Lamon v. McDonnell Douglas Corp.

576 P.2d 426, 19 Wash. App. 515, 1978 Wash. App. LEXIS 2131

• Court: Court of Appeals of Washington
• Decided: March 20, 1978
• Docket: 4228-1
• Status: Published

Opinions

Callow, J.

The plaintiff, an airline stewardess, stepped into an open emergency hatch of a DC-10 airplane. She appeals from a summary judgment dismissing her personal injury action against the aircraft manufacturer.

The hatch in question is an integral part of the aircraft. It was put in the only area where it could be located for a variety of safety and design considerations. It is described in the "emergency exits" section of the DC-10 Cabin Attendants Familiarization Manual as follows:

Galley Escape Hatch and Ladder

An escape hatch, located in the forward right corner of the lower galley ceiling opening into the forward cabin right aisle floor, provides an alternate means of exit from the lower galley during abnormal conditions. A permanently attached ladder extends from the galley floor to the escape hatch. The hatch cover carpet is flush with the floor and held in place within its frame with velcro. It may be opened from the lower galley by pushing on the under side. The hatch cover can also be opened from the cabin. The covering carpet is held in position with velcro and can be lifted to expose a recessed handle in the hatch cover.

The plaintiff, as one of the cabin attendants, was familiar with the hatch. Furthermore, just before she stepped into it, she had seen another stewardess come up through it, announce that there had been a power failure necessitating its use, and then go back down into it. The plaintiff filed the affidavit of a California engineer which stated that he specialized in the reconstruction and analysis of industrial and traffic accidents and that:

On April 5, 1975,1 examined the galley escape hatches on a DC-10 and a Boeing 747 airplane. The examination was made at the Seattle-Tacoma airport and the airplanes were part of the United Airlines fleet. Based on this examination it is my opinion that the design of the escape hatch cover on the DC-10 created an unreasonably dangerous condition for the cabin attendants. The condition was created because the hatch cover on the DC-10 consists of a loose panel, and in order to close the hatch after use the loose hatch cover has to be manually fitted into the hatch opening. If after using the hatch the user were to forget to replace the hatch cover the open hatch would constitute a serious hazard to cabin attendants who often have to walk backward in the performance of their duties. If when replaced the hatch cover were not properly fitted into the hatch opening it could act as a trap door and endanger the person stepping on it. The dangerous features of the DC-10 hatch cover are not present in the design of the Boeing 747 galley hatch cover. While quite similar in other respects, the Boeing 747 hatch cover is hinged to the floor and is equipped with a spring device which automatically closes and keeps the hatch cover closed when the hatch is not in use.

The following issues are presented: (1) What is the quantum of proof that must be presented before a plaintiff may submit a strict tort liability case to a jury? (2) Is a strict tort liability case, based on a manufacturer's failure to warn, made out where the condition in question is known to the plaintiff? (3) In a strict tort liability case, is a jury issue on liability presented when an expert witness states that, in his opinion, a product is defective, dangerous or unsafe?

A products liability case involves the claimed liability of a manufacturer, processor or nonmanufacturing seller for injury to the person or property of a buyer or third person caused by a product which has been sold. 1 R. Hursh & H. Bailey, American Law of Products Liability § 1:1 (2d ed. 1974); 63 Am. Jur. 2d Products Liability § 1 (1972). Products liability cases are ordinarily predicated on one or more of three legal theories: strict tort liability, negligence and breach of warranty. Here, the plaintiff is relying primarily on the theory of strict tort liability. Strict tort liability is not absolute liability. It is "strict" in the sense that it is unnecessary for a plaintiff proceeding under that theory to prove that a defendant was negligent, and the defendant does not have available the defenses of lack of privity, lack of notice and disclaimer. 1 R. Hursh & H. Bailey, American Law of Products Liability § 4:10 (2d ed. 1974); 63 Am. Jur. 2d Products Liability § 123 (1972).

The doctrine of strict tort liability was enunciated in Ulmer v. Ford Motor Co., 75 Wn.2d 522, 452 P.2d 729 (1969). The opinion adopted Restatement (Second) of Torts § 402A (1965), which states:

§ 402A. 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.

The doctrine has been held applicable in a number of cases including Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977); Seattle-Frist Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975); Baumgardner v. American Motors Corp., 83 Wn.2d 751, 522 P.2d 829 (1974); and Haugen v. Minnesota Mining & Mfg. Co., 15 Wn. App. 379, 550 P.2d 71 (1976).

