Bailey v. Montgomery Ward & Co.

• Decision Date: 17 August 1967
• Docket Number: CA-CIV,No. 2,2
• Citation: 6 Ariz.App. 213,431 P.2d 108
• Parties: David W. BAILEY, by his guardian ad litem, Margaret P. Bailey, Appellant, v. MONTGOMERY WARD AND COMPANY, a corporation, Appellee. 313.
• Court: Arizona Court of Appeals

Page 108

431 P.2d 108

6 Ariz.App. 213

David W. BAILEY, by his guardian ad litem, Margaret P. Bailey, Appellant, v. MONTGOMERY WARD AND COMPANY, a corporation, Appellee.

No. 2 CA-CIV 313.

Court of Appeals of Arizona.

Aug. 17, 1967.

Rehearing Denied Oct. 25, 1967.

Review Denied Nov. 28, 1967.

Lillian S. Fisher, Tucson, for appellant.

Browder & Gillenwater, by Robert W. Browder, Phoenix, for appellee.

HATHAWAY, Chief Judge.

David W. Bailey, a minor age 11, is the plaintiff in this personal injury action filed in superior court by his guardian ad litem. The action based on implied warranty and on tort was tried to a jury. The plaintiff has appealed from the superior court's granting the defendant's motion for a directed verdict and the plaintiff appeals from the judgment thereon.

The plaintiff's mother had seen advertisements of a pogo stick in the defendant's catalog. It was manufactured by Rapaport Brothers Incorporated. She ordered the toy through the catalog. It was purchased as a Christmas gift for the plaintiff's younger brother.

The pogo stick was obtained in a sealed box from the defendant and before Christmas was opened only once by the father, Charles G. Bailey, who looked at it and replaced it in the box. It was not opened again until Christmas morning when the younger child, Ricky, for whom the gift was intended then opened it.

Ricky took the stick outside and tried to use it a couple of times and brought it back into the house. The pogo stick remained in the house until the plaintiff's mother, Margaret P. Bailey, a few minutes later told the children that the pogo stick could not be used in the house. Shortly thereafter the plaintiff took the stick outside and jumped on it 'for a little bit of time.' He then went into the house bleeding profusely from his eye saying that the pogo stick had injured him.

The plaintiff, apparently the only witness to the accident, testified:

'* * * I was out riding it (the pogo stick) and it had only been rode on about six times and then about the seventh, the spring got loose or something and the cap hit me along the eye, and cut me right there. I was bleeding real bad.'

Following the accident, the Baileys were unable to find the black rubber cap that fit on top of the stick. The spring was found on the other side of their house about sixty feet away.

No part of the pogo stick was offered in evidence, but an advertisement from the Montgomery Ward catalog was introduced in evidence showing that the pogo stick was not recommended for use by children over 90 pounds. Both the plaintiff and his younger brother Ricky were well under this weight.

Although A.R.S. § 44--215 of the Uniform Sales Act, relating to implied warranties of quality arising under the law of contract, is pleaded, we feel it is not applicable. Since the pogo stick was purchased by the plaintiff's mother for her son Ricky, no privity exists between plaintiff and defendant.

Liability for product inflicted injuries in many jurisdictions has undergone an exodus from its involvement in contract law and has returned to rest upon its logical basis, tort law. Breach of warranty liability for personal injuries caused by defective products evolved from action on the case in the nature of deceit. See Shippen v. Bowen, 122 U.S. 575, 7 S.Ct. 1283, 30 L.Ed. 1172 (1887). Dean Prosser has commented:

'All this (talk of contract) is pernicious and entirely unnecessary. No one doubts that, unless there is privity, liability to the consumer must be in tort and not in contract. There is no need to borrow a concept from the contract law of sales; and it is 'only by some violent pounding and twisting' that 'warranty' can be made to serve the purpose at all. Why talk of it? If there is to be strict liability in tort declare it outright, without an illusory contract mask. Such strict liability is familiar enough in the law of animals, abnormally dangerous activities, nuisance, workmen's compensation, and respondeat superior.' 69 Yale Law Journal 1099, 1134 (1960).

