Brizendine v. Visador Company

• Decision Date: 17 September 1969
• Docket Number: Civ. No. 66-532.
• Citation: 305 F. Supp. 157
• Parties: Susan D. BRIZENDINE, by her Guardian, David W. Brizendine, Plaintiff, v. VISADOR COMPANY, a Texas corporation; and Pittsburgh Plate Glass Company, a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Oregon

305 F. Supp. 157

Susan D. BRIZENDINE, by her Guardian, David W. Brizendine, Plaintiff, v. VISADOR COMPANY, a Texas corporation; and Pittsburgh Plate Glass Company, a Delaware corporation, Defendants.

Civ. No. 66-532.

United States District Court D. Oregon.

September 17, 1969.

Carl G. Helm, La Grande, Or., and Edwin J. Welsh, Portland, Or., for plaintiff.

Frank E. Day, Reiter, Day, Wall & Bricker, Portland, Or., for defendant Visador.

Lamar Tooze, Jr., Tooze, Power, Kerr, Tooze & Peterson, Portland, Or., for defendant Pittsburgh Plate Glass Co.

FINDINGS AND OPINION

KILKENNY, District Judge:

Plaintiff, 19 years of age at the time of trial, seeks damages for personal injuries sustained when the glass portion of a door light in the First Christian Church of La Grande, Oregon, shattered in her face. The door light in question was fashioned from a kit manufactured by defendant, Visador Company, a Texas corporation. The glass included in the kit by Visador was manufactured by defendant, Pittsburgh Plate Glass Company (PPG), a Delaware corporation.

On November 12, 1964, plaintiff went to the First Christian Church of La Grande, Oregon, to a regular Thursday evening meeting of a church youth group, made up of junior and senior high school age members. These meetings were held in a meeting room in a church annex, off the main entry to the church proper. Entrance to the room was usually gained through a set of wooden double doors, each containing a 10" by 10" diamond-shaped glass door light positioned at about eye level. The doors opened outward by means of a door knob on the right hand door. Similarly, the doors could be locked from the inside by a button on the door knob.

Plaintiff arrived early at the church, as had several other boys and girls, and was standing with them inside the church annex awaiting the arrival of other members. She was standing at or near the double doors, just described, when a later arriving member, Stanley Bird, and his sister approached the door. Stanley was moving quickly toward the door to open it before it locked. He pulled on the door knob with his left hand. When the door did not open, he lost his balance and threw up his right hand to catch himself against the door. Stanley's hand struck the door near the top of the light, his fingers hitting the wooden portion, his palm striking and shattering the glass. Slivers or shards of the shattered glass struck plaintiff in the face severely damaging her left eye.

The door light in question was installed by Miller's Cabinet Shop, La Grande, in February, 1963. At that time, several church members brought solid wooden doors to Miller's and waited while he installed the Visador lights from his own stock. Miller did not deal with Visador directly, but acquired his stock of door lights from a Visador distributor in Portland.

Visador produced these lights in large quantities for distribution to all parts of the country. The lights come in ready-for-installation kits containing wooden frames, screws, and a 10" by 10" sheet of single strength "B" (SSB) glass. The frames are tooled to accept the sheet of SSB, which is about 7/32 of an inch in thickness. This particular type door light, called a utility light, has consistently been one of Visador's largest sellers since the company's inception in the early 1950's, with an estimated annual production of around 80,000 units.

Visador buys the glass for its lights from several glass manufacturers, with PPG supplying probably the bulk of their needs. The glass is purchased in carload lots. PPG admits that it supplied the glass for the light installed in the door here involved.

Plaintiff bases her claims against both defendants on theories of strict liability, warranty and negligence. Actions on a manufacturer's implied warranty of his product, under Oregon law, are governed by tort principles of strict liability. Wights v. Staff Jennings, Inc., 241 Or. 301, 405 P.2d 624 (1965); Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967); State ex rel. Western Seed Production Corp. v. Campbell, 250 Or. 262, 442 P.2d 215 (1968), cert. denied 393 U.S. 1093, 89 S.Ct. 862, 21 L.Ed.2d 784 (1969). By reason of what was said in Heaton and Western Seed, plaintiff's warranty claim will not be separately discussed, but will be covered in the discussion of the claims against both defendants in strict liability.

