Falk v. Keene Corp.

782 P.2d 974, 113 Wash. 2d 645, 1989 Wash. LEXIS 133
CourtWashington Supreme Court
DecidedOctober 31, 1989
Docket55945-7
StatusPublished
Cited by105 cases

This text of 782 P.2d 974 (Falk v. Keene Corp.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Falk v. Keene Corp., 782 P.2d 974, 113 Wash. 2d 645, 1989 Wash. LEXIS 133 (Wash. 1989).

Opinions

Brachtenbach, J.

At issue is whether jury instructions regarding a claim that manufacturers' products were defectively designed either misstated the law or confused the jury by leading it to believe that common law negligence principles apply to a design defect claim brought under the tort reform act of 1981. We hold that ordinary negligence is not the standard adopted by the Legislature for determining manufacturer liability for defectively designed products, that the instructions given in this case erroneously allowed the jury to apply a common law negligence standard, and that the error is reversible.

This is a personal injury action brought by John Falk, now deceased, and his wife (plaintiffs) against the Keene Corporation and other companies which manufactured asbestos insulation products to which Falk was allegedly exposed during service in the Navy from 1947 to 1953. Plaintiffs asserted that the exposure to the asbestos products caused Falk to develop mesothelioma, a form of cancer. Plaintiffs claimed that petitioners were liable both because they failed to warn of dangers associated with asbestos products, and because the products containing asbestos were defectively designed.

The trial court instructed the jury on design defect product liability in accord with WPIC 110.02 (1984), in [647]*647language closely following that of RCW 7.72.030(1), (l)(a), and (3).

A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of a manufacturer in that the product was not reasonably safe as designed at the time it left the manufacturer's control.
A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause injury or damage similar to that claimed by plaintiff, and the seriousness of such injury or damage, outweighed the burden on the manufacturer to design a product that would have prevented the injury or damage and outweighed the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product.
In determining whether a product was not reasonably safe, you shall consider whether the product was unsafe to an extent beyond that which would be contemplated by an ordinary user.

(Italics ours.) Instruction 11A; Clerk's Papers, at 220.

Plaintiffs excepted to the court's refusal to give plaintiffs' proposed instruction 25, arguing that the proposed instruction correctly reflected the law on design defect product liability as it existed before the tort reform act of 1981, Laws of 1981, ch. 27. Plaintiffs maintained that strict liability for design defects, as set forth in Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975), is still the law with respect to product design defects.

The trial court also gave instructions summarizing plaintiffs' allegations and burden of proof; these instructions used the term "negligence" to apply to both the design defect and the failure to warn claims.1 The court gave [648]*648standard instructions on common law negligence.2 Following a jury verdict in favor of the manufacturers, plaintiffs appealed. The Court of Appeals reversed, holding that strict liability is still the standard for design defect claims and that giving instruction 11A in conjunction with common law negligence instructions was prejudicial error because it allowed the jury to apply an ordinary negligence standard to design defect claims. The Court of Appeals further held that instruction 11A standing alone was erroneous because the reference in the instruction to negligence was likely to confuse the ordinary, reasonable juror. Therefore, the court said, the instruction was misleading and invited the jury to misapply the law. Falk v. Keene Corp., 53 Wn. App. 238, 767 P.2d 576 (1989). Review was granted by this court.

The root question in this case is the nature of a design defect product liability claim under the tort reform act of 1981. In examining this question, we first turn to a brief description of the law regarding design defect claims prior to the tort reform act. As set forth in Restatement (Second) of Torts § 402A (1965), "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused to the ultimate user ..." This court adopted the strict liability theory of section 402A as to manufacturers in Ulmer v. Ford Motor Co., 75 Wn.2d 522, 532, 452 P.2d 729 (1969). In Seattle-First Nat'l Bank v. Tabert, supra, we applied strict liability principles to [649]*649design defect claims. We held that " [i]f a product is unreasonably dangerous, it is necessarily defective. The plaintiff may, but should not be required to prove defectiveness as a separate matter." Tabert, at 154.

For purposes of defining "unreasonably dangerous," this court in Tabert adopted a consumer expectations standard of "reasonably safe." After examining a number of possible formulations for "consumer expectations," we held that liability is imposed if the product is

unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer. . . .
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.

The focus in a design defect claim was on the buyer's expectations. Lenhardt v. Ford Motor Co., 102 Wn.2d 208, 683 P.2d 1097, 47 A.L.R.4th 609 (1984) (decided under pretort reform act law). This court said that "our rule of strict liability focuses attention upon the product and not upon the actions of the seller or manufacturer." Lenhardt, at 212.

Thus, prior to the tort reform act of 1981, design defect . claims were judged under the consumer expectations test of Tabert, with its balancing of risk and utility, and focus was on the product and its safety.

In 1981, the Legislature codified product liability law. It did so with certain express purposes in mind. The preamble to the tort reform act of 1981 states the purpose of the act as the creation of "a fairer and more equitable distribution of liability among parties at fault." Laws of 1981, ch. 27, § 1. The Legislature was concerned with rising insurance costs which increased the cost of goods, "resulted in disincentives to industrial innovation and the development of new products", and tended to encourage manufacturers to either go without insurance or to pass the cost of insurance [650]

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Bluebook (online)
782 P.2d 974, 113 Wash. 2d 645, 1989 Wash. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falk-v-keene-corp-wash-1989.