identify occupational hazards. This testing revealed
that a large number of the defendants' tools violated the limits for vibration exposure established by the
American National Standards Institute (institute), and exceeded the threshold limit promulgated by the
American Conference of Governmental and Industrial Hygienists (conference).
Richard Alexander, a mechanical engineering professor at Texas A & M University, testified that
because machinery vibration has harmful effects on machines and on people, engineers routinely research
ways to reduce or to eliminate the amount of vibration that a machine produces when operated. Alexander
discussed various methods available to control vibration, including isolation (the use of springs or mass to
isolate vibration), dampening (adding weights to dampen vibrational effects), and balancing (adding weights
to counterbalance machine imbalances that cause vibration). Alexander testified that each of these methods
has been available to manufacturers for at least thirty-five years.
After a six week trial, the trial court rendered judgment on jury verdicts in favor of the plaintiffs.
Finding that the defendants' tools had been defectively designed so as to render them unreasonably
dangerous, the jury awarded the plaintiffs compensatory damages. The jury also concluded that the
manufacturers had provided inadequate warnings. Because the plaintiffs failed to prove that adequate
warnings would have prevented their injuries, the jury did not award damages on that claim. Finally, the jury
declined to award the plaintiffs punitive damages. This appeal and cross appeal followed. Additional facts
will be provided as warranted.
I
We first address the defendants' argument that the trial court improperly failed to render judgment
for the defendants notwithstanding the verdicts because there was insufficient evidence for the jury to have
found that the tools had been defectively designed. Specifically, the defendants claim that, in order to
14
One expert witness explained the design and purpose of these pneumatic tools: "[T]he machines are connected to an air
hose that has air pressure, and you squeeze some kind of a valve and the air pressure is released into what's called an air motor,
which is a turbine of sorts. The air propels the motor and rotates the grinding device and you apply the grinding wheel or
attachment to the metal that you want to grind."
94
establish a prima facie design defect case, the plaintiffs were required to prove that there was a feasible
alternative design available at the time that the defendants put their tools into the stream of commerce. We
disagree.
In order properly to evaluate the parties' arguments, we begin our analysis with a review of the
development of strict tort liability, focusing specifically on design defect liability. At common law, a person
injured by a product had no cause of action against the manufacturer of the product unless that person was
in privity of contract with the manufacturer. This rule, established in Winterbottom v. Wright, 152 Eng.Rep.
402 (1842), made privity a condition precedent to actions against manufacturers grounded in negligence.
American courts widely adopted this rule and, for the next one-half century, the privity requirement remained
steadfast in American jurisprudence.
The evolution of modern products liability law began with the landmark case of MacPherson v.
Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916)...
The next major development in products liability law did not attempt to modify the negligence rule
any further, but, rather, urged its replacement. In Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453,
461, 150 P.2d 436 (1944). Justice Roger Traynor, in a now famous concurring opinion, first suggested that
courts should hold manufacturers liable wihtout fault when defective products cause personal injury. Justice
Traynor asserted that strict liability would serve several policy justifications: (1) manufacturers could readily
absorb or pass on the cost of liability to consumers as a cost of doing business; (2) manufacturers would be
deterred from marketing defective products; and (3) injured persons, who lack familiarity with the
manufacturing process, would no longer shoulder the burden of proving negligence. Id., at 462, 150 P.2d 436
(Traynor, J., concurring).
Although Justice Traynor's argument did not prevail in Escola, nearly twenty years later he wrote
for the majority in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 377 P.2d 897, 27 Cal.Rptr.
697 (1963), holding a manufacturer strictly liable because its defective product caused injury to the plaintiff.
The Greenman court stated that "[a] manufacturer is strictly liable in tort when an article he places on the
market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury
to a human being." Id. The court explained that the purpose of this rule "is to insure that the costs of injuries
resulting from defective products are borne by the manufacturers that put such products on the market rather
than by the injured persons who are powerless to protect themselves." Id., at 63, 27 Cal.Rptr. 697, 377 P.2d
897.
Two years later, § 402A of the Restatement (Second) of Torts adopted, with slight variation, the
doctrine of strict tort liability espoused in Greenman. Section 402A provides:
...
Products liability law has thus evolved to hold manufacturers strictly liable for unreasonably
dangerous products that cause injury to ultimate users. Nevertheless, strict tort liability does not transform
manufacturers into insurers, nor does it impose absolute liability. See R. Traynor, "The Ways and Meanings
of Defective Products and Strict Liability," 32 Tenn.L.Rev. 363, 366-67 (1965) (emphasizing that
manufacturers are not insurers for all injuries caused by products). As the Wisconsin Supreme Court has
pointed out, "[f]rom the plaintiff's point of view the most beneficial aspect of the rule is that it relieves him
of proving specific acts of negligence and protects him from the defenses of notice of breach, disclaimer, and
lack of privity in the implied warranty concepts of sales and contracts." Dippel v. Sciano, 37 Wis.2d 443,
460, 155 N.W.2d 55 (1967). Strict tort liability merely relieves the plaintiff from proving that the
manufacturer was negligent and allows the plaintiff to establish instead the defective condition of the product
as the principal basis of liability.
...
Although courts have widely accepted the concept of strict tort liability, some of the specifics of
strict tort liability remain in question. In particular, courts have sharply disagreed over the appropriate
definition of defectiveness in design cases. As the Alaska Supreme Court has stated: "Design defects present
95
the most perplexing problems in the field of strict products liability because there is no readily ascertainable
external measure of defectiveness. While manufacturing flaws can be evaluated against the intended design
of the product, no such objective standard exists in the design defect context." Caterpillar Tractor Co. v.
Beck, 593 P.2d 871, 880 (Alaska 1979).
Section 402A imposes liability only for those defective products that are "unreasonably dangerous"
to "the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to
its characteristics." 2 Restatement (Second), supra, § 402A, comment (i). Under this formulation, known as
the "consumer expectation" test, a manufacturer is strictly liable for any condition not contemplated by the
ultimate consumer that will be unreasonably dangerous to the consumer...
Other jurisdictions apply only a risk-utility test in determining whether a manufacturer is liable for
a design defect... To assist the jury in evaluating the product's risks and utility, these courts have set forth
a list of nonexclusive factors to consider when deciding whether a product has been defectively designed.
With this history in mind, we turn to the development of strict products liability law in Connecticut.
In Garthwait v. Burgio, 153 Conn. 284, 289-90, 216 A.2d 189 (1965), this court recognized a products
liability cause of action sounding in tort and became one of the first jurisdictions to adopt the rule provided
in § 402A. See J. Beasley, Products Liability and the Unreasonably Dangerous Requirement (1981) pp. 21,
201. In Garthwait, the court stated: "Where the liability is fundamentally founded on tort rather than contract
there appears no sound reason why the manufacturer should escape liability simply because the injured user,
a party in the normal chain of distribution, was not in contractual privity with it by purchase and sale."
Garthwait v. Burgio, supra, 289...
This court has long held that in order to prevail in a design defect claim, "[t]he plaintiff must prove
that the product is unreasonably dangerous." Id. We have derived our definition of "unreasonably dangerous"
from comment (i) to § 402A, which provides that "the article sold must be dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics." 2 Restatement (Second), supra, § 402A, comment (i).
This "consumer expectation" standard is now well established in Connecticut strict products liability
decisions.
The defendants propose that it is time for this court to abandon the consumer expectation standard
and adopt the requirement that the plaintiff must prove the existence of a reasonable alternative design in
order to prevail on a design defect claim. We decline to accept the defendants' invitation.
In support of their position, the defendants point to the second tentative draft of the Restatement
(Third) of Torts: Products Liability (1995) (Draft Restatement [Third] ), which provides that, as part of a
plaintiff's prima facie case, the plaintiff must establish the availability of a reasonable alternative design.
Specifically, § 2(b) of the Draft Restatement (Third) provides: "[A] product is defective in design when the
foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders the product not reasonably safe." The
reporters to the Draft Restatement (Third) state that "[v]ery substantial authority supports the proposition
that [the] plaintiff must establish a reasonable alternative design in order for a product to be adjudged
defective in design." Draft Restatement (Third), supra, § 2, reporters' note to comment (c), p. 50.
We point out that this provision of the Draft Restatement (Third) has been a source of substantial
controversy among commentators. See, e.g., J. Vargo, "The Emperor's New Clothes: The American Law
Institute Adorns a 'New Cloth' for Section 402A Products Liability Design Defects--A Survey of the States
Reveals a Different Weave," 26 U.Mem.L.Rev. 493, 501 (1996) (challenging reporters' claim that Draft
Restatement (Third)'s reasonable alternative design requirement constitutes "consensus" among
jurisdictions); P. Corboy, "The Not- So-Quiet Revolution: Rebuilding Barriers to Jury Trial in the Proposed
Restatement (Third) of Torts: Products Liability," 61 Tenn.L.Rev. 1043, 1093 (1994) ("[t]he decisional
support for [the reasonable alternative design requirement], however, appears to be overstated by the
96
Reporters, who claim that [eighteen] states support the rule"); F. Vandall, "The Restatement (Third) of Torts:
Products Liability Section 2(b): The Reasonable Alternative Design Requirement," 61 Tenn.L.Rev. 1407,
1428 (1994) ("The centerpiece of the Restatement (Third) of Torts: Products Liability is the requirement that
the plaintiff present evidence of a reasonable alternative design as part of her prima facie case. This
requirement is not supported by the majority of the jurisdictions that have considered the question.").
Contrary to the rule promulgated in the Draft Restatement (Third), our independent review of the prevailing
common law reveals that the majority of jurisdictions do not impose upon plaintiffs an absolute requirement
to prove a feasible alternative design.11
In our view, the feasible alternative design requirement imposes an undue burden on plaintiffs that
might preclude otherwise valid claims from jury consideration.12 Such a rule would require plaintiffs to
retain an expert witness even in cases in which lay jurors can infer a design defect from circumstantial
evidence. Connecticut courts, however, have consistently stated that a jury may, under appropriate
circumstances, infer a defect from the evidence without the necessity of expert testimony. See, e.g., Standard
Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 183 (D.Conn.1984) (recognizing Connecticut
law permits fact finder to draw inference of defect from circumstantial evidence); Living & Learning Centre,
Inc. v. Griese Custom Signs, Inc., 3 Conn.App. 661, 664, 491 A.2d 433 (1985) ("It is not necessary that the
11
Our research reveals that, of the jurisdictions that have considered the role of feasible alternative designs in design defect
cases: (1) six jurisdictions affirmatively state that a plaintiff need not show a feasible alternative design in order to establish a
manufacturer's liability for design defect; see Karns v. Emerson Electric Co., 817 F.2d 1452, 1457 (10th Cir.1987) (applying
Oklahoma law); French v. Grove Mfg. Co., 656 F.2d 295, 297 (8th Cir.1981) (applying Arkansas law); Kallio v. Ford Motor
Co., 407 N.W.2d 92, 94-97 (Minn.1987); Rahmig v. Mosley Machinery Co., 226 Neb. 423, 441, 412 N.W.2d 56 (1987); Couch
v. Mine Safety Appliances Co., 107 Wash.2d 232, 239, 728 P.2d 585 (1986); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121
Wis.2d 338, 370-71, 360 N.W.2d 2 (1984); (2) sixteen jurisdictions hold that a feasible alternative design is merely one of
several factors that the jury may consider in determining whether a product design is defective; see Dart v. Wiebe Mfg., Inc., 147
Ariz. 242, 245, 709 P.2d 876 (1985); Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1247-48 (Colo.1987), cert. dismissed,
485 U.S. 901, 108 S.Ct. 1067, 99 L.Ed.2d 229 (1988); Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272, 1277
(D.C.App.1995); Radiation Technology, Inc. v. Ware Construction Co., supra, 445 So.2d at 331; Banks v. ICI Americas, Inc.,
264 Ga. 732, 736, 450 S.E.2d 671 (1994); Chown v. USM Corp., 297 N.W.2d 218, 220-21 (Iowa 1980); Jenkins v. Amchem
Products, Inc., 256 Kan. 602, 636, 886 P.2d 869 (1994), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995);
Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780-81 (Ky.1984); McCourt v. J.C. Penney Co., 103 Nev. 101, 104,
734 P.2d 696 (1987); Thibault v. Sears, Roebuck & Co., supra, 118 N.H. at 807, 395 A.2d 843; Cepeda v. Cumberland
Engineering Co., 76 N.J. 152, 174-75, 386 A.2d 816 (1978); Brooks v. Beech Aircraft Corp., 120 N.M. 372, 902 P.2d 54, 61
(1995); Wilson v. Piper Aircraft Corp., 282 Or. 61, 71 n. 5, 577 P.2d 1322 (1978); Claytor v. General Motors Corp., 277 S.C.
259, 265, 286 S.E.2d 129 (1982); Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 913 (S.D.1987); Morningstar v.
Black & Decker Mfg. Co., supra, 162 W.Va. at 887, 253 S.E.2d 666; (3) three jurisdictions require the defendant, not the
plaintiff, to prove that the product was not defective; see Caterpillar Tractor Co. v. Beck, supra, 593 P.2d at 884; Barker v. Lull
Engineering Co., supra, 20 Cal.3d at 431-32, 143 Cal.Rptr. 225, 573 P.2d 443; Ontai v. Straub Clinic & Hospital, Inc., supra,
66 Haw. at 242-43, 659 P.2d 734; and (4) eight jurisdictions require that the plaintiff prove a feasible alternative design in order
to establish a prima facie case of design defect; see General Motors Corp. v. Edwards, 482 So.2d 1176, 1191 (Ala.1985); Owens
v. Allis-Chalmers Corp., 414 Mich. 413, 426-27, 326 N.W.2d 372 (1982); Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102,
108, 450 N.E.2d 204, 463 N.Y.S.2d 398 (1983); see also Ill.Comp.Stat.Ann. c. 735, 5/2-2104 (West Sup.1996);
La.Rev.Stat.Ann. § 9:2800.56 (West 1991); Miss.Code Ann. § 11-1-63(f)(ii) (Cum.Sup.1996); Ohio Rev.Code Ann. §
2307.75(F) (Banks-Baldwin 1994); Tex.Civ.Prac. & Rem.Code Ann. § 82.005 (West Sup.1997).
12
Indeed, as one commentator has pointed out: "Apparently, without expert evidence in [the] plaintiff's prima facie case, [the]
defendant would be entitled to a directed verdict. This is despite the advice in comment d [of the Draft Restatement (Third),
supra] that, due to [the] plaintiff's limited access to relevant data, [the] plaintiff
should not be required to make a detailed showing. Moreover, it is clear that defendants will hold plaintiffs to their burden of
showing the alternative design to be reasonable considering the 'overall safety of the entire product.' In short, the proposed
standard requires the plaintiff to put on a case to the judge supporting a product the defendant did not make. Only then will the
plaintiff be permitted to place the merits of his or her case before the jury. Worse yet, due to the added cost and risk of a directed
verdict, some plaintiffs with meritorious claims will not reach the jury, and others may not find representation at all." P. Corboy,
supra, 61 Tenn.L.Rev. 1095-96.
97
plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified
dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient
evidence of a defect under § 402A of the Second Restatement of Torts."); Kileen v. General Motors Corp.,
36 Conn.Supp. 347, 349, 421 A.2d 874 (1980) ("[t]he fact finder can find, where other identifiable causes
are absent, that the mere evidence of a malfunction is sufficient evidence of a defect"); see also annot., 65
A.L.R.4th 346, 354-58 (1988) (listing twenty-eight states that allow establishment of prima facie case of
design defect based upon inferences from circumstantial evidence).
Moreover, in some instances, a product may be in a defective condition unreasonably dangerous to
the user even though no feasible alternative design is available. In such instances, the manufacturer may be
strictly liable for a design defect notwithstanding the fact that there are no safer alternative designs in
existence. See, e.g., O'Brien v. Muskin Corp., 94 N.J. 169, 184, 463 A.2d 298 (1983) ("other products,
including some for which no alternative exists, are so dangerous and of such little use that ... a manufacturer
would bear the cost of liability of harm to others"); Wilson v. Piper Aircraft Corp., 282 Or. 61, 71 n. 5, 577
P.2d 1322 (1978) ( "Our holding should not be interpreted as a requirement that [the practicability of a safer
alternative design] must in all cases weigh in [the] plaintiff's favor before the case can be submitted to the
jury. There might be cases in which the jury would be permitted to hold the defendant liable on account of
a dangerous design feature even though no safer design was feasible (or there was no evidence of a safer
practicable alternative)."); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 371, 360 N.W.2d
2 (1984) ("[a] product may be defective and unreasonably dangerous even though there are no alternative,
safer designs available"). Accordingly, we decline to adopt the requirement that a plaintiff must prove a
feasible alternative design as a sine qua non to establishing a prima facie case of design defect.
Although today we continue to adhere to our long-standing rule that a product's defectiveness is to
be determined by the expectations of an ordinary consumer, we nevertheless recognize that there may be
instances involving complex product designs in which an ordinary consumer may not be able to form
expectations of safety. See 1 M. Madden, supra, § 6.7, p. 209 (noting difficulty in "determining in particular
instances the reasonable expectation of the consumer"); W. Prosser & Keeton, supra, § 99, pp. 698-99
(discussing ambiguity of consumer expectation test and shortcomings in its application). In such cases, a
consumer's expectations may be viewed in light of various factors that balance the utility of the product's
design with the magnitude of its risks. We find persuasive the reasoning of those jurisdictions that have
modified their formulation of the consumer expectation test by incorporating risk-utility factors into the
ordinary consumer expectation analysis. Thus, the modified consumer expectation test provides the jury with
the product's risks and utility and then inquires whether a reasonable consumer would consider the product
unreasonably dangerous. As the Supreme Court of Washington stated in Seattle-First National Bank v.
Tabert, supra, at 154, 542 P.2d 774, "[i]n determining the reasonable expectations of the ordinary consumer,
a number of factors must be considered. The relative cost of the product, the gravity of the potential harm
from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant
in a particular case. In other instances the nature of the product or the nature of the claimed defect may make
other factors relevant to the issue." Accordingly, under this modified formulation, the consumer expectation
test would establish the product's risks and utility, and the inquiry would then be whether a reasonable
consumer would consider the product design unreasonably dangerous.15
15
Under this formulation, a sample jury instruction could provide: "A product is unreasonably dangerous as designed, if, at
the time of sale, it is defective to an extent beyond that which would be contemplated by the ordinary consumer. In determining
what an ordinary consumer would reasonably expect, you should consider the usefulness of the product, the likelihood and
severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the
ability to reduce the product's danger without impairing its usefulness or making it too expensive, and the feasibility of spreading
the loss by increasing the product's price or by purchasing insurance, and such other factors as the claimed defect indicate are
appropriate."
98
In our view, the relevant factors that a jury may consider include, but are not limited to, the
usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an
alternative design, the financial cost of an improved design, the ability to reduce the product's danger without
impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing
the product's price. See Barker v. Lull Engineering Co., supra, 20 Cal.3d at 431, 143 Cal.Rptr. 225, 573 P.2d
443; Banks v. ICI Americas, Inc., 264 Ga. 732, 736 n. 6, 450 S.E.2d 671 (1994); J. Wade, "On the Nature
of Strict Tort Liability for Products," 44 Miss.L.J. 825, 837-38 (1973). The availability of a feasible
alternative design is a factor that the plaintiff may, rather than must, prove in order to establish that a
product's risks outweigh its utility. See, e.g., French v. Grove Mfg. Co., 656 F.2d 295, 297 (8th Cir.1981);
Armentrout v. FMC Corp., supra, 842 P.2d at 185; Sumnicht v. Toyota Motor Sales, U.S.A., Inc., supra, 121
Wis.2d at 371, 360 N.W.2d 2.
Furthermore, we emphasize that our adoption of a risk-utility balancing component to our consumer
expectation test does not signal a retreat from strict tort liability. In weighing a product's risks against its
utility, the focus of the jury should be on the product itself, and not on the conduct of the manufacturer.16
See Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 246, 709 P.2d 876 (1985); Aller v. Rodgers Machinery Mfg. Co.,
supra, 268 N.W.2d at 835.
Although today we adopt a modified formulation of the consumer expectation test, we emphasize
that we do not require a plaintiff to present evidence relating to the product's risks and utility in every case.
As the California Court of Appeals has stated: "There are certain kinds of accidents--even where fairly
complex machinery is involved--[that] are so bizarre that the average juror, upon hearing the particulars,
might reasonably think: 'Whatever the user may have expected from that contraption, it certainly wasn't that.'
" Akers v. Kelley Co., 173 Cal.App.3d 633, 651, 219 Cal.Rptr. 513 (1985). Accordingly, the ordinary
consumer expectation test is appropriate when the everyday experience of the particular product's users
permits the inference that the product did not meet minimum safety expectations. See Soule v. General
Motors Corp., 8 Cal.4th 548, 567, 882 P.2d 298, 34 Cal.Rptr.2d 607 (1994).
...
In this respect, it is the function of the trial court to determine whether an instruction based on the
ordinary consumer expectation test or the modified consumer expectation test, or both, is appropriate in light
of the evidence presented. In making this determination, the trial court must ascertain whether, under each
test, there is sufficient evidence as a matter of law to warrant the respective instruction. See Wassell v.
Hamblin, 196 Conn. 463, 470-71, 493 A.2d 870 (1985) (trial court may not instruct jury on issue that is
unsupported by evidence).
With these principles in mind, we now consider whether, in the present case, the trial court properly
instructed the jury with respect to the definition of design defect for the purposes of strict tort liability. The
trial court instructed the jury that a manufacturer may be strictly liable if the plaintiffs prove, among other
elements, that the product in question was in a defective condition, unreasonably dangerous to the ultimate
user. The court further instructed the jury that, in determining whether the tools were unreasonably
dangerous, it may draw its conclusions based on the reasonable expectations of an ordinary user of the
defendants' tools. Because there was sufficient evidence as a matter of law to support the determination that
the tools were unreasonably dangerous based on the ordinary consumer expectation test, we conclude that
this instruction was appropriately given to the jury.
...The jury heard testimony that Guarneri, Electric Boat's industrial hygienist, had performed
extensive testing of tools used at the shipyard, which tests revealed that a large number of the defendants'
16
FN16. As Dean Keeton has stated, "[t]he change in the substantive law as regards the liability of makers of products and
other sellers in the marketing chain has been from fault to defect. The plaintiff is no longer required to impugn the maker, but he
is required to impugn the product." P. Keeton, "Product Liability and the Meaning of Defect," 5 St. Mary's L.J. 30, 33 (1973).
99
tools violated the institute's limits for vibration exposure and exceeded the conference's threshold limit. The
jury also heard substantial testimony with respect to various methods, including isolation, dampening and
balancing, available to reduce the deleterious effects of vibration caused by the defendants' tools. Moreover,
there was expert testimony that exposure to vibration is a significant contributing factor to the development
of hand arm vibration syndrome and that a clear relationship exists between the level of vibration exposure
and the risk of developing the syndrome. Viewing the evidence in a light favorable to supporting the jury's
verdicts, as we must, we conclude that the jury properly determined that the defendants' tools had been
defectively designed.
LEE V. MARTIN
Arkansas Court of Appeals
45 S.W.3d 860 (Ark. App. 2001)
OLLY NEAL, Judge.
This is a negligence and products-liability case. On May 6, 1992, appellant John Lee, who
was age eighteen, attended a party hosted by appellee Ashley Martin, age seventeen. Upon leaving
the party, Lee accidently backed a borrowed car into a concrete bridge. When the car came to rest,
one of its tires was suspended over a ditch. Lee sought the assistance of those at the party to
extricate the vehicle from its precarious position. At Lee's request and direction, Ashley Martin sat
in the driver's seat and accelerated the vehicle while Lee and others attempted to push it free. When
Martin accelerated, the suspended tire began spinning at a high rate of speed and exploded, seriously
injuring Lee. He filed suit against Martin for negligence and against Sears, the supplier of the tire,
on the theories of strict liability, breach of warranty, and failure to warn. Martin and Sears filed
motions for summary judgment, which were granted by the trial court. On appeal, Lee contends that
summary judgment was improperly granted. We disagree and affirm. . . .