STRICT LIABILITY

Restatement (Second) of Torts § 402A, adopted in Oregon, Heaton v. Ford Motor Co., supra, reads:

"(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."

* * * * * *

In Heaton, the Oregon Supreme Court stated that a plaintiff could show that a product was defective by proving a mistake or flaw in the design of the product, or a mistake or flaw in the fabrication of that design. If plaintiff could not show exactly how the product was defective in one of the above ways, she could, nevertheless, establish her right to recover by showing that the product did not perform in keeping with the reasonable expectations of the user—thus creating an inference of specific defect for the trier of the fact. Of course, the defective condition proved, or inferred, must be shown to be unreasonably dangerous.¹

The Oregon Court, in Western Seed, made it clear that a recovery under § 402A was not subject to statutory impediments to relief for breach of warranty such as notice, disclaimer or whether the warranty was express or implied.

Underlying the adoption of the strict liability theory in products cases are numerous theories, including, but not limited to, the following:²

(1) The seller, by marketing and advertising his product, has undertaken a special responsibility toward any consumer injured by it. He has induced the buyer to buy his product which, implicitly at least, he represented as safe. Therefore, he should be responsible if the consumer is injured by using it.

(2) The seller is in the field for his economic benefit, and should be made to suffer the losses as well as reap the profits.

(3) If work is negligently or defectively performed, it should be anticipated that injury will result to those who come in contact with such work.

(4) The public has a right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their product.

(5) The seller is in the best position to eliminate defects.

(6) The consumer generally does not have the expertise to make an adequate inspection.

(7) The manufacturer is best able to distribute the loss of injury, which may be an overwhelming burden on the consumer, through the price mechanism as a cost of production.

(8) The manufacturer is in a better position to purchase liability insurance.

(9) Strict liability will provide a healthy incentive to manufacturers to make their products safe.

(10) An action in strict liability will avoid a multiplicity of suits.

All the experts agreed that a door light equipped with SSB glass, such as here under scrutiny, would not be safe for installation in areas where a significant amount of physical contact with the glass could be expected. Defendants' experts conceded that a gymnasium or a school cafeteria, due to the presence of children playing, or milling about, would fit within this classification. In these cases, a thicker glass or safety glass would be required. In dispute, however, is whether the entry way door to the vestibule of a church, as in the instant case, would require installation of stronger glass.

I find from the evidence adduced that this particular doorway was not reasonably safe when equipped with a door light containing glass of the weakness of SSB. Certainly, the likelihood of children playing, including hectically entering and leaving, at a doorway to a room where Sunday School classes and youth group meetings were regularly held is as probable as in a cafeteria.

Moreover, the distinction defendants attempt to draw between school gymnasiums and cafeterias, "public or semi-public places" on the one hand, requiring stronger glass, and churches and homes on the other, as being reasonably safe with SSB, is itself spurious. If the deciding factor in determining what strength glass is required is the likelihood of physical contact with the glass, which all parties admit, then there is no distinction between a cafeteria and a home. In fact, the likelihood of children playing roughly, and thus physical contact, is perhaps even greater in the average home than in the "public" places in which defendants concede stronger glass should be installed.

Visador, therefore, placed on the market for general distribution without restriction as to use, or caution as to the unsuitability of its product for areas of significant physical contact, a product which involved an unreasonable risk of harm to a substantial number of persons. The design was defective in that it was not designed safely for the intended use. Visador knew the bulk of its sales was for homes. Certainly, these door lights, in view of these facts, were "unreasonably dangerous". We are not faced here with the situation of the plaintiff's injury falling into a small class of uses to which the product might not be safely put, while in the great majority of cases its use would be safe. Rather, this door light equipped with SSB was unsafe and unreasonably dangerous, if utilized in any of a substantial number, perhaps even a majority, of its uses. The cost of heavier or safer glass is not of significance.

PPG cannot avoid liability for this defect on the ground that Visador ...