House v. Armour of America, Inc.

• Decision Date: 13 December 1996
• Docket Number: No. 950088,950088
• Citation: 929 P.2d 340
• Parties: Prod.Liab.Rep. (CCH) P 14,810, 305 Utah Adv. Rep. 40 Ann C. HOUSE, individually and as personal representative of the Estate of Freddie Floyd House, Plaintiff, Respondent, and Cross-Petitioner, v. ARMOUR OF AMERICA, INC., a California corporation; Lawco Police Supply, a Utah corporation; E.I. DuPont de Nemours, a Delaware corporation, and John Does III through XX, Defendants, Petitioners, and Cross-Respondents.
• Court: Utah Supreme Court

Page 340

929 P.2d 340

Prod.Liab.Rep. (CCH) P 14,810, 305 Utah Adv. Rep. 40

Ann C. HOUSE, individually and as personal representative of

the Estate of Freddie Floyd House, Plaintiff, Respondent, and Cross-Petitioner, v. ARMOUR OF AMERICA, INC., a California corporation; Lawco

Police Supply, a Utah corporation; E.I. DuPont de Nemours,

a Delaware corporation, and John Does III through XX,

Defendants, Petitioners, and Cross-Respondents.

No. 950088.

Supreme Court of Utah.

Dec. 13, 1996.

Charles P. Sampson, H. Michael Drake, Paul M. Simmons, Stewart M. Hanson, Jr., Salt Lake City, for plaintiff, respondent, and cross-petitioner.

David B. Watkiss, David K. Watkiss, Carolyn Cox, Salt Lake City, for Armour and DuPont.

Tim Dalton Dunn, J. Rand Hirschi, Salt Lake City, for Lawco.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Justice:

We granted certiorari in this products liability case to review the Utah Court of Appeals' decision in House v. Armour of America, Inc., 886 P.2d 542 (Ct.App.1994), cert. granted, 899 P.2d 1231 (Utah 1995), reversing summary judgment in favor of defendants Armour of America, Inc. (Armour), and Lawco Police Supply (Lawco) and affirming summary judgment for defendant E.I. DuPont de Nemours (DuPont). Defendants Armour and Lawco claim that the court of appeals erred in finding that material issues of fact remained as to (1) whether defendants owed a duty to the deceased, Lt. Fred Floyd House, to warn him about the limitations of his body armor, (2) whether they satisfied this duty, and (3) whether their possible breach of this duty caused Lt. House's death. Plaintiff Ann C. House cross-petitions, claiming that the court of appeals erred in finding that defendant DuPont did not owe a duty to warn Lt. House of his vest's limitations. We agree with the court of appeals on all issues and affirm.

I. FACTS

The facts of this case are detailed in the court of appeals' opinion in House v. Armour of America, Inc., 886 P.2d at 545-47. We briefly summarize them here. Lt. House was a corrections officer for the Utah State Department of Corrections and the "point man" for one of the Department's two Special Weapons and Tactics (SWAT) Teams formed in 1980. The point man is the team member who takes the lead position in any tactical situation. In January 1988, Lt. House's SWAT team was called to assist federal and state law enforcement agencies during a siege of a family compound in Marion, Utah. On January 28, 1988, while carrying out an arrest plan designed by the FBI, Lt. House was fatally shot by a ".30 caliber steel-jacketed round fired from a Plainfield carbine rifle" by one of the family members. House, 886 P.2d at 546. When he was killed, Lt. House was wearing a body armor vest the SWAT team had purchased in 1981. Although his vest contained hard ceramic inserts which upgraded its stopping capabilities, ¹ the bullet struck the nonceramic inside edge of the hard armor chest panel and then penetrated through the soft-body portion of the vest, causing Lt. House's death.

Ann House, Lt. House's widow, brought this products liability action against defendants Lawco, the distributor of the vest, Armour, the manufacturer of the vest, and DuPont, the manufacturer of KEVLAR TM, the fiber woven into the ballistic fabric used in the body armor vest. She claimed that defendants breached their duty of care by failing to adequately warn Lt. House of the limitations and capabilities of his body armor. ² Specifically, she argued that defendants should have warned him that his vest would not resist rifle fire.

At the trial level, defendants moved for summary judgment, which the trial court granted after finding either that defendants did not have a duty to warn, that they satisfied any duty they may have had, or that any breach of duty did not cause Lt. House's death. On appeal, the court of appeals reversed and remanded as to Lawco and Armour but affirmed the trial court's finding that DuPont did not owe a duty to warn.

II. ANALYSIS

Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c). Thus, "because summary judgment is granted as a matter of law rather than fact, we review the legal conclusions of both the trial court and the court of appeals for correctness." Butterfield v. Okubo, 831 P.2d 97 102 (Utah 1992) (citing Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990); Division of Consumer Protection v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1347 (Utah 1990); CECO Corp. v. Concrete Specialists, Inc., 772 P.2d 967, 969 (Utah 1989); Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988)).