We must first inquire whether a duty was owed by the manufacturer to the injured party and whether or not that duty was breached. See Baumgardner v. American Motors Corp., supra at 756. The instant case involves a claim that the product, although well manufactured, was defectively designed. The test to be applied to determine liability in strict tort liability design defect cases was enunciated in Seattle-First Nat'l Bank v. Tabert, supra at 149-51, as follows:

[S]trict liability does encompass a design defect. . .

A product may be just as dangerous and capable of producing injury whether its condition arises from a defect in design or from a defect in the manufacturing process. While a manufacturing defect may be more easily identified or proved, a design defect may produce an equally dangerous product. The end result is the same—a defective product for which strict liability should attach.

The doctrine of strict liability does not impose legal responsibility simply because a product causes harm. Such a result would embody absolute liability which is not the import of strict liability. . . .

. . . The literal language of the section creates liability for a product in a defective condition which is unreasonably dangerous. The Restatement comments add flesh to these bare bone words. Under comment g entitled "Defective condition" it is stated:

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.

(Italics ours.)

Comment i, entitled "Unreasonably dangerous" states: 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.

(Italics ours.)

Continuing, the opinion states at page 154:

If a product is unreasonably dangerous, it is necessarily defective. The plaintiff may, but should not be required to prove defectiveness as a separate matter.

Likewise, unreasonably dangerous implies a higher and different standard than what we conceive to be the intended thrust of section 402A strict liability. The emphasis is upon the consumer's reasonable expectation of buying a product which is reasonably safe. The ordinary consumer evaluates a product in terms of safety, recognizing that virtually no product is or can be made absolutely safe. Certainly that is the case with the automobile and all of its potential for injury.

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.

It cannot be said as a matter of law that the design of the escape hatch was defect free when the evidence is viewed (a) in the light most favorable to the plaintiff, (b) with the testimony of the expert in mind, and (c) taking the reasonable expectations of the consumer along with the intrinsic nature of the product into consideration.

In order to prove strict liability, a plaintiff must prove (1) that there was a defect, (2) which existed at the time the product left the hands of the manufacturer, (3) which was not contemplated by the user, (4) which renders the product unreasonably dangerous, and (5) which was the proximate cause of the plaintiff's injury. Ulmer v. Ford Motor Co., supra; Simmons v. Koeteeuw, 5 Wn. App. 572, 489 P.2d 364 (1971); 45 Wash L. Rev. 431 (1970). A product is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases the product. Restatement (Second) of Torts § 402A, comment i (1965). A product has been called "inherently and imminently dangerous" to human safety when substantial harm is to be anticipated if it is defective. Dipangrazio v. Salamonsen, 64 Wn.2d 720, 725, 393 P.2d 936 (1964). Likewise, in Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972), a product has been said to be unreasonably dangerous if there is an unreasonable risk of causing substantial bodily harm to one whom the manufacturer should expect to be in the vicinity of probable use. Thus, we find various definitions for the term "unreasonably dangerous" depending upon whether the approach to the term is from the standpoint of the purchaser, the ordinary user, or the plaintiff, but each definition reaches the same general concept that hazards must exist in the product of which the user would not be expected to be aware and which would not be contemplated by the ordinarily experienced user of that product. Sherrill v. Royal Indus., Inc., 526 F.2d 507, 512 (8th Cir. 1975); Orfield v. International Harvester Co., 415 F. Supp. 404, 406 (E.D. Tenn. 1975), aff'd, 535 F.2d 959 (6th Cir. 1976). The obviousness of thé defect is only a factor to be considered in determining whether a defect is unreasonably dangerous, Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976); and whether a product is unreasonably dangerous depends also on the possible seriousness and the cost of preventing the harm, as well as the foreseeability thereof. Hall v. E.I. Du Pont De Nemours & Co., 345 F. Supp. 353, 368 (E.D.N.Y. 1972).

A defective condition is a condition not contemplated by the ultimate user and which presents a hazard which he would not expect. Bunn v. Caterpillar Tractor Co., 415 F. Supp. 286, 290 (W.D. Pa. 1976), aff'd, 556 F.2d 564 (3d Cir. 1977); Casrell v. Altec Indus., Inc., 335 So. 2d 128, 133 (Ala. 1976); Snider v. Bob Thibodeau Ford, Inc., 42 Mich. App. 708, 202 N.W.2d 727, 730 (1972).

The terms "defective condition" and "unreasonably dangerous" have been defined as essentially synonymous. Welch v. Outboard Marine Corp., 481 F.2d 252, 255 (5th Cir. 1973); Matthews v. Campbell Soup Co., 380 F. Supp. 1061, 1063 (S.D. Tex. 1974).

