Welch v. Outboard Marine Corporation

• Decision Date: 20 April 1973
• Docket Number: No. 72-1974.,72-1974.
• Citation: 481 F.2d 252
• Parties: Ezzie WELCH, Administrator of the Estate of Samuel Welch, et al., Plaintiffs-Appellants, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 252 (1973)

Ezzie WELCH, Administrator of the Estate of Samuel Welch, et al., Plaintiffs-Appellants, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee.

No. 72-1974.

United States Court of Appeals, Fifth Circuit.

April 20, 1973.

Daniel E. Broussard, Jr., Alexandria, La., for plaintiffs-appellants.

Reginald W. Farrar, Jr., Lake Charles, La., for defendant-appellee.

Before WISDOM, BELL and COLEMAN, Circuit Judges.

WISDOM, Circuit Judge:

This diversity case involves Louisiana products liability law. The question of particular interest as a matter of law is whether the district court properly charged the jury on what constitutes an "unreasonably dangerous" product in Louisiana.

Mrs. Ezzie Welch, mother of Samuel Welch, a minor, in her capacity as natural tutrix of her son, sued Outboard Marine Corporation for damages for personal injuries. Young Welch sustained a serious and painful injury when a lawn mower, manufactured by Outboard, threw a piece of wire from its rear that became deeply imbedded in his right ankle. The jury responded to special interrogatories by concluding that the injury was not proximately caused by a defect in the design or construction of the mower that made it unreasonably dangerous for normal use.¹

On appeal the plaintiff seeks a reversal on three grounds. She argues: (1) that the district court in its charge to the jury misstated the substantive law of Louisiana regarding the definition of "unreasonably dangerous" and gave two contradictory definitions of that phrase; (2) that the jury verdict was not properly supported by the evidence; and, (3) that the court should not have charged the jury with respect to contributory negligence. We conclude that the charge was not legally erroneous or confusing, that there was substantial evidence for the jury verdict, and that the issue of contributory negligence is moot. We affirm.

I.

The plaintiff contends that the district court incorrectly stated the Louisiana definition of the term "unreasonably dangerous" in its jury charge and, what is more, confused the jury by giving two contradictory definitions of that term. Counsel for the plaintiff did not object to the charge until he moved for a new trial but he contends that the court should review the charge under the "plain error doctrine".

The lower court charged the jury:

"Now, in determining whether or not something was unreasonably dangerous to the user you are instructed that the definition of dangerous is generally speaking intended or beset with danger, full of risks, perilous. In determining whether or not there was a defect you are instructed that a condition is unreasonably dangerous so as to constitute a defective condition when it is so dangerous that a reasonable man would not sell the product if he knew of the risks involved.

"In the instant case there is no evidence of any mistake in the production or ordinary negligence on the part of the defendant. We are here confronted with what we usually refer to as a design problem. The product was used exactly as it was intended to be used and yet harm incurred.

"For the design to be unusually dangerous it must be so dangerous that a reasonable man would not sell the product if he knew the risks involved. To put it another way, a product is unreasonably dangerous if it is dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics."

Section 402 A of the Restatement of Torts, Second states: "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 . . . ." Comment g (Defective Condition) explains that the rule 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". The plaintiff bears the "burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller". Comment i (Unreasonably Dangerous) explains that:

"The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. . . . 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. . . ."

The first portion of the quoted charge deals with what is a defective condition, as does Comment g of Section 402 A. Unlike Comment g however, which defines a defective condition as one "not contemplated by the ultimate consumer", the definition in the charge is in terms of what a reasonable seller would do if he knew of the risks involved. The last paragraph of the quoted charge, however, eliminates any possible confusion, for it states that another way of saying what is an "unreasonably dangerous" condition is to describe it as one that is "dangerous to an extent beyond which would be contemplated by the ordinary consumer". This last sentence quoted from the charge exactly tracks the language of Comment i of Section 402A.

It should be noted that the first definition deals with "defective condition" and the second with "unreasonably dangerous". This parallels the Restatement treatment of the subject. We see no necessary inconsistency between a seller-oriented standard and a user-oriented standard when, as here, each turns on foreseeable risks. They are two sides of the same standard. A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect. As Dean Wade has pointed out, since the test for imposing strict liability is whether the product was "not reasonably safe", this test characterizes the seller's or manufacturer's conduct as well as the product. If the defendant has actual or constructive knowledge of the condition of the product, it would be unreasonable for him to sell it. Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5, 15 (1965).

The language of the seller-oriented standard, as the parties agree, was taken verbatim from a charge approved by this Court in a Texas diversity case, Olsen v. Royal Metals Corporation, 5 Cir. 1968, 392 F.2d 116. In Olsen the Court noted that the Texas courts had extended the strict liability doctrine as expressed in Section 402A to all defective products. See McKisson v. Sales Affiliates, Inc., S.Ct.Tex.1967, 416 S.W.2d 787.

Louisiana courts have not expressly approved the language of Section 402A, but, and consistent with civil law principles, doctrinally the Louisiana decisions are now in agreement with the concept of strict liability based on warranty as embodied in the Restatement of Torts, Second. We shall not review these cases because Soileau v. Nicholas Drilling Company, W.D.La.1969, 302 F.Supp. 119 contains a thorough and incisive discussion of the evolution of the Louisiana rule. In that case Judge Richard J. Putnam concluded:

"It is now the settled jurisprudence of Louisiana that there is a species of strict liability in tort based upon civil law concepts of fault and not circumscribed by considerations of negligence, or personal culpability, imposed upon manufacturers. This rule, with slight theoretical differences, reaches the same result as Section 400 and 402A of the Restatement of Torts, Second, supra."

See also Lartigue v. R. J. Reynolds Tobacco Company, 5 Cir. 1963, 317 F.2d 19 and Penn v. Inferno Manufacturing Corp., 199 So.2d 210 (La.App. 1 Cir. 1967), cert. denied 251 La. 27, 202 So.2d 649 (1967).

Weber v. Fidelity & Casualty Ins. Co., 1971, 259 La. 599, 250 So.2d 754 is the latest and most important relevant decision of the Louisiana Supreme Court on products liability. In that case the court allowed recovery of damages against a manufacturer for the death of cattle sprayed with a water soluble arsenic solution used to control animal parasites. The plaintiffs made no showing of any particular negligence by the defendant. Justice Albert Tate, author of the majority opinion in Weber phrased the rule as follows (250 So.2d 755, 756):

"A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving the product was defective, i. e. unreasonably dangerous to normal use, and that plaintiff\'s injuries were caused by reason of the defect. . . . If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them."

Justice Tate, perhaps deliberately, avoided the use of the term "strict liability" and he omitted any reference to Section 402A of the Torts Restatement, although he cited two outstanding cases expounding the doctrine of strict liability: Greenman v. Yuba Power Products, Inc., 1963, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P....