247 F.2d 23 (D.C. Cir. 1957), 13017, Jamieson v. Woodward & Lothrop

Docket Nº:13017.
Citation:247 F.2d 23
Party Name:Marguerite JAMIESON et al., Appellants, v. WOODWARD & LOTHROP et al., Appellees.
Case Date:April 16, 1957
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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247 F.2d 23 (D.C. Cir. 1957)

Marguerite JAMIESON et al., Appellants,

v.

WOODWARD & LOTHROP et al., Appellees.

No. 13017.

United States Court of Appeals, District of Columbia Circuit.

April 16, 1957

Argued Jan. 31, 1957.

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Messrs. Irving G. McCann and Benjamin H. Dorsey, Washington, D.C., for appellants.

Mr. Frank J. Martell, Washington, D.C., with whom Messrs. Richard W. Galiher and William E. Stewart, Jr., Washington, D.C., were on the brief, for appellees.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

PRETTYMAN, Circuit Judge.

Appellant, Mrs. Marguerite Jamieson, bought from Woodward & Lothrop, a department store, an elastic exerciser manufactured by Helena Rubinstein, Inc., which she had seen advertised in a magazine. She bought by brand name, 'Lithe-Line', and no special instructions as to use were given her by the vendor's salesperson. While she was using the exerciser she suffered a sudden unconsciousness, and although she testified she did not know what happened it appears to be a reasonable inference that the exerciser slipped and struck her in the eye. She sued Woodward & Lothrop for breach of warranty and Helena Rubinstein, Inc., for negligence. The defendants answered. Appellant's deposition was taken, and in the course of it the exerciser in question and the printed instructions given with it were introduced as exhibits. The District Court, on the basis of the complaint, the answers, the deposition, and the exhibits, granted summary judgment for the defendants. This appeal followed.

The court is in agreement in affirming the District Court in respect to the vendor, Woodward & Lothrop. The statute 1 provides: 'In the case of a contract to sell or sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.' Since the sale occurred in the District of Columbia, and since Mrs. Jamieson relied solely on the claim of breach of implied warranty, it is clear that she is barred by the quoted language, unless perhaps she can in some way remove herself from the scope of the statute. Nothing in the record of argument would in our view suggest or support any such possibility.

The court is divided in its view of the judgment in favor of the manufacturer, Helena Rubinstein, Inc. A majority agree with the District Court, and so the judgment will be affirmed.

The theory of the plaintiff as to the manufacturer, as set forth in her complaint, was that the exerciser was inherently dangerous and that the manufacturer had failed to warn or otherwise protect her against such danger. In answer to an interrogation she said that when the solid rubber rope is subjected

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to stress, as in an exercise, great potential striking power is created; that the rope 'can depart from the instep' in the course of an exercise; and that no safety or protective device was provided and no warning given.

The exerciser in question was an ordinary rubber rope, about the thickness of a large lead pencil, about forty inches long, with loops on the ends. It had no imperfections or defects whatsoever and no added gadgets. It never broke or went awry. It was a simple elastic exerciser. With the rope came a set of 'Instructions'. These consisted of a series of eight silhouette sketches of exercises to be done with the rope, with a summary description of each exercise. There were no instructions as to how to operate the device; there was no device to operate, the article in question being merely a rubber rope. In appearance it resembled a child's skipping rope.

In the course of her program Mrs. Jamieson began one of the most normal and natural of exercises. She lay down on the floor, put the rope under her feet, held on to the handles, and, with knees stiff, raised her feet straight up, intending then to lower them and so, alternately raising and lowering them, to give her body muscles a workout. Apparently the rope slipped off the soles of her feet and hit her in the eye. She suffered a serious injury.

The unfortunate event was an accident, we think,-- an event so natural that responsibility for it is by common consent not ascribed to fault. Of course one is truly sorry for the unfortunate victim of a chance accident, but the premise of pecuniary liability for tort is not the fact of injury but is negligence.