We address first the summary judgment entered in favor of Martin. Lee contended that
Martin was negligent in over-accelerating the vehicle, which caused the free-spinning tire to explode.
Lee's expert, Loren Forney, explained in his deposition that, in his opinion, excessive centrifugal
force caused the tire to come apart in this case. His opinion was bolstered by a page from a sample
car owner's manual and by the affidavit of a mechanic, each of which recognized that, when one
drive wheel is stationary and the other is not, the free wheel spins twice as fast upon acceleration as
it normally would. This rapid acceleration subjects the freely spinning tire to great centrifugal force,
causing it to explode. This phenomenon is known as over- spinning or spin break. . . . Foreseeability
is a necessary ingredient of actionable negligence in this state. . . ...
Martin established, through Lee's and Forney's deposition testimony, that she had no reason
to anticipate that acceleration of the vehicle would create a risk of harm. It was therefore incumbent
upon Lee to meet proof with proof and show that a genuine issue of fact remained as to whether the
risk was foreseeable. Lee's proof fell short in this regard. To establish the foreseeability of the risk,
he relied primarily on the fact that the car owner's manual warned drivers that, when one wheel is
spinning, acceleration should not exceed thirty-five miles per hour. However, Martin did not own
the car that was involved in the incident; it was owned by a third person not a party to this case.
Further, Lee offered no proof that Martin had ever driven the car or seen the manual, nor did he offer
100
proof that the manual was in the car at the time of the incident. Under these circumstances, we
uphold the grant of summary judgment as to Martin.
....
Next, we consider Lee's argument that factual issues remain to be decided on each of the
three theories he pled against Sears: strict liability for an alleged defect in the tire, breach of the
implied warranty of merchantability, and negligent failure to warn. To recover under a strict liability
theory, a plaintiff must prove, inter alia, that the defendant supplied the product in a defective
condition that rendered it unreasonably dangerous and that the defective condition was the proximate
cause of the plaintiff's harm. See Ark. Code Ann. § 4-86-102(a) (Repl. 1996); E.I. Du Pont de
Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). A "defective condition" is a
condition that renders a product unsafe for reasonably foreseeable use and consumption. Ark. Code
Ann. § 16-116- 102(4) (1987). A product is "unreasonably dangerous" if it is dangerous to an extent
beyond that which would be contemplated by the ordinary and reasonable user, assuming the
ordinary knowledge of the community or similar users as to its characteristics, propensities, risks,
dangers, and proper and improper uses, as well as any special knowledge, training, or experience
possessed by the user. See Ark. Code Ann. § 16-116-102(7) (1987).
Lee's expert, Forney, testified unequivocally in his deposition that there was no
manufacturing defect in the tire, no evidence of malfunction of the tire, nor any evidence that it was
defectively designed. In fact, he stated that Sears had no responsibility at all for the tire explosion.
Despite this testimony, Lee argues on appeal as follows:
Even though the tire has no design defect identified by John Forney and there was no negligence
in the manufacturing process as such, still the tire in question did not meet the expectations of John
Lee or any other average or ordinary consumer and consequently that makes the tire defective.
According to Lee, Arkansas has adopted a consumer expectations test with respect to defectively
designed products. Under this test, a plaintiff must demonstrate that the defective product
disappointed the expectations of either a reasonable consumer or the plaintiff at bar before the
product will be considered unreasonably dangerous. See Robert Thompson The Arkansas Products
Liability Statute: What Does "Unreasonably Dangerous" Mean In Arkansas? 50 ARK. L. REV. 663
(1998).
Lee argues that, because he did not expect the tire to explode, the tire is defective under the
consumer-expectation test. However, he misunderstands the purpose of the test. Even if we agree
that Arkansas has adopted the consumer- expectation standard, and no state court case has expressly
held that we have, [FN1] the standard is relevant to only one prong of the proof needed in a strictliability case, i.e., whether the product is unreasonably dangerous. See Thompson, 50 ARK. L. REV.
at 664-67. A plaintiff in a strict-liability case must prove that the product is unreasonably dangerous
and defective. See O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). Proof that the
product was defective is an essential element of a strict-liability cause of action. See Lakeview
Country Club, Inc. v. Superior Prods., 325 Ark. 218, 926 S.W.2d 428 (1996). Lee's own expert
offered his opinion that the tire was not defective, and Lee did not meet proof with proof to dispel
that opinion. If a respondent cannot meet proof with proof on an essential element of his claim, the
movant is entitled to judgment as a matter of law. See Caplener v. Bluebonnet Milling Co., 322 Ark.
751, 911 S.W.2d 586 (1995).
101
FN1. But see French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir.1981).
Next, we address Lee's claim for breach of the implied warranty of merchantability. The
gravamen of such a claim is that the product is not suited for its ordinary purpose. See Lakeview
Country Club, Inc. v. Superior Prods., supra; Purina Mills, Inc. v. Askins, 317 Ark. 58, 875 S.W.2d
843 (1994). As we have already stated, Lee's expert found that the tire was not defective and did not
malfunction. He further found that any tire would have exploded under the conditions present in this
case, based upon the laws of physics. Sears relied on these opinions in filing its motion for summary
judgment on this issue and, again, Lee did not meet proof with proof to show that a genuine issue
of fact existed. He offered no proof that the tire was unfit, that it malfunctioned, or that it was
inadequate to serve its ordinary purpose. The expert's opinion stood unrebutted on this point, making
summary judgment proper.
[12][13] Finally, we address Lee's claim that Sears failed to warn users of the hazard of centrifugalforce explosions. As a general rule, there is a duty to warn the ultimate user of a product of the risk
of the product. See West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991). This duty exists
under either a negligence theory or a strict-liability theory. [fn2] ID. the record revealS that, other
than the warning contained in the sample car owner's manual referred to earlier, which was provided
by the car manufacturer, the only other warning provided as to the danger of over- spinning a tire was
contained on the back of a Sears tire warranty card. It read as follows:
When in mud, sand, or ice conditions, do not indulge in excessive wheel spin. In such conditions,
with automatic transmission vehicles, by accelerating the motor excessively, it is possible to spin
one of the drive tires beyond its speed capability. This is also true when balancing a drive
tire/wheel assembly using the engine of the vehicle to spin the wheel.
Lee argues that the warnings were not adequate and that a proper warning should have been placed
on the wheel itself or on the dashboard of the car or that warnings should have been displayed in
retail tire stores. Sears did not base its motion for summary judgment on the claim that the warnings
provided were adequate as a matter of law. Rather, it contended that Lee could not prove that lack
of a warning proximately caused his injuries. This contention was based on the theory that it would
have been futile to provide further warnings because Lee would not have seen them.
FN2. In his brief in opposition to Sears's summary judgment motion, Lee stated
that his failure-to-warn claim was for negligent failure-to- warn. However, the distinction makes
no difference for purposes of this appeal.
In Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992), the supreme court held that, if
a plaintiff meets his initial burden of proving that a warning is inadequate, a presumption arises that
he would have read and heeded an adequate warning; however, the presumption may be rebutted
by evidence that an adequate warning would have been futile under the circumstances. In Bushong,
the court upheld the entry of summary judgment on a failure-to-warn claim because the plaintiff
admittedly did not read a warning label on the chemical cleaning product that allegedly caused his
injury. Likewise, in the case at bar, appellant, by his own admission, did not look at the tire or
102
inspect it before going into the ditch to free the vehicle, nor was it likely that he ever would have.
The hour was late when the incident occurred, and the vehicle did not belong to appellant. Further,
appellant's expert, Forney, testified that, in his opinion, a warning on the tire would have made no
difference. Thus, as in Bushong, it would have been futile as a matter of law for Sears to provide
further warnings. Summary judgment was therefore proper on this issue.
Affirmed. HART and VAUGHT, JJ., agree.
DENNY vs. FORD MOTOR COMPANY
87 N.Y.2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 25
1995 WL 722844 (N.Y 1995).
Motorist who was injured in rollover accident while driving Ford Bronco II brought products liability
action in federal court against manufacturer and asserted claims of strict products liability and breach of
implied warranty of merchantability. Jury returned verdict finding manufacturer liable under warranty theory
but not under strict liability theory, and the United States District Court for the Northern District of New
York, Thomas J. McAvoy, Chief Judge, entered judgment on jury verdict and denied posttrial motions.
Manufacturer appealed, and the Court of Appeals for the Second Circuit, 42 F.3d 106, certified questions.
The Court of Appeals, Titone, J., held that: (1) causes of action for strict products liability and breach of
implied warranty of merchantability are not identical under New York law, and (2) verdict which found
manufacturer liable under implied warranty cause of action and not liable under strict products liability cause
of action was theoretically reconcilable.
Certified questions answered.
Simons, J., dissented and filed opinion.
O'Melveny & Myers (John H. Beisner and Brian D. Boyle, Washington, DC, of the District of
Columbia Bar, admitted pro hac vice, of counsel) and Gibson, McAskill & Crosby, Buffalo (Brian P. Crosby,
of counsel), for defendant.
Paul F. McAloon, P.C., New York City (Paul F. McAloon, of counsel), John Scarzafava, Oneonta,
and Cook & Butler, L.L.P. (Russell L. Cook, Jr., Houston, TX, of the Texas Bar, admitted pro hac vice, of
counsel), for plaintiffs.
Herzfeld & Rubin, P.C., New York City (Michael Hoenig, David B. Hamm and Miriam Skolnik, of
counsel), for Product Liability Advisory Council, Inc., amicus curiae.
OPINION OF THE COURT
TITONE, Judge.
Are the elements of New York's causes of action for strict products liability and breach of implied
warranty always coextensive? If not, can the latter be broader than the former? These are the core issues
presented by the questions that the United States Court of Appeals for the Second Circuit has certified to us
in this diversity action involving an allegedly defective vehicle. On the facts set forth by the Second Circuit,
we hold that the causes of action are not identical and that, under the circumstances presented here, it is
possible to be liable for breach of implied warranty even though a claim of strict products liability has not
been satisfactorily established.
103
I.
As stated by the Second Circuit, this action arises out of a June 9, 1986 accident in which plaintiff
Nancy Denny was severely injured when the Ford Bronco II that she was driving rolled over. The rollover
accident occurred when Denny slammed on her brakes in an effort to avoid a deer that had walked directly
into her motor vehicle's path. Denny and her spouse sued Ford Motor Co., the vehicle's manufacturer,
asserting claims for negligence, strict products liability and breach of implied warranty of merchantability
(see, UCC 2-314[2][c]; 2-318). The case went to trial in the District Court for the Northern District of New
York in October of 1992.
The trial evidence centered on the particular characteristics of utility vehicles, which are generally
made for off-road use on unpaved and often rugged terrain. Such use sometimes necessitates climbing over
obstacles such as fallen logs and rocks. While utility vehicles are traditionally considerably larger than
passenger cars, some manufacturers have created a category of down-sized "small" utility vehicles, which
are designed to be lighter, to achieve better fuel economy and, presumably, to appeal to a wider consumer
market. The Bronco II in which Denny was injured falls into this category.
Plaintiffs introduced evidence at trial to show that small utility vehicles in general, and the Bronco
II in particular, present a significantly higher risk of rollover accidents than do ordinary passenger
automobiles. Plaintiffs' evidence also showed that the Bronco II had a low stability index attributable to its
high center of gravity and relatively narrow track width. The vehicle's shorter wheel base and suspension
system were additional factors contributing to its instability. Ford had made minor design changes in an
effort to achieve a higher stability index, but, according to plaintiffs' proof, none of the changes produced
a significant improvement in the vehicle's stability.
Ford argued at trial that the design features of which plaintiffs complained were necessary to the
vehicle's off-road capabilities. According to Ford, the vehicle had been intended to be used as an off-road
vehicle and had not been designed to be sold as a conventional passenger automobile. Ford's own engineer
stated that he would not recommend the Bronco II to someone whose primary interest was to use it as a
passenger car, since the features of a four-wheel-drive utility vehicle were not helpful for that purpose and
the vehicle's design made it inherently less stable.
Despite the engineer's testimony, plaintiffs introduced a Ford marketing manual which predicted that
many buyers would be attracted to the Bronco II because utility vehicles were "suitable to contemporary life
styles" and were "considered fashionable" in some suburban areas. According to this manual, the sales
presentation of the Bronco II should take into account the vehicle's "suitab[ility] for commuting and for
suburban and city driving." Additionally, the vehicle's ability to switch between two-wheel and four-wheel
drive would "be particularly appealing to women who may be concerned about driving in snow and ice with
their children." Plaintiffs both testified that the perceived safety benefits of its four-wheel-drive capacity
were what attracted them to the Bronco II. They were not at all interested in its off-road use.
At the close of the evidence, the District Court Judge submitted both the strict products liability
claim and the breach of implied warranty claim, despite Ford's objection that the two causes of action were
identical. With respect to the strict products liability claim the court told the jury that "[a] manufacturer who
places a product on the market in a defective condition is liable for injury which results from use of the
product when the product is used for its intended or reasonably foreseeable purpose." Further, the court
stated: "A product is defective if it is not reasonably safe. * * * It is not necessary for the plaintiffs to prove
that the defendant knew or should have known of the product[']s potential for causing injury to establish that
the product was not reasonably safe. Rather, the plaintiffs must prove by a preponderance of the evidence
that a reasonable person * * * who knew of the product's potential for causing injury and the existence of
available alternative designs * * * would have concluded that such a product should not have been marketed
in that condition. Such a conclusion should be reached after balancing the risks involved in using the product
against the product[']s usefulness and its costs against the risks, usefulness and costs of the alternative design
as compared to the product defendant did market."
104
With respect to the breach of implied warranty claim, the court told the jury: "The law implies a
warranty by a manufacturer which places its product on the market that the product is reasonably fit for the
ordinary purpose for which it was intended. If it is, in fact, defective and not reasonably fit to be used for
its intended purpose, the warranty is breached. "The plaintiffs claim that the Bronco II was not fit for its
ordinary purpose because of its alleged propensity to rollover and lack of warnings to the consumer of this
propensity."9
Neither party objected to the content of these charges.
In response to interrogatories, the jury found that the Bronco II was not "defective" and that
defendant was therefore not liable under plaintiffs' strict products liability cause of action. However, the jury
also found that defendant had breached its implied warranty of merchantability and that the breach was the
proximate cause of Nancy Denny's injuries. Following apportionment of damages, plaintiff was awarded
judgment in the amount of $1.2 million.
Ford subsequently moved for a new trial under rule 59(a) of the Federal Rules of Civil Procedure,
arguing that the jury's finding on the breach of implied warranty cause of action was irreconcilable with its
finding on the strict products liability claim. The trial court rejected this argument, holding that it had been
waived and that, in any event, the verdict was not inconsistent.
On defendant's appeal, a majority at the Second Circuit held that defendant's trial conduct had not
resulted in a waiver of the inconsistency issue. Reasoning that the outcome of the appeal depended upon the
proper application of New York law, the court certified the following questions for consideration by this
Court pursuant to article VI, s 3(b)(9) of the State Constitution and rule 500.17 of the Rules of the Court of
Appeals (22 NYCRR 500.17): (1) whether the strict products liability claim and the breach of implied
warranty claim are identical; (2) whether, if the claims are different, the strict products liability claim is
broader than the implied warranty claim and encompasses the latter; and (3) whether, if the claims are
different and a strict liability claim may fail while an implied warranty claim succeeds, the jury's finding of
no product defect is reconcilable with its finding of a breach of warranty.
II.
In this proceeding, Ford's sole argument is that plaintiffs' strict products liability and breach of
implied warranty causes of action were identical and that, accordingly, a defendant's verdict on the former
cannot be reconciled with a plaintiff's verdict on the latter. This argument is, in turn, premised on both the
intertwined history of the two doctrines and the close similarity in their elements and legal functions.
Although Ford recognizes that New York has previously permitted personal injury plaintiffs to
simultaneously assert different products liability theories in support of their claims (see, Victorson v. Bock
Laundry Mach. Co., 37 N.Y.2d 395, 400, 373 N.Y.S.2d 39, 335 N.E.2d 275), it contends that the breach of
implied warranty cause of action, which sounds in contract, has been subsumed by the more recently adopted,
and more highly evolved, strict products liability theory, which sounds in tort. Ford's argument has much
to commend it. However, in the final analysis, the argument is flawed because it overlooks the continued
existence of a separate statutory predicate for the breach of warranty theory and the subtle but important
distinction between the two theories that arises from their different historical and doctrinal root.
When products liability litigation was in its infancy, the courts relied upon contractual warranty
theories as the only existing means of facilitating economic recovery for personal injuries arising from the
use of defective goods (e.g., Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253
N.E.2d 207, overruled on other grounds Victorson v. Bock Laundry Mach. Co., supra; Blessington v.
McCrory Stores Corp., 305 N.Y. 140, 111 N.E.2d 421; see, Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d
407, 410, 488 N.Y.S.2d 132, 477 N.E.2d 434). Citing statutory authority (UCC 2-314, 2-715[2][b]; former
Personal Property Law s 96[1] ), the courts posited the existence of an implied warranty arising as an incident
105
of the product's sale and premised a cause of action for consequential personal injuries based on breaches
of that warranty (see, Heller v. U.S. Suzuki Motor Corp., supra, at 410, 488 N.Y.S.2d 132, 477 N.E.2d 434).
Eventually, the contractually based implied warranty theory came to be perceived as inadequate in
an economic universe that was dominated by mass- produced products and an impersonal marketplace. Its
primary weakness was, of course, its rigid requirement of a relationship of privity between the seller and the
injured consumer--a requirement that often could not be satisfied (see, Martin v. Dierck Equip. Co., 43
N.Y.2d 583, 589-590, 403 N.Y.S.2d 185, 374 N.E.2d 97). Some courts (including ours) recognized certain
narrow exceptions to the privity requirement in an effort to avoid the doctrine's harsher effects (e.g.,
Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773; see, Heller v. U.S. Suzuki Motor
Corp., supra, at 410, 488 N.Y.S.2d 132, 477 N.E.2d 434; Prosser and Keeton, Torts s 96, at 682 [5th ed] ).
However, the warranty approach remained unsatisfactory, and the courts shifted their focus to the
development of a new, more flexible tort cause of action: the doctrine of strict products liability (Martin v.
Dierck Equip. Co., supra, at 590, 403 N.Y.S.2d 185, 374 N.E.2d 97; Micallef v. Miehle Co., 39 N.Y.2d 376,
384 N.Y.S.2d 115, 348 N.E.2d 571; Victorson v. Bock Laundry Mach. Co., supra, *256 at 402, 373
N.Y.S.2d 39, 335 N.E.2d 275; see, Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622;
Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 436, 240 N.Y.S.2d 592, 191 N.E.2d 81; see also,
MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050).
The establishment of this tort remedy has, as this Court has recognized, significantly diminished the
need to rely on the contractually based breach of implied warranty remedy as a means of compensating
individuals injured because of defective products (see, Heller v. U.S. Suzuki Motor Corp., supra, at 411, 488
N.Y.S.2d 132, 477 N.E.2d 434; Martin v. Dierck Equip. Co., supra, at 590, 403 N.Y.S.2d 185, 374 N.E.2d
97). Further, although the available defenses and applicable limitations principles may differ, there is a high
degree of overlap between the substantive aspects of the two causes of action (see, Victorson v. Bock
Laundry Mach. Co., supra, at 405, 373 N.Y.S.2d 39, 335 N.E.2d 275). Indeed, on an earlier occasion, this
Court observed, in dictum, that "strict liability in tort and implied warranty in the absence of privity are
merely different ways of describing the very same cause of action" (Mendel v. Pittsburgh Plate Glass Co.,
supra, at 345, 305 N.Y.S.2d 490, 253 N.E.2d 207; accord, Gumbs v. International Harvester, 718 F.2d 88
[3d Cir.]; Sterner Aero AB v. Page Airmotive, 499 F.2d 709, 712 [10th Cir.]; Larsen v. Pacesetter Sys., 74
Haw. 1, 837 P.2d 1273; 1 Frumer and Friedman, Products Liability s 2.03, at 2-28; 2 Frumer, op. cit., s
9.04[1], at 9-42, 9- 44; Clark and Smith, Product Warranties P 12.03[1], at 12-7).
Nonetheless, it would not be correct to infer that the tort cause of action has completely subsumed
the older breach of implied warranty cause of action or that the two doctrines are now identical in every
respect (see, DiProspero v. Brown & Sons, 110 A.D.2d 250, 251, 494 N.Y.S.2d 181). The continued vitality
of the warranty approach is evidenced by its retention and expansion in New York's version of the Uniform
Commercial Code (UCC 2-314[2] [c]; 2-318). The existence of this statutory authority belies any argument
that the breach of implied warranty remedy is a dead letter (see, Heller v. U.S. Suzuki Motor Corp., supra,
at 411-412, 488 N.Y.S.2d 132, 477 N.E.2d 434).10
Although the products liability theory sounding in tort and the breach of implied warranty theory
authorized by the UCC coexist and are often invoked in tandem, the core element of "defect" is subtly
different in the two causes of action. Under New York law, a design defect may be actionable under a strict
products liability theory if the product is not reasonably safe. Since this Court's decision in Voss v. Black
& Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204, the New York standard for
determining the existence of a design defect has required an assessment of whether "if the design defect were
known at the time of manufacture, a reasonable person would conclude that the utility of the product did not
outweigh the risk inherent in marketing a product designed in that manner" (see also, Cover v. Cohen, 61
N.Y.2d 261, 270, 473 N.Y.S.2d 378, 461 N.E.2d 864; Robinson v. Reed-Prentice Div. of Package Mach.
Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 403 N.E.2d 440). This standard demands an inquiry into such
factors as (1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the
106
likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of
designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6)
the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user,
and (7) the manufacturer's ability to spread the cost of any safety- related design changes (Voss v. Black &
Decker Mfg. Co., supra, at 109, 463 N.Y.S.2d 398, 450 N.E.2d 204). The above-described analysis is rooted
in a recognition that there are both risks and benefits associated with many products and that there are
instances in which a product's inherent dangers cannot be eliminated without simultaneously compromising
or completely nullifying its benefits (see, Prosser and Keeton, op. cit., s 99, at 699). In such circumstances,
a weighing of the product's benefits against its risks is an appropriate and necessary component of the
liability assessment under the policy-based principles associated with tort law.
The adoption of this risk/utility balance as a component of the "defectiveness" element has brought
the inquiry in design defect cases closer to that used in traditional negligence cases, where the reasonableness
of an actor's conduct is considered in light of a number of situational and policy- driven factors. While
efforts have been made to steer away from the fault-oriented negligence principles by characterizing the
design defect cause of action in terms of a product-based rather than a conduct-based analysis (see, e.g., Voss
v. Black & Decker Mfg., supra, at 107, 463 N.Y.S.2d 398, 450 N.E.2d 204; Barker v. Lull Eng'g Co., 20
Cal.3d 413, 418, 143 Cal.Rptr. 225, 573 P.2d 443; Prosser and Keeton, op. cit., s 96, at 689), the reality is
that the risk/utility balancing test is a "negligence-inspired" approach, since it invites the parties to adduce
proof about the manufacturer's choices and ultimately requires the fact finder to make "a judgment about [the
manufacturer's] judgment" (Birnbaum, Unmasking the Test for Design Defect: From Negligence [to
Warranty] to Strict Liability to Negligence, 33 Vand.L.Rev. 593, 610, 648; see, e.g., Sage v.
