89 Hawai'i 204, Leong v. Sears Roebuck and Co., 20865
| Citation | 970 P.2d 972 |
| Decision Date | 14 December 1998 |
| Docket Number | No. 20865,20865 |
| Parties | 89 Hawai'i 204, Prod.Liab.Rep. (CCH) P 15,424 Doris C.C. LEONG, Individually and as Next Friend of Kamalii Leong, Minor, Plaintiff-Appellee, v. SEARS ROEBUCK AND COMPANY, and Doe Defendants 1-10, Defendants-Appellants. Sears Roebuck and Company, Defendant and Third-Party Plaintiff-Appellee, v. Westinghouse Electric Corporation, a Pennsylvania corporation, and Schindler Elevator Companies, a Delaware corporation, John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Joint Ventures 1-10; and Doe Governmental Entities 1-10, inclusive, Third-Party Defendants-Appellants. |
| Court | Supreme Court of Hawai'i |
Paul V. Smith and David C.Schutter (of David C.Schutter and Associates) on the briefs, for the plaintiff-appellee, Doris C.C. Leong.
John R. Lacy and Normand R. Lezy (of Goodsill Anderson Quinn & Stifel) on the briefs, for the defendant/third-party plaintiff-appellant, Sears Roebuck and Co.
Lisa B. Ginoza and Stacey M. Robinson (of McCorriston Miho Miller Mukai) on the briefs, for the third-party defendants-appellants, Schindler Elevator Corp. and Westinghouse Electric Corp.
The plaintiff-appellee Doris C.C. Leong (Leong), individually and on behalf of Kamalii Leong (Kamalii), filed a complaint in the first circuit court against the defendant/thirdparty plaintiff-appellant Sears Roebuck and Company (Sears), alleging, inter alia, products liability, negligence, the infliction of emotional distress, and punitive damages, arising out of an accident in which Kamalii was injured by an escalator at the Sears Department Store at Ala Moana Center, in the City and County of Honolulu. Sears removed the action to the United States District Court for the District of Hawai'i (federal district court) and subsequently filed a third-party complaint against the third-party defendants-appellants Westinghouse Electric Corporation (Westinghouse) and Schindler Elevator Corporation (Schindler), seeking indemnification and/or contribution from Westinghouse and/or Schindler in the event that Leong was found to be entitled to recovery. Westinghouse and Schindler answered and counterclaimed. Leong filed a cross-claim against Westinghouse and Schindler. Westinghouse and Schindler answered and counterclaimed.
Westinghouse and Schindler then filed a motion for summary judgment as to all of the claims alleged by Leong in her complaint and cross-claim. Sears joined in the motion. Following the hearing on Westinghouse and Schindler's motion for summary judgment, the federal district court, pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 13 (1995), certified the question "[w]hether an escalator in a commercial building accessible to the general public constitutes a product for purposes of a claim for strict products liability under Hawaii law?" We accepted certification and now answer the question with a qualified "yes."
The underlying facts are not disputed. On or about January 3, 1996, Leong's preschool daughter, Kamalii, was injured when her hand became caught on the handrail return component of the escalator, which descends from the mall level to the ground level of the Sears Department Store. The escalator was manufactured and installed in 1959. In her complaint against Sears, filed on April 9, 1996, and likewise in her counterclaim against Westinghouse and Schindler, filed on January 31, 1997, Leong alleged, inter alia, that Sears, Westinghouse, and Schindler were liable, pursuant to a theory of products liability, for the damages resulting from the accident.
On May 5, 1997, Westinghouse and Schindler, the alleged manufacturer and distributor of the escalator, filed a motion for summary judgment as to all of Leong's claims alleged in her complaint and cross-claim. On May 21, 1997, Sears joined in the motion. The hearing on the motion generated the question that is presently before us.
Sears, Westinghouse, and Schindler argue that such decisions as Bidar v. Amfac, Inc., 66 Haw. 547, 669 P.2d 154 (1983), Armstrong v. Cione, 69 Haw. 176, 738 P.2d 79 (1987), Messier v. Association of Apartment Owners of Mt. Terrace, 6 Haw.App. 525, 735 P.2d 939 (1987), and Kennedy v. Vacation Internationale, Ltd., 841 F.Supp. 986 (D.Haw.1994), compel the conclusion that the escalator at issue in the present case, being an item or fixture that is an integral part of a building, is not a "product" for purposes of Hawai'i strict products liability law. This court, however, has construed the term "product" on a case-by-case basis, taking into consideration the policies underlying the doctrine of strict products liability. Accordingly, it is useful to retrace the development of strict products liability law in Hawai'i in order to answer the federal district court's certified question.
In Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240 (1970), this court first integrated strict products liability into Hawai'i law, observing that
strict liability in tort is a sound legal basis for recovery in products liability cases. The leading arguments for the adoption of a rule of strict products liability have been that the public interest in human life and safety requires the maximum possible protection that the law can muster against dangerous defects in products; that by placing the goods on the market the maker and those in the chain of distribution represent to the public that the products are suitable and safe for use; and that the burden of accidental injuries caused by defective chattels should be placed upon those in the chain of distribution as a cost of doing business and as an incentive to guard against such defects.
Therefore, we adopt the rule that one who sells or leases a defective product which is dangerous to the user or consumer or to his property is subject to liability for physical harm caused by the defective product to the ultimate user or consumer, or to his property, if (a) the seller or lessor is engaged in the business of selling or leasing such product, and (b) the product is expected to and does reach the user or consumer without substantial change in its condition after it is sold or leased. This is essentially the rule adopted in the Second Restatement of Torts, Section 402A.
Id. at 74-75, 470 P.2d at 243 (footnotes omitted).
The Stewart court did not undertake to describe with precision the construct of a "product" for purposes of strict products liability. Subsequently, howeve r, in Kaneko v. Hilo Coast Processing, 65 Haw. 447, 654 P.2d 343 (1982), the exercise was undertaken:
[T]he restatement and its comments leave undefined the term "product." Comment d[,] which by no means is an exhaustive list[,] provides various examples of products where the doctrine would apply. Comment d states:
The rule stated in this Section is not limited to the sale of food for human consumption, or other products for intimate bodily use, although it will obviously include them. It extends to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer. Thus[,] the rule stated applied to an automobile, a tire, an airplane, a grinding wheel, a water heater, a gas stove, a power tool, a riveting machine, a chair and an insecticide. It applies also to products which, if they are defective, may be expected to do and cause only "physical harm" in the form of damage to the user's land or chattels, as in the case of animal food or a[n] herbicide.
One court has held that failure to be included in the list of products set forth in comment d of Section 402A may be sufficient justification for the non-application of strict liability. Lowrie v. City of Evanston, 50 Ill.App.3d 376, 8 Ill.Dec. 537, 365 N.E.2d 923 (1977).
Other courts in trying to define whether something is a product under Section 402A have looked to the policy considerations underlying the strict liability doctrine. Walker v. Shell Chemical Inc., 101 Ill.App.3d 880, 57 Ill.Dec. 263, 428 N.E.2d 943 (1981); Moorman Manufacturing Co. v. Nat'l Tank Co., 92 Ill.App.3d 136, 47 Ill.Dec. 186, 428 N.E.2d 1302 (1980); Anderson v. Farmers Hybrid Co., Inc., 87 Ill.App.3d 493, 42 Ill.Dec. 485, 408 N.E.2d 1194 (1980); Heller v. Cadral Corp., 84 Ill.App.3d 677, 40 Ill.Dec. 387, 406 N.E.2d 88 (1980); Dubin v. Michael Reese Hospital & Medical Ctr., 74 Ill.App.3d 932, 30 Ill.Dec. 552, 393 N.E.2d 588 (1980); Immergluck v. Ridgeview House, Inc., 53 Ill.App.3d 472, 11 Ill.Dec. 252, 368 N.E.2d 803 (1977); Lowrie v. City of Evanston, supra; Housman v. C.A. Dawson & Co., 106 Ill.App.2d 225, 245 N.E.2d 886 (1969); see generally, Note "What is not a Product Within the Meaning of Section 402A," 57 Marq. L.Rev. 625 (1974). The court in Lowrie stated:
[W]e are of the belief that the policy reasons underlying the strict products liability concept should be considered in determining whether something is a product within the meaning of its use in the Restatement rather than ... to focus on the dictionary definition of the word.
50 Ill.App.3d at 383, 8 Ill.Dec. at 542, 365 N.E.2d at 928.
In further refining the definition of "product" expressed in Lowrie, the court in Dubin v. Michael Reese Hospital & Medical Ctr., supra, at 939, 30 Ill.Dec. at , 393 N.E.2d at 593 expressed the following:
Summarizing the definition of a product within the meaning of 402A as established by the foregoing cases, we find that a "product" with an unreasonably dangerous condition may subject those responsible for placing it in the stream of commerce to strict liability in tort[;] may serve more than one purpose; may be unchanged from its natural state, viable, and not the result of a manufacturing process; must be of a fixed nature; and must be capable of being placed in the stream of commerce. Moreover, to satisfy the public policy reasons underlying the concept of strict...
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