Brooks v. Dietz

Decision Date24 January 1976
Docket NumberNo. 47850,47850
Citation218 Kan. 698,545 P.2d 1104
PartiesBernard BROOKS, Plaintiff-Appellee, v. Donald DIETZ and Connie Dietz, Defendants, and Bryant Air-Conditioning Co., Inc., Defendant-Appellant.
CourtKansas Supreme Court
Syllabus by the Court

1. This court adopts the doctrine of strict liability in tort for the sale of a dangerously defective product, as set out in the Restatement, Second, Torts, § 402A.

2. Under K.S.A. 60-214(c), as amended, an amendment to a pleading relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.

3. The fact that an amendment to a pleading changes the legal theory on which the action initially was brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading.

4. To establish strict liability on the part of a seller of a dangerously defective which makes the product unreasonably dangerous existed at the time it left the hands of the seller.

5. Safe condition at the time of delivery by the seller includes proper packaging and any other precaution required to permit the product to remain safe for a normal length of time when handled in a normal manner.

6. Contributory negligence of the plaintiff is not a defense in an action based on the sale of a dangerously defective product when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense. It the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

7. Admissions of a party are binding and conclusive on him when uncontradicted and unexplained, but when relied on to establish negligence or assumption of the risk as a matter of law the facts revealed thereby and inferences to be drawn therefrom must be viewed in the light most favorable to the party making the admissions. If reasonable minds might differ as to whether the party's admitted conduct, viewed in that light, is unreasonable under all the circumstances, the issue must go to the jury.

8. It is not in every instance where one exposes himself to a known danger and injury results that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence under like circumstances would not subject himself to it.

9. Mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk.

10. In a products liability case it is held: the trial court did nor err (1) in submitting the case to jury on the theory of strict liability as well as negligence since (a) the amendment incorporating the strict liability theory related back to the date of the original petition and was therefore not barred by the statute of limitations, and (b) plaintiff's evidence was sufficient to justify an instruction on that theory; or (2) in overruling defendant's motion for judgment notwithstanding the verdict since plaintiff's admitted conduct did not constitute contributory negligence or an unreasonable