Fairchild-Swearingen Corp., 70 N.Y.2d 579, 587, 523 N.Y.S.2d 418, 517 N.E.2d 1304; cf., Enright v. Lilly
& Co., 77 N.Y.2d 377, 387, 568 N.Y.S.2d 550, 570 N.E.2d 198 [failure to warn claim "though * * * couched
in terms of strict liability, is indistinguishable from a negligence claim"] ). In other words, an assessment
of the manufacturer's conduct is virtually inevitable, and, as one commentator observed, "[i]n general, * *
* the strict liability concept of 'defective design' [is] functionally synonymous with the earlier negligence
concept of unreasonable designing" (Schwartz, New Products, Old Products, Evolving Law, Retroactive
Law, 58 N.Y.U.L.Rev. 796, 803, citing United States v. Carroll Towing Co., 159 F.2d 169, 173 [Hand, J.];
see, e.g., Gauthier v. AMF, Inc., 788 F.2d 634, 637 [9th Cir.] [Mont law]; Birchfield v. International
Harvester Co., 726 F.2d 1131, 1139 [6th Cir.] [Ohio law]; St. Germain v. Husqvarna Corp., 544 A.2d 1283,
1285 [Me.]; 1 Frumer and Friedman, op. cit., s 2.02, at 2-14--2-16; s 2.04, at 2- 35--2-36; Henderson and
Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U.L.Rev.
265, 271-272).11
It is this negligence-like risk/benefit component of the defect element that differentiates strict
products liability claims from UCC-based breach of implied warranty claims in cases involving design
defects. While the strict products concept of a product that is "not reasonablym safe" requires a weighing
of the product's dangers against its over-all advantages, the UCC's concept of a "defective" product requires
an inquiry only into whether the product in question was "fit for the ordinary purposes for which such goods
are used" (UCC 2-314[2][c] ).12 The latter inquiry focuses on the expectations for the performance of the
product when used in the customary, usual and reasonably foreseeable manners. The cause of action is one
involving true "strict" liability, since recovery may be had upon a showing that the product was not
minimally safe for its expected purpose--without regard to the feasibility of alternative designs or the
manufacturer's "reasonableness" in marketing it in that unsafe condition.
This distinction between the "defect" analysis in breach of implied warranty actions and the "defect"
analysis in strict products liability actions is explained by the differing etiology and doctrinal underpinnings
of the two distinct theories. The former class of actions originates in contract law, which directs its attention
to the purchaser's disappointed expectations; the latter originates in tort law, which traditionally has
concerned itself with social policy and risk allocation by means other than those dictated by the marketplace.
107
The dissent takes issue with the foregoing conclusion, arguing, in essence, that any residual
distinction that exists between the two causes of action should be eliminated and that the analysis for "defect"
in implied warranty claims should be deemed to encompass the risk/utility analysis that has previously been
incorporated in tort causes of action. This argument is predicated on the dissent's view that the common
history of the two causes of action and the perceived advantages of risk/utility analysis counsel in favor of
the use of a unitary standard. The dissent has even gone so far as to suggest that the breach of implied
warranty cause of action should be treated like a tort claim despite the fact that it is based on the provisions
of the Uniform Commercial Code.
What the dissent overlooks is that, as long as that legislative source of authority exists, we are not
free to merge the warranty cause of action with its tort-based sibling regardless of whether, as a matter of
policy, the contract-based warranty claim may fairly be regarded as a historical relic that no longer has any
independent substantive value. Rather, we must construe and apply this separate remedy in a manner that
remains consistent with its current roots in contract law (see, Codling v. Paglia, supra [recognizing a tort
cause of action to avoid stretching the breach of implied warranty theory to the point where it no longer
reflects its origin as part of the bargain between the consumer and seller] ).
To the extent that the dissent advocates a merger of the common-law and statutory causes of action
through the use of a single analytical standard, its argument is undermined by an examination of what other
jurisdictions have done. In most of the cases where the courts have pronounced the merger of breach of
warranty with the other products liability theories sounding in tort, they were relying on specific State
statutory schemes that were enacted to govern products liability litigation, contain express preemptive
language and also specifically define " product liability claim" as one encompassing breach of express or
implied warranty as well as negligence and strict liability in tort (see, e.g., Philpott v. A.H. Robins Co., 710
F.2d 1422 [applying Ore.Rev.Stat. s 30. 905]; Chamberlain v. Schmutz Mfg. Co., 532 F.Supp. 588 [applying
Kan.Stat.Ann. s 60-3301]; Daily v. New Britain Mach. Co., 200 Conn. 562, 512 A.2d 893 [applying
Conn.Gen.Stat.Ann. s 52-572m]; Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 774
P.2d 1199 [applying Wash.Rev.Code Ann. s 7.72.010]; see also, McWilliams v. Yamaha Motor Corp., 780
F.Supp. 251, revd on other grounds 987 F.2d 200; but see, Grinnell v. Charles Pfizer & Co., 274 Cal.App.2d
424, 432, 79 Cal.Rptr. 369). Indeed, the proposed Model Uniform Product Liability Act, which was issued
by the Commerce Department in 1979 (reprinted in 3B Frumer and Friedman, op. cit., Appendix B; see, 44
Fed.Reg. 62721), embodies precisely the kind of doctrinal merger that the dissent advocates. New York, of
course, has not adopted the Model Act or any other such unifying measures.13
Contrary to the dissent's suggestion, the current version of UCC 2-318 is not the equivalent of these
uniform product liability provisions, nor does it manifest an intention by our State's Legislature to engraft
a tort cause of action onto a UCC article that concerns itself principally with the contract- based obligations
(see, dissenting opn., at 272, at ---- of 639 N.Y.S.2d, at ---- of 662 N.E.2d). Indeed, the Law Revision
Commission Staff Notes, which the dissent cites, clearly state that the proposed amendments to UCC 2-318
"would * * * allow recovery by the [strict products liability] plaintiffs on a different cause of action " (Bill
Jacket, L.1975, ch. 774, Mem of N.Y.Law Rev.Commn, Staff Notes relating to A-3070 [emphasis supplied]
). Similarly, the Sponsoring Memorandum on which the dissent relies states that the bill's purpose was to
"extend more intelligently the warranty provided to a purchaser of goods under the UCC" (Mem of
Assemblyman Silverman, reprinted in 1975 NY Legis Ann, at 110). In fact, it is evident from the legislative
materials accompanying the bill's passage that its purpose was to expand the class of plaintiffs who can avail
themselves of the Code's warranty remedies and not to transform those remedies into a new tort cause of
action (see, 1A U.L.A. 558 [Master ed.], UCC 2-318, Official Comment).
Moreover, the dissent's novel proposal that the contract-based consumer- expectation test should be
abandoned for the tort-based risk/utility approach even for contract-based warranty claims has not been
embraced or even suggested by any of the risk/utility advocates that the dissent cites. For example, although
the drafters of the Third Restatement have endorsed risk/utility analysis for design defect cases sounding in
108
tort, they also have made clear that claims based on warranty theories are "not within the scope" of the newly
drafted section and are, in fact, "unaffected by it" (Restatement [Third] of Torts: Products Liability [Tent
Draft No. 2, Mar. 13, 1995] s 2, comment m, at 42). Further, the drafters have noted that "[w]arranty law
as a body of legal doctrine separate from tort may impose legal obligations that go beyond those set forth"
in the Restatement of Torts (id., comment q, at 46).
Similarly, while the commentators on which the dissent relies criticize the
consumer-expectation-based tests for product defect and argue instead for the use of a risk/utility approach,
their arguments are addressed to tort causes of action alone. One of the cited commentators, for example,
argues that the consumer expectation test is a "blunt instrument" "when it comes to recognizing and
maximizing the * * * goals, objectives, interests and values important to modern tort law " (Kennedy, The
Role of the Consumer Expectation Test under Louisiana's Products Liability Tort Doctrine, 69 Tul.L.Rev.
117, 152 [emphasis supplied] ). The same commentator also acknowledges that different standards might
be appropriate for different theories of recovery where other objectives and values are pertinent (id.).
Another commentator cited by the dissent contends that the risk/utility analysis should be used in place of
a consumer-expectation test, but the argument is, once again, premised on the assumption that the latter "is
not a tort way of looking at the problem of product defect" (Birnbaum, op. cit., at 646 [emphasis supplied]
). This commentator also affirmatively criticizes courts that have failed "to separate conceptually the notions
of strict liability, negligence, warranty, and absolute liability" (id., at 601).
Significantly, the consumer-expectation test has its advocates as well as it critics. In fact, the proposed
Model Uniform Products Liability Act has itself been criticized on the ground that it does what the dissent
urges, i.e., it eliminates consumer expectation as a test for tort claims (Twerski and Weinstein, A Critique
of the Uniform Products Liability Law--A Rush to Judgment, 28 Drake L.Rev. 221, 230-233; accord, 1
Frumer and Friedman, op. cit., s 1.08[2][c][ii] ). Such criticisms stem from recent expressions by "courts
and commentators [of] considerable support for a threshold test which does not require that the complexities
of risk-utility analysis be undertaken in every design defect case" (Twerski and Weinstein, op. cit., at
230-231). In view of the "rigors of the risk-utility test," it has been suggested that it is "worthwhile" to retain
the consumer-expectation test and "explor[e] solutions to [its] subjectivity problem" rather than simply
abandoning it (id., at 232).14
In any event, while the critics and commentators may debate the relative merits of the
consumer-expectation and risk/utility tests, there is no existing authority for the proposition that the
risk/utility analysis is appropriate when the plaintiff's claim rests on a claimed breach of implied warranty
under UCC 2-314(2)(c) and 2-318. Further, the absence of authority for the dissent's position is not
surprising since the negligence-like risk/utility approach is foreign to the realm of contract law.
[7] As a practical matter, the distinction between the defect concepts in tort law and in implied
warranty theory may have little or no effect in most cases. In this case, however, the nature of the proof and
the way in which the fact issues were litigated demonstrates how the two causes of action can diverge. In
the trial court, Ford took the position that the design features of which plaintiffs complain, i.e., the Bronco
II's high center of gravity, narrow track width, short wheel base and specially tailored suspension system,
were important to preserving the vehicle's ability to drive over the highly irregular terrain that typifies
off-road travel. Ford's proof in this regard was relevant to the strict products liability risk/utility equation,
which required the fact finder to determine whether the Bronco II's value as an off- road vehicle outweighed
the risk of the rollover accidents that could occur when the vehicle was used for other driving tasks.
On the other hand, plaintiffs' proof focused, in part, on the sale of the Bronco II for suburban driving
and everyday road travel. Plaintiffs also adduced proof that the Bronco II's design characteristics made it
unusually susceptible to rollover accidents when used on paved roads. All of this evidence was useful in
showing that routine highway and street driving was the "ordinary purpose" for which the Bronco II was sold
and that it was not "fit"--or safe--for that purpose.
109
Thus, under the evidence in this case, a rational fact finder could have simultaneously concluded that
the Bronco II's utility as an off-road vehicle outweighed the risk of injury resulting from rollover accidents
and that the vehicle was not safe for the "ordinary purpose" of daily driving for which it was marketed and
sold. Under the law of this State such a set of factual judgments would lead to the concomitant legal
conclusion that plaintiffs' strict products liability cause of action was not viable but that defendant should
nevertheless be held liable for breach of its implied promise that the Bronco II was "merchantable" or "fit"
for its "ordinary purpose." Importantly, what makes this case distinctive is that the "ordinary purpose" for
which the product was marketed and sold to the plaintiff was not the same as the utility against which the
risk was to be weighed. It is these unusual circumstances that give practical significance to the ordinarily
theoretical difference between the defect concepts in tort and statutory breach of implied warranty causes
of action (see, e.g., McLaughlin v. Michelin Tire Corp., 778 P.2d 59, 66-67 [Wyo.]; accord, 1 Madden,
Products Liability s 5.11, at 160 [2d ed.] ).
[8] From the foregoing it is apparent that the causes of action for strict products liability and breach
of implied warranty of merchantability are not identical in New York and that the latter is not necessarily
subsumed by the former. It follows that, under the circumstances presented, a verdict such as the one
occurring here--in which the manufacturer was found liable under an implied warranty cause of action and
not liable under a strict products cause of action--is theoretically reconcilable under New York law. Whether
the particular verdict produced by the jury in this case was reconcilable in light of the charge and in
accordance with case law applying rule 59(a) of the Federal Rules of Civil Procedure is a question of Federal
procedure which we are not well positioned to *264 resolve.15 Hence, we construe the third certified question
as posing only the theoretical question of whether this jury's verdict is hypothetically possible under New
York's governing legal principles.
Accordingly, certified question No. 1 should be answered in the negative, certified question No. 2
in the negative and certified question No. 3 in the affirmative.
SIMONS, Judge, (dissenting).
I agree with the majority that causes of action in strict products liability and breach of implied
warranty are not identical. In my view, however, the strict products liability claim is substantively broader
than and encompasses the implied warranty claim and, thus, the jury's verdict of no defect in the products
liability cause of action is not reconcilable with its finding of breach of implied warranty. Accordingly, I
would answer the first two questions certified to the Court no and yes and find it unnecessary to answer the
third question.
I
Liability without fault may be imposed against a manufacturer or supplier of a defective product and
in favor of one injured by the product. The product may be defective because it is improperly made, because
its design is defective or because the manufacturer's warnings against foreseeable risks in using it are
inadequate. The members of the Court agree that strict products liability and implied warranty are similar
in the sense that both causes of action require that, before plaintiff may recover, the product be defective,
i.e., there must be something wrong with it. We disagree, however, over how defectiveness is determined.
The question does not appear to have been previously addressed by the Court in the context of personal
injury litigation.
The majority concludes that the implied warranty and strict products liability causes of action are
different because the existence of an actionable defect is determined by two different analyses. Viewing
implied warranty from a contract perspective, it would define defectiveness by whether the product lived up
to the consumer's expectations whereas defectiveness, for strict products liability purposes, is determined
by application of the risk/utility standard. In my judgment, the consumer expectation standard, appropriate
to commercial sales transactions, has no place in personal injury litigation alleging a design defect and may
110
result in imposing absolute liability on marketers of consumers' products. Whether a product has been
defectively **740 ***260 designed should be determined in a personal injury action by a risk/utility analysis.
A
Logically, there is no substantive difference for testing liability in the two causes of action.
Recovery in each depends upon establishing that the product was defective because improperly designed.
But the word "defect" has no clear legal meaning. In this case, the court defined defect in its strict products
liability charge but did not attempt to define it otherwise; in the warranty cause of action the meaning had
to be found in the court's instructions describing the nature of the cause of action. Nevertheless, the predicate
for recovery in both claims was the same.
The court charged the jury that to recover in strict products liability the plaintiffs had to prove that
the Bronco II was "defective" when it was placed on the market. A product is defective, the court said, if
it is "not reasonably safe" when used for "its intended or reasonably foreseeable purpose." That charge was
consistent with settled New York law which holds that a manufacturer or supplier may be strictly liable for
injuries sustained when a product is used for its intended purpose or for an unintended but reasonably
foreseeable purpose (see, Lugo v. LJN Toys, 75 N.Y.2d 850, 852, 552 N.Y.S.2d 914, 552 N.E.2d 162;
Micallef v. Miehle Co., 39 N.Y.2d 376, 385-386, 384 N.Y.S.2d 115, 348 N.E.2d 571; Biss v. Tenneco, Inc.,
64 A.D.2d 204, 206, 409 N.Y.S.2d 874). The court charged the jury that to recover for breach of implied
warranty the plaintiff was required to establish that the Bronco II was not "reasonably fit for the ordinary
purpose for which it was intended." That instruction is consistent with language found in UCC 2- 314(2)(c).
When these two definitions are compared, it is apparent that a defect for strict products liability
purposes is broader than a defect for implied warranty purposes. The vehicle could not have been defective
when used for its ordinary and intended purpose (warranty), but not defective and reasonably safe when *266
used for its "intended or for an unintended but reasonably foreseeable purpose" (strict products liability).
As the Court of Appeals observed, foreseeable use "certainly includes all uses that are 'ordinary' [and]
perhaps some that are not 'ordinary' " (see, Denny v. Ford Motor Co., 42 F.3d 106, 112). The jury having
concluded that the Bronco II was not defective for strict products liability purposes, could not logically
conclude that it was defective for warranty purposes.
B
Nor is there any legal reason to distinguish the two causes of action in this respect. Breach of
implied warranty and strict liability in tort developed from separate legal doctrines but are not materially
different when applied to personal injury claims involving design defects. While breach of implied warranty
retains its contractual law characteristics when applied to commercial transactions, it has been consistently
recognized that it is a tort when applied to personal injury litigation and that tort principles should apply. To
introduce a new test of defectiveness into tort litigation--one based on contract principles--can only
destabilize the well-settled law in this area. Both causes of action are torts and defectiveness for both should
be determined by the same standard.
The law imposing liability without fault against those making and marketing consumer products
evolved in stages, progressing from negligence to implied warranty and eventually to the adoption in New
York of a new cause of action known as strict products liability. Implied warranty has been generally
associated with the law of contracts (although the Restatement advises us warranty was originally a matter
of tort liability), but if implied warranty ever was a contract doctrine, it is now something very different from
the warranty cause of action used in commercial transactions (see, Restatement [Second] of Torts s 402A,
comment m; 5 Harper, James and Gray, Torts s 28.27, at 540 [2d ed.]; Prosser and Keeton, Torts s 97, at
691 [5th ed.]; 1 Weinberger, New York Products Liability s 15:03). Indeed, the idea that there could ever
111
be a claim for breach of implied warranty without privity is a concept entirely foreign to contract law.
Moreover, the liability currently imposed in the name of warranty goes far beyond any liability based upon
conventional contract notions and encompasses such tort concepts as consequential damages and contributory
fault. As Dean Prosser has said: "[T]his warranty, if that is the name for it * * * is something separate and
distinct which sounds in tort exclusively, and not at all in contract; which exists apart from any contract
between the parties; and which makes for strict liability in tort" (Prosser, Spectacular Change: Products
Liability in General, 36 Cleveland Bar Assn.J. 149, 167-168).
Finally, there can be no doubt about how this Court has viewed the action. We have repeatedly
recognized not only that breach of implied warranty when asserted to recover for personal injuries is a
tortious wrong (see, Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 402, 373 N.Y.S.2d 39, 335
N.E.2d 275; Velez v. Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 124, 350 N.Y.S.2d 617, 305 N.E.2d 750
[converting an action in implied warranty to one for strict products liability]; Codling v. Paglia, 32 N.Y.2d
330, 340, 345 N.Y.S.2d 461, 298 N.E.2d 622, quoting Singer v. Walker, 39 A.D.2d 90, 331 N.Y.S.2d 823;
Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 436, 240 N.Y.S.2d 592, 191 N.E.2d 81), but also
"that strict liability in tort and implied warranty in the absence of privity are merely different ways of
describing the very same cause of action" (Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 345, 305
N.Y.S.2d 490, 253 N.E.2d 207).
Nevertheless, the idea that contractual principles inhere in breach of implied warranty claims for
personal injuries has persisted, producing conceptual difficulties and anomalies when the courts tried to
apply the cause of action in a tort setting (see, Prosser and Keeton, Torts s 97, at 692 [5th ed] ). In Codling
v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, supra, we were confronted with a claim in
implied warranty seeking to impose liability against a manufacturer in favor of a nonuser bystander injured
by a defective automobile. We had long since abandoned the privity requirement in many personal injury
claims based on implied warranty and incrementally extended the duty of manufacturers and suppliers not
only to purchasers and users, but to users' family members (see, Greenberg v. Lorenz, 9 N.Y.2d 195, 213
N.Y.S.2d 39, 173 N.E.2d 773), to remote purchasers (Randy Knitwear v. American Cyanamid Co., 11 N.Y.2d
5, 226 N.Y.S.2d 363, 181 N.E.2d 399), to an airline passenger suing the manufacturer of a defective
component part of an airplane (Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592,
191 N.E.2d 81, supra ), and to rescuers suing the manufacturer of a defective oxygen mask (Guarino v. Mine
Safety Appliance Co., 25 N.Y.2d 460, 306 N.Y.S.2d 942, 255 N.E.2d 173). In Codling we recognized the
difficulties in adopting implied warranty principles in personal injury claims and, abandoning privity entirely,
recognized a new cause of action under the broad principle of strict products liability, as other courts before
us had done, to hold the manufacturer liable to the bystander.
This new cause of action was not separate from implied warranty but an amalgam which had been
constructed by the courts to establish a cause of action for liability without fault by merging warranty
concepts (to avoid fault analysis) with negligence concepts (to avoid privity) (see, Victorson v. Bock Laundry
Mach. Co., 37 N.Y.2d 395, 401, 373 N.Y.S.2d 39, 335 N.E.2d 275, supra; Restatement [Third] of Torts:
Products Liability [Tent Draft No. 2] s 1). The new cause of action recognized products liability as a discrete
area of tort law, which borrows from both negligence and warranty, and attempts to avoid the confusion
spawned by trying to categorize the various claims and remedies under prior law (id.). It imposes strict
liability as a matter of social policy predicated on the idea that defendants ought "to pay for the costs
attributable to damaging events caused by defects of a kind that made the product more dangerous than it
would otherwise be", concerns that had little to do with conventional contract principles (see, Prosser and
Keeton, Torts s 98, at 692 [5th ed.] ). A difficulty has arisen, however, because in recognizing a cause of
action for strict products liability, the courts have not had "a clear notion about the 'meaning of defect' ",
especially in the context of defective design cases (id.).
In sum, although procedural distinctions may remain because mandated by the Legislature's
enactment of various provisions of the Uniform Commercial Code (see, Heller v. U.S. Suzuki Motor Corp.,
112
64 N.Y.2d 407, 411, 488 N.Y.S.2d 132, 477 N.E.2d 434), strict products liability and breach of implied
warranty causes of action are substantively similar and impose liability without fault (see, Martin v. Dierck
Equip. Co., 43 N.Y.2d 583, 589-590, 403 N.Y.S.2d 185, 374 N.E.2d 97; Mendel v. Pittsburgh Plate Glass
Co., 25 N.Y.2d 340, 345, 305 N.Y.S.2d 490, 253 N.E.2d 207, supra; Ryion v. Len-Co Lbr. Corp., 152 A.D.2d
978, 543 N.Y.S.2d 595; Dickey v. Lockport Prestress, 52 A.D.2d 1075, 1076, 384 N.Y.S.2d 609). It makes
little sense, therefore, to perpetuate a legal distinction between them based upon the method for determining
defectiveness, particularly when the flaws in the consumer expectation standard for measuring defectiveness
are recognized.
II
The majority has not attempted to define the consumer expectation standard, nor did the District
Court use the phrase in its charge. Under one formulation, however, the standard provides that a product is
defective, i.e., it is unreasonably dangerous, if it is "dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics" (see, Restatement [Second] of Torts s 402A, comment i; see also,
Kennedy, The Role of the *269 Consumer Expectation Test under Louisiana's Products Liability Tort
Doctrine, 69 Tul.L.Rev. 117, 120 [1994] ). The consumer expectation standard originated from the sales
notion that a seller could agree, expressly or impliedly, to indemnify a buyer if the purchased product did
not satisfy the buyer's purposes. The obligation to "indemnify" applied only to the parties to the sale, those
in privity, and did not "run with the goods" (see, 5 Harper, James and Gray, op. cit., s 28.16, at 454). As
evolving social policy sought to hold manufacturers and sellers liable for personal injuries caused by
defective products, however, the requirement of privity was narrowed and then eliminated, and the courts
extended liability as far as social policy required (id., at 455-456). With these developments, it made little
sense to think in terms of the buyer's bargain or expectations. In many, if not most, cases the buyer was not
litigating.
