542 P.2d 774 (Wash. 1975), 43492, Seattle-First Nat. Bank v. Tabert

Docket Nº43492.
Citation542 P.2d 774, 86 Wn.2d 145
Opinion JudgeBRACHTENBACH,
Party NameSEATTLE-FIRST NATIONAL BANK, as Administrator of the Estate of William R. Oaklund and Susan L. Oaklund, his wife, both Deceased, Respondent, v. T. E. TABERT, a single man, and Jerry B. Allen, et ux., Defendants, and Volkswagen of America, Inc., a New Jersey Corporation, Appellant, and Evald Leaf, doing business as Leaf's Automotive Service, Defenda
AttorneyHackett, Beecher & Hart, A. R. Hart, Seattle, for appellant., Ken Earl, Charles T. Schillberg, Moses Lake, for respondent.
Judge PanelSTAFFORD, C.J., and FINLEY, ROSELLINI, HUNTER, HAMILTON, WRIGHT, UTTER and HOROWITZ, JJ., concur.
Case DateNovember 26, 1975
CourtSupreme Court of Washington

Page 774

542 P.2d 774 (Wash. 1975)

86 Wn.2d 145

SEATTLE-FIRST NATIONAL BANK, as Administrator of the Estate

of William R. Oaklund and Susan L. Oaklund, his

wife, both Deceased, Respondent,

v.

T. E. TABERT, a single man, and Jerry B. Allen, et ux., Defendants,

and

Volkswagen of America, Inc., a New Jersey Corporation, Appellant,

and

Evald Leaf, doing business as Leaf's Automotive Service, Defendant.

No. 43492.

Supreme Court of Washington, En Banc.

November 26, 1975

[86 Wn.2d 146] Hackett, Beecher & Hart, A. R. Hart, Seattle, for appellant.

Ken Earl, Charles T. Schillberg, Moses Lake, for respondent.

BRACHTENBACH, Associate Justice.

Plaintiff alleges a claim against the importer of a Volkswagen microbus, founded solely on strict liability, contending that a design defect either caused or enhanced the injuries to the driver and passenger,

Page 775

resulting in their deaths. The trial court granted a summary judgment for defendant. The Court of Appeals reversed, Seattle-First Nat'l Bank v. Volkswagen of America, Inc., 11 Wash.App. 929, 525 P.2d 286 (1974). We affirm the Court of Appeals.

Plaintiff sues as administrator of the estates of a husband and wife who were killed when the Volkswagen microbus, being driven by the husband in which the wife was a passenger, collided with the rear of a flatbed truck. The microbus is a snub-nosed type van with the driver and passenger sitting very close to the front panel of the vehicle. By affidavit in opposition to the summary judgment motion, plaintiff's expert concluded that the collision occurred at a relative speed of less than 20 miles per hour. That affidavit alleged that the defect was the lack of structural integrity in the front panel so that if the vehicle collided with a solid object at 10 miles per hour or faster the passenger compartment would be invaded. Thus it is not the snub-nose design per se which is claimed to be defective, but rather the lack of structural strength in the front panel. [86 Wn.2d 147]

Before discussing the propriety of granting a summary judgment, we need to address four controlling issues:

(1) Does strict liability extend beyond a manufacturer to others in the chain of product distribution such as the defendant importer?

(2) Does such liability encompass a design defect of the nature alleged here?

(3) If so, what are the boundaries of that liability?

(4) Was the alleged defect so open and obvious as to preclude recovery, I.e., is assumption of the risk present?

Preliminary to the first issue, we note that the courts have struggled for a long time in their efforts to fit into traditional legal concepts the potential liability of sellers or suppliers of defective, injury-producing products. The notions of privity, implied warranties, inherently dangerous defects and ordinary negligence all crossed paths in these judicial efforts. Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960), and Prosser, Strict Liability to the Consumer, 18 Hastings L.J. 9 (1966).

Ultimately the legal fictions, traditional concepts and tortured reasoning were cast aside in Justice Traynor's landmark opinion in Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 62, 64, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900 (1963). The essence of the holding is contained in two sentences:

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. . . .

* * *

* * *

To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the (product) in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the (product) unsafe for its intended use.

About the time of the Greenman opinion, the American Law Institute was drafting the Second Restatement of Torts. The rapidity of change in this area of the law is shown by the Institute's expansion of the strict liability [86 Wn.2d 148] theory while it had various drafts under consideration. Tentative Draft No. 6 (1961) limited strict liability to food for human consumption. The theory was expanded the next year in Tentative Draft No. 7 (1962), to include any product intended for intimate bodily use. The final version, adopted in 1964, encompassed all products. It is contained in Restatement (Second) of Torts § 402A (1965), which provides in part:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to

Page 776

liability for physical harm thereby caused to the ultimate user . . .

While the influence of Greenman on the Restatement is apparent, Greenman appears to encompass a stricter degree of liability than section 402A. Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969).

We adopted the theory of section 402A in Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969), as to a manufacturer, but expressly reserved the question whether it should apply to others in the chain of product distribution.

According to the Restatement, strict liability is applicable if 'the seller is engaged in...

