Thibault v. Sears, Roebuck & Co.

• Decision Date: 30 November 1978
• Docket Number: No. 7826,7826
• Citation: 395 A.2d 843,118 N.H. 802
• Parties: David W. THIBAULT v. SEARS, ROEBUCK & COMPANY.
• Court: New Hampshire Supreme Court

Page 843

395 A.2d 843

118 N.H. 802

David W. THIBAULT v. SEARS, ROEBUCK & COMPANY.

No. 7826.

Supreme Court of New Hampshire.

Nov. 30, 1978.

Craig, Wenners, Craig & McDowell, Manchester (Vincent A. Wenners, Jr., Manchester, orally), for plaintiff.

Devine, Millimet, Stahl & Branch, Manchester (Shane Devine, Manchester, orally), for defendant.

DOUGLAS, Justice.

This is an action to recover damages for harm sustained by the plaintiff when a lawn mower manufactured by the defendant injured the plaintiff's foot. Trial by jury on tort counts sounding in negligence and strict liability before Flynn, J., resulted in verdicts for the defendant. The plaintiff's exceptions concerning his strict liability claim were reserved and transferred. We affirm.

The plaintiff bought a "Craftsman" rotary power mower from the Sears, Roebuck & Company outlet in 1968. He had used similar mowers for over fifteen years and was thoroughly familiar with them. The rear of the housing of plaintiff's mower is embossed with the warning, "Keep Hands & Feet From Under Mower." The instruction booklet twice advises the operator to mow slopes lengthwise, not up and down. Although this advice is not highlighted, the type throughout the booklet is easily readable.

Despite this advice, the plaintiff thought that a long steep slope on his property could be mowed more safely if it were mowed up and down. While mowing in this manner, he lost his balance and fell. He instinctively gripped the handle of the mower as he fell and when he came to rest at the bottom of the slope, his foot was under the housing. Although there was conflicting testimony at the trial, the plaintiff contended that his foot slipped under the housing because the mower lacked a rear trailing guard. The defendant contended that the plaintiff lifted the mower from the ground when he fell, thus bringing the blade down on his foot. The defendant therefore argued that the lack of a guard did not contribute to the accident. Alternatively, the defendant contended that the plaintiff was "contributorily negligent" in mowing up and down contrary to the explicit written instructions.

Before the adoption of the doctrine of strict liability, the injured consumer's recourse at law was "to bring an action based either on the negligence of the manufacturer or, additionally or alternatively, on breach of warranty." Cassidy, Strict Liability in New Hampshire, 18 N.H.B.J. 3, 4 (1976). Consumers may now maintain actions based upon strict liability. Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969); Elliott v. Lachance, 109 N.H. 481, 256 A.2d 153 (1969). Some commentators have suggested that strict liability is in reality a tool of social engineering, and that manufacturers should be required to bear the entire risk and costs of injuries caused by products. "If redistribution (of costs) is desired, there is no reason why the law should retain the requirements of causation and product defect; to the extent that any defendant can rely upon those requirements to defeat a plaintiff's cause of action, this 'policy' of tort law will be defeated." Epstein, Products Liability: The Search for the Middle Ground, 56 N.C.L.Rev. 643, 659 (1978).

We disagree with this approach to the doctrine of strict liability. Unlike workmen's compensation and no-fault automobile insurance, strict liability is not a no-fault system of compensation. The common-law principle that fault and responsibility are elements of our legal system applicable to corporations and individuals alike will not be undermined or abolished by "spreading" of risk and cost in this State. Viewed as a system of spreading the risk, the doctrine of strict liability has had economic consequences. In the fifteen years since Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963), some writers have noted that the doctrine "has led to a decline in consumer 'freedom of choice.' Consumers willing to assume risk, and who want to avail themselves of lower product prices, are less able to do so." Sachs, Products Liability: An Economic View, 14 Trial 48, 51 (1978).

The "Fortune 500" companies suffer less economically because they can develop adequate statistics, purchase insurance, and employ expensive experts and legal counsel. For thousands of small manufacturers, the high cost of self-protection or insurance can be prohibitive so as to force them out of business. See Baldwin, The Product Liability Crisis: Threat to Our Economy, Our Industry, Woodworking & Furniture Digest (March, 1977). The resultant economic concentration lessens the consumer's choices in the marketplace. While we reaffirm Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969), we recognize some limits to the doctrine of strict liability. See Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 374 A.2d 1187 (1977).