By contrast, the standard usually employed to determine design defectiveness in strict products
liability claims requires a balancing of the risks attendant on using the product with the utility of the product
when used as intended. As we stated in Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d
471, 479, 426 N.Y.S.2d 717, 403 N.E.2d 440: "Where a product presents an unreasonable risk of harm,
notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be
defectively designed. This rule, however, is tempered by the realization that some products, for example
knives, must by their very nature be dangerous in order to be functional. Thus, a defectively designed
product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated
by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does
not outweigh the danger inherent in its introduction into the stream of commerce" (see also, Voss v. Black
& Decker Mfg. Co., 59 N.Y.2d 102, 107-108, 463 N.Y.S.2d 398, 450 N.E.2d 204; Rainbow v. Elia Bldg. Co.,
79 A.D.2d 287, 291, 436 N.Y.S.2d 480, affd 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345).
Although some jurisdictions have recognized the consumer expectation standard, or some variation
of it, in tort litigation* New York has never done so and its utility for resolving claims of design defects has
been widely criticized by commentators (see, Birnbaum, Unmasking the Test for Design Defect: From
Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand L Rev 593, 611-618 [1980]; Kennedy,
The Role of the Consumer Expectation Test under Louisiana's Products Liability Tort Doctrine, 69
Tul.L.Rev. 117, 143-150; Fischer, Products Liability--The Meaning of Defect, 39 Mo.L.Rev. 339, 348-350
[1974]; and see, authorities cited in 5 Harper, James and Gray, Torts s 28.32A, at 576). They contend that
the test is ambiguous because it does not clearly refer to the expectations of the actual plaintiff or to those
of ordinary consumers; in practice it has been applied inconsistently and, from a social policy standpoint,
it produces bad results.
113
If the test is applied to determine the actual buyer's expectations, as in contract law, it can result in
imposing absolute liability upon manufacturers and sellers making them insurers of the product's safety
merely because the product did not live up to the consumer's subjective expectations. If the test is used
objectively, it is beyond the experience of most lay jurors to determine what an "ordinary consumer" expects
or "how safe" a sophisticated modern product could or should be made to satisfy those expectations unless
the jury is allowed to consider the cost or impracticality of alternative designs or, indeed whether any
alternative design for the product was available.
The test can also produce bad results. For example, if the risk is one that is easily understood and
appreciated by the average consumer, the manufacturer might not be liable even if the defect could be
eliminated by available and inexpensive design changes. Conversely, if the defect was not apparent, liability
might attach even if the product was in fact state of the art.
Moreover, the consumer expectation test is unworkable when applied in cases involving design
defects. In claims involving manufacturing defects, a consumer may reasonably expect a product to be made
in accordance with the manufacturer's standards and expect to be compensated for injuries resulting from
the manufacturer's failure to meet them. The product is reasonably held defective because the manufacturer
has not made the product as it intended. However, in design defect cases the plaintiff contends that the
product has been made precisely as intended but is nevertheless defective because the design is defective.
But unless some external standard, such as available alternative designs and risk/utility analysis is employed,
how is the jury to measure the propriety of the design? The consumer cannot reasonably expect a design to
be changed if the cost of doing so far outweighs the utility of the product or if there is no alternative design
available. Some products are inherently dangerous, knives was the illustration we used in the Robinson case
(supra ), and when that is so, policy concerns mandate that the responsibility for risks that cannot reasonably
be designed out of a product should be transferred to the consumer, the party who has the choice of using
them or not. (Restatement [Third] of Torts: Products Liability [Tent Draft No. 2] s 2, comment a, at 16.)
The method for determining just what products fall within that group is the risk/utility analysis.
Because of these and other shortcomings, one commentator has stated that, when it comes to
measuring defectiveness, the consumer expectation test applied without a risk/utility analysis is "a blunt
instrument" (Kennedy, op. cit., at 150). Few courts have relied solely on it as a measure of defectiveness
(see, Birnbaum, op. cit., at 615).
No New York court has recognized the consumer expectation standard to determine defectiveness
in personal injury actions grounded on implied warranty--at least the parties and the majority have not cited
any decision doing so--and I can see no persuasive policy reasons why we should do so now. If the test is
unworkable when applied in tort causes of action grounded on strict products liability, it is equally
unworkable when applied in tort causes of action grounded on breach of implied warranty. The correct
standard in strict liability claims, according to the Third Restatement, should include a balancing of the risk
of danger against the utility of the product as designed. In its words, "consumer expectations do not
constitute an independent standard for judging the defectiveness of product designs" (Restatement [Third]
of Torts: Products Liability [Tent Draft No. 2] s 2, comment f, at 29). They are "not determinative of
defectiveness" because they do not take into account "whether the proposed alternative design could be
implemented at reasonable cost, or whether an alternative design would provide greater overall safety", i.e.,
the test does not take into consideration risk/utility factors (id.). Consumer expectations only value is when
used as a factor in determining the reasonableness of alternative designs or how the product is portrayed and
perceived by the public, i.e., whether the risk was foreseeable. As we stated in Robinson v. Reed-Prentice
Div. of Package Mach. Co., supra, the conditions contemplated by "the ultimate consumer" must be taken
into account, but the risk/utility analysis remains a necessary part of the equation for determining
defectiveness in products liability cases (Restatement [Third] of Torts, op. cit.; see also, Birnbaum, op. cit.,
at 617).
114
III
The majority maintains, however, that the consumer expectation standard must be applied because
breach of implied warranty is a statutory cause of action and the Court is not free to ignore the statute's
provisions or draw a distinction between its application to commercial claims and personal injury claims.
Implied warranties have been a part of our statutory law since at least 1911, long before any serious
attempt was made to base tort liability on them (see, former Personal Property Law s 96; now UCC 2-314).
Section 96, and its successor provisions in the Uniform Commercial Code, were enacted to address problems
arising in commercial transactions. For many years they had no significant impact upon personal injury
litigation because of the rules of privity. However, in 1975, shortly after Codling v. Paglia, supra, was
decided, section 2-318 of the Uniform Commercial Code was amended to harmonize it with existing case
law by eliminating the requirement of privity in personal injury claims (see, 1975 N.Y.Legis.Ann., at 110;
Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411, 488 N.Y.S.2d 132, 477 N.E.2d 434, supra ). The
amendment had no relevance to commercial claims; it was proposed by the Legislature, and widely
supported, because it acknowledged and encouraged the judicial development of a separate category of
warranty providing a tort remedy for personal injuries (see, 1975 N.Y.Legis.Ann., at 110; see also, Bill
Jacket, L.1975, ch. 774, Mem of State Consumer Protection Board, July 14, 1975; Mem of NY Law Rev
Commn, Staff Notes Relating to A-3070; Mem of New York State Trial Lawyers Assn, May 12, 1975). The
Legislature's recognition of a distinction between the statutory cause of action for personal injury claims and
commercial claims based on implied warranty is further manifested by the Legislature's decision to adopt
alternative B of the three formulations proposed by the National Conference of the Commissioners on
Uniform State Laws, the alternative which removed the requirement of privity in personal injury claims based
upon implied warranty, rather than alternative C which extends the rule (abolishing privity) to warranty
claims other than those dealing with injuries to the person (see, 1A ULA 558 [Master ed.], UCC 2-318,
Official Comment 3).
Moreover, no words in the statute either before or after the amendment, provide that the
defectiveness of the product in tort claims, or commercial claims for that matter, is to be measured by the
consumer's expectations. That standard has been developed by the courts. It may accurately assess the terms
and conditions of the bargain between the parties to a sale but it can hardly extend beyond them to address
defectiveness in the sense that something is "wrong" with the product. The thing "wrong" with the product
in the consumer expectation test is that it has not lived up to the consumer's expectations and this is so even
if the design of the product is perfection itself. The standard may retain some vitality when applied to
commercial transactions but its individualized concept of injury is entirely foreign to tort doctrine underlying
this area of law which is based upon the broad concept of enterprise responsibility to protect the public at
large from harm.
Moreover, the statutory formulation of implied warranty has never restricted us in developing the
tort remedy before. Long before the statute eliminated the requirement of privity for recovery, the courts
narrowed and then eliminated it altogether. We did not feel inhibited by the statute in doing so: policy, not
language, controlled the interpretation and application of the statute. Nor have the courts been constrained
by the statute's provisions when eliminating the UCC's requirement of notice in tort actions (see, Fischer v.
Mead Johnson Labs., 41 A.D.2d 737, 341 N.Y.S.2d 257; Kennedy v. Woolworth Co., 205 A.D. 648, 200
N.Y.S. 121) or when shaping the law of disclaimers to apply them neutrally to personal injury cases (see,
Velez v. Craine & Clark Lbr. Corp., supra; see also, Walsh v. Ford Motor Co., 59 Misc.2d 241, 298
N.Y.S.2d 538; see also, 5 Harper, James and Gray, Torts s 28.25 [2d ed.] ).
The warranty claim in this case was for tortious personal injury and rests on the underlying "social
concern [for] the protection of human life and property, not regularity in commercial exchange" (see,
Restatement [Third] of Torts, op. cit., s 2, comment q, at 46). As such, it should be governed by tort rules,
not contract rules. Nothing has prevented us in the past from construing and applying the provisions of the
115
Uniform Commercial Code to supplement and advance the policy concerns underlying strict products
liability generally, and we should not construe the statute now to establish a standard for determining
defectiveness which is inconsistent with the present law in this area (see generally, UCC 1-103).
Accordingly, I dissent.
KAYE, C.J., and BELLACOSA, SMITH, LEVINE and CIPARICK, JJ., concur with TITONE, J.
SIMONS, J., dissents in a separate opinion.
Following certification of questions by the United States Court of Appeals for the Second Circuit
and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of the Court of Appeals
(22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs
and the record submitted, certified question No. 1 answered in the negative, certified question No. 2
answered in the negative, and certified question No. 3 answered in the affirmative.
116
IV.
DESIGN DEFECT - STATE OF THE ART
ROBERTS V. RICH FOODS, INC.
139 N.J. 365, 654 A. 2d 1365 (N.J. 1995)
GARIBALDI, J.
This appeal concerns the interpretation of the phrase "without impairing the usefulness of the
product" as used in section 3a(2) of the New Jersey Products Liability Act of 1987 (the Act), N.J.S.A.
2A:58C-1 to -7. Section 3a(2) of the Act provides an absolute, affirmative defense for defendants in suits
for design defect, if "the harm was caused by an unsafe aspect of the product that is an inherent characteristic
of the product and that would be recognized by the ordinary person who uses or consumes the product."
Section 3a(2) also provides two exceptions that preclude use of the defense: when the product is "industrial
machinery or other equipment [that] is used in the workplace"; and when the danger "can feasibly be
eliminated without impairing the usefulness of the product." Only the second exception is before us.
I
On August 27, 1987, a tractor-trailer truck owned by defendant Rich Foods, Inc., (Rich Foods), and
operated by defendant William Lovette (Lovette) struck the car that Anita Roberts (Roberts) was driving.
Several other cars were involved in the pile-up, and the accident resulted in fatalities and many injuries.
Roberts was seriously hurt--she became a paraplegic--and her husband, John Roberts, and her minor children,
who were sleeping passengers in the car, were also injured. Several hours after the accident, Lovette told
the police that, as he had entered a construction area with a posted speed limit of forty-five miles per hour,
he had been driving at sixty to sixty-five miles per hour and entering data in an "X-300" on-board computer
manufactured by defendant Cadec Systems, Inc. (Cadec).
In September 1987, John Roberts, individually and as guardian ad litem for his two children, filed
a complaint charging Rich Foods, Lovette, and his wife with negligence for causing the accident. In
February 1988, Anita Roberts filed a cross-claim against Rich Foods and Lovette, and a third-party complaint
against five additional parties involved in the accident. On August 25, 1989, plaintiffs and third-party
plaintiff amended their pleadings to commence a product-liability action against Cadec for defectively
designing, manufacturing, and labeling the computer. After a complicated series of claims and cross-claims
among the many parties involved, the members of the Roberts family settled with Rich Foods and Lovette.
All parties agreed that Lovette had been negligent; that Rich Foods, as his employer, was responsible; and
that Lovette's negligence was a proximate cause of the accident.
The sole issue at trial was whether Cadec defectively designed the X- 300 by allowing it to operate
while a truck is in motion, which raises the risk that the driver's attention will be diverted from the road. The
X-300 is Cadec's top of the line on-board computer. At issue is its "state/toll-road" function. Trucking
companies are required to pay taxes based on fuel and road usage (mileage) in each state. The X-300's
purpose is to provide a computerized record of that road-usage information for tax-reporting purposes.
At trial, Ernest J. Simmons, Jr., Cadec's former Chairman, President, Chief Executive Officer, and
Treasurer, who was extensively involved in the designing of the X-300, testified that [t]he state/toll road
feature is a button ... on the panel ... and upon depression of that button the on-board computer automatically
records the odometer, the time ... and the day ... [That] recording together with information that is
subsequently entered by the driver at some time thereafter, not necessarily coincident with the depression
of the button, but at some time when it's safe to do so, that information is ultimately turned into a dispatch
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... and processed on a central computer.... [The purpose of that information is] to gather road usage, or to
gather data for tax reporting purposes ... [relating to] road use taxes for various states. Simmons explained
that the state/toll-road function is operable while a vehicle is in motion so that, when crossing state lines or
entering or exiting toll roads, a driver can record data with greater precision.
At trial, the Robertses' counsel also read into evidence the deposition of Steven Frye, a Cadec
program analyst. Frye, like Simmons, explained the purpose and operation of the state/toll-road feature. He
noted that the entire data-recording procedure takes over ten seconds. If it is unsafe to enter information
while in motion, the driver can do so at a later time, when the truck is stationary.
Cadec's Driver's Guide describes the initial entry of data using the state/toll-function as the one entry
that automatically records the odometer reading, time, and date when the driver presses a button on the
computer. The Guide gives the following instructions: 1. Press the state/toll button to record the crossing
of a state line, and when you enter or leave a toll road. The unit records the date, time and odometer reading
when the button is pressed. Record the following information when it is safe to do so.
[ (Emphasis added.) ]
In a letter dated October 5, 1987, to the National Transportation Safety Board, the President of Cadec
wrote that "a single button depression, similar to the button depression that changes a radio station on a car
radio, determines the information that is displayed." The other entries can be recorded at a later time, "when
it is safe to do so."
Cadec's Driver's Guide, however, does not indicate when it would be safe to record those other
entries. According to Frye, Cadec expected each driver to exercise discretion about when it is safe to enter
data. Frye admitted that it was technologically and economically feasible to make the X-300 operable only
when a truck is stationary. According to Frye, Cadec's reason for making the computer operable while in
motion was convenience to the driver in being able to enter data while driving away from a toll booth.
At the close of evidence, the Robertses moved for a directed verdict on the grounds that Cadec
conceded that it could have designed the X-300 more safely by requiring the truck to be stationary when the
driver enters information. The trial court denied the motion, finding that, because such a change would
diminish the usefulness of the X-300, it would implicate the risk/utility analysis of the computer.
The trial court charged the jury that it was plaintiffs' burden to prove that the computer was defective
because it was not reasonably safe for its intended or reasonably foreseeable use. To meet that burden,
plaintiffs would have to prove that the computer's risks outweighed its utility. The trial court then instructed
the jury to employ a risk/utility analysis for the purposes of determining whether the Cadec computer was
defectively designed. Over the Robertses' objection, the court went on to instruct the jury on the section
3a(2) defense, but not on that section's two statutory exceptions.
The jury found that the computer was not defective and returned a verdict of no cause of action. The
trial court then denied the Robertses' motion for a new trial or, in the alternative, for a judgment n.o.v. Only
Anita Roberts appealed, claiming that the charge on the section 3a(2) defense was reversible error because
the two exceptions--workplace equipment and feasible elimination of the danger without impairing
usefulness--made the defense unavailable to Cadec.
In an unpublished opinion, the Appellate Division reversed and remanded for a new trial. Because
Cadec "acknowledged that it was technologically and economically feasible to have designed the computer
to require the truck to be stationary in order to operate the computer," the Appellate Division held that "[t]he
judge should not have charged this statute because it was undisputed that the dangers posed by this computer
could have 'feasibly be[en] eliminated without impairing the usefulness of the product.' " (quoting N.J.S.A.
2A:58C- 3a(2)).
The Appellate Division found "driver convenience" and "greater precision in recording" insufficient
to justify the unsafe character of the X-300. The court held that, because the second statutory exception of
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section 3a(2) applied, the section 3a(2) defense was not available to Cadec. Therefore, the Appellate
Division concluded that the trial court should have given an instruction on only risk/utility analysis, and not
on the section 3a(2) defense. The Appellate Division remanded the case for a new trial on Roberts's
third-party complaint against Cadec.
We granted Cadec's petition for certification, 137 N.J. 314, 645 A.2d 142 (1994).
II
In construing a statute, "[t]he primary task for the Court is to 'effectuate the legislative intent in light
of the language used and the objects sought to be achieved.' " Merin v. Maglaki, 126 N.J. 430, 435, 599 A.2d
1256 (1992) (quoting State v. Maguire, 84 N.J. 508, 514, 423 A.2d 294 (1980) (footnote omitted)). In
enacting the Act, the Legislature emphasized the importance of ascertaining its intent by providing in the Act
itself that "such sponsors' or committee statements that may be adopted or included in the legislative history
... shall be consulted in the interpretation and construction of this act." N.J.S.A. 2A:58C-1a.
Hence, we approach our interpretation of section 3a(2) mindful of the Legislature's policy to limit
the liability of manufacturers so as to " 'balance[ ] the interests of the public and the individual with a view
towards economic reality.' " Shackil v. Lederle Labs., 116 N.J. 155, 188, 561 A.2d 511 (1989) (quoting
Shackil v. Lederle Labs., 219 N.J.Super. 601, 643, 530 A.2d 1287 (1987) (Shebell, J.A.D., dissenting), rev'd,
116 N.J. 155, 561 A.2d 511 (1989)). See also DePrimo v. Lehn & Fink Prods. Co., 223 N.J.Super. 265, 273,
538 A.2d 461 (Law Div.1987) (finding that in interpreting the Act, court should as "matter of sound judicial
policy, ... apply this conservative legislative policy"). The Legislature limit[ed] the expansion of
products-liability law by creating absolute defenses and rebuttable presumptions of nonliability. See N.J.S.A.
2A:58C- 3(a)(1) (adopting "state of the art" as complete defense in design defect claims); N.J.S.A.
2A:58C-3(a)(2) (providing that a product is not defectively designed if inherent characteristics of the product
are known to ordinary person who uses it or consumes it with knowledge common to the class of persons for
whom product was intended); N.J.S.A. 2A:58C-3(a)(3) (adopting comment k of the Restatement (Second)
of Torts, which provides that a manufacturer or seller is not liable for a design defect if harm results from
unavoidably unsafe aspect and product is accompanied by proper warning); N.J.S.A. 2A:58C-4 (establishing
presumption of adequate warning if warning approved or prescribed by FDA). [Shackil, supra, 116 N.J. at
187-88, 561 A.2d 511]
The Legislature passed the Act as "remedial legislation to establish clear rules [in] ... actions for
damages for harm caused by products, including certain principles under which liability is imposed."
N.J.S.A. 2A:58C-1. The law does not "codify all issues relating to product liability"; rather, the Legislature
intended it to address "matters that require clarification." Ibid.
The Act left intact "the three theories under which a manufacturer or seller may be held strictly liable
for harm caused by a product--defective manufacture, defective design, and defective warnings." Dewey v.
R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95, 577 A.2d 1239 (1990). See N.J.S.A. 2A:58C-2. The Act
also provides that a claimant must "prove[ ] by a preponderance of the evidence that the product causing the
harm was not reasonably fit, suitable or safe for its intended purpose." N.J.S.A. 2A:58C- 2. Except as
modified by sections 3 and 4 of the Act, the elements of the causes of action brought for such product claims
"are to be determined according to the existing common law of the State." Senate Judiciary Comm.,
Statement to Senate Bill No. 2805 (July 22, 1987), reprinted in note following section 1 (hereinafter "Senate
Judiciary Committee Statement").
[1][2] In attempting to limit a manufacturer's liability, the Legislature, via the Act, strengthened
rather than weakened the state-of-the-art defense. William A. Dreier, Analysis: 1987 Products Liability Act,
41 Rutgers L.R. 1279, 1298 (1989). We note, however, that section 3b recognizes an exception to the 3a(1)
state-of-the-art defense that is not applicable to this case. The section 3b exception applies to certain
egregiously unsafe or ultrahazardous products that have hidden risks or could seriously injure third persons,
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and have little or no usefulness. State-of-the-art evidence is not a defense to liability for injury caused by
such products. However, "[i]t is intended that such a finding would be made only in genuinely extraordinary
cases--for example, in the case of a deadly toy marketed for use by young children, or of a product marketed
for use in dangerous criminal activities." Senate Judiciary Committee Statement. What is clear is that
"section 3(a)(1) now establishes a defense, subject only to the limited exceptions in section 3(b)." Dreier,
supra, 41 Rutgers L.R. at 1298.
III
Section 3a(2) provides a. In any product liability action against a manufacturer or seller for harm
allegedly caused by a product that was designed in a defective manner, the manufacturer or seller shall not
be liable if: .... (2) The characteristics of the product are known to the ordinary consumer or user, and the
harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that
would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge
common to the class of persons for whom the product is intended, except that this paragraph shall not apply
to industrial machinery or other equipment used in the workplace and it is not intended to apply to dangers
posed by products such as machinery or equipment that can feasibly be eliminated without impairing the
usefulness of the product....
[3] In construing a statute we first look at its plain language. Merin, supra, 126 N.J. at 434, 599 A.2d
1256. The Senate Judiciary Committee Statement notes that section 3a(2) adopts the "consumer
expectations" test that we recognized in O'Brien v. Muskin Corp., 94 N.J. 169, 463 A.2d 298 (1983) and
Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979). However, examining the
language of section 3a(2), we recognized in Dewey, supra, that the test is really a " 'hybrid' provision [that]
combines the 'consumer expectations' doctrine for determining whether a product is defective with the
obvious-danger factor of the risk-utility analysis to create a defense to a design-defect claim." 121 N.J. at
96, 577 A.2d 1239 (citations omitted).
[4] Under pre-Act New Jersey case law, the risk/utility analysis determined whether or not a product
was defectively designed--that is, whether its design was fit for its intended purpose. In Cepeda v.
Cumberland Engineering Co., 76 N.J. 152, 386 A.2d 816 (1978), overruled in part by Suter, supra, 81 N.J.
150, 406 A.2d 140, we listed the factors of that analysis: (1) The usefulness and desirability of the
product--its utility to the user and to the public as a whole. (2) The safety aspects of the product--the
likelihood that it will cause injury, and the probable seriousness of the injury. (3) The availability of a
substitute product which would meet the same need and not be as unsafe. (4) The manufacturer's ability to
eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to
maintain its utility. (5) The user's ability to avoid danger by the exercise of care in the use of the product. (6)
The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of
general public knowledge of the obvious condition of the product, or of the existence of suitable warnings
or instructions. (7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price
of the product or carrying liability insurance. [Id. 76 N.J. at 174, 386 A.2d 816 (quoting John W. Wade, On
the Nature of Strict Tort Liability For Products, 44 Miss.L.J. 825, 837-38 (1973)).] Under O'Brien, supra,
a product was defective, and unfit for its intended purpose, if its risks outweighed its utility: "In a
design-defect case, the plaintiff bears the burden of both going forward with the evidence and of persuasion
that the product contained a defect. To establish a prima facie case, the plaintiff should adduce sufficient
evidence on the risk-utility factors to establish a defect." 94 N.J. at 185, 463 A.2d 298.
[5] The Act, however, converted into absolute affirmative defenses what had been under the common
law merely factors in the overall risk/utility analysis. Dewey v. R.J. Reynolds, 121 N.J. at 96 [577 A.2d
1239]. Specifically, it created as absolute defenses a state-of-the-art defense, N.J.S.A. 2A:58C-3a(1); an
obvious- danger/consumer expectations defense, N.J.S.A. 2A:58C-3a(2); and an unavoidably unsafe defense,
120
N.J.S.A. 2A:58C-3a(3). [Fabian v. Minster Mach. Co., 258 N.J.Super. 261, 271, 609 A.2d 487 (App.Div.),
certif. denied, 130 N.J. 598, 617 A.2d 1220. (1992).] By converting some factors of the risk/utility equation
into absolute defenses, the Act "drastically changed the method of analyzing products- liability cases."
