Seattle-First Nat. Bank v. Volkswagen of America, Inc.

• Decision Date: 12 August 1974
• Docket Number: No. 741--III,SEATTLE-FIRST,741--III
• Court: Washington Court of Appeals
• Parties: NATIONAL BANK, as Administrator of the Estates of William R. Oaklund and Susan I. Oaklund, his wife, both Deceased, Appellant, v. VOLKSWAGEN OF AMERICA, INC., a New Jersey corporation, Respondent, T. E. Tabert, a single man, et al., Defendants.

Page 929

11 Wn.App. 929

525 P.2d 286

SEATTLE-FIRST NATIONAL BANK, as Administrator of the Estates

of William R. Oaklund and Susan I. Oaklund, his wife, both Deceased, Appellant, v. VOLKSWAGEN OF AMERICA, INC., a New Jersey corporation, Respondent, T. E. Tabert, a single man, et al., Defendants.

No. 741--III.

Court of Appeals of Washington, Division 3.

Aug. 12, 1974.

As Amended on Denial of Rehearing Oct. 23, 1974.

Charles T. Schillberg and Ken Earl, Moses Lake, for appellant.

A. R. Hart of Wolf, Hackett, Beecher & Hart, Seattle, for respondent; Herzfeld & Rubin, P.C., New York City, of counsel.

McINTURFF, Judge.

The trial court granted a summary judgment to defendant Volkswagen of America, Inc. and Leaf's In 1969 William R. Oaklund was the driver and his wife Susan was a passenger, when their 1958 Volkswagen microbus collided with the stern of a Ford flatbed truck which was proceeding ahead of them in the same direction. The Oaklunds were killed and their four children survived.

Auto-Motive Service. This appeal concerns only Volkswagen of America, Inc. (hereafter defendant).

Plaintiff sued Volkswagen of America, the sole importer of Volkswagens to the United States, and Leaf's Auto-Motive Service, the dealer from which the Volkswagen microbus had been purchased, on a theory of strict product liability in tort, claiming defective design of the microbus enhanced the injuries received in the accident.

Plaintiff filed an affidavit of an expert witness, which in substance alleged that the relative speed of the Volkswagen in relation to the truck at the time of the collision was 20 m.p.h. or less; that serious injury would result to front-seat passengers of this vehicle if the vehicle were to strike a relatively solid object at a speed of approximately 10 m.p.h.; that an individual would not be able to ascertain the lack of structural integrity forward of the passengers in this particular vehicle; that the front of the vehicle has no reinforcing members, leaving passengers to be a shock absorber between the vehicle or object entering the passengers' compartment and the well-anchored seat. Volkswagen and Leaf's Auto-Motive moved for summary judgments.

In granting summary judgment the trial court stated that Washington did not recognize the nonmanufacturer-seller's liability for a defect in a product; and additionally, that no defect in design of the vehicle existed which was latent; that the deaths were due to the manner in which the vehicle was driven, rather than to a defect in the design of the vehicle. Since the trial court found no defect in design of the vehicle, no decision concerning enhanced injuries was made.

NONMANUFACTURER-SELLER'S STRICT LIABILITY

Is a seller, not the manufacturer, of a defective product In Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969), the court accepted the theory of strict liability set forth in Restatement (Second) of Torts, § 402A (1965), ¹ with respect to the manufacturer. However, the court in Ulmer specifically stated the issue of the liability of the non-manufacturer seller under strict liability was not before the court, and therefore that issue was not reached.

liable in Washington under a theory of strict liability in tort? This question has not specifically been answered in this jurisdiction.

Berg v. Stromme, 79 Wash.2d 184, 195, 484 P.2d 380, 386 (1971), although founded upon a theory of implied warranty, supports the extension of strict liability under section 402A to non-manufacturer sellers:

In Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969), this court adopted the rule of strict liability against the manufacturer--not the dealer--in accordance with the modern views declared in Restatement (Second) of Torts § 402A (1965); Annot., 13 A.L.R.3d 1057, 1096. See W. Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791 (1966). Strict liability--liability without proof of negligence--in torts has been applied to the retail dealer despite disclaimers of warranty with greater and impressive frequency. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); Appleman v. Fabert Motors, Inc., 30 Ill.App.2d 424, 174 N.E.2d 892 (1961); Vandermark v. Ford Motor Co., 61 In Jackson v. Standard Oil Co. of California, 8 Wash.App. 83, 101, n. 8, 505 P.2d 139, 149 (1972), the court recognized the significance of the above-quoted portion of Berg v. Stromme, Supra, as:

Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964); Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969); Walsh v. Ford Motor Co., 59 Misc.2d 241, 298 N.Y.S.2d 538 (1969); Schenfeld v. Norton Co., 391 F.2d 420 (10th Cir., 1968).

We note that Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964) was cited with approval in Berg v. Stromme, 79 Wash.2d 184, 484 P.2d 380 (1971) for the proposition strict liability extends to retail dealers.

Numerous arguments are made in favor of strict liability of sellers for injury or damages from the sale of a defective product. The reasoning underlying these cases is best stated in Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 899, 391 P.2d 168, 171--172 (1964):

Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. (See Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.) In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer's strict liability thus serves as an added incentive to safety. Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship. Accordingly, as a retailer engaged in the business of distributing goods to the public, Maywood Bell is strictly liable in tort for personal injuries caused by defects in cars sold by it. (See Greenberg v. Lorenz, 9 N.Y.2d 195, 200, 213 N.Y.S.2d 39, 173 N.E.2d 773; McBurnette v. Playground Equipment Corp. Dean William L. Prosser, concerning the liability of wholesalers and retailers for strict products liability in tort states, in W. Prosser, Law of Torts § 100, at 664--65 (4th ed. 1971):

Fla., 137 So.2d 563, 566--567; Graham v. Butterfield's (Bottenfield's) Inc., 176 Kan. 68, 269 P.2d 413, 418; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 406, 161 A.2d 69, 75 A.L.R.2d 1; State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449, 450, 455--456; Rest.2d Torts (Tent. Draft No. 7), § 402A, com. f.)

There is no dispute that the strict liability applies to the manufacturer of the product, including the maker of a component part, and an assembler of parts, as well as one who vouches for manufacturer by another by selling the product as his own. Except in a state or two, there is now general agreement that it applies to a wholesale dealer, and to one at retail. All of the valid arguments supporting the strict liability would appear to have no less force in the case of the dealers; and there are enough cases in which the manufacturer is beyond the jurisdiction, or even unknown to the injured plaintiff, to justify giving the consumer the maximum of protection, and requiring the dealer to argue out with the manufacturer any questions as to their respective liability. Particularly today, when the large wholesale supply house, or even the retail chain, is actually the prime mover in marketing the goods, and the manufacturer is only a small concern which feeds it, it is unrealistic to draw any distinction between different kinds of sellers.

(Footnotes omitted.)

The reasons for the adoption of strict liability in tort against the wholesalers and retailers for personal injury or property damage from the sale of a defective product are persuasive in the instant action. Defendant, the single importer of Volkswagen automobiles into the United States, is a significant part of the marketing enterprise of Volkswagen automobiles in this nation. Defendant is in a position to adjust the costs of such liability with the foreign manufacturer--such is not the case with plaintiff or other consumers. The jurisdictional problems associated with a foreign manufacturer are strikingly apparent in the present We therefore hold sellers, wholesale or retail, like...