Bowler v. Stewart-Warner Corp.

563 A.2d 344, 10 U.C.C. Rep. Serv. 2d (West) 1198, 1989 D.C. App. LEXIS 158, 1989 WL 92474

Opinions

MACK, Associate Judge:

This is an appeal from a judgment for appellee rendered by the trial court notwithstanding the verdict (n.o.v.) in a products liability case. Appellant contends that she presented sufficient evidence to recover for an injury under either a theory of strict liability in tort or one of implied warranty of merchantability, and that the trial court, faced with a special verdict by the jury granting recovery on implied warranty, and denying recovery on strict liability, erred in granting the judgment n.o.v. for appellee. Appellee replies that, while the trial court erred in submitting the two theories to the jury (“since the actions for breach of implied warranty of merchantability and strict liability in tort are but two names for the same cause of action”), the court properly corrected its error by rendering judgment n.o.v. We conclude that the trial court erred in instructing the jury and that the court did not correct, but rather compounded, its error by substituting its own judgment for that of the jury in its grant of appellee’s motion for judgment n.o.v. We therefore reverse and remand for a new trial.

I.

Appellant, an attorney with the United States Department of Labor, brought this products liability action alleging that she sustained permanent back injuries as a result of defective ball casters which were designed, manufactured, and installed by appellee. Specifically, she contends that the ball casters on her office chair² did not permit the chair to roll freely across the floor, and as a result of this defective condition, she injured her back when she attempted, while seated, to move the chair up to her desk. Appellant advanced her claim on the theories of strict liability, negligence, and breach of the implied warranty with respect to fitness for a particular purpose. See infra note 4 and accompanying text. After a jury trial, appellee moved for a directed verdict. This motion was granted in part and appellant’s claims of strict liability and breach of implied warranty of merchantability were taken under advisement by the court and presented to the jury. By special verdict, the jury awarded appellant $150,000 on the implied warranty of merchantability claim and denied her strict liability claim.

Appellee moved for judgment notwithstanding the verdict or alternatively for a new trial. The trial court chose to grant the motion for judgment n.o.v. It held that a new trial was not warranted. It instead vacated the verdict as to appellant’s implied warranty of merchantability claim, concluding that since appellant had failed to present evidence of “privity,” the instruction which he had given with respect to the “contract-oriented” breach of warranty claim was superfluous and unwarranted. The court reasoned that since the theories of “tortious” breach of warranty and strict liability “are co-extensive and effectively identical,” its instruction on strict liability, and the jury’s verdict on the claim based on the theory of strict liability, disposed of the necessity for, as well as the claim based on, the tortious breach of implied warranty. While at first blush the trial court’s approach appears to be a judicially economical and innovative method of disposing of a superfluous instruction, as well as a superfluous verdict, it basically highlights the fact of inconsistent verdicts. It added complexity to what is already a confusing record of proceedings, and confusing assertions of claims, confusion which only a new beginning can remedy.

II.

One statement should be made at the outset about which there must be no confusion — the District of Columbia is a jurisdiction affording recovery for tortious injury to the ultimate consumer — whether sought under a theory of strict liability or implied warranty. Historically, there have been contractual antecedents in warranty liability; however, “ ‘[i]t is undisputed that the original tort form of action [in warranty] ... still survives to the present day, and may be everywhere maintained.’ ” Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 719 (D.C.1985) (citing Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1126 (1960)). The adoption of strict liability and

the attendant removal of both privity and negligence seemed but a cumulation of tendencies within sales and tort law clamoring for open recognition and synthesis. Warranty liability, no longer confined to sales transactions [and the requirement of “privity”], made its contribution to the process of merger by reminding courts that sellers of defective goods are, on principle, strictly accountable for injuries to remote parties anyhow, if only by indirection.