Dewey, supra, 121 N.J. at 96, 577 A.2d 1239. Indeed, because "under [the Act], the consumer-expectations
test cannot be avoided," id., some commentators have referred to it as an element of the plaintiff's case:
[S]ince the Act so clearly provides that the test under section 3a(2) constitutes an absolute defense to
liability, the net effect upon a plaintiff (suing on a claim in which consumer-expectations may be a
component) requires that the section 3a(2) standard be included within the proof of defect presented in the
affirmative case. [William A. Dreier et al., Products Liability and Toxic Tort Law in New Jersey: A
Practitioner's Guide, at 135.1 (6th ed. 1988 & Supp.1990) (emphasis added).] Such an interpretation of 3a(2)
accords with the fact that, under common law, the components of the 3a(2) defense were part of the
risk/utility analysis, and it was the plaintiff's burden to prove that risk outweighed utility. That burden
remains on the plaintiff under section 2.
[6][7] The Act, however, provides the defendant with a defense that did not exist under common law.
Because consumer expectations and open-and-obvious danger were merely factors of the risk/utility test
under common law, a plaintiff could still make out a case of design defect even if those factors weighed in
favor of the defendant. Under the Act, that is no longer the case: a product that satisfies the 3a(2) standard
is, by statutory definition, not defectively designed. If the harm caused by a product "would be recognized
by the ordinary person who uses or consumes the product," and if the harm stems from an "inherent
characteristic of the product," N.J.S.A. 2A:58C-3a(2), then the harm is not actionable. Because 3a(2)
provides a new, absolute defense, the defendant should bear the burden of proving the 3a(2) defense by a
preponderance of the evidence. "When an affirmative defense is raised [in a civil case], the defendant
normally has the burden of proving it." Biunno, Current N.J. Rules of Evidence, comment 2 on Evid.R.
101(b)(1) (1994-95). However, because 3a(2) is an absolute defense that product-liability defendants will
invariably raise, a plaintiff will rarely be able to go forward without addressing it.
The Act effected the same "conversion"--from mere factor to absolute defense--for the
"state-of-the-art" test. N.J.S.A. 2A:58C-3a(1). For example, in reviewing a jury charge, the Appellate
Division held that, "by including the state-of-the-art element only as an element of the risk/utility analysis,
the court failed to give defendant the benefit of the absolute statutory affirmative defense available under
N.J.S.A. 2A:58C-3a(1)." Fabian, supra, 258 N.J.Super. at 274, 609 A.2d 487. The same analysis applies to
the section 3a(2) defense: if the defendant has proved it, and the plaintiff has not disproved it, the plaintiff
will not recover.
[8] The exceptions, however, provide two circumstances in which the 3a(2) absolute, affirmative
defense is not available to the defendant: if the product is workplace equipment or if the danger can "feasibly
be eliminated without impairing the usefulness of the product." N.J.S.A. 2A:58C-3a(2). Although case law
and the legislative history are silent on whose ultimate burden it is to prove that the danger can or cannot
feasibly be eliminated without impairing the usefulness of the product, we hold that the plaintiff bears that
burden of proving that this exception precludes the defendant's use of the 3a(2) defense.
[9] Placing on the plaintiff the burden of proving that the danger could feasibly be eliminated without
impairing the product's usefulness conforms to both the plain language of the statute and legislative intent.
The "without impairing the usefulness" element was a factor of the risk/utility analysis under common law.
Just as section 3a(2) elevates some of those factors to an absolute defense that the defendant may raise, this
exception to 3a(2) elevates a different factor to an exception that the plaintiff may raise. That the plaintiff
will in most cases have to prove that the danger could be eliminated without impairing usefulness makes the
plaintiff's task more difficult, and that was the intent of the Act. Hence, if a plaintiff proves by a
preponderance of the evidence that the defendant could have eliminated the danger without impairing the
usefulness of the product, then the product might be defectively designed even though the defendant has
proved the 3a(2) defense.
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IV
The final question before us is, under section 3a(2), how severely must the elimination of danger
impair the usefulness of the product? That is an issue of first impression. Moreover, even though the fourth
factor of the common-law risk/utility analysis includes the "ability to eliminate the unsafe character of the
product without impairing its usefulness," Cepeda, supra, 76 N.J. at 174, 386 A.2d 816, no reported opinions
have interpreted the phrase in that context.
Cadec asserts that removal of the danger posed by an allegedly defective product may impair its
usefulness without rendering the product totally useless. Hence, Cadec seeks a standard under which the
plaintiff has to prove that the danger can be eliminated without significantly diminishing the usefulness of
the product. Under that standard, a plaintiff could not prevail by showing that the defendant could have
designed a product that was safer, but significantly less useful.
[10][11] The Act's legislative history suggests that "without impairing the usefulness" implicates the
product's inherent characteristics and intended use. The Senate Judiciary Committee Statement refers to
dangers "that can feasibly be eliminated without impairing the usefulness of the product, because such
dangers are not 'inherent.' " (Emphasis added.) Hence, dangers that are not inherent can be eliminated
without impairing usefulness. Conversely, dangers that are inherent cannot be eliminated without impairing
usefulness. For example, the danger that a carving knife will cut the user cannot be eliminated because an
exposed, sharp blade is an inherent characteristic of a carving knife, and essential to its intended use. A
plaintiff could not establish the second exception to 3a(2) by proving that a dull knife would be safer.
However, in the case of a lawn mower, the danger of being cut by sharp, exposed blades during use is not
inherent: the manufacturer can include a cover that extends to the ground, so that the machine still cuts grass
(its intended use) but does not pose nearly so great a threat of injury during operation. Thus, an inherent
danger arises from an aspect of the product that is indispensable to its intended use. The danger of exposed,
sharp blades is indispensable to knives, but not to lawn mowers.
Although no New Jersey cases have addressed the meaning of the phrase "without impairing the
usefulness," a federal district court has predicted how this Court would eventually interpret the phrase. In
McWilliams v. Yamaha Motor Corp., USA, 780 F.Supp. 251 (D.N.J.1991), modified, 987 F.2d 200 (3d
Cir.1993), the plaintiff, whose legs had been injured in a motorcycle accident, claimed that the section 3a(2)
defense was not available to the defendant motorcycle manufacturer because the defendant could feasibly
have eliminated the danger of leg injury by adding crash bars. Id. at 253-54. Applying the Act, the district
court held leg injuries to be an open and obvious danger of motorcycle riding that is inherent in the intended
use of motorcycles and that, therefore, cannot feasibly be eliminated: In all likelihood, the New Jersey
Supreme Court will rule that a motorcycle, a vehicle specifically designed as an open-air, easily
maneuverable, light- weight vehicle, contains an open and obvious risk of lower-leg injury. ... [The plaintiff]
would now have the court characterize the intended use of motorcycles as simply a means of transportation.
Such a characterization, however, fails to consider the intended differences between a truck or an automobile
and a motorcycle.... To require a manufacturer to eliminate all the dangers associated with motorcycle
accidents would require a manufacturer to deprive the motorcycle of its intended use and turn the motorcycle
into an enclosed vehicle. The risk associated with being in an accident while operating a motorcycle is just
as open and obvious as the risk associated with using a knife which could slip and cut a finger. [Id. at 260
(emphasis added).] The District Court granted the defendant manufacturer's motion for summary judgment.
The Third Circuit found that summary judgment was inappropriate because there was a "material issue of
fact as to whether the addition of crash bars would have eliminated the risk of lower leg injury ... without
impairing the usefulness" of the motorcycle. McWilliams, supra, 987 F.2d at 206. However, the Court of
Appeals focused on whether adding crash bars would eliminate the danger, not on whether adding crash bars
would impai the usefulness of the motorcycle. Id. at 205-06. For that reason, the opinion of the Court of
Appeals is not directly on point.
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[12] Taking our lead from the legislative history's stress on the word "inherent," we hold that
"impairing the usefulness of the product" means significantly diminishing its intended use. Even where it
is economically and technologically feasible to eliminate the danger, section 3a(2) still provides a defense
if eliminating the danger would require eliminating an inherent characteristic.
[13][14] Thus, a plaintiff seeking to establish the second exception to the 3a(2) defense must prove
that the defendant could have eliminated the danger without eliminating an inherent characteristic of the
product, and thereby significantly diminishing the product's intended use. We emphasize, however, that a
feature of a product that is desirable but not necessary is not an inherent characteristic: an inherent
characteristic is an essential characteristic. The elimination of an essential characteristic might not render
the product totally useless, but it would measurably reduce the product's appropriateness for its central
function. We make one final observation about jury evaluation of the second exception to the 3a(2) defense:
juries will inevitably weigh the extent to which the elimination of the inherent danger would impair
usefulness against the extent to which the change would improve a hazardous condition.
V
In the present case, Roberts bears the burden of proving "by a preponderance of the evidence that
the [X-300] ... was not reasonably fit, suitable or safe for its intended purpose because it ... was designed in
a defective manner." N.J.S.A. 2A:58C-2. Cadec bears the burden of proving the 3a(2) absolute defense: that
the danger is open and obvious and that the harm was caused by an inherent and known characteristic of the
product. Roberts then bears the burden of proving that, because Cadec could feasibly have eliminated the
danger without impairing the X-300's usefulness, the 3a(2) defense is not available to Cadec.
Cadec argues that part of the intended use of the X-300 is to accept data entry while in motion. That
would mean that operating while in motion is an inherent characteristic of the X-300, and that diverting the
driver's eyes from the road is an inherent danger. Although Roberts discounts the reasons that Cadec's
witnesses offered for making the computer operable while in motion--convenience and precision--Cadec
claims that those two characteristics are integral to the X-300.
Cadec admitted that it could have made the X-300 inoperable while in motion, but Roberts and the
Appellate Division misapprehended that admission as a concession that Cadec could so design the computer
without impairing its usefulness--a concession that the second exception to 3a(2) made the defense
unavailable to Cadec. Even though it is technologically and economically feasible to redesign the product,
it is not clear that that can be accomplished without impairing the usefulness of the X-300--without, that is,
removing one of its inherent characteristics.
[15] Because the state/toll-road function is operable while in motion, it poses the danger of diverting
the driver's eyes away from the road. Although Cadec could have eliminated that danger, the question
remains whether Cadec could have done so without significantly impairing the intended function of the
on-board computer. Hence, a jury must decide whether operability of all functions while in motion is an
inherent characteristic of the X-300, and whether or not eliminating that feature in whole or in part would
significantly diminish its intended use.
The section 3a(2) defense itself applies if full operability while in motion is an inherent characteristic
of the X-300. The danger of diverting ones eyes from the road is open and obvious to any driver, and hence
"known to the ordinary consumer or user." The injury was caused (in part) by entering data while in motion,
which may be an "inherent characteristic" of the computer that is "recognized by the ordinary [driver] who
uses ... the product with the ordinary knowledge common to" drivers. N.J.S.A. 2A:58C-3a(2). Accordingly,
the trial court correctly charged the risk/utility analysis and the section 3a(2) defense.
However, the trial court also should have charged the exception to the section 3a(2) defense. We
do not agree with the trial court that the proofs were sufficient as a matter of law to establish that making the
X-300 inoperable in whole or in part while in motion would so impair the usefulness of the product that an
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instruction on the "impairing the usefulness" exception to the 3a(2) defense was unnecessary. Nor do we
agree with the Appellate Division's conclusion that the record establishes that Cadec could feasibly have
eliminated the dangers that the X-300 poses without impairing its usefulness. Instead, on this record, we find
that whether Cadec could have--without impairing the usefulness of the computer--eliminated the dangers
posed by the X-300's being operable while in motion is a question of fact that a jury properly charged should
decide. For example, Cadec may prove that the initial, one-touch data entry cannot be made inoperable while
in motion without impairing the usefulness of the X-300. The record is unclear, however, on whether
Lovette was attempting to make the initial entry or the follow-up entries as he entered the construction area.
Thus, Roberts may prove that Cadec could, without impairing the usefulness of the computer, feasibly have
made only the ten-second follow-up procedure inoperable while in motion. All those considerations are
properly for the jury to resolve.
As modified, the judgment of the Appellate Division is affirmed.
For modification and affirmance--Chief Justice WILENTZ, and Justices HANDLER, POLLOCK,
O'HERN, GARIBALDI and STEIN--6.
Opposed--None.
LENHARDT v. FORD MOTOR CO.
683 P.2d 1097 (Wash. 1984)
BRACHTENBACH, Justice.
The question in this case was certified to us, pursuant to RCW 2.60, by the Ninth Circuit Court of
Appeals. The question certified is:
Under the products liability law of the State of Washington governing an action arising from injuries
incurred on January 8, 1979, are the design and performance characteristics of products similar to
the allegedly defective product manufactured by other makers appropriate factors to be considered
in determining the reasonable expectations of the ordinary consumer?
In its order certifying this question the Ninth Circuit explicitly stated that we are not bound by the
question as phrased and could formulate the question as we deem appropriate. We accept this invitation:
[1]
After reviewing the record we believe the question we must answer is the following:
In a strict liability cause of action arising prior to the effective date of the Washington tort reform
act, codified in RCW 7.72.010 et seq., is evidence of compliance with industry customs and
standards always admissible as a relevant factor in evaluating the reasonable expectation of the
ordinary consumer.
We answer no.
The facts as certified to us are as follows: The federal court plaintiff, Melvin Lenhardt, was injured
when his Ford van slipped into reverse after he left the motor running, put the vehicle in park and exited the
vehicle momentarily. His injuries occurred when he tried to stop the runaway vehicle. Lenhardt sued Ford
Motor Company alleging strict liability for design defects in the transmission system. At trial, Lenhardt's
expert witness testified concerning the defective design of the individual components and the transmission
system as a whole. He opined that minor changes in two components would eliminate the dangerous
characteristics of the transmission system. A major portion of his testimony was predicated upon internal
memorandums of Ford Motor Company. At no point, however, did he compare or discuss transmissions of
other manufacturers.
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In rebuttal, the federal defendant, Ford Motor Company, attempted to introduce evidence of the
custom of the industry as to transmission design. The proffered evidence consisted of testimony from present
or former Ford employees that other manufacturers used similarly designed components, that their
transmission systems were similarly designed, and that other manufacturers' cars have transmissions that will
slip from park to reverse. The federal trial court ruled that this evidence was not admissible because it was
not relevant concerning the reasonable expectation of the ordinary consumer. The jury returned a verdict
for Lenhardt and Ford appealed, citing this evidentiary ruling as error.
[2]
At the outset we must distinguish between two types of evidence that may be introduced in
a product liability action, state of the art evidence and evidence of industry custom. These concepts are not
always synonymous and, as such, involve different types of evidence. Cantu v. John Deere Co., 24
Wash.App. 701, 603 P.2d 839 (1979). The former relates to the technological feasibility of alternative safer
designs in existence at the time the product was originally manufactured while the latter refers to a practice
or custom regarding a particular design or manufacturing technique utilized by most manufacturers in that
industry. Cf. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980); Chown v. USM Corp., 297
N.W.2d 218 (Iowa 1980). In some factual situations the concepts may merge; however, in this case the
distinction is appropriate. Accordingly, the only issue before us is the admissibility of industry custom when
offered by the defendant as evidence of the reasonable expectation of the ordinary consumer.
In Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969) this court adopted the
Restatement (Second) of Torts § 402A (1965) doctrine of strict liability as a basis for a manufacturer's
liability. In Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774 (1975) we applied section
402A to a case alleging defective design, wherein we held:
Thus, we hold that liability is imposed under section 402A if a product is not reasonably
safe. This means that it must be unsafe to an extent beyond that which would be reasonably
contemplated by the ordinary consumer. This evaluation of the product in terms of the reasonable
expectations of the ordinary consumer allows the trier of the fact to take into account the intrinsic
nature of the product. The purchaser of a Volkswagen cannot reasonably expect the same degree
of safety as would the buyer of the much more expensive Cadillac. It must be borne in mind that we
are dealing with a relative, not an absolute concept.
In determining the reasonable expectations of the ordinary consumer, a number of factors
must be considered. The relative cost of the product, the gravity of the potential harm from the
claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in
a particular case. In other instances the nature of the product or the nature of the claimed defect may
make other factors relevant to the issue.
Tabert, at 154, 542 P.2d 774. Ford Motor Company argues that the custom of the industry, represented by
the design choices of other manufacturers, is a relevant factor in determining the reasonable expectation of
the ordinary consumer. We disagree.
[3]
In order to recover under a theory of strict liability, a plaintiff need not prove that a product
is defective as a separate matter. Tabert, at 154, 542 P.2d 774. Bernal v. American Honda Motor Co., 87
Wash.2d 406, 411, 553 P.2d 107 (1976). Recovery is allowed if the jury determines that the product is
dangerous to an extent beyond that which is contemplated by the ordinary consumer. Estate of Ryder v.
Kelly-Springfield Tire Co., 91 Wash.2d 111, 113, 587 P.2d 160 (1978). The consumer has a reasonable
expectation of buying a product which is reasonably safe; if there is something in the design which does not
meet that expectation the design is necessarily defective. Wiseman v. Goodyear Tire & Rubber Co., 29
Wash.App. 883, 631 P.2d 976 (1981).
[4]
As has been made clear in numerous cases, our jurisdiction utilizes a buyer oriented
approach, and the focus is on the buyer's expectation. Thus, our rule of strict liability focuses attention upon
the product and not upon the actions of the seller or manufacturer. Estate of Ryder v. Kelly-Springfield Tire
Co., supra; Little v. PPG Indus., Inc., 92 Wash.2d 118, 594 P.2d 911 (1979). Introducing evidence of
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industry and/or manufacturer's customs and practices shifts the jury's focus from what the consumer expects
to what the manufacturers are doing. By focusing the jury's attention on the custom of the industry,
implicitly the jury's attention is focused on the defendant's design choice and the reasonableness of that
choice. In effect, such evidence incorporates negligence concepts and the seller oriented approach we
rejected in Estate of Ryder v. Kelly-Springfield Tire Co. This is not appropriate in actions alleging strict
liability under section 402A.
The rule is one of strict liability, making the seller subject to liability to the user or consumer even
though he has exercised all possible care in the preparation and sale of the product.
[5]
Although in Iowa the plaintiff must show the design is unreasonably dangerous to recover,
the principle enunciated in Aller is in accord with the strict liability principles of this jurisdiction. The
plaintiff takes the design as it was finalized in the finished product and shows it was not reasonably safe
because the user would not contemplate the danger in the normal and innocent use of the product or
consumption of the product. The liability of the manufacturer is measured solely by the characteristics of
the product he has produced rather than his behavior and, therefore, strict liability does not sound in
negligence. Seay v.
Chrysler Corp., 93 Wash.2d 319, 328, 609 P.2d 1382 (1980) (Brachtenbach, J., concurring in the dissent);
accord, Seay v. Chrysler Corp., at 323, 609 P.2d 1382.
[6, 7] In that the reasonableness of the defendants' conduct is irrelevant in strict liability cases,
industry custom and standards, which form the basis of the defendant's conduct, are equally irrelevant. Strict
liability is predicated upon a no-fault concept and evidence that other manufacturers do the same thing as
the defendant introduces concepts of fault that are not relevant to the reasonable expectation of the ordinary
consumer.
This opinion should not be understood to mean that evidence of industry custom or standard is never
admissible in a strict liability action. If the plaintiff presents evidence that puts in issue the custom of the
industry or feasibility of alternative design the defendant should be allowed to meet that evidence. Cf.
Connor v. Skagit Corp., 99 Wash.2d 709, 664 P.2d 1208 (1983); Lamon v. McDonnell Douglas Corp., 91
Wash.2d 345, 588 P.2d 1346 (1979); Cantu v. John Deere Co., supra. But when a plaintiff establishes at
trial that a particular design allows a certain event to occur and alleges that event is not reasonably safe based
upon the reasonable consumer expectation concerning that product, the defendant may not introduce
evidence that his design comports with the design of other manufacturers, i.e., industry custom, and,
therefore, is reasonably safe because the other designs allow the same event to occur. If a product as
designed is not reasonably safe liability attaches and a defendant is liable no matter how reasonable his
conduct. Teagle v. Fischer & Porter Co., 89 Wash.2d 149, 159, 570 P.2d 438 (1977).
Ford Motor Company points to the new product liability act which makes evidence of industry
customs a factor that may be considered by the trier of fact. See RCW 7.72.050(1). While the defendants
admit that the statute is not binding in this case, see Laws of 1981, 1st Ex.Sess., ch. 27, § 15, p. 119; Senate
Journal, 47th Legislature (1981), at 637, they argue that the act reflects a public policy statement which
should guide the formulation of judicial policy. South v. A.B. Chance Co., 96 Wash.2d 439, 441, 635 P.2d
728 (1981). We continue to adhere to the statement made in South but believe it is not appropriate in this
case.
The new products liability act made modifications in the existing product liability law of the State
of Washington. RCW 7.72.020(1). One of the more significant changes adopted by the Legislature was to
change the standard of liability for design and warning/instruction defects. The Legislature felt that the
balancing factors announced in Tabert, and Teagle, had implicitly created a negligence standard for strict
liability cause of actions. Therefore, the Legislature adopted negligence standards as the standard of liability
for design and warning/instruction defects under the new act. See RCW 7.72.030(1)(a), (b); see also Senate
Journal, 47th Legislature (1981), at 624-25. In accord with this change, the Legislature adopted evidentiary
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rules that allowed the jury to consider the greatest amount of evidence in evaluating the manufacturer's
exercise of care. See Senate Journal, at 624.
This change, however, is not consistent with the products liability law that is applicable to this case.
The manufacturer's exercise of care and conversely its negligence are not matters that the jury need consider.
As previously explained, the jury focus is not on the conduct of the manufacturer but is on the product and
whether that product is reasonably safe from the viewpoint of what a reasonable consumer would expect.
We hold that evidence of industry custom is not always admissible in a product liability cause of
action that arises before the effective date of RCW 7.72.010 et seq.
WILLIAM H. WILLIAMS, C.J., ROSELLINI, UTTER, DORE and PEARSON, JJ., and
CUNNINGHAM, J. Pro Tem., concur.
DIMMICK, Judge (dissenting).
I dissent, with all due respect, since I cannot determine if the majority has answered the spirit of the
question. Specifically, we are asked if characteristics of similar products made by manufacturers other than
the defendant manufacturer are "appropriate" factors to be weighed by the jury in determining the relative
safety of the injury-causing product, in other words, if industry custom is relevant to consumer expectations.
What the majority appears to decide is that evidence of compliance with industry custom is "not always
admissible" as a relevant factor in evaluating the ordinary consumer's reasonable expectations of product
safety. The implication is that although such evidence is probative of consumer expectations, its
admissibility is subject to trial court discretion. If that is the majority's proposition, I agree. However, I do
not agree that the relevance of industry custom evidence depends solely on plaintiff's tactical decision to raise
the feasibility of an alternate, presumably safer, design. It is relevant, instead, because industry custom aids
the jury in assessing the relative harms and benefits of a product's design. What degree of safety the
consumer contemplates in regard to a particular product is inherently a reasonableness determination. To
evaluate reasonableness, the trier of fact evaluates the product's safety characteristics against the product's
utility. I would, therefore, respond to the certified question by finding industry custom evidence relevant to
consumer expectations.
The majority concludes that the public policy expressed in the Tort and Product Liability Reform
Act of 1981, RCW 7.72, provides no guidance. I disagree. RCW 7.72.050(1) allows evidence of custom in
the product seller's industry to be considered by the trier of fact. The legislative approval of industry custom
evidence in product liability cases rests, in some part, on the assumption that the consumer expectations test
previously articulated by this court in Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774
(1975), announced a balancing test closely related to a cost/benefit analysis fundamental to a determination
of negligence. See Washington State Senate Select Committee on Tort & Product Liability Reform, Final
Report 17 (1981) (hereinafter cited as Final Report). In defining "unreasonably unsafe" in product design
cases, the Legislature purported to make explicit the balancing test that was implicitly followed under strict
liability law. Final Report, at 17-18. The Washington State Senate's Select Committee on Tort and Product
Liability Reform expressed the view that, in balancing various factors, the trier of fact should take into
account the greatest amount of evidence available. Final Report, at 39-40. This policy judgment makes good
sense whether considering product liability under case law or the new act. I see no reason to strain the
rationale of our prior cases, and now disavow the balancing test of Tabert, to reach a result contrary to the
product liability act.