Problems in this field of the law have grown in recent years coincident with the tremendous growth in the use of manufactured articles and mechanical devices. Many cases in many jurisdictions have dealt with phases of the general subject, and the law has progressed since the opinion of the Court of Appeals of New York in MacPherson v. Buick Motor Co. 2 finally demolished the already breached barrier of no-privity of contract which theretofore lay across the path of a user to a manufacturer. Eminent authorities, notably Professor Dillard of the University of Virginia 3 and Professor James of Yale, 4 have written extensive articles on the subject. 5 The Restatement of the Law of Torts deals with it. 6 It may now be taken as settled that a user of a manufactured device may under some circumstances recover against the manufacturer for negligence.

Culpable negligence of a manufacturer may arise from a number of causes. There may be an impropriety or a misadventure in the manufacturing process which results in a defective product. There may be negligence in design or plan. The cause of action in the case at bar does not arise from any of these. It arises, as we have said, from alleged negligence in failing to warn or otherwise protect the user in the use of the article.

There are on the market vast numbers of products as to which the law holds the manufacturer to a duty to warn of foreseeable dangers or to provide safeguards against such dangers. But there are also on the market vast

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numbers of potentially dangerous products as to which the manufacturer owes no duty of warning or other protection. The law does not require that an article be accident-proof or incapable of doing harm. It would be totally unreasonable to require that a manufacturer warn or protect against every injury which may ensue from mishap in the use of his product. Almost every physical object can be inherently dangerous or potentially dangerous in a sense. A lead pencil can stab a man to the heart or puncture his jugular vein, and due to that potentiality it is an 'inherently dangerous' object; but, if a person accidentally slips and falls on a pencil-point in his pocket, the manufacturer of the pencil is not liable for the injury. He has no obligation to put a safety guard on a lead pencil or to issue a warning with its sale. A tack, a hammer, a pane of glass, a chair, a rug, a rubber band, and myriads of other objects are truly 'inherently dangerous', because they might slip. They cause accidents and injury even more often, we expect, than do rubber exercisers. But the doctrines fashioned by the law for inherently dangerous objects do not encompass these things. A hammer is not of defective design because it may hurt the user if it slips. A manufacturer cannot manufacture a knife that will not cut or a hammer what will not mash a thumb or a stove that will not burn a finger. The law does not require him to warn of such common dangers. On the other end of the spectrum of practicalities, a manufacturer should not be permitted to market without protection to the user a spray which would kill trees if used at the wrong time, as in McClanahan, 7 or a skirt which would otherwise ignite if brushed by a lighted cigarette, as in Noone. 8 A manufacturer might be liable for failure to provide a shield or an emphatic warning to users of an electric power saw, but he would not be liable if he failed so to provide in respect to a kitchen knife.

If a hand slips in a normal operation with a non-defective device, a knife will cut and a lighted stove will burn and an automobile will crash into a tree; but no authority holds that manufacturers must warn of such contingencies. All this is firmly established commercial law and custom. We doubt that any book of instructions given with a car warns that, if a user accidentally steps on the accelerator instead of on the brake, he may be hurt; nevertheless, so far as we are able to ascertain, no case has yet held the manufacturer liable under such circumstances.

In respect to necessary warning the Supreme Court said many years ago, in a case from this jurisdiction:

'In other words, as stated by the Maine court, 'No one needs notice of what he already knows,' and 'Knowledge of the danger is equivalent to prior notice. " 9

The latest extensive judicial discussion of the matter seems to be in Campo v. Scofield, 10 the opinion being by the unanimous Court of Appeals of New York, the same court which decided MacPherson v. Buick Motor Co., supra. A farmer was feeding onions into a

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machine. His hand slipped and was caught in the rollers. He sued upon the theory that the manufacturer was negligent in not providing guards. The court, holding that the complaint failed to state a cause of action in negligence, discussed the problem at length. The gist of the holding is that a manufacturer is under no duty to protect the user against a danger which is perfectly obvious. The pertinent quotable portions of the opinion are much too long to recite here; two short statements must suffice. The court said:

'If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands. We have not yet reached the state where a manufacturer is under the...

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