The burden of proof is upon a plaintiff alleging injury from a defective product to show that the product was in a defective condition when it left the hands of the manufacturer. Curtiss v. YMCA, 82 Wn.2d 455, 511 P.2d 991 (1973); Ulmer v. Ford Motor Co., supra; Bombardi v. Pochel's Appliance & TV Co., 10 Wn. App. 243, 518 P.2d 202 (1973). As noted in the Bombardi case, if a product fails under conditions concerning which an average consumer would be entitled to expect performance, then a jury would have a basis for making an informed judgment upon the existence of a defect. Bombardi, at 247. If the evidence presented of a defect is such that a jury could reasonably infer that the product was defective, then the plaintiff is entitled to proceed to trial. Therefore, the issue is narrowed to what is the quantum of proof requisite to show that a design was defective in that it presented dangers which could not be reasonably foreseen by the user. Here, we have an expert witness testifying that such a design defect existed. If the evidence is taken at this point as it must be in the light most favorable to the nonmoving party, then the plaintiff is entitled to have his case heard by the trier of the fact.

Seattle-First Nat'l Bank v. Tabert, supra, states that the product must be evaluated in the terms of the reasonable expectation of the consumer by the trier of the fact in light of the intrinsic nature of the product. The defendant had a duty to exercise reasonable care in designing an escape hatch that did not involve an unreasonable risk of harm to cabin personnel who would be working in the vicinity of the hatch. Spellmeyer v. Weyerhaeuser, 14 Wn. App. 642, 647, 544 P.2d 107 (1975).

We recognize that there is no duty on the part of the manufacturer to give warning of a product-connected danger where the person who claims to be entitled to the warning knows of the danger. Where the product-connected danger is obvious or known, the manufacturer or seller has no duty to warn. Haysom v. Coleman Lantern Co., 89 Wn.2d 474, 479, 573 P.2d 785 (1978); Ewer v. Goodyear Tire & Rubber Co., 4 Wn. App. 152, 162, 480 P.2d 260 (1971); Restatement (Second) of Torts § 402A, comment j (1965).

The failure to warn or the giving of an inadequate warning may cause a product to be unsafe and thus give rise to a strict tort liability cause of action. Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977); Restatement (Second) of Torts § 402A, comments h and j (1965). However, awareness of the existence of an obvious dangerous condition does not, of itself, absolve the manufacturer of liability for a defective design. As noted in Seattle-First Nat'l Bank v. Tabert, supra at 155:

[DJefendant contends that the design of . . ., and any defect, was open and obvious, precluding recovery. It is true that comment n, section 402A recognizes that assumption of the risk may be a defense in a strict liability case when it consists of voluntarily and unreasonably proceeding to encounter a known danger, i.e., would a reasonably prudent person continue voluntarily to use a product in the face of a known, open and obvious danger? This was acknowledged in Brown v. Quick Mix Co., 75 Wn.2d 833, 836, 454 P.2d 205 (1969):

[T]he fact that a danger is patent does not automatically free the manufacturer from liability, but does so only if the plaintiff voluntarily and unreasonably encounters it.

Opinion testimony otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of the fact. Gerard v. Peasley, 66 Wn.2d 449, 454, 403 P.2d 45 (1965); Palmer v. Massey-Ferguson, Inc., 3 Wn. App. 508, 510, 476 P.2d 713 (1970). See Fed. R. Evid. 704, at 156, and Washington Proposed Rules of Evidence 704, at 41-42. The evidence admitted upon trial must support the opinion of the expert that is expressed to the trier of the fact. See Curtiss v. YMCA, supra at 466; 1 R. Hursh & H. Bailey, American Law of Products Liability § 1:24, at 82 (2d ed. 1974). Likewise, as noted in E. Cleary, McCormick's Handbook of the Law of Evidence § 13, at 31 (2d ed. 1972):

Nor will expert opinion be admitted if the court believes that an opinion based upon the facts in evidence cannot be reasonably grounded upon those facts.

Accord, 31 Am. Jur. 2d Expert and Opinion Evidence § 36, at 538 (1967); Crowe v. Prinzing, 77 Wn.2d 895, 897, 468 P.2d 450 (1970). This question must be presented to the trial judge at the time of the trial. Suffice it to say that at this juncture a question for the jury was presented.

The dismissal of the cause of action upon summary judgment is reversed and the cause is remanded for trial.

Swanson, J., concurs.