The new product liability act retained the consumer expectations test as a factor in determining
liability for design defect because it was believed to be harmonious with the act's balancing test used for
determining reasonable safety. Final Report, at 35-36. Our decisions support that legislative judgment.
Under Tabert, determining the reasonable expectations of the ordinary consumer requires balancing various
factors such as the product's cost, the gravity of harm, and the cost and feasibility of eliminating or
minimizing the risk to the consumer. Tabert, 86 Wash.2d at 154, 542 P.2d 774; see Lamon v. McDonnell
Douglas Corp., 91 Wash.2d 345, 588 P.2d 1346 (1979); Wagner v. Flightcraft, Inc., 31 Wash.App. 558, 643
127
P.2d 906 (1982). Because the function of this balancing is to evaluate the reasonableness of the degree of
safety the product possesses to the ordinary user, the test is comparable to a negligence analysis. See
generally, Birnbaum, Unmasking the Test for Design Defect: from Negligence [to Warranty] to Strict
Liability to Negligence, 33 Vanderbilt L.Rev. 593 (1980); Note, Strict Liability in Tort: Is it Applicable to
Design Defect? 20 Washburn L.J. 600 (1981). As in a negligence action, the heart of the jury inquiry is
reasonableness. The ordinary consumer is deemed to expect not absolute safety, but reasonable safety based
on consideration of the benefits the product offers and the potential harm it poses. The jury's function is to
decide what degree of risk society is willing to accept to enjoy the benefit of the product before the
manufacturer will be found liable for the harm caused.
This balancing of risk and utility in a strict liability case does not transform strict liability into
negligence. See Little v. PPG Indus. Inc., 92 Wash.2d 118, 122, 594 P.2d 911 (1979). Under our case law,
the plaintiff in a strict liability action does not have to prove any negligent conduct on the part of the
manufacturer. The only pertinent inquiry assesses the relationship of the product's relative safety to what
the consumer may reasonably expect.
The jury's balancing of the risks and benefits inherent in the design includes evaluating whether it
is feasible to improve the safety features of the product, and whether that enhanced safety is something the
ordinary consumer would expect to find based on the "cost" of providing the extra safety. A major aspect
of the cost to the consumer may be the impact that greater safety has on the product's utility. See, Boatland
of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980). Industry custom is probative of the cost and
technological feasibility of improved safety, the loss of utility that greater safety incurs, and the relative
success in reducing the potential harm. Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192 (4th Cir.1982);
Boatland of Houston, Inc. v. Bailey, supra. Because the standard of design defectiveness is premised on the
reasonableness of the design, industry custom has some bearing on the feasibility factors that the jury
considers.
Evidence of compliance with industry custom should not, however, establish a conclusive defense.
Industry standards reflect only the industry consensus on the proper balancing of the beneficial aspects and
the potential harm in the design. The jury remains free to reject that balance and find the entire industry's
products unsafe. Accord, Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978); Thibault v. Sears,
Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978).
The consumer expectations test has been criticized, as has been the requirement of unreasonable
danger, by commentators who suggest that the test perpetuates poor manufacturing standards. See e.g., J.
Beasley, Products Liability and the Unreasonably Dangerous Requirement 399 (1981). The theory is that
a pervasive "dangerous" design becomes "expected" by consumers so that it cannot be found unreasonably
dangerous. This criticism points out the inequity of a consumer expectation test that asks only whether the
ordinary consumer contemplated this harm. The better inquiry is whether the risk of harm is greater than the
ordinary consumer is willing to bear because the benefits of having the product with the "defect" do not
outweigh the costs of providing a safer product. Under this standard, the pervasiveness of the defective
design will not decide the outcome. The jury will simply consider the gravity of the harm and the beneficial
aspects, rejecting any design, however common, that presents an unreasonable risk.
Even if one accepts the majority's proposition that only a plaintiff may make industry custom relevant
by resting the claim on a feasibility theory, this case meets that criterion. Plaintiff Lenhardt presented
testimony that an inexpensive design change would correct the transmission defect. In substance, plaintiff
claims that it is feasible to design a safer transmission. The jury is entitled to weigh that claim, to hear
evidence on both sides of the issue, and to evaluate the impact of the feasibility claim on the ultimate issue
of whether the product was unreasonably unsafe as designed.
I would hold that industry custom is probative of a product's reasonable safety, and thus relevant to
what the ordinary consumer expects.
DOLLIVER, J., concurs.
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BRUCE v. MARTIN-MARIETTA CORP.
644 F.2d 442 (10th Cir. 1976) (Okla. law)
BREITENSTEIN, Circuit Judge.
These consolidated appeals relate to a product liability case arising out of an airplane crash.
Plaintiffs-appellants are persons injured, and representatives of persons killed, in the crash. Defendantappellee Martin-Marietta Corporation manufactured the plane. Defendant-appellee Ozark Airlines was an
intermediate owner and seller of the plane. Jurisdiction is based on diversity. The district court gave
summary judgment for the defendants. We affirm.
The airplane, a Martin 404, was chartered to carry the Wichita State University team and some of
its supporters to a football game in Logan, Utah. On October 2, 1970, the plane crashed into a mountain west
of Silver Plume, Colorado. The plane first struck trees at an altitude of approximately 10,800 ft. and then
travelled 425 ft. before coming to rest. Seats in the passenger cabin broke loose from their floor attachments,
were thrown forward against the bulkhead of the plane, and blocked exit. A fire then developed. Of the 40
persons on the plane, 32 died in the crash.
Martin manufactured the plane and sold it to Eastern Airlines in March, 1952. Eastern used the plane
about ten years and in 1962 sold it to Mohawk Airlines which used it about three years and sold it to Ozark
Airlines in 1965.
In 1967, Ozark sold the plane to Fairchild-Hiller Corporation, a manufacturer of aircraft. The plane
was in storage until sometime in 1970 when it was sold to Jack Richards Aircraft Company. Golden Eagle
Aviation contracted with Wichita State University to provide transportation for its football games away from
home. Golden Eagle supplied the crew and used the Richards aircraft. Eastern, Mohawk and Ozark are all
carriers providing scheduled services under pertinent federal aviation regulations. The defendants in the
instant suit are Martin and Ozark.
On these appeals the plaintiffs do not contend that any action of either defendant caused the plane
to crash. Their claims are that the defendants' failures to design, manufacture, or maintain the plane in
crashworthy condition caused the deaths, or enhanced the injuries, of the passengers. The alleged defects
are the inadequacy of the seat fastenings and the lack of protection against fire. Plaintiffs seek recovery on
theories of negligence, implied warranty, and strict liability in tort.
I
LIABILITY OF MARTIN
Martin was the manufacturer and original seller of the plane. Martin does not claim any change in
the condition of the plane. As to strict liability, the question is whether the plane was sold "in a defective
condition unreasonably dangerous to the user." The negligence question is whether Martin exercised
reasonable care. See Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737.
[4, 5] A summary judgment is proper upon a showing that "there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c),
F.R.Civ.P. The question is whether there is any genuine issue as to any material fact. Plaintiffs claim
that the plane was not equipped with crashworthy design characteristics in two particulars; (1) the seats
and seat fastenings were not designed or manufactured to withstand a crash and, (2) the aircraft was not
designed so as to minimize the possibility of fire occurring after a crash.
In support of its motion for summary judgment, Martin submitted the affidavit of its Assistant
Secretary pertaining to the design of the plane. It was designed and certificated as a land plane for the
commercial transportation of passengers, mail and cargo. The plane was designed "to meet or exceed all
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applicable design requirements, safety requirements and other criteria prescribed by the Civil Aeronautics
Administration" and was manufactured and certificated in accordance with specified CAA regulations. The
affidavit stated with particularity the fire protection features incorporated in the plane design. With reference
to the seats, it said:
"The seats were transport type duplex seats designed and manufactured by the WarrenMcArthur Corporation of Bantam, Connecticut [sic], and were designed to meet or exceed all of the
criteria prescribed in Civil Air Regulation 514.35 (CAA Technical Standard Order No. C-25A)."
In response, plaintiffs presented the affidavit of an aircraft accident investigator whose qualifications
are not questioned. He said: "My studies thus far indicate that there were airline passenger seats in common
use on October 2, 1970, which, if installed in the subject Martin 404 aircraft, would have remained in place
throughout this otherwise survivable accident and would not have trapped the occupants in the burning
aircraft. An occupant in this crash should not have had his escape from the burning aircraft impeded by seat
failures. In the crash in question the seat failures constituted an unreasonable dangerous condition to the
passengers because the seat failures prevented them from exiting the burning aircraft."
Plaintiffs say that state-of-art evidence is not material when the claim is based on strict liability.
They argue that a showing of a design defective in 1970 establishes that the plane was defective in 1952, the
time of the original sale, absent a subsequent alteration of the plane. For support of their position, plaintiffs
rely on Pryor v. Lee C. Moore Corp., 10 Cir., 262 F.2d 673, and Mickle v. Blackmon, 252 S.C. 202, 166
S.E.2d 173. These cases hold that prolonged safe use of a product is evidence of lack of defect but is not
conclusive. We have no quarrel with the rule but have no need to apply it here.
[8]
There is authority that state-of-art evidence is not relevant to a strict liability claim.
Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 226 N.E.2d 897, 902, 904; and Gelsumino v.
E. W. Bliss Co., 10 Ill.App.3d 604, 295 N.E.2d 110, 113. The basic reasoning is that the principles noted
in § 402A(1) are, by subsection (a), made applicable although "the seller has exercised all possible care
in the preparation and sale of his product." To our knowledge, none of the states whose laws might apply
to the instant case have adopted the Illinois rule. We respectfully reject it.
The crucial words in § 402A are "defective condition" and "unreasonably dangerous." A majority
of the courts have required a plaintiff to prove both. See e.g. Kleve v. General Motors Corp., Iowa, 210
N.W.2d 568; Brown v. Western Farmers Ass'n, Or., 521 P.2d 537; and Jagmin v. Simonds Abrasive Co., 61
Wis.2d 60, 211 N.W.2d 810. Some courts have eliminated the "unreasonably dangerous" requirement. See
Anderson v. Fairchild Hiller Corp., D.Alas., 358 F.Supp. 976; Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121,
104 Cal.Rptr. 433, 501 P.2d 1153; and Glass v. Ford Motor Co., 123 N.J.Super. 599, 304 A.2d 562. Other
courts have eliminated the "defective condition" requirement. See Ross v. Up Right, Inc., 5 Cir., 402 F.2d
943; and Seattle-First National Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774. We proceed on the basis that
both requirements must be satisfied.
With regard to "defective condition" Comment g to § 402A Restatement of Torts 2d at 351, says:
"The rule stated in this Section applies only where the product is, at the time it leaves the seller's
hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably
dangerous to him."With regard to "unreasonably dangerous" Comment i says, Ibid. at 352:
"The article sold must be dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common in the community as to
its characteristics."
[9, 10] Whether concern is with one or both of the requirements, there is "general" agreement
that to prove liability under § 402A the plaintiff must show that the product was dangerous beyond the
expectation of the ordinary customer. State-of-art evidence helps to determine the expectation of the
ordinary consumer. A consumer would not expect a Model T to have the safety features which are
incorporated in automobiles made today. The same expectation applies to airplanes. Plaintiffs have not
shown that the ordinary consumer would expect a plane made in 1952 to have the safety features of one
made in 1970. State-of-art evidence was properly received and considered by the trial court.
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V.
CAUSATION
GAINES-TABB v. I.C.I. Explosives, U.S.A., Inc.
United States Court of Appeals, Tenth Circuit, 1998
160 F.3d 613
Before SEYMOUR, Chief Judge, and EBEL and BRISCOE, Circuit Judges.
EBEL, Circuit Judge
[See pp. 68 above for a discussion of the negligence and the strict tort defective products issues]
[PROXIMATE CAUSE]
“[W]hether the complained of negligence is the proximate cause of the plaintiff’s injury is dependent
upon the harm (for which compensation is being sought) being the result of both the natural and probably
consequences of the primary negligence.” Lockhart, 943 P.2d at 1079 (emphasis omitted). Under Oklahoma
law, “the causal nexus between an act of negligence and the resulting injury will be deemed broken with the
intervention of a new, independent and efficient cause which was neither anticipated nor reasonably
foreseeable.” Minor v. Zidell Trust, 618 P.2d 392, 394 (Okla. 1980). Such an intervening cause must be:
(1) independent of the original act; (2) adequate by itself to bring about the injury; and (3) not reasonably
foreseeable. See id.; Henry, 877 F.2d at 1495. “When the intervening act is intentionally tortious or
criminal, it is more likely to be considered independent.” Id.
“A third person’s intentional tort is a supervening cause of the harm that results--even if the actor’s
negligent conduct created a situation that presented the opportunity for the tort to be committed--unless the
actor realizes or should realize the likelihood that the third person might commit the tortious act.” Lockhart,
943 P.2d at 1080 (quotation and emphasis omitted). If “the wrongdoer will not be relieved of liability.” Id.
at 1079 (emphasis omitted). “In determining questions relating to the foreseeability element of proximate
cause, the courts have uniformly applied what might be termed a practical, common sense test, the test of
common experience.” 57 A Am.Jur.2d Negligence § 489 (1989).
Oklahoma has looked to the Restatement (Second) of Torts § 448 for assistance in determining
whether the intentional actions of a third party constitute a supervening cause of harm. See Lay v. Dworman,
732 P.2d 455, 458-59 (Okla. 1986). Section 448 states:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm
to another resulting therefrom, although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the
time of his negligent conduct realized or should have realized the likelihood that such a situation
might be created, and that a third person might avail himself of the opportunity to commit such a tort
or crime.
Comment b to § 448 provides further guidance in the case before us. It states:
There are certain situations which are commonly recognized as affording temptations to which a
recognizable percentage of humanity is likely to yield. So too, there are situations which create
temptations to which no considerable percentage of ordinary mankind is likely to yield but which,
*621 if they are created at a place where persons of peculiarly vicious type are likely to be, should
be recognized as likely to lead to the commission of fairly definite types of crime. If the situation
which the actor should realize that his negligent conduct might create is of either of these two sorts,
an intentionally criminal or tortious act of the third person is not a superseding cause which relieves
131
the actor from liability. [FN2]
FN2. See also Restatement (Second) of Torts, § 442 for considerations important in determining
whether an intervening force is a superseding cause.
Thus, under comment b, the criminal acts of a third party may be foreseeable if (1) the situation
provides a temptation to which a “recognizable percentage” of persons would yield, or (2) the temptation is
created at a place where “persons of a peculiarly vicious type are likely to be.” There is no indication that
a peculiarly vicious type of person is likely to frequent the Mid-Kansas Co-op, so we shall turn our attention
to the first alternative.
We have found no guidance as to the meaning of the term “recognizable percentage” as used in §
448, comment b. However, we believe that the term does not require a showing that the mainstream
population or the majority would yield to a particular temptation; a lesser number will do. Equally, it does
not include merely the law-abiding population. In contrast, we also believe that the term is not satisfied by
pointing to the existence of a small fringe group or the occasional irrational individual, even though it is
foreseeable generally that such groups and individuals will exist.
We note that plaintiffs can point to very few occasions of successful terrorist actions using
ammonium nitrate, in fact only two instances in the last twenty-eight years--a 1970 bombing at the University
of Wisconsin-Madison and the bombing of the Murrah Building. [FN3] Due to the apparent complexity of
manufacturing an ammonium nitrate bomb, including the difficulty of acquiring the correct ingredients (many
of which are not widely available), mixing them properly, and triggering the resulting bomb, only a small
number of person would be able to carry out a crime such as the bombing of the Murrah Building. We
simply do not believe that this is a group which rises to the level of a “recognizable percentage” of the
population. Cf. Restatement (Second) of Torts § 302B, cmt. d (1965) (“Even where there is a recognizable
possibility of the intentional interference, the possibility may be so slight, or there may be so slight a risk of
foreseeable harm to another as a result of the interference, that a reasonable man in the position of the actor
would disregard it.”).
FN3. In the complaint, Plaintiffs allege in a general way the detonation of AN fertilizer bombs in
“Europe and especially Northern Ireland” prior to 1970 and the unsuccessful attempt in the United
States to use AN to bomb certain facilities in New York.
As a result, we hold that as a matter of law it was not foreseeable to defendants that the AN that they
distributed to the Mid-Kansas Co-op would be put to such a use as to blow up the Murrah Building. Because
the conduct of the bomber or bombers was unforeseeable, independent of the acts of defendants, and
adequate by itself to bring about plaintiffs’ injuries, the criminal activities of the bomber or bombers acted
as the supervening cause of plaintiff’s injuries. Because of the lack of proximate cause, plaintiffs have failed
to state a claim for negligence.
132
VI.
WARNINGS
DUANE v. OKLAHOMA GAS & ELECTRIC CO
833 P.2d 284 (Ok. 1992)
ON CERTIORARI TO THE COURT OF APPEALS DIVISION IV.
Trial court granted summary judgment for defendants Shell Oil Company and Chevron U.S.A., Inc.,
in manufacturers products liability/negligence action as suppliers of insulating oil used in switches
manufactured by plaintiff's employer. Court of Appeals, Division IV, reversed and remanded. We affirm
trial court's grant of summary judgment, finding no duty to warn on part of Shell and Chevron.
CERTIORARI PREVIOUSLY GRANTED OPINION OF COURT OF APPEALS VACATED SUMMARY
JUDGMENT AFFIRMED
HARGRAVE
We granted certiorari to review a decision of the Court of Appeals, Division IV, that reversed and
remanded the trial court's granting of summary judgment to defendants Shell and Chevron. Plaintiffs
employer, Trayer Engineering Corporation, a California corporation, is the manufacturer of large oilinsulated vacuum switches commonly used in the electrical industry. Trayer Engineering's president, Frank
Trayer, an electrical engineer, designed and patented these oil-filled switches. One of the switches
manufactured by Trayer was sold to Oklahoma Gas & Electric Company. The switch failed while in use by
O.G. & E. (it had exploded internally and the tank sides were expanded approximately three inches on all
sides) and was shipped back to Trayer for diagnostic tests. The switch tank's dimensions were approximately
four feet wide by four feet long, with a depth of approximately four feet, and it had been filled with insulating
oil, supplied by Shell and Chevron, from Trayer's own 10,000-gallon tank. Trayer stated that the type of oil
required was simply transformer insulating oil, very readily available in the industrial marketplace.
In order to discover the cause of the switch's failure, Trayer instructed his employees to drain the
switch of the oil remaining inside before cutting open the tank, as they had done many times in the past. This
time, however, Trayer additionally instructed plaintiff Duane to purge the switch with compressed air before
grinding it open to inspect the inside. Duane was injured when he began grinding and the tank exploded.
Duane sued, among others, Shell and Chevron*, for strict liability and negligence, arguing that Shell and
Chevron were liable to him for their failure to warn of the dangerous propensities of their insulating oil.
There was no claim that the oil supplied by Shell or Chevron was improperly manufactured or
contaminated; thus it will be considered defective only if it was unreasonably dangerous and there was
failure to warn of its dangerous characteristics and the failure to warn was the cause of the plaintiffs injury.
See, Smith v. U.S. Gypsum Co., 612 P.2d 251, 253-254 (Okla.1980), Cunningham v. Charles Pfizer & Co.,
Inc., 532 P.2d 1377, 1383 (Okla.1975). The duty to warn of any dangerous character of their product arises
only if they had no reason to expect those who use the product to discover the condition and realize the
danger involved. Mayberry v. Akron Rubber Machinery Corp., 483 F.Supp. 407, 413 (N. D. Okla.1979).
Duane says that the insulating oil was transformed into a volatile substance by a power surge through it while
in use by O.G. & E. This, Duane alleges, transformed the oil so that when combined with the compressed
air pumped in, was ignited by the grinder. Plaintiff claims that the defendants knew of this propensity and
failed to warn Trayer Engineering. Duane argues that a product can be unreasonably dangerous if in
foreseeable uses it creates danger to the user, and that courts frequently have ruled that a manufacturer must
give an appropriate warning of any known dangers which the user of his product would not ordinarily
discover. Shell and Chevron argue that they had no legal duty to warn because they were merely bulk
suppliers of insulating oil to the manufacturer of an oil-insulated vacuum switch, designed according to the
specifications of the manufacturer, and that they were not responsible for the ultimate design and
133
construction of the switch. Further, they argue, Trayer, as the inventor of the switching process, was a
knowledgeable user with specific, national expertise in this area of electrical switches, and thus, needed no
warning concerning the effects of insulation oil. Finally, they argue, even if they had a legal duty to warn,
as a matter of law the failure to warn was not the proximate cause of plaintiff's injuries.
A product is not defective when it is safe for normal handling and consumption and there is no duty
to warn where the product is used in an unlikely, unexpected or unforeseeable manner. Only where the seller
has reason to anticipate that danger may result from a particular use, may he be required to give adequate
warning of the danger, and a product sold without such warning is in a defective condition. Restatement of
Torts (Second), § 402A, Comment h. But there is no duty on a manufacturer or seller to warn of a
product-connected danger which is obvious or generally known, and there is no duty to warn a
knowledgeable user of the product of the dangers associated therewith. Eyster v. Borg-Warner Corp., 206
S.E.2d 668 (Ga.App.1984). A duty to warn must also be based upon the foreseeability that the user would
use the product in that way, the type of danger involved, and foreseeability of the user's knowledge of the
danger. The plaintiff must establish that the failure to warn was a proximate, producing cause of the injuries
received. Hagan v. EZ Manufacturing Co., 674 F.2d 1047, 1052 (5th Cir.1982).
The general rule as to a supplier's duty to warn of known dangers in the ordinary use of its product
is set out in Restatement of Torts (Second), § 388: "One who supplies directly or through a third person a
chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel
with the consent of the other or to be endangered by its probable use, for physical harm caused by the use
of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows
or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous
condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts
which make it likely to be dangerous. "
We find that neither (a) nor (b) above is present in the case at bar. The use for which the chattel in
this case was supplied was for insulating oil to be used in oil-filled vacuum switches designed and
manufactured by Trayer Engineering. The oil was not inherently dangerous for the use for which it was
supplied: as insulating oil. Plaintiffs' own allegations are that the oil became dangerous when a variety of
conditions occurred, such as severe electrical arcing, purging the switch with air, and grinding. In this case
the "knowledgeable user" is himself a manufacturer. Where the danger or potentiality of danger is known
or should be known to the user, the duty to warn does not attach. Mayberry v. Akron Rubber Mach. Corp.,
supra, at p. 413, and cases cited therein. Trayer was or should have been aware of the properties of insulating
oil and electricity in the switches he designed. Shell and Chevron supplied a type of oil specified by Trayer
for use in an oil- filled electrical switch of his own design and manufacture. Shell and Chevron had no
control over the use of their product in Trayer's switch. Their oil was delivered and co-mingled into
10,000-gallon tanks in Trayer's manufacturing plant. There is no allegation that the oil was defective or
contaminated when it left the suppliers' hands. The oil was supplied for the very purpose invented by Trayer.
Trayer was in charge of the installation and testing of his switch and he wholly controlled what was done
that day. The unfortunate fact is that on this occasion Trayer ordered air pumped into the switch and thereby
caused a volatile mixture. There was no reason to anticipate that a knowledgeable user, like Trayer, would
create a dangerous situation by pumping compressed air into the switch from which the oil had been drained,
and then grind into that tank. The scope of the duty upon Shell and Chevron does not depend upon whether
Trayer did not in fact know of the dangerous properties, but whether he should have known. If no warning
is required to be given by the manufacturer to a purchaser who is well aware of the inherent dangers of the
product, there is no duty on the part of the manufacturer to warn an employee of that purchaser. Marker v.
Universal Oil Prod. Co., 250 F.2d 603 (10th Cir.1957), Mays v. Ciba-Geigy Corp. 661 P.2d 348 (Ks.1983).
