Chellman v. Saab-Scania AB

• Decision Date: 17 December 1993
• Docket Number: SAAB-SCANIA,No. 92-429,92-429
• Citation: 637 A.2d 148,138 N.H. 73
• Parties: , Prod.Liab.Rep. (CCH) P 13,788 Jerildine and Chester E. CHELLMAN, III v.AB, Saab Car Division and another.
• Court: New Hampshire Supreme Court

Page 148

637 A.2d 148

138 N.H. 73, Prod.Liab.Rep. (CCH) P 13,788

Jerildine and Chester E. CHELLMAN, III v. SAAB-SCANIA AB, Saab Car Division and another.

No. 92-429.

Supreme Court of New Hampshire.

Dec. 17, 1993.

Rehearing Denied as Moot March 9, 1994.

Pamela D. Albee, Ossipee, and McLane, Graf, Raulerson & Middleton, P.A., Manchester (Arthur G. Greene & a. and Mr. Greene orally), for plaintiffs.

Brown, Olson & Wilson, P.C., Concord (Howard B. Myers and Bryan K. Gould on the brief and Mr. Myers orally), for defendants Saab-Scania AB and Saab-Scania of America, Inc.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (James C. Wheat on the brief and Ronald J. Lajoie orally), for defendant Klippan Automotive Products, AB.

BROCK, Chief Justice.

The plaintiffs, Jerildine and Chester E. Chellman, III, appeal from a jury verdict in favor of the defendants in a products liability case and from the Superior Court's (Mohl, J.) denial of their motions to set aside the verdict and for a new trial. On appeal, the plaintiffs allege errors by the trial court in instructing the jury on the law of strict products liability and warranty. We reverse and remand for a new trial.

The automobile accident giving rise to this action occurred in April 1985 when Chester Chellman took his brother-in-law for a ride in his new Saab 900 Turbo SPG on Canaan Road in Tuftonboro. After rounding a curve, Chellman saw a woman walking her dog in the road ahead of him. As he began to slow down and move to the left side of the road to avoid her, his car went out of control and off the road onto a sandy shoulder. When Chellman attempted to steer the car back onto the road, it "tripped" on the edge of the pavement and rolled, side over side, several times. The driver-side door opened during the rollover, and when the car came to rest, Chellman was outside of the car with his seat belt pulled out of the retraction device but still strapped around him. He was seriously injured in the accident.

The plaintiffs sued the manufacturer, Saab-Scania AB, Saab Car Division, and the distributor of the car, Saab-Scania of America, Inc. (together referred to hereinafter as "Saab"), the manufacturer of the seat belts, Klippan Automotive Products AB (Klippan), and the car dealer, Crest Chevrolet, Inc. In their writ of summons, the plaintiffs alleged counts of negligence, express and implied warranty, strict tort liability, and loss of society and services on behalf of Jerildine Chellman. After all of the evidence was complete, but before the case was given to the jury, the plaintiffs voluntarily waived their negligence claims. The jury returned a verdict in favor of the defendants and answered the special questions as follows:

"1. At the time the Saab 900 Turbo SPG was sold, did it have a defective condition that was unreasonably dangerous to Chester Chellman?

No

2. Do you find that Saab or Crest Chevrolet breached any express warranty or implied warranty of merchantability made to Chester Chellman in connection with the sale of the vehicle in question?

No"

The plaintiffs moved to set aside the verdict and for a new trial, which the trial court denied. After trial, the plaintiffs voluntarily dismissed their claims against defendant Crest Chevrolet, Inc. We refer to the remaining defendants, Saab and Klippan, collectively as the defendants unless differentiation is necessary.

On appeal, the plaintiffs claim four errors in the court's jury instructions. First, the plaintiffs contend that the court erred in refusing to give their requested instruction that a seller's failure to provide a necessary warning may cause the product to be defective and unreasonably dangerous. Second, the plaintiffs contend that the court's cumulative description of the defects claimed by the plaintiffs impermissibly suggested that the plaintiffs would have to prove all three alleged defects, rather than one of three, to prevail. Third, the plaintiffs challenge the instruction that if the jury found that Chellman had violated the applicable speed statute and that the violation caused the accident, then they must find that Chellman's speed was misconduct as a matter of law. Fourth, the plaintiffs challenge the court's refusal to instruct the jury that advertising may create an express warranty. We consider each issue in turn.

