Buttrick v. Arthur Lessard & Sons, Inc.

• Decision Date: 30 December 1969
• Docket Number: No. 5813,5813
• Citation: 260 A.2d 111,110 N.H. 36
• Parties: Clifton R. BUTTRICK v. ARTHUR LESSARD & SONS, INC.
• Court: New Hampshire Supreme Court

Page 111

260 A.2d 111

110 N.H. 36

Clifton R. BUTTRICK v. ARTHUR LESSARD & SONS, INC.

No. 5813.

Supreme Court of New Hampshire.

Argued Nov. 7, 1968.

Decided Dec. 30, 1969.

Upton, Sanders & Upton and Ernest T. Smith, III, Concord, for plaintiff.

Hall, Zellers, Morse & Gallagher, Concord, (Mayland H. Morse, Jr., Concord, orally), for defendant.

GRIFFITH, Justice.

This case presents the question of whether a person sustaining personal injuries and property damage because of a defect in an automobile sold him by the defendant can recover without proof that the defendant was negligent.

Plaintiff was nonsuited at the conclusion of his opening statement and his exception was reserved and transferred by the Trial Court (Bownes, J.).

The outline of the plaintiff's case in the opening statement is adopted for the purpose of ruling on this exception. In the fall of 1962 plaintiff purchased from the defendant a 1962 Studebaker with a 'new car guarantee.' Delivery of the car was taken on October 19, 1962, a Friday, and it was not driven at night until the following Sunday. On Sunday, while driving with his lights on high beam the lights flickered and went out. At that time he stopped the car but determining that the lights would function on low beam was able to drive home. Defendant undertook to remedy the defect and in the course of attempts to repair it replaced the sealed beams twice, replaced several dimmer switches, replaced the main switch and the brake light switch. The wiring and ground were checked and a factory representative was called to try and locate the difficulty. The plaintiff always returned the car to the defendant and after each repair discovered that the high beam would not function properly although the defendant would inform him that they thought they were fixed. Defendant was the only garage that ever worked on the lights.

In late November of 1963 plaintiff went deer hunting stopping at defendant's garage before he left for the purpose of having his car serviced and the lights again checked. The defendant did not have time to service his car or check his lights and he left on the trip without any work being done by the defendant. On December 2, 1963 plaintiff left Tamworth, N.H. in a snowstorm to travel to his home. On Route 106 in the area of the Canterbury-Loudon town line while traveling on low beam at approximately forty to fifty miles per hour he thought he saw a deer ahead. He then instinctively hit the switch to transfer the lights to high beam and they went out. Plaintiff was unable to get his lights on again and went off the road on the left-hand side damaging the car and sustaining personal injuries for which damages are sought.

Plaintiff makes no claim that the defendant was negligent and relies solely on his right to recover on either warranty or strict liability in tort. The two claims in warranty are based upon a claimed violation of an express warranty and an implied Commercial Code. RSA 382-a:2-313, 314. Plaintiff also claims that we should adopt Piaintiff also claims that we should adopt the theory of strict liability in tort as defined in Restatement (Second), Torts, s. 402-A.

The field of products liability has developed at a rapid pace but not without the usual attendant confusion surrounding the fall of ancient legal precepts. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960) permitting recovery for damage to an automobile resulting from a defect with no showing of negligence was a landmark case permitting recovery on an implied warranty. On the other side of the continent in 1963 in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049. Chief Justice Traynor found for a plaintiff who was injured by a defective power tool on the basis of strict liability. Meanwhile back in New Jersey in Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 recovery was allowed for a defective rug on the basis of strict liability rather than warranty. California followed with Seely v. White Motor Company, 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 allowing recovery for commercial losses resulting from a defect on the breach of warranty theory. The Seely case criticized the Santor case and argued that only property and personal injury damages resulting from the defect should be recovered on strict liability.

The question of when a plaintiff should be permitted to recover under the law of warranty or under strict liability and whether strict liability has superseded the warranty approach has been argued by legal scholars with all the zeal, fury and abstruseness of medieval theologians. See Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791; Donnelly, After the Fall of the Citadel: Exploitation of the Victory Or Consideration of All Interests, 19 Syracuse L.Rev. 1; Shanker, Strict Tort Theory of Products Liability and the Uniform Commercial Code: A Commentary on Jurisprudential Eclipses, Pigeonholes and Communications Barriers, 17 W.Res.L.Rev. 5; Littlefield, Some Thoughts on Products Liability Law: A Reply to Professor Shanker, 18 W.Res.L.Rev. 10.

It is apparent that before the fine problems raised by the scholars have settled into clear rules as to when the approach is warranty and when strict liability many cases will have to settle into the books. Although the plaintiff is entitled on the basis of his opening statement to proceed on his counts of express and implied warranty he may also proceed on strict liability. This approach was recently presaged in Elliott v. Lachance, 109 N.H. 481, 256 A.2d 153. See also, Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168; Lascher, Strict Liability In Tort For Defective Products, The Road To and Past Vandermark, 38 S.Cal.L.Rev. 30; Donovan, Recent Development in Products Liability Litigation in New England: The Emerging Confrontation Between the Expanding Law of Torts and The Uniform Commercial Code, 19 Me.L.Rev. 181.

Restatement (Second), Torts, s. 402-A reads as follows:

'(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 rule requiring a person injured by a defective product to prove the manufacturer or seller negligent was evolved when products were simple and the manufacturer and seller generally the same person. Knowledge of the then purchaser, if not as complete as the sellers, was sufficient to enable him to not only locate the defect but to determine whether negligence caused the defect and if so whose. The purchaser of the present day is not in this position. How the defect in manufacture occurred is generally beyond the knowledge of either the injured person or the marketer or manufacturer. The basis for the present rule of strict liability is the 'ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human being 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.' Restateme...