In Mays, the Kansas supreme court upheld granting of summary judgments for defendant
manufacturer and defendant supplier on the failure to warn issue. The Court stated that because in that case
some of the manufacturer's products were used with products manufactured by others, any failure to warn
134
must be predicated on breach of some duty to instruct on proper procedures of testing the completed system.
The installer was in the business of hooking-up gas wells. The Mays court stated that the installation of a
gas pipeline system is obviously a highly specialized field of endeavor and that inherent in installation of a
system to transport natural gas under pressure from one place to another is the risk of fire and explosion.
The danger of explosion and fire during such activities is common knowledge. The determination of the
testing procedures to be utilized was under the control of the person in charge of the installation, and it was
held unreasonable to hold that the supplier's employee had a duty to refuse to sell the installer the pipeline
component parts in question until he explained to him the fundamentals of pipeline installation and testing
procedures or had required him to read the manufacturer's installation manual. To require that the
manufacturer or supplier were under a duty to instruct the plaintiff in basic pipeline laying and system testing
would place an impossible burden on manufacturers and sellers of industrial products.
We find that Shell and Chevron had no duty to warn a knowledgeable user and no duty to warn of
dangers inherent in the task or which are created by oversight or negligence of the contractor or fellow
employees. Welch v. Heat Research Co., 644 F.2d 487 (5th Cir.1981), Scott v. Thunderbird Industries, 651
P.2d 1346 (Okla.App.1982). Finding ourselves in agreement with trial court's ruling that there was no duty
to warn Duane on the part of Shell or Chevron, we do not address the other issues raised in the briefs.
OPINION OF THE COURT OF APPEALS IS VACATED. TRIAL COURT'S GRANT OF SUMMARY
JUDGMENT IS AFFIRMED.
OPALA, C.J., HODGES, V.C.J., LAVENDER, SIMMS, HARGRAVE, SUMMERS and WATT, JJ., concur.
WILSON, J., concurs in part and dissents in part.
9.
Plaintiffs' cause of action for negligence was also subm itted to the jury. The claim was rejected on proxim ate cause grounds, and its
disposition is not now in issue.
10.
Indeed, the statutory provision for personal injury recovery as an elem ent of "consequential dam ages" (U CC 2-715[2][b] ) m akes it
illogical to conclude, as the am icus Product Liability Advisory C ouncil suggests, that the breach of im plied warranty theory should be confined to
recovery for econom ic loss (see generally, B ocre Leasing Corp. v. General M otors Corp., 84 N .Y .2d 685, 621 N .Y .S.2d 497, 645 N .E.2d 1195;
Bellevue S. Assocs. v. H RH Constr. Corp., 78 N .Y .2d 282, 574 N .Y .S.2d 165, 579 N .E.2d 195; Schiavone Constr. Co. v. Elgood M ayo Corp., 56
N .Y.2d 667, 451 N .Y.S.2d 720, 436 N .E.2d 1322, revg on dissent below 81 A.D.2d 221, 227, 439 N .Y.S.2d 933).
11.
In design defect cases, the alleged product flaw arises from an intentional decision by the m anufacturer to configure the product in a
particular w ay. In contrast, in strict products liability cases involving m anufacturing defects, the harm arises from the product's failure to perform in
the intended m anner due to som e flaw in the fabrication process. In the latter class of cases, the flaw alone is a sufficient basis to hold the
m anufacturer liable without regard to fault (see generally, B irnbaum , U nm asking the Test for D esign D efect: From N egligence [to W arranty] to
Strict Liability to N egligence, 33 VandL.Rev. 593, 599-600).
12.
A warranty of fitness for ordinary purposes "does not m ean that the product will fulfill [a] buyer's every expectation" (1 W hite and
Sum m ers, U niform Com m ercial Code s 9-8, at 476 [Practitioner's 3d ed.] ). Rather, it has been observed, such a warranty "provides for a m inim al
level of quality" (Skelton v. General M otors Corp., 500 F.Supp. 1181, 1191, revd on other grounds 660 F.2d 311).
13.
Significantly, the M odel Act itself has been the subject of criticism (see, 1 Frum er and Friedm an, op. cit., s 1.08[2], at 1-164--1- 165;
Twerski and W einstein, A Critique of the U niform Product Liability Law--a Rush to Judgm ent, 28 D rake L.Rev. 221).
14.
The authors note that "[t]he fear that alm ost any defective product claim will pass under the rubric of consum er expectations can be dealt
with by requiring that such expectations m ust be clearly and widely perceived to be attendant to the norm al use of the product" (Twerski and
W einstein, op. cit., at 232).
15.
The dissent's first argum ent (dissenting opn., at 265-266, at ---- of --- N .Y .S.2d, at ---- of --- N .E.2d) focuses on whether the D istrict
Court's charge to the jury on the question of "defect" created a basis for that jury to reach different conclusions on the design-defect and breach of
im plied warranty causes of action. However, m atters such as the proper construction of a Federal court's charge as given and the reconcilability of a
jury verdict under that charge are not "questions of N ew Y ork law" and are therefore not properly before us here (see, N .Y . Const., art. VI, s 3
[b][9]; see also, 22 N Y CRR 500.17).
135
*.
See, e.g., Barker v. Lull Eng'g Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443; Caterpillar Tractor Co. v. Beck,
593 P.2d 871 (Alaska); and see generally, Saratoga Fishing Co. v. M arco Seattle, 69 F.3d 1432.
*.
Duane originally sued Shell Oil Company and Shell brought in Chevron as a third-party defendant. Duane filed
an amended petition adding Chevron as a party defendant. Chevron alleged that Duane did not get the trial judge's
permission before filing his amended petition and that the statute of limitations had run as to Chevron before Duane
obtained permission from the trial judge. The trial judge ruled that he would have permitted the amendment, and made
his approval retroactive to the date of filing the amended petition. Because we find no breach of duty on the part of Shell
or Chevron, we have not addressed this issue.
136
VII. PLAINTIFF'S CONDUCT - MISUSE & ASSUMPTION OF RISK
FIELDS V. VOLKSWAGEN OF AMERICA, INC.
555 P.2d 48 (Okla. 1976)
HODGES, Vice Chief Justice.
This is an action for damages for personal injuries sustained by appellee, David Fields (Fields), when
his 1971 Volkswagen overturned while he was attempting to negotiate a left hand curve. Fields contends
the steering wheel locked while he was driving and he was unable to keep the car on the road. The
automobile was equipped with an ignition lock system that prevented the steering wheel from being turned
while the ignition was off. It is alleged this system was faulty due to a defect in the locking mechanism
which was present when the car left the factory and that the failure of this system was the actual and
proximate cause of the accident.
Appellants, Volkswagen of America, the importer of the car, and Volkswagen South Central
Distributor, Inc., who sold the car to the Texas Dealer where Fields purchased it, denied the jurisdiction of
the court and that there was defect as alleged, raising the defense that the sole and proximate cause of the
accident was Fields' own negligence and misuse of the automobile.
The court, with the concurrence of the parties, ordered a bifurcated trial. The case was first tried to
a jury on the issue of liability prior to any consideration by the jury of the issue of damages, and the jury
returned a verdict for Fields. In the subsequent damage trial, the jury returned a verdict for $150,000.00.
The court denied appellants' motions for a judgment notwithstanding the verdict or a new trial.
Appellants appeal, raising several propositions of error which are questions of first impression in this
jurisdiction.
Appellants claim additional error in two areas of the jury instructions given during the liability trial.
They first claim the court erred in refusing to instruct on contributory negligence or abnormal use.
We acknowledge the fact that this case was tried prior to Kirkland v. General Motors, supra. The
instructions given are an example of the confusion that exists in the field of products liability litigation. In
Kirkland we stated that its principles will be applied retroactively in cases which have been tried and are for
decision on appeal where it would not prejudice the rights of the litigants. This is such a case.
The petition and evidence offered at trial by
appellants present the elements of manufacturers' products liability as enunciated in Kirkland.16 The only
defenses to this theory go to causation or to misuse or abnormal use of the product. The defense of
contributory negligence is not available. If it was error to give an instruction on negligence but not on
contributory negligence, it was harmless.1 Generally when we speak of the defense of misuse or abnormal
use of a product we are referring to cases where the method of using a product is not that which the maker
intended or is a use that could not reasonably be anticipated by a manufacturer. A distinction must be made
between use for an abnormal purpose and use for a proper purpose but in a careless manner (contributory
negligence).2
An example of the difference between misuse and contributory negligence may be found in Ford
Motor Company v. Matthews, 291 So.2d 169 (Miss.1974). There plaintiff claimed that the safety switch
mechanism on a tractor that was designed to prevent it from starting while in gear was defective, allowing
the tractor to start and run over plaintiff's decedent. The court held, although decedent was contributorily
negligent in standing on the ground and starting the tractor while it was in gear, this was not a defense since
it was not misuse or abnormal use of the tractor because such negligence could be reasonably foreseeable
by the tractor manufacturer.
In order to determine whether the use of a product by a plaintiff is abnormal, we must ask whether
it was reasonably foreseeable by the manufacturer.3 A manufacturer is not liable for injuries resulting from
137
such use if it is not foreseeable.4
It is certainly foreseeable by a car manufacturer a person might drive a car over the speed limit or
after drinking; but unless this excessive speed or drinking caused the accident, these factors do not bar
recovery by the plaintiff even though they may have "contributed" to the accident.
In this case appellants claim that appellee's excessive speed and driving while impaired caused the
accident. The instructions included these theories.
If Fields had been drinking or driving too fast, this would not constitute a "misuse" but may be more
accurately characterized as "use for a proper purpose, but in a careless manner," i.e., contributory negligence,
and thus would not be a defense in this case, unless these factors caused the accident, or recovery is sought
in pure negligence.
By this we do not mean to say that drunkenness could never be misuse of a product, but the situation
does not arise in the peculiar facts and circumstances of this case. The instructions, although lacking in many
respects in this area, were more nearly proper than those offered by the appellants and refused by the court.
It is also asserted by appellants that the instructions carried an erroneous definition of proximate
cause. The court defined it as . . . "that cause which, in natural and probably sequence, brought about the
injury alleged. It need not be the only cause, nor the last or nearest cause. It is sufficient if it occurs with
some other cause acting at the same time, which in combination with it, brings about the injury." Appellants
claim this type ofinstruction would allow a jury to return a verdict for the plaintiff even though plaintiff
contributed to the cause of the accident. This objection is again based on the theory of contributory
negligence and is not a valid objection for reasons heretofore stated. A judgment will not be disturbed
because of allegedly erroneous instructions, unless it appears reasonably certain that the jury was misled
thereby.5 Instructions are sufficient when, considered as a whole, they present the law applicable to the
issues.6 We specifically hold that under the circumstances of this case, the instructions were adequate and
did not constitute reversible error.
The decision of the trial court is reversed in part as to its refusal to allow interest. The case is
remanded to the trial court with instructions to add interest on the verdict at the rate of six percent (6%) per
annum from the date the suit was commenced to the date of the verdict. The decision of the trial court is
otherwise affirmed.
16.
The elements of products liability delineated by Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okl.1974)
include:
First of all Plaintiff must prove that the product was the cause of the injury; the mere possibility that it might
have caused the injury is not enough.
Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the manufacturer,
at the time the product left the manufacturer's possession and control. Thompson v. Trane Co., 500 P.2d 1329
(Okl.1972). If the action is against the retailer or supplier of the article, then the Plaintiff must prove that the
article was defective at the time of sale for public use or consumption or at the time it left the retailer's
possession and control.
Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property
as the term "unreasonably dangerous" is above defined.
1.
The instruction stated:
The defendants deny that there was any defect in the steering mechanism and contend that the accident was
caused solely by the negligence of the plaintiff in one or more of the following ways:
2.
(1972).
1.
Driving at an excessive speed;
2.
Failing to control his vehicle properly;
3.
Driving while his ability and reactions had been affected by the consumption of beer.
Noel, "Defective Products: Abnormal Use, Contributory Negligence and Assumption of Risk," 25 Van.L.Rev. 93
138
3.
Colosimo v. May Department Store Co., 325 F.Supp. 609 (W.D.Pa.1971); Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121,
104 Cal. Rptr. 433, 501 P.2d 1153 (1972).
4.
4 E Frumer and Friedman, Products Liability § 404 (1971, Supp.1975).
5.
Missouri-K.T.R.R. v. Harper, 468 P.2d 1014 (Okl.1970).
6.
Loftis v. LaSalle, 434 P.2d 221 (Okl.1967).
SMITH V. U.S. GYPSUM CO.
612 P.2d 251 (Okla. 1980)
DOOLIN, Justice:
This is an appeal from a plaintiff's verdict in a manufacturers' products liability action. Defendants,
appellants herein, are the manufacturers and distributors of Wal-Lite, a solvent based adhesive used to install
paneling.
Plaintiff and his wife, intending to panel their bathroom, purchased two gallon cans of Wal-Lite.
The paneling was to be placed over the bathroom window, consequently it was closed and sealed. The
directions on the can were as follows:
DANGER
EXTREMELY FLAMMABLE
VAPORS MAY CAUSE FLASH FIRE
VAPORS HARMFUL
See cautions on back panel
Back label carried following admonitions:
CONTAINS HEXANE. Vapors may ignite explosively. Prevent buildup of vapors--open
windows and doors--use only with cross ventilation. Do not smoke, extinguish all flames
and pilot lights; turn off stoves, heaters, electric motors, and other sources of ignition during
use and until all vapors are gone. Do not take internally. Avoid prolonged contact with skin
and breathing of vapor. Keep away from heat, sparks, and open flame. Close container after
each use.
Pursuant to his reading of the instructions, plaintiff turned off the hot water heater and the pilot light
on his kitchen stove and opened the front and back doors. He then opened the can and started the application.
Several minutes later his wife turned on a fan across the hall from the bathroom. As she reentered the
bathroom she testified she saw a blue flame erupt under plaintiff's trowel and the explosion occurred.
Plaintiff was seriously injured.
Plaintiff filed the present suit based on manufacturers' products liability. Plaintiff claimed Wal-lite
as sole in gallon cans was defective when it left the manufacturer's hands in such a way as to make it
unreasonably dangerous to the ordinary consumer. He alleged warnings on the can were inadequate in that
even if they were followed, the product was still unreasonably dangerous. The claimed defect was the rapid
release of highly inflammable hexane vapors. Plaintiff sought actual damages and also punitive damages
contending defendants' marketing the product with full knowledge of its dangers was wanton and reckless
conduct.
139
Trial was held to a jury who returned a verdict of actual damages in the amount of $600,000.00. It
did not award punitive damages. Defendants did not file a motion for new trial but timely perfected this
appeal.
Defendants claim the trial court erred in overruling their demurrers to the evidence and motions for
directed verdict, arguing there was insufficient evidence to submit the case to the jury.
....Unreasonably dangerous is defined as "dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics."1
There is no question the Wal-lite exploded, probably due to ignition of the vapors by the electric fan.
But was the proximate cause an unreasonably dangerous product due to defective design and inadequate
warnings, or was it plaintiff's ignoring the warnings on the can.4 Foreseeability as applied to manufacturer's
products liability is a narrow issue. A manufacturer must anticipate all foreseeable uses of his product. In
order to escape being unreasonably dangerous, a potentially dangerous product must contain or reflect
warnings covering all foreseeable uses. These warnings must be readily understandable and make the
product safe. Foreseeability as used here is not to be confused with foreseeability involved in the concept
of proximate cause under a negligence theory; see Cooley v. Quick-Supply Company, 221 N.W.2d 456
(Minn.1979), held that even though the manufacturer of a harvester placed warnings against manual
unclogging on its machine, it could be held liable to an injured farmer for failing to make the warnings more
explicit or to incorporate an economically feasible safety interlock system. The Minnesota Supreme Court
stated there was sufficient evidence for jury to conclude the manufacturer knew, or should have known "that
some users would leave the power connected while unclogging..."
Similarly, defendants in the present case should have known that some users would install paneling
in a room without a window. If the jury found Wal-lite was designed in such a way that the vapors ignited
easily, and that warnings and directions did not adequately warn of the dangerous conditions created, it was
justified in finding a defect in the product.
If jury found this defect made the product unreasonably dangerous to the consumer, Kirkland's third
element is satisfied.
Expert testimony at trial indicated the hexane vapors contained in the adhesive were released at a
rapid rate if applied as directed on the can. The label instructed the consumer to apply the adhesive with a
saw-tooth trowel. The expert opined such use compounded the dangers as this type of application doubled
the evaporative rate by making grooves in the mixture. He concluded the release of the vapors into an
enclosed space was too rapid to be overcome or guarded against. Plaintiff and his wife both testified the
instructions and warnings were read and followed to the best of their ability. They attempted to satisfy the
"cross ventilation" instruction by opening the doors and using the fan.
Defendants claim the evidence shows plaintiff deliberately disregarded the instructions and warnings
on the can, resting their case on the fact the bathroom contained no open window. This, they submit, caused
the accident, not any defect in the Wal-lite. There is no evidence of such deliberate disregard of the
instructions. To the contrary, testimony indicates every attempt was made to heed the warning.
We hold there was sufficient evidence the warnings on the Wal-lite did not prevent the product from
being unreasonably dangerous. Proof of the third element was sufficient to send the case to the jury.
Defendants ask us to hold as a matter of law that plaintiff misused the product and voluntarily
assumed the risk of a known defect, defenses to a manufacturers' products liability action under Kirkland v.
General Motors, supra. Use of Wal-lite as an adhesive, its sole purpose, cannot be misuse of the product
even if used by plaintiff.
Evidence does not support defense that plaintiff knew the warnings were inadequate or that is application
with a trowel would make the product more dangerous. The existence of the defenses is a jury question.
Trial court properly overruled defendants' demurrers to the evidence and motions for directed verdict.5
140
Defendants objected to two other instructions.
* * * * *
Instruction 8 Provided:
"The plaintiff, James H. Smith, contends that the defect that is referred to in the
previous instructions is what is called a design defect. A design defect includes the product
itself or the information, the size or quantity of which it was supplied, and the instructions,
warnings, and directions for its use. A design defect means that the product may be used
for the purpose for which it was intended, but that through some characteristic thereof, latent
and not readily apparent to the eye, may cause injury or harm to the user of the product. The
plaintiff further contends that the warnings are inadequate. A warning must adequately
inform the ordinary user of the precautions, if any, he must take and risk, if any, that he is
exposed to in the use of the product. The warning must reasonably communicate the extent
or seriousness of the harm that could result from the danger. The instructions may also be
defective if the product, when used in accordance with the instructions create an
unreasonable dangerous condition."
Where warning is given, the manufacturer and distributor may reasonably assume that it will be read
and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective
condition, nor is it unreasonably dangerous.
Instruction No. 9 provided:
The defendants contend that plaintiff, James H. Smith, misused the Wal-lite product.
A misuse or abnormal use of a product is a use for some purpose other than that for which
the product is intended.
To prove misuse or abnormal use as a defense in the present case, the defendants must prove
by a preponderance of the evidence that:
A. The purpose for which the plaintiff was using the product was improper; and
If a product is potentially dangerous to consumers, a manufacturer is
required to give directions or warnings on the container as to its use.2 If
these warnings cover all foreseeable use and if the product is not
unreasonably dangerous if the warnings and directions are followed, the
product is not defective in this respect. If warnings are unclear or
inadequate to apprise the consumer of the inherent or latent danger, the
product may be defective; particularly where a manufacturer has reason to
anticipate danger may result from the use of his product and the product
fails to contain adequate warning of such danger, the product is sold in a
defective condition.3
B.
The defendants could not reasonably foresee that the product would be used for such an improper
purpose.
If the use of the product is one that defendant could reasonably foresee, it is not a misuse of the
product.
141
It is not a misuse of the product to use the product for a proper purpose, but in a careless manner.
Thus, if plaintiff was using the Wal-lite product for a proper purpose, but in a careless manner, this
is not a misuse and this is not a defense unless such action caused the accident.
Further, if the plaintiff was using the Wal-lite product for a proper purpose but was negligent in a
manner which was reasonably foreseeable by the defendants, this is not a misuse and this is not a defense.
Finally, if the plaintiff did something which contributed to the alleged explosion and fire, but was
reasonable foreseeable by the defendants this is not a misuse and this is not a defense, subject to prior
instructions on adequacy of warnings and causation. It is not a defense that negligence on the part of some
other person contributed to the alleged explosion and fire in the present case.
*
*
* *
*
AFFIRMED
LAVENDER, C. J., and WILLIAMS, HODGES, SIMMS and HARGRAVE, JJ., concur.
BARNES and OPALA, JJ., concur in result.
IRWIN, V. C. J., dissents.
1.
Kirkland v. General Motors Corporation, 521 P.2d 1353 (Okl.1974), Syllabus 4 by the court.
4.
Fields v. Volkswagen of America, Inc., 555 P.2d 48, 56; 84 A.L.R.3d 1199 (Okl.1976).
5.
Jackson v. Cushing Coca-Cola Bottling Company, 445 P.2d 797 (Okl.1968).
2.
Restatement of Torts (Second) § 402A (1965) comments j., k; Cunningham v. Charles Pfizer & Co., Inc., 532 P.2d 1377,
1381 (Okl.1975).
3.
Restatement of Torts (Second) § 402A (1965) comment h; Berkebile v. Brantley Helicopter Corporation, 462 Pa. 83,
337 A.2d 893 (1975); Cf. Little v. PPG Industries, Inc., 92 W ash.2d 118, 594 P.2d 911 (1979).
Although breach of a "duty to warn" on part of manufacturer is an element of a negligence action, it is not applicable in strict
liability. The focus here is on the condition or defect existing in the product itself which may be defective because product does
not contain proper instructions or warning. See Ezagui v. Dow Chemical Corporation, 598 F.2d 727 (2nd).
142
VIII. PLAINTIFF'S CONDUCT - COMPARATIVE RESPONSIBILITY
McKINNIE v. LUNDELL MANUFACTURING COMPANY, INC.
825 F.Supp. 834 (W.D. Tenn 1993)
Parent of user killed by shredder brought products liability suit against manufacturer. Parent moved
to strike defenses. The District Court, Todd, J., held that: (1) comparative fault is defense to strict products
liability, and (2) assumption of risk precludes or merely limits recovery depending on user's conduct.
Motion denied.
TODD, District Judge.
Plaintiff Irene McKinnie ("Plaintiff") brought this products liability action against Defendant Lundell
Manufacturing Company, Inc. ("Defendant") in the Circuit Court for Gibson County, Tennessee, alleging
that Plaintiff's son died as a result of the defective and unreasonably dangerous condition of a shredder
manufactured by Defendant. Defendant removed the action to this court on the basis of diversity of
citizenship. Before the court is Plaintiff's motion to strike certain of Defendant's defenses. For the reasons
set forth below, Plaintiff's motion is DENIED.
....
Plaintiff's complaint alleges that Plaintiff's son was killed as a result of a "defective and unreasonably
dangerous" slow-speed shredder manufactured by Defendant. (Compl. paras. 5-6.) Plaintiff asserts that
Defendant is strictly liable for the injury caused by its allegedly defective product. (Pl.'s
Mem.Supp.Mot.Strike at 1-2.) Plaintiff does not, however, assert negligence as a basis for recovery. (Id.)
Therefore, this action is governed by the Tennessee Products Liability Act of 1978 ("Act"), Tenn.Code Ann.
ss 29-28-101 to 108 (1980 & Supp.1992),4 and defenses that do not apply to strict liability claims are
immaterial and insufficient.
In its answer, Defendant asserts several defenses: (1) specific denials of certain of the allegations
in Plaintiff's complaint; (2) that Plaintiff's son assumed the risk of injury arising from the shredder; (3) that
the shredder was not defective at the time it left Defendant's control; (4) that Plaintiff's son's death resulted
from the negligence of a person or persons other than Defendant, thereby reducing Defendant's liability; and
(5) that Defendant complied with the appropriate state and federal statutes and regulations governing design,
labeling and warning, and instructions for using the shredder. (Answer paras. 1-9.) Plaintiff moves to strike
Defendant's second, fourth, and fifth defenses.