I. Necessity of Instruction on "Failure to Warn"

We begin our analysis by acknowledging the confusion that has been generated by the doctrine of strict products liability. Buttrick v. Lessard, 110 N.H. 36, 37-38, 260 A.2d 111, 112 (1969). At the root of the dispute in this case about the "failure to warn" theory are different concepts of the law controlling a design defect strict products liability claim. Therefore, we first address the law of liability for design defect, and then review the trial court's instructions.

We adopted the doctrine of strict products liability as expressed in the Restatement (Second) of Torts § 402-A (1965) in Buttrick v. Lessard, supra. In Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978), we explained the design defect theory of strict products liability which "occurs when the product is manufactured in conformity with the intended design but the design poses unreasonable dangers to consumers." Id. at 807, 395 A.2d at 846. To maintain a products liability claim based on defective design, a plaintiff must prove: (1) that the design of the product created a defective condition unreasonably dangerous to the user; (2) that the condition existed when the product was sold by a seller in the business of selling such products; (3) that the use of the product was reasonably foreseeable by the manufacturer; and (4) that the condition caused injury to the user or the user's property. Id. at 807, 809, 395 A.2d at 846, 847; Reid v. Spadone Mach. Co., 119 N.H. 457, 463, 404 A.2d 1094, 1098 (1979); Restatement (Second) of Torts § 402-A. The seller of a defectively designed and unreasonably dangerous product will be liable despite the care exercised to design a safe product.

The issue of the trial court's refusal to give a jury instruction on "failure to warn" focuses on the first element of strict products liability: whether a design defect caused the car to be unreasonably dangerous. An analysis of whether a product is unreasonably dangerous requires evaluating many possible factors including a product's social utility balanced against the risk of danger, the cost and practicality of reducing the risk of danger, and the presence or absence and efficacy of a warning of hidden danger. Thibault, 118 N.H. at 807-08, 395 A.2d at 847. The duty to warn is part of the general duty to design, manufacture and sell products that are reasonably safe for their foreseeable uses. Id. If the design of a product makes a warning necessary to avoid an unreasonable risk of harm from a foreseeable use, the lack of warning or an ineffective warning causes the product to be defective and unreasonably dangerous. Reid supra; Restatement (Second) of Torts § 402-A comments h and j.

The trial court decided that "failure to warn" was not an issue in the case, in part because the defendants had not raised the defense of warning. The court refused to give a "failure to warn" jury instruction as requested by the plaintiffs. As we have clarified above, the absence of a warning may be relevant in determining whether or not a product is defectively designed and unreasonably dangerous. Therefore, if the factual question of the presence or absence of a warning was properly before the jury, the court should have given an instruction on failure to warn.

In the order denying the plaintiffs' motion to set aside the verdict and for a new trial, the trial court concluded that the "failure to warn" theory was not properly before the court. The court found that the "failure to warn" theory was not included in the plaintiffs' strict liability count in their writ, and rejected the plaintiffs' assertion that their pretrial statement sufficiently included "failure to warn" within their strict liability claim. The court concluded that not giving the requested instruction was, at worst, harmless error due to the jury's negative answer to the first special question, which indicated that the jury found that the car was not defective or unreasonably dangerous.

The defendants support the trial court's decision by arguing that a "failure to warn" claim is distinct from an ordinary design defect claim. The defendants contend that the plaintiffs did not raise or prosecute the "failure to warn" theory sufficiently to make it an issue in the case. Therefore, the defendants argue, the court appropriately did not instruct on a "failure to warn" theory.

Pleadings must inform the defendants with reasonable clarity of the claims brought against them. Brann v. Exeter Clinic, 127 N.H. 155, 159-60, 498 A.2d 334, 337 (1985); R. Wiebusch, 4 New Hampshire Practice, Civil Practice and Procedure § 225, at 164-65 (1984). A pretrial statement is a pleading, and parties are bound by the claims and defenses made therein. Welch v. Gonic Realty Trust Co., 128 N.H. 532, 535, 517 A.2d 808, 809 (1986). Part of the purpose of pretrial statements is to clarify and distill claims and defenses in preparation for trial. Super.Ct.R. 62; Welch supra; Brann supra.

The plaintiffs clarified their products liability claims in their pretrial statement by alleging that the defendants failed "to warn the Plaintiffs of [the car's] defectively-designed nature." As explained above, the defendants' failure to warn of a condition that may be dangerous during a foreseeable use of a product makes the product defective and unreasonably dangerous due to its defective design. Therefore, the plaintiffs sufficiently stated their claim of strict products liability on a theory of design defect including failure to warn of a dangerous condition.

At trial, the plaintiffs raised the issue of warning both as to the...