Kessler, Products Liability, 76 Yale L.J. 887, 898-99 (1967) (emphasis added); see Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L. Rev. 791, 800-805 (1965-66); 2 Frumer & Friedman Products Liability § 3.01[1] at 3-5 (1988) (“[liability in warranty arises where damage is caused by the failure of a product to measure up to express or implied representations on the part of the manufacturer.... The focus, therefore, is on the condition of the product. Accordingly, an injured person is not required to prove negligence in a warranty-products liability case.”). Thus, the “warranty” we refer to is quite different from a “warranty” in connection with the sale of goods. The focus, as with strict liability, is on the condition of the product itself. Indeed, the warranty action was stripped of its contractual baggage and the original tort action for warranty was re-established free of contract associations. See Payne, supra, 486 A.2d at 719. Some twenty-seven years ago, this court noted that “concepts of negligence and fault, as defined by negligence standards, have no place in warranty recovery cases.” Picker X-Ray Corp. v. General Motors Corp., 185 A.2d 919, 922 (D.C.1962). Moreover, warranty liability was a form of strict liability: a plaintiff could recover if he established, first, that the product was defective, i.e., not reasonably fit for its intended purpose or not of merchantable quality; and second, that as a result of the defect, the product caused injury. Payne, supra, 486 A.2d at 720 (quoting Picker X-Ray Corp., supra, 185 A.2d at 922) (emphasis added); see Fisher v. Sibley Memorial Hospital, 403 A.2d 1130, 1133 (D.C.1979) (breach of implied warranty and strict liability in tort are expressions of single basic public policy as to liability for defective products); Berman v. Watergate West, Inc., 391 A.2d 1351, 1355 (D.C.1978); Cottom v. McGuire Funeral Service, Inc., 262 A.2d 807, 808 (D.C.1970) (“[t]he differences between strict liability in tort and implied warranty, if any, are conceptual”).³ See, e.g., Prosser, The Fall of the Citadel, supra, at 802 (“all of the trouble lay with the one word ‘warranty/ which had been from the outset only a rather transparent device to accomplish the desired result of strict liability. No one disputed that the ‘warranty’ was a matter of strict liability. No one denied that where there was no privity, liability to the consumer could not sound in contract and must be a matter of tort.”). See Picker X-Ray, supra, 185 A.2d at 923 (“the buying public in the District of Columbia is better protected by eliminating the requirement for contractual privity in suits brought by the user against the manufacturer for breach of implied warranty resulting from a defectively manufactured product”). The protection is there without the constrictions of the Uniform Commercial Code. See D.C.Code § 28:2-101 et seq. (1981). Thus, in Payne, supra, we noted that Comment m to 402A of the Restatement (Seoond) of Torts made a clear distinction between strict liability (i.e., implied warranty) and sales warranty:

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.

Payne, supra, 486 A.2d at 720 (emphasis added).

III.

The instant complaint was filed seeking recovery under counts presenting theories of strict liability, implied warranty, and negligence. No reference was made to the Uniform Commercial Code (see D.C.Code § 28:2-101 et seq.), although the implied warranty count made reference to fitness for a particular purpose. Cf D.C.Code § 28:2-315. There is some confusion in the record as to what counts were disposed of by the granting of a directed verdict for appellee at the close of the evidence. The court’s Memorandum Opinion identified the claims as (1) negligence and (2) breach of warranty of fitness for a particular purpose.⁴ In any event, for our purposes we need only to look to the claims taken under advisement and submitted in instructions to the jury, reading as follows:

The first theory under which the plaintiff seeks to recover is the theory of strict liability in tort. In connection with that theory, you are instructed: that the law imposes liability upon a seller of a product that causes injury to another or his property due to a defect in the design of the product which makes the product unreasonably dangerous. It is not necessary for the plaintiff to show that the defendant acted unreasonably or negligently; rather, the focus is upon the product itself. A product is unreasonably dangerous when it is dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases the product. Thus, if you find that the product — in this case it was a caster — had a defect in its design which made the product unreasonably dangerous and that the design defect proximately caused injury to the plaintiff, then you should find, and your verdict should be, for the plaintiff.

The second theory under which plaintiff seeks to recover is the theory of implied warranty of merchantability. This is the second theory.

You are instructed that a person who regularly sells goods of the kind involved in this case is a merchant with respect to such goods. The law imposes upon a merchant a legal obligation concerning the fitness of the merchandise sold. This obligation is called an implied “warranty of merchantability.” Under this implied warranty, the goods must be at least of such quality as to be fit for the ordinary purposes for which such goods are used.