. . . .
B. COMPARATIVE FAULT AND ASSUMPTION OF RISK
Plaintiff also moves to strike Defendant's second and fourth defenses--that*837 Plaintiff's son
assumed the risk of injury by the shredder and the son's death resulted from the negligence of a person or
persons other than Defendant. Plaintiff does not assert Defendant's negligence as a basis for recovery.
Rather, Plaintiff's sole theory of liability is the alleged defective and unreasonably dangerous condition of
the slow-speed shredder manufactured by Defendant. Defendant contends that, because it "raised the
defenses of contributory negligence and assumption of risk simply to give the plaintiff fair notice that the
issue of relevant [sic] fault would be raised at trial," the court should not strike the defense. (See Def.'s
Response Pl.'s Mot.Strike at 2.) The court's inquiry is whether, under Tennessee law, the defenses of
assumption of risk and comparative fault could, under any set of circumstances, succeed against a strict
products liability claim.
Tennessee tort law has recently undergone substantial changes. In McIntyre v. Balentine, 833
143
S.W.2d 52 (Tenn.1992), the Tennessee Supreme Court abandoned the traditional contributory negligence
doctrine and adopted comparative fault. Id. at 57.5 Although the McIntyre court attempted to provide
guidance to courts employing the new comparative fault standard, the court failed to resolve several issues
concerning Tennessee tort law. Id. at 57-58 (noting that its "decision affect[ed] numerous legal principles
surrounding tort litigation" and that "harmonizing these principles with comparative fault must await another
day"); see generally Comparative Negligence Symposium, 23 Mem.St.U.L.Rev. 1 (1992) (analyzing
McIntyre and its impact on related issues of Tennessee tort law). The Tennessee Supreme Court's adoption
of comparative fault in negligence actions requires a determination of whether courts should extend
comparative fault principles to strict liability cases. The Tennessee Supreme Court has not addressed this
issue. Therefore, this court must "make a considered 'educated guess' as to what decision the Supreme Court
of Tennessee would reach." Lee v. Crenshaw, 562 F.2d 380, 381 (6th Cir.1977). [FN3]
In cases decided prior to McIntyre, Tennessee courts had repeatedly held that the mere assertion of
the plaintiff's negligence did not bar recovery in a strict products liability action brought in Tennessee. E.g.,
Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521 (Tenn.1973) ("Ordinary negligence, *838 defined
generally as the failure to exercise the care of a reasonably prudent man, is not a proper defense to strict
liability actions."); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App.1984) (
"[C]ontributory negligence cannot be applied as a defense to strict liability."); see Sterling v. Velsicol Chem.
Corp., 647 F.Supp. 303, 313- 14 (W.D.Tenn.1986) (applying Tennessee law), aff'd in part, rev'd in part, 855
F.2d 1188, 1192 (6th Cir.1988); Holt v. Stihl, Inc., 449 F.Supp. 693, 694 (E.D.Tenn.1977) (applying
Tennessee law). The Tennessee Supreme Court recognized two justifications for this rule: (1) "allowing
ordinary negligence to bar strict liability would defeat the purposes for which the theory of strict liability was
created"; and (2) "Tennessee courts have never allowed contributory negligence as a defense ... to conduct
which is culpable regardless of the care exercised by the defendant." Ellithorpe, 503 S.W.2d at 521.
Comparative fault's abrogation of the harsh rule of contributory negligence, however, allows for a
proportional allocation of liability while addressing the reasons for excluding a plaintiff's negligence as a
defense to strict liability.
The Tennessee courts' concerns about the purposes of strict liability emphasize that, by adopting
strict liability, the Tennessee Supreme Court intended such actions to differ from actions based on ordinary
negligence. Id. (quoting Carney v. Ford Motor Co., Prod.Liab.Rep. (CCH) para. 9727 (Tenn.Ct.App.1970)).
Proponents of the traditional rule against allowing a plaintiff's negligence to bar recovery under strict liability
contend that allowing the plaintiff's simple negligence to defeat a strict liability claim would " 'reduce the
action brought under [the strict liability] doctrine to one based on ordinary negligence.' " Ellithorpe, 503
S.W.2d at 521 (quoting Carney v. Ford Motor Co., Prod.Liab.Rep. (CCH) para. 6303 (Tenn.Ct.App.1970)).
This argument emphasizes the basic societal policies underlying strict liability: (1) shifting the risk of loss
caused by defective or unreasonably dangerous products to the parties most able to bear that loss--the
manufacturers; and (2) encouraging manufacturers to take greater care in designing and manufacturing their
products. Ellithorpe, 503 S.W.2d at 521; see Restatement (Second) of Torts s 402A cmt. c (1965). Strict
liability, however, is not intended to make the manufacturer the insurer of the product. See, e.g., Kerley v.
Stanley Works, 553 S.W.2d 80, 84 (Tenn.Ct.App.1977) ( " 'A manufacturer, ... is not an insurer of the
product he designs, and it is not required that the design adopted be perfect, or render the product accident
proof, or incapable of causing injury.' ") (quoting 72 C.J.S.Supp. Products Liability s 21 (1975) (alteration
in original)); see also Tatum v. Cordis Corp., 758 F.Supp. 457, 461 (M.D.Tenn.1991) ("Strict liability is not
absolute liability.").
Under a comparative fault system, a plaintiff's negligence does not preclude recovery, but merely
reduces the manufacturer's liability. Although strict liability would operate similarly to ordinary negligence
as to the reducing effect of a plaintiff's conduct, the two theories of liability would remain distinct in that
strict liability actions would not require the plaintiff to prove that the manufacturer breached any duty of
care. Unlike traditional contributory negligence, comparative fault would preserve the primary advantage
that a plaintiff has in strict liability actions--imposition of liability against the manufacturer without any
144
showing of the manufacturer's negligence. Extending comparative fault to strict liability actions would not
defeat this policy underlying the strict liability doctrine. In addition, applying comparative fault to strict
liability would not eliminate the deterrent effect of strict liability. Although the comparative fault system
might yield smaller awards than traditional strict liability, manufacturers would remain liable for producing
defective or unreasonably dangerous products. Incorporating comparative fault principles into products
liability actions would also preserve strict liability's goal of shifting the risk of defective products to
manufacturers without holding manufacturers liable for injuries resulting from plaintiffs' conduct.
The McIntyre court's definition of liability based on "fault" rather than "negligence" addresses the
Tennessee Supreme Court's earlier concerns about interposing the plaintiff's negligence as a defense to
"conduct *839 which is culpable regardless of the care exercised by the defendant." See Ellithorpe, 503
S.W.2d at 521. Emphasizing "fault" rather than "negligence" appears to have been a conscious decision of
the McIntyre court. McIntyre, 833 S.W.2d at 56. Negligence implies a breach of a duty of care, while fault
refers merely to an act imposing liability. See, e.g., Abbott v. American Honda Motor Co., 682 S.W.2d 206,
209 (Tenn.Ct.App.1984) (recognizing that "fault" refers to a broader scope of conduct than "negligence").
The comparative fault system's focus on the parties' relative "fault" avoids the "apples and oranges"
argument, which contends that a plaintiff's negligence cannot be effectively compared to a manufacturer's
conduct in producing a defective product because strict liability is not predicated on a breach of any duty of
care. See Carol A. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for
Tennessee, 57 Tenn.L.Rev. 199, 295 (1990); Jerry J. Phillips, The Case for Judicial Adoption of
Comparative Negligence in South Carolina, 32 S.C.L.Rev. 295, 299 (1980); 1 Comparative Negligence:
Law and Practice s 9.30 [4] (Matthew Bender 1993); Dan B. Dobbs et al., Prosser and Keeton on the Law
of Torts s 67, at 478 (5th ed. 1984 & Supp.1988). Unlike a negligence-based system, which limits liability
to the narrow basis of a party's breach of a duty of care, the fault-based system adopted by the McIntyre court
allows the fact-finder to weigh the relative conduct of the parties. See, e.g., Unif.Comparative Fault Act s
1(b) cmt., 12 U.L.A. 46 (West Supp.1993) ( "Putting out a product that is dangerous to the user or the public
... involves a measure of fault that can be weighed and compared, even though it is not characterized as
negligence.").
The Tennessee Supreme Court has acknowledged that, in strict liability actions, the sufficiency of
a defense based upon the plaintiff's conduct depends on the nature of that conduct, rather than the label
applied to that conduct. Ellithorpe, 503 S.W.2d at 521 ("Regardless of which label is used, 'contributory
negligence' or 'assumption of risk', the courts have generally held that ordinary lack of care is not a defense,
while 'voluntarily and unreasonably proceeding to encounter a known danger' is a defense."). This focus on
the substance of the defense rather than its form led the Tennessee Court of Appeals to conclude that, "when
a plaintiff, with knowledge of the defect, uses the product in such a manner as to voluntarily and
unreasonably encounter a known danger, that act may be plead [sic] as a defense to an action based on strict
liability in tort. We do not deem it determinative of the availability of this defense whether it be called
negligence, contributory negligence or assumption of risk. It is more a matter of the unreasonableness of
permitting a plaintiff to deliberately put in motion a known danger and attempt to profit thereby." Ellithorpe,
503 S.W.2d at 521 (quoting Carney v. Ford Motor Co., Prod.Liab.Rep. (CCH) para. 9727
(Tenn.Ct.App.1970)). Thus, even under traditional strict liability standards, courts recognized that a
plaintiff's conduct could preclude recovery. Given this background, this court must predict how the
Tennessee Supreme Court would reconcile the policies underlying strict liability and the recent adoption of
comparative fault.
Most courts that have addressed the issue have concluded that incorporating comparative fault
principles in strict liability cases does not vitiate the policies underlying strict products liability. See, e.g.,
Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 890 (Alaska 1979); Daly v. General Motors Corp., 20 Cal.3d
725, 144 Cal.Rptr. 380, 386-88, 575 P.2d 1162, 1168-70 (1978); West v. Caterpillar Tractor Co., 336 So.2d
80, 90 (Fla.1976); Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 542, 726 P.2d 648, 654 (1985); Coney v.
J.L.G. Indus., 97 Ill.2d 104, 73 Ill.Dec. 337, 342-43, 454 N.E.2d 197, 202-03 (1983); Albertson v.
145
Volkswagenwerk, 230 Kan. 368, 634 P.2d 1127, 1131-32 (1981); Bell v. Jet Wheel Blast, Div. of Ervin
Indus., 462 So.2d 166, 171 (La.1985); Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650, 657
(1988); Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 n. 5 (Minn.1981);
Zahrte v. Sturm, Ruger & Co., 203 Mont. 90, 661 P.2d 17, 18-19 (1983); Suter v. San Angelo Foundry &
Mach. Co., 81 N.J. 150, 406 A.2d 140, 143-44 (1979); *840 Sandford v. Chevrolet Div. of Gen. Motors, 292
Or. 590, 642 P.2d 624, 628 (1982); Fiske v. MacGregor, Div. of Brunswick, 464 A.2d 719, 727 (R.I.1983);
Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303-04 (Utah 1981); Star Furniture Co. v. Pulaski
Furniture Co., 171 W.Va. 79, 297 S.E.2d 854, 863 (1982); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d
55, 64-65 (1967). In addition to judicial determinations that comparative fault principles should apply to
strict liability, the Uniform Comparative Fault Act ("Uniform Act") defines "fault" as "acts or omissions that
are in any measure negligent or reckless toward the person or property of the actor or others, or that subject
a person to strict tort liability." Unif.Comparative Fault Act s 1(b), 12 U.L.A. 45 (West Supp.1993)
(emphasis added). Several states have legislatively defined "fault," by adopting the Uniform Act's definition
or a similarly broad definition, to include conduct that would render manufacturers liable under traditional
strict liability doctrine. See Alaska Stat. s 09.17.900 (Supp.1992); Ark.Stat.Ann. s 16-64-122(c) (1987 &
Supp.1991);
Fla.Stat.Ann. s 768.81(4)(a) (West Supp.1993);
Idaho Code s 6-801 (1990);
Ill.Comp.Stat.Ann. ch. 735, act 5, s 2-1116 (Smith-Hurd Supp.1992); Iowa Code Ann. s 668.1(1) (1987);
Me.Rev.Stat.Ann. tit. 14, s 156 (West 1980); Minn.Stat.Ann. s 604.01(1a) (West Supp.1993);
N.H.Rev.Stat.Ann. s 507:7-d (Supp.1992); N.Y.Civ.Prac.L. & R. 1411 (McKinney 1976); Utah Code Ann.
s 78- 27-37(2) (1992); Wash.Rev.Code Ann. s 4.22.015 (1988). As commentators have noted, [i]n the final
analysis, most jurisdictions have decided that, regardless of semantics, it is fairer and more sensible to permit
an allocation of a plaintiff's causal responsibility to reduce the liability of a products liability defendant. The
policy objective of the strict liability doctrine for products is to compensate all those harmed by a defective
and unreasonably dangerous product while using it in a reasonably foreseeable manner, but not to mke the
product supplier an insurer with respect to the product. The use of comparative fault as a defense is
compatible with that policy. By transferring to consumers all the cost of the plaintiff's injury except that
attributable to his own fault, the application of comparative faults helps to ensure that self- responsibility
remains an appropriate factor in the apportionment process. Carol A. Mutter, Moving to Comparative
Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199, 299-300 (1990)
(footnotes omitted); see Edward S. Digges, Jr., & Robert D. Klein, Comparative Fault in Maryland: The
Time Has Come, 41 Md.L.Rev. 276, 289-90 (1982); David A. Fischer, Products Liability--Applicability of
Comparative Negligence, 43 Mo.L.Rev. 431, 450 (1978); Marcus L. Plant, Comparative Negligence and
Strict Tort Liability, 40 La.L.Rev. 403, 415-16 (1980).
In McIntyre, the Tennessee Supreme Court recognized that its abandonment of contributory
negligence necessitated reexamination and restructuring of other tort principles. McIntyre, 833 S.W.2d at
58. The court acknowledged this repercussion of its decision by abolishing joint and several liability. The
McIntyre court noted that, "[h]aving thus adopted a rule more closely linking liability and fault, it would be
inconsistent to simultaneously retain a rule ... which may fortuitously impose a degree of liability that is out
of all proportion to fault." Id. In reaching this conclusion, the court relied on the rule adopted by other
comparative fault jurisdictions. Id. n. 7. This court predicts that, when confronted with issues of integrating
comparative fault with other tort doctrines, the Tennessee Supreme Court would adhere to its analysis in
McIntyre by examining the law of other comparative fault jurisdictions in establishing new doctrines
imposing liability in proportion to the parties' relative fault.
Given the Tennessee Supreme Court's focus on "fault" as the basis for liability and its reliance on
the practices followed in other jurisdictions, this court concludes that the Tennessee Supreme Court would
follow the numerous other jurisdictions that have extended comparative fault to strict liability. Accordingly,
the court rules that, in light of the recent changes wrought by the Tennessee Supreme Court, the defense of
comparative fault could succeed against the claim asserted--strict products liability--by means*841 of
reducing Defendant's liability by the proportion of fault attributable to Plaintiff or third parties. Therefore,
146
the court DENIES Plaintiff's motion to strike Defendant's Fourth Defense.
[4] Having concluded that comparative fault principles should be extended to strict liability cases,
the court must now determine how the union of McIntyre and strict liability affects the defense of assumption
of risk. Tennessee courts have traditionally recognized assumption of risk as a total bar to recovery in strict
liability actions. Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521-22 (Tenn.1973); Hood v. Roadtec, Inc.,
785 S.W.2d 359, 363-64 (Tenn.Ct.App.1989), appeal denied (Tenn.1990). In order to establish the
assumption of risk defense, a manufacturer must prove that the plaintiff voluntarily and unreasonably
encountered a known danger. Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521 (Tenn.1973); Hood, 785
S.W.2d at 363-64. To carry this burden, a manufacturer must demonstrate that the plaintiff: "(1)
discover[ed] the defect, (2) fully [understood] the danger it present[ed] to her, then (3) disregard[ed] this
known danger and voluntarily expose[ed] herself to it." Ellithorpe, 503 S.W.2d at 522.
[5] Plaintiff contends that, under comparative fault, assumption of risk no longer serves to preclude
recovery in products liability actions, but merely reduces manufacturers' liability. (Mem.Supp.Pl.'s
Mot.Strike at 2.) In support of her position that McIntyre removed assumption of risk as a total defense to
products liability actions, Plaintiff relies upon Perez v. McConkey, No. 03A01-9209-CV-00331, 1993 WL
20147 (Tenn.Ct.App. Feb. 2, 1993), in which the Tennessee Court of Appeals for the Eastern Section held,
first, express assumption of risk or consent, such as a contract between the parties, as qualified in Olson v.
Molzen, 558 S.W.2d 429[, 432] (Tenn.1977), remains an absolute bar to recovery by a plaintiff; second,
primary assumption of risk, as when a plaintiff voluntarily assumes known risks inherent in an activity,
retains its viability under comparative negligence as a complete bar to recovery; but third, under comparative
fault, secondary implied assumption of risk, which is nothing more than an aspect of contributory negligence,
may serve to reduce a plaintiff's damages, but not necessarily--depending on the degree of the plaintiff's
negligence--preclude recovery. Id., slip op. at 5.6
The Perez courts' analysis of assumption of risk reflects the treatment of the doctrine by the Uniform
Comparative Fault Act. As noted in the Comment to the Uniform Act, "[a]ssumption of risk is a term with
a number of different meanings--only one of which is "fault" within the meaning of this Act."
Unif.Comparative Fault Act s 1(b) cmt., 12 U.L.A. 46 (West Supp.1993); see Carol A. Mutter, Moving to
Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199, 286
(1990); Carol A. Mutter, Rethinking Assumption of Risk After the Adoption of Comparative Fault, 23
Mem.St.U.L.Rev. 85, 86-89 (1992). The Uniform Act identifies the following "meanings" of assumption
of risk: (1) valid and enforceable consent, such as a contractual waiver of liability; (2) a lack of violation
of a duty by the defendant, such as a landowner's failure to warn a licensee of a patent danger on the
premises; (3) a plaintiff's reasonable assumption of risk;7 and (4) a plaintiff's 842 unreasonable assumption
of risk, defined by the Uniform Act as "voluntary and with knowledge of the danger."8 Unif.Comparative
Fault Act s 1(b) cmt., 12 U.L.A. 46 (West Supp.1993). The Uniform Act's definition of "fault" includes only
the last meaning of assumption of risk. Unif.Comparative Fault Act s 1(b), 12 U.L.A. 45 (West Supp.1993)
(" 'Fault'.... also includes ... unreasonable assumption of risk not constituting an enforceable consent.").
The first and second categories of assumption of risk are excluded by the Uniform Act because such
circumstances--the plaintiff's consent or the defendant's lack of a duty--preclude any finding of liability of
the defendant. The Uniform Act also excludes the third type of assumption of risk because a plaintiff's
reasonable conduct cannot constitute "fault" of the plaintiff and should not affect recovery. Id. The fourth
category, however, reflects the elements of the traditional assumption of risk defense, as defined by
Tennessee courts, which requires a determination of the reasonableness of the plaintiff's conduct. See, e.g.,
Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521 (Tenn.1973); Hood v. Roadtec, Inc., 785 S.W.2d 359,
363-64 (Tenn.Ct.App.1989), appeal denied (Tenn.1990). The reasonableness inquiry logically requires a
comparison between the plaintiff's actions and the degree of risk presented by the defect or dangerous
condition. See Hood, 785 S.W.2d at 364 ("A general apprehension of danger is not sufficient."). Such an
inquiry readily comports with a comparative fault system under which each party bears the responsibility for
any portion of the injuries resulting from his "fault"--whether fault arises from a manufacturer's production
147
of a defective or unreasonably dangerous product or from a plaintiff's unreasonable conduct in voluntarily
exposing himself to the risk presented by the product.
This court concludes that, rather than rely on obsolete labels, the Tennessee Supreme Court would
adopt the "assumption of risk" structure embodied in the Uniform Act and employed by the Tennessee Court
of Appeals in Perez. Under this standard, the extent to which a plaintiff's conduct affects his ability to
recover against a manufacturer on the basis of strict liability is determined by focusing on the nature of the
plaintiff's conduct. Whether a plaintiff's "assumption of the risk" would preclude or merely limit recovery
depends on the specific conduct proven by the manufacturer. A plaintiff's conduct might still bar recovery
in several situations, such as when the plaintiff assumes a risk by means of express contract, when the
defendant has no duty to protect the plaintiff from a risk, or, under comparative fault, when the fault
attributable to the plaintiff's conduct is equal to or greater than the fault attributable to the defendant. In other
circumstances, the plaintiff's conduct might serve to merely reduce the plaintiff's recovery. Regardless of
the effect of the plaintiff's conduct, this court predicts that assumption of risk will remain a valid defense in
Tennessee, despite the supreme court's adoption of comparative fault. Accordingly, the court DENIES
Plaintiff's motion to strike Defendant's Second Defense.
In summary, because Defendant's Fifth Defense provides sufficient notice of the nature of the
defense--Defendant's compliance with applicable state and federal statutes and regulations--Plaintiff's motion
to strike Defendant's Fifth Defense is DENIED. In addition, because the court concludes that the Tennessee
Supreme Court would extend comparative fault principles to strict liability and would retain assumption of
risk as a valid defense in products liability actions, Plaintiff's motion to strike Defendant's Fourth and Second
Defenses is DENIED.
IT IS SO ORDERED.
Endnotes
10.
The Act provides that "[a] manufacturer or seller of a product shall not be liable for any injury to person or property
caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left
the control of the manufacturer or seller." Tenn.Code Ann. s 29-28-105(a) (1980).
11.
In McIntyre, Tennessee became the forty-sixth state to adopt some form of comparative negligence. The McIntyre
court joined nine other jurisdictions in adopting the "49%" rule of modified comparative fault (Arkansas, Colorado, Georgia,
Idaho, Kansas, Maine, North Dakota, Utah, and West Virginia). Currently, thirteen states employ "pure" comparative negligence
(Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, Michigan, New Mexico, New York, Rhode
Island, and Washington); twenty-one states use the "50%" rule of modified comparative negligence (Connecticut, Delaware,
Hawaii, Illinois, Indiana, Iowa, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming); and two states utilize a "slight-gross"
system whereby a plaintiff may recover only if his negligence is "slight" in comparison to the defendant's (Nebraska and South
Dakota). Only four states still employ the traditional contributory negligence doctrine (Alabama, Maryland, North Carolina, and
Virginia). McIntyre, 833 S.W.2d at 55-57 & nn. 3-6 (citing cases and statutes of jurisdictions adopting comparative fault).
12.
When a state supreme court has not addressed an issue, the law of that state is governed by the decision of the state
intermediate appellate court unless and until the state supreme court or another panel of the state appellate court rules otherwise.
Wieczorek v. Volkswagenwerk, A.G., 731 F.2d 309, 311 (6th Cir.1984). However, the fact that the Perez decision has not been
published diminishes its value as binding precedent. Regardless of whether the Perez decision governs the present case, this
court need not determine the Perez opinion's binding effect because this court concludes that the Tennessee Supreme Court
would accept the Perez court's analysis.
13.
Although the Uniform Act does not suggest an example of "reasonable" assumption of risk, such a case might arise
when the plaintiff encounters a known danger in order to protect others from the harm. See, e.g., Hood v. Roadtec, Inc., 785
S.W.2d 359, 364 (Tenn.Ct.App.1989) (holding that the plaintiff did not act unreasonably when he attempted to stop a selfpropelled road paver that was rolling toward the two men working behind the paver), appeal denied, (Tenn.1990).
148
14.
The Perez court adopted these distinctions in defining the operation of the assumption of risk defense under a
comparative fault system. Perez, No. 03A01-9209-CV-00331, slip op. at 4-5 (quoting Carol A. Mutter, Moving to Comparative
Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199, 285-86 (1990)).
149