We agree that personal injuries caused by defective products should be based upon tort law. We deem it unnecessary to trace the historical development of tort liability in product liability cases. See Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.Law Rev. 117 (1943); Restatement (Second), Torst § 402A, Comment b; and, Greenman v. Yuba Power Products Co., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962).

The Restatement (Second), Torts exposition on the subject of strict liability in relation to the sales of defective products, we believe states the correct rule with concision:

'1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'2. The rule stated in subsection one applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer had not bought the product from or entered into any contractual relation with the seller.' Restatement (Second), Torts § 402A.

Prior involvement of personal injury product liability cases with the law of warranty, is recognized in Restatement (Second), Torts § 402A, Comment m:

'* * * there is nothing in this section which would prevent any court from treating the rules stated as a matter of 'warranty' to the user or consumer. But if this is done, it should be recognized and understood that the 'warranty' is a very different kind of warranty from those usually found in the sale of goods and that it is not subject to the various contract rules which have grown up to surround such sales.'

The Restatement rule applies to all persons engaged in the business of selling products for use or consumption--manufacturers, wholesalers, or retailers. The rule is founded in the special responsibility for public safety assumed by those who carry on the business of supplying products that may endanger person or property, coupled with a forced public reliance upon the suppliers. Restatement (Second), Torts § 402A, Comment f.

Although not the law of the majority of jurisdictions the trend today is towards the Restatement view. Dean Prosser cites the following jurisdictions as being in apparent accord with the Restatement rule: California, Connecticut, District of Columbia, Florida (as to manufacturers and partially as to retailers), Iowa, Michigan, Minnesota, Missouri (as to manufacturers), New Jersey, New York, Pennsylvania (as to ultimate purchasers, their households, and their guests), and Tennessee. According to the federal courts Kansas, Oregon, Texas, and Vermont are also in accord. Statutes in Virginia and Wyoming are considered as to have adopted the rule. Products Liability, 16 U. of Fla.L.Rev. 421, 429 (1964). ¹ California was the first jurisdiction to specifically adopt strict liability in tort. The California Supreme Court, in Greenman v. Yuba Power Products Co., supra, affirmed the lower court's decision holding the manufacturer of a shopsmith tool liable for personal injuries to the plaintiff. However, basis for affirmance was strict liability in tort and breach of an implied warranty of merchantability or breach of a warranty of fitness under the Uniform Sales Act. After citing numerous cases Chief Justice Traynor said:

'Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law * * * make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort.

'* * * 'The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales." 27 Cal.Rptr. at 701, 377 P.2d at 901.

In accord, see, Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963).

We find no Arizona Supreme Court case specifically holding that strict tort liability applies in Arizona, but language in the recent case of Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990 (filed June 14, 1967) indicates that the Supreme Court approves this doctrine. The court said:

'The allegation of implied warranty adds nothing to appellant's case. The liability of a manufacturer of an article is in tort (see Phillips v. Anchor Hocking Glass Corp., 100 Ariz. 251, 413 P.2d 732, and concurring opinion of Justice Lockwood in Nalbandian v. Byron Jackson Pumps, 97 Ariz. 280, 399 P.2d 681), and it is not assumed by agreement but imposed by law. Crystal Coca-Cola Bottling Co. v. Cathey, 83 Ariz. 163, 317 P.2d 1094.'

See also O. S. Stapley Co. v. Miller, 6 Ariz.App. 122, 430 P.2d 701 (filed July 27, (1967) specifically applying the strict liability in tort doctrine.

This rule in no way relieves the plaintiff of his burden of proof. The plaintiff in a product liability action against a manufacturer or a retailer must prove both that his injury has been caused by a defect in the product and that the defect existed when the product left the hands of the manufacturer or retailer. See Restatement (Second), Torts § 402A, Comment g.

Our concern in the instant case is with the sufficiency of the evidence presented. If, when viewed most favorably to the plaintiff, it warranted submission to a jury on any of the theories presented, the superior court's directing the verdict against the plaintiff and the judgment thereon must be reversed. Rhodes v. El Rancho Markets, 4 Ariz.App. 183, 418 P.2d 613 (1966); Campbell v. City of Tucson, 4 Ariz.App. 155, 418...