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112 practice notes
  • 593 P.2d 871 (Alaska 1979), 3066, Caterpillar Tractor Co. v. Beck
    • United States
    • Alaska Supreme Court of Alaska
    • April 6, 1979
    ...may also operate simultaneously or be alleged in the alternative. [16] See generally, Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774 (1975); Dickerson, The ABC's of Products Liability With a Close Look at Section 402A and the Code, 36 Tenn.L.Rev. 439 (1969); Keeton, Manufa......
  • 741 P.2d 1240 (Colo. 1987), 85SC112, Camacho v. Honda Motor Co., Ltd.
    • United States
    • Colorado Supreme Court of Colorado
    • July 13, 1987
    ...could have expected the product to perform safely.' " Id. 683 P.2d at 1377); Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774, 779 (1975) (defective product not reasonably safe in products liability "means that it must be unsafe to an extent beyond that which ......
  • 276 N.W.2d 442 (Iowa 1979), 61344, Eickelberg v. Deere & Co.
    • United States
    • Iowa Supreme Court of Iowa
    • March 21, 1979
    ...391 A.2d 1020, 1027 (1978), or have otherwise modified that requirement. Seattle-First National Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774, 779 (1975) (liability imposed if a product is "not reasonably safe"). Others, however, have retained the element. Some of those retain......
  • 360 P.3d 39 (Wash.App. Div. 1 2015), 71411-2-I, Payne v. Paugh
    • United States
    • Washington Court of Appeals of Washington
    • September 28, 2015
    ...claims against manufacturers. Ulmer v. Ford Motor Co., 75 Wn.2d 522, 532, 452 P.2d 729 (1969). In Seattle-First National Bank v. Tabert, 86 Wn.2d 145, 154, 542 P.2d 774 (1975), the court held that " [i]f a product is unreasonably dangerous, it is necessarily defective. The plaintiff ma......
  • Request a trial to view additional results
108 cases
  • 593 P.2d 871 (Alaska 1979), 3066, Caterpillar Tractor Co. v. Beck
    • United States
    • Alaska Supreme Court of Alaska
    • April 6, 1979
    ...may also operate simultaneously or be alleged in the alternative. [16] See generally, Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774 (1975); Dickerson, The ABC's of Products Liability With a Close Look at Section 402A and the Code, 36 Tenn.L.Rev. 439 (1969); Keeton, Manufa......
  • 741 P.2d 1240 (Colo. 1987), 85SC112, Camacho v. Honda Motor Co., Ltd.
    • United States
    • Colorado Supreme Court of Colorado
    • July 13, 1987
    ...could have expected the product to perform safely.' " Id. 683 P.2d at 1377); Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774, 779 (1975) (defective product not reasonably safe in products liability "means that it must be unsafe to an extent beyond that which ......
  • 276 N.W.2d 442 (Iowa 1979), 61344, Eickelberg v. Deere & Co.
    • United States
    • Iowa Supreme Court of Iowa
    • March 21, 1979
    ...391 A.2d 1020, 1027 (1978), or have otherwise modified that requirement. Seattle-First National Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774, 779 (1975) (liability imposed if a product is "not reasonably safe"). Others, however, have retained the element. Some of those retain......
  • 360 P.3d 39 (Wash.App. Div. 1 2015), 71411-2-I, Payne v. Paugh
    • United States
    • Washington Court of Appeals of Washington
    • September 28, 2015
    ...claims against manufacturers. Ulmer v. Ford Motor Co., 75 Wn.2d 522, 532, 452 P.2d 729 (1969). In Seattle-First National Bank v. Tabert, 86 Wn.2d 145, 154, 542 P.2d 774 (1975), the court held that " [i]f a product is unreasonably dangerous, it is necessarily defective. The plaintiff ma......
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4 books & journal articles
  • Design defects.
    • United States
    • Missouri Law Review Vol. 73 Nbr. 2, March - March 2008
    • March 22, 2008
    ...23 P.3d 320, 330-32 (Or. 2001) (risk-utility evidence may be required to prove consumer expectations); Seattle-First Nat'l Bank v. Tabert, 542 P.2d 774, 779 (Wash. 1975). (66.) For example, in Tennessee (as formerly in Ohio), liability is alternatively defined in both consumer expectations ......
  • Divided by design: reconciling the AEMLD's 'mixed' design-defect approach.
    • United States
    • Faulkner Law Review Vol. 8 Nbr. 2, March 2017
    • March 22, 2017
    ...prong to consumer expectations sows seeds of confusion for future design defect litigation"). (90) See id. at 340 n.240. (91) 542 P.2d 774 (Wash. 1975). (92) Id. at 775. (93) Id. (94) Id. at 775-76 (95) See Baughn v. Honda Motor Co., 727 P.2d 655, 660 (Wash. 1986) (citing Tabert, 542 P......
  • Drug designs are different.
    • United States
    • Yale Law Journal Vol. 111 Nbr. 1, October 2001
    • October 1, 2001
    ...risk-utility balancing according to contemplation "by the ordinary consumer who purchases"); Seattle-First Nat'l Bank v. Tabert, 542 P.2d 774, 779 (Wash. 1975) (en banc) (" In determining the reasonable expectations of the ordinary consumer, a number of factors must be consid......
  • 84 CBJ 325. Connecticut's jury instruction on design defect is defective: a second look at POTTER v. CHICAGO PNEUMATIC TOOL.
    • United States
    • Connecticut Bar Journal Nbr. 2010, January 2010
    • January 1, 2010
    ...at 220. Id. at 221 (citing Barker v. Lull Eng'g, 20 Cal. 3d 413, 435, 573 P.2d 443 (1978), among other cases). 86 Wash. 2d 145, 154, 542 P.2d 775 (1975). Potter, 241 Conn. at 221 n. 15. Id. at 219. Id. at 222 (quoting Akers v. Kelley Co., 173 Cal. App. 3d 633, 651, 219 Cal.Rptr. 5......