A. Duty to Warn

The court of appeals correctly stated that under Utah law, a manufacturer may be held strictly liable for any physical harm caused by its failure to provide adequate warnings regarding the use of its product. House, 886 P.2d at 547; see Restatement (Second) of Torts § 402A & cmt. j (1965). ³ Where a manufacturer "knows or should know of a risk associated with its product," the absence or inadequacy of warnings renders that product "unreasonably dangerous," subjecting the manufacturer to strict liability. House, 886 P.2d at 547 (citing Grundberg v. Upjohn Co., 813 P.2d 89, 97 (Utah 1991)).

Defendants argue that they did not have a duty to provide warnings about the limitations of Lt. House's vest because (1) the dangers associated with using body armor are open and obvious, and (2) Lt. House was a member of a knowledgeable and sophisticated group that knows the capabilities and limitations of armor vests. The court of appeals reversed as to both of these issues, holding that genuine questions of material fact exist, precluding a finding that defendants owed no duty as a matter of law. Id. at 648-50. We agree.

1. The Open and Obvious Danger Rule

Defendants initially argue that the court of appeals erred in failing to find that because the hazards connected with using body armor are open and obvious, defendants did not have a duty to warn Lt. House about the limitations of his vest. We agree with the court of appeals' ultimate conclusion that a genuine issue of material fact exists as to whether the relevant danger to Lt. House--that his vest would not resist certain high-velocity ammunition--was open and obvious to a reasonable user. However, because the court of appeals' analysis may suggest that Utah has "abandoned" the open and obvious danger rule in all circumstances, ⁴ we must clarify.

Most jurisdictions adopting the position taken in section 402A of the Restatement of Torts have held that if the danger posed by the use of a product is "generally known and recognized," then the seller is not required to warn about that danger. See Restatement, § 402A cmt. j; ⁵ see also Allan E. Korpela, Annotation, Failure to Warn as Basis of Liability Under Doctrine of Strict Liability in Tort, 53 A.L.R.3d 239, 257-59 (1973 & Supp.1994). These jurisdictions assert:

Where the risks of the product are discernible by casual inspection, such as the danger that a knife can cut, or a stove burn, the consumer is in just as good a position as the manufacturer to gauge the dangers associated with the product, and nothing is gained by shifting to the manufacturer the duty to warn.

Laaperi v. Sears, Roebuck & Co., 787 F.2d 726, 730-31 (1st Cir.1986); see also Elliott v. Brunswick Corp., 903 F.2d 1505, 1506-07 (11th Cir.1990) (danger of rotating boat propeller sufficiently obvious to preclude imposition of liability upon manufacturer of outboard motor); Plante v. Hobart Corp., 771 F.2d 617, 620 (1st Cir.1985) (placing one's hand into blades of potato chopper); Sherk v. Daisy-Heddon, Div. of Victor Comptometer Corp., 498 Pa. 594, 450 A.2d 615, 618-20 (1982) (firing BB gun at another at close range).

The court of appeals noted that with the passage of Utah's comparative fault statute, subsequent Utah court decisions have departed from the strict all-or-nothing rule. See Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303 (Utah 1981) (holding that plaintiff's misuse of product in strict products liability case was not complete bar to recovery); Donahue v. Durfee, 780 P.2d 1275, 1279 (Utah.Ct.App.1989) (abolishing "open and obvious" danger rule in landowner negligence actions). The court declared that in light of this precedent and in accord with other jurisdictions, "the presence of an 'open and obvious' danger is merely one factor for the trier of fact to consider when assessing the liability of the defendant in a strict liability case--it does not operate as a complete bar to the injured party's recovery." House, 886 P.2d at 548 (citing, among others, Wheeler v. John Deere Co., 935 F.2d 1090, 1104 (10th Cir.1991)).

Many jurisdictions have found that enabling a manufacturer to escape liability because the product's dangerousness is patent encourages manufacturers to continue to design "bad" products as long as they make the danger obvious. Hence, these jurisdictions have stated, " 'The law, we think, ought to discourage misdesign rather than encouraging it in its obvious form.' " Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1283 (Wyo.1983) (quoting Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 476 P.2d 713, 718 (1970)).

"[I]f the product is a carrot-topping machine with exposed moving parts, or an electric clothes wringer dangerous to the limbs of the operator, and if it would be feasible for the maker of the product to install a guard or safety release, it should be a question for the jury whether reasonable care demanded such a precaution, though its absence is obvious."

Id. (quoting 2 Harper & James, The Law of Torts § 28.5, at 1543 (1956)). Although we find no fault with this reasoning, we do not believe that this concern is equally applicable to products which, because of their nature and intended use, cannot be economically designed in a safe manner, such as knives. Moreover, we find...