Findlay v. Copeland Lumber Co.

• Decision Date: 26 April 1973
• Citation: 509 P.2d 28,265 Or. 300
• Parties: Burrell H. FINDLAY, Appellant, v. COPELAND LUMBER COMPANY, an Oregon corporation, and R. D. Werner Co., Inc., a Pennsylvania corporation, Respondents, and General Aluminum Products Co., a Pennsylvania corporation, Defendant.
• Court: Oregon Supreme Court

Page 28

509 P.2d 28

265 Or. 300

Burrell H. FINDLAY, Appellant, v. COPELAND LUMBER COMPANY, an Oregon corporation, and R. D.

Werner Co., Inc., a Pennsylvania corporation, Respondents,

and

General Aluminum Products Co., a Pennsylvania corporation, Defendant.

Supreme Court of Oregon.

Argued and Submitted Sept. 7, 1972.

Decided April 26, 1973.

George M. Joseph, Portland, argued the cause for appellant. On the briefs were Bemis, Breathouwer & Joseph and Patrick M. McMahon, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. On the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and James B. O'Hanlon, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

McALLISTER, Justice.

This is a products liability case in which plaintiff, who was injured in a fall, claimed that his fall was caused by the collapse of an aluminum ladder on which he was standing. Defendant R. D. Werner Co. ('Werner') manufactured the ladder and defendant Copeland Lumber Company ('Copeland') sold it to plaintiff. A third defendant, General Aluminum Products Co., is no longer involved in the action. Plaintiff produced evidence that the ladder collapsed because a rivet hole had been drilled off-center, substantially reducing the ladder's load-bearing capacity, ¹ while defendants' evidence tended to prove that the misaligned rivet hole was not the cause of the ladder's collapse. The case was submitted to the jury on the theory of strict liability on the part of both defendants, and, as to defendant Werner, on the alternative theory of negligence. The jury returned a verdict for both defendants, and plaintiff appeals. We reverse.

The trial court instructed the jury as follows:

'Now, as to plaintiff's first cause of action against the defendants (the strict liability count) the defendants allege that the plaintiff, Mr. Findlay, was himself negligent in that he:

'1) Placed said ladder on uneven ground;

'2) Failed to test the ladder as to its stability and balance before using it;

'3) Used the ladder so as to cause an over- balance and thereby causing all the weight to be placed on one side; and

'4) Failed to maintain a proper lookout while using the ladder.

'If you find from the evidence in this case that any of said allegations have been established by the evidence and if you further find that a reasonably prudent person, acting under the same or similar circumstances would not have so acted, then the plaintiff, Mr. Findlay, would be negligent in that particular.

'If you further find that such act or acts were the proximate cause of plaintiff's accident and injury, then the plaintiff cannot recover and your verdict should be in favor of both defendants, the R. D. Werner Co., and the Copeland Lumber Company.'

Plaintiff excepted to this instruction on the ground that the defense of contributory negligence was not applicable to the strict liability count, and on appeal assigns the above instruction as error.

This case is the first in which we have had occasion to consider the general question of what conduct on the part of a plaintiff will bar recovery in a strict liability action for injuries caused by a defective product. We have adopted Restatement of Torts 2d, § 402 A, as the standard of a seller's strict liability. Heaton v. Ford Motor Co., 248 Or. 467, 470, 435 P.2d 806 (1967). There is no provision in § 402 A itself for any defense based on the conduct of the injured user or consumer. The Comments, however, contain certain guidelines. The Comments clearly state that the user's negligent failure to discover a defect, or to take precautions against the possibility of its existence, is not a defense to a strict liability action. On the other hand, a user who discovers the existence of a defect and, although aware of the danger, unreasonably continues to use the product, cannot recover. ² Another type of conduct by the plaintiff which may bar recovery is recognized in Comment h, which provides that the seller is not liable if the product is safe for normal handling and consumption, and the injury results from abnormal use. ³ Misuse of the product as a possible bar to recovery was recognized in Anderson v. Klix Chemical, 256 Or. 199, 208, 472 P.2d 806 (1970).

This court disagrees about the theoretical basis for the seller's strict liability for the sale of a defective product. Our disagreement is expressed in the opinions filed in Markle v. Mulholland's Inc., Or., 509 P.2d 529, decided this day, and there is no need to repeat that discussion in this case. It is sufficient to say that, regardless of the underlying theory, we are in agreement that conduct by the user which does not amount to abnormal use of the product, or to unreasonable use with knowledge of the product's dangerous and defective condition, should not bar recovery in this type of case. The seller's strict liability, as formulated in § 402 A, is a means of compensating the user of a defective product for injuries which are caused by that defect. A user who neither mishandles the product nor voluntarily and unreasonably uses it after learning of its dangerous condition should not be deprived of this protection on account of incidental carelessness, even though it plays some part in the accident, if in fact a defect in the product is a proximate cause of his injuries. Our conclusion finds support in the following cases. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970); Williams v. Brown Manufacturing Company, 45 Ill.2d 418, 261 N.E.2d 305 (1970); Keener v. Dayton Electric Manufacturing Company 445 S.W.2d 362 (Mo.1969); Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App.1970).

When we examine the specifications of contributory negligence which were submitted to the jury in this case it is clear that the verdict and judgment cannot be affirmed. The second and fourth specifications--failing to test the ladder before using it and failing to maintain a proper lookout while using the ladder--in no sense involve the kinds of conduct which bar recovery...