You are further instructed that in an action based upon breach of an implied warranty, it makes no difference whether or not the defendant was negligent. If you find that the defendant was a merchant with respect to the goods in question, and if you further find that the goods did not conform to the standard imposed by law, then the defendant breached the implied warranty and the plaintiff is entitled to a finding and a verdict for the plaintiff.

You’ve heard me talk about injury proximately caused by defect or unfitness and you’ve heard me speak of damages proximately caused by defect or the unfitness. Now here’s what we mean by proximate cause.

An injury or damage is proximately caused by a defective condition or unfitness of a product if it appears from the evidence, direct and circumstantial, that a defective condition did exist and played a substantial part in bringing about the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the defect or unfitness.

Now, if you find that the product, in this case the caster, was defective, or was not fit but that the defect or unfitness was not the proximate cause of the damages to the extent claimed by the plaintiff, then the plaintiff may recover only the portion of damages which did result proximately from the defect or unfitness.

A casual reading of this language supports what appellee concedes: that “since the two theories (i.e., strict liability and implied warranty of merchantability) represent but one tort, it was error to have given both instructions.” The trial court, in vacating the jury’s verdict on the second theory, recognized this principle but characterized the instruction with respect to the second theory as being not one of tort, but of contract, and therefore unwarranted and superfluous.

The trial court may have been right, therefore, in recognizing that its first instruction on strict liability “adequately” placed before the jury any claim as to tortious breach of warranty. It was wrong in concluding, “upon review of the record,” that its instruction on breach of warranty, which made no mention of privity of contract, did anything more than tell the jury it could impose tort liability on the defendant for putting into the stream of commerce a defective product, which defect caused injury to a human being.⁵ The instruction set the stage for the jury, in ruling for appellee under the strict liability count, to find that the product was not unreasonably dangerous; yet it awarded appellant $150,000 under the warranty count because the product was defective, or not fit for the ordinary purpose for which it was to be used and because the defect caused the injury. The findings, that the product was not unreasonably dangerous on one hand,⁶ and yet on the other hand, so unreasonably fit for its intended purpose as to cause injury (and therefore unreasonably dangerous), are so inconsistent as to neutralize each other. See 76 AM.JuR.2d Trial § 1196 at 158 (1975) (“[w]here several findings are made, such findings must be consistent with each other, and where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way. Inconsistent and conflicting findings in special verdicts ... neutralize each and must be disregarded.”).

There is no view of this case that can make these findings consistent, or that can restore, in the absence of a new trial, one of the two verdicts. The trial court, having given the instruction that erroneously infected both verdicts, could not cure the error by validating one and ruling, after the fact, that the other was superfluous.

The judgment is reversed and the case remanded for a new trial.

So ordered.

Footnotes

2

. The chair was new when placed in her office and had been in use for more than a year at the time of the injury,

3

. Given our conclusion that the trial court erred in giving instructions on two liability theories that are identical under our caselaw, we do not reach the question of the scope and applicability of § 28:2-318 (identical to U.C.C. § 2-318) which requires the contractual element of privity. This section is designed specifically to protect buyers (or third party beneficiaries who are "nonprivity parties” under the section and thus shielded from the defense of lack of privity if they are “natural personfs] who [are] in the family or household of the [seller’s] buyer). See 3 Anderson Uniform Commercial Code § 2-318:5 at 405 (3rd ed.1983). At the new trial, counsel for both parties should determine which theories they will advance and how they will advance them, whether in contract or tort or both.

4

. Plaintiffs pleadings identify the claims as (1) failure to warn, (2) breach of warranty for a particular purpose and (3) negligence.

5

. See Payne, supra, 486 A.2d at 720, which states:

This warranty liability was instead to be a form of strict liability: a plaintiff could recover if he established, first, that the product was defective, i.e., not reasonably fit for its intended purpose or not of merchantable quality; and second, that as a result of the defect, the product caused injury.

(Citing Picker X-Ray, supra, 185 A.2d at 922); see also Berman, supra, 391 A.2d 1357; Cottom, supra, 262 A.2d at 809.

6

. Contrary to the suggestion in the concurring opinion at page 357, Payne does not address the question of whether the phrase "unreasonably dangerous” is a part of a Restatement § 402A instruction; the issue was not before us and we did not purport to decide it. Nothing on the referenced pages of Payne, supra, 486 A.2d at 722-23 even hints that we did.