The present case concerns the elements of and defenses to a strict liability action alleging defective Design. We are not here involved with an action alleging a Manufacturing defect, where the defect is an accidental variation caused by a mistake in the manufacturing process; that is, where the product does not "conform to the great majority of products manufactured in accordance with that design." Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Colum.L.Rev. 1531, 1543. See also Corbin v. Camden Coca-Cola Bottling Co., 60 N.J. 425, 431, 290 A.2d 441, 444 (1972). A design defect occurs when the product is manufactured in conformity with the intended design but the design itself poses unreasonable dangers to consumers. Henderson, Supra at 1543.

In a strict liability case alleging defective design, the plaintiff must first prove the existence of a "defective condition unreasonably dangerous to the user." Buttrick v. Lessard, 110 N.H. at 38-39, 260 A.2d at 113; Bellotte v. Zayre Corp., 116 N.H. 52, 352 A.2d 723 (1976). In determining unreasonable danger, courts should consider factors such as social utility and desirability. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 837 (1973). The utility of the product must be evaluated from the point of view of the public as a whole, because a finding of liability for defective design could result in the removal of an entire product line from the market. Some products are so important that a manufacturer may avoid liability as a matter of law if he has given proper warnings. See e. g., Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir. 1969); Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968). In weighing utility and desirability against danger, courts should also consider whether the risk of danger could have been reduced without significant impact on product effectiveness and manufacturing cost. For example, liability may attach if the manufacturer did not take available and reasonable steps to lessen or eliminate the danger of even a significantly useful and desirable product. See Twerski, From Defect to Cause to Comparative Fault Rethinking Some Product Liability Concepts, 60 Marquette L.Rev. 297, 316-19 (1977) (discussing risk-utility analysis).

Another factor to be considered is the presence or absence of a warning. Of course, some products, such as carving knives, are obviously and inherently dangerous. When a risk is not apparent, however, the user must be adequately and understandably warned of concealed dangers. We do not agree, however, with such cases as Davis supra, in which the Ninth Circuit held that in the absence of adequate warning a one-in-a-million risk of adverse reaction to a vaccine, known to the manufacturer, was a sufficient basis on which to impose strict liability. We also reject cases that demand that a manufacturer warn against uses which were neither intended by the manufacturer nor within the reasonably foreseeable use of the product. Cf. Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975) (perfume manufacturer liable for burns to teenage girl whose companion used cologne to scent a lit candle); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962) (manufacturer in failure-to-warn case liable when child drank furniture polish). These decisions fail to recognize that individual consumers have certain responsibilities. Manufacturers cannot foresee and warn of all absurd and dangerous uses of their product. Such decisions may harm our economy and unnecessarily encourage legislative intervention. See, e. g., An act Relative to Product Liability Actions, Laws 1978, ch. 31 (creating an "affirmative defense that the risks complained of by the plaintiff were not discoverable using prevailing research and scientific techniques under the state of the art." RSA 507-D:4).

The duty to warn is concomitant with the general duty of the manufacturer, which "is limited to foreseeing the probable results of the normal use of the product or a use that can reasonably be anticipated." McLaughlin v. Sears, Roebuck & Co., 111 N.H. 265, 268, 281 A.2d 587, 588 (1971). Nevertheless, when an unreasonable danger could have been eliminated without excessive cost or loss of product efficiency, liability may attach even though the danger was obvious or there was adequate warning. See Montgomery and Owen, Reflections on the Theory and Administration of Strict Tort Liability for Defective Products, 27 S.C.L.Rev. 803, 837 (1976); Twerski, Old Wine in a New Flask Restructuring Assumption of Risk in the Products Liability Era, 60 Iowa L.Rev. 1, 14 (1974). A manufacturer "is not obliged to design the safest possible product, or one as safe as others make or a safer product than the one he has designed, so long as the design he has adopted is reasonably safe." Mitchell v. Ford Motor Co., 533 F.2d 19, 20 (1st Cir. 1976) (citations omitted). The obviousness of the danger should be evaluated against the reasonableness of the steps which the manufacturer must take to reduce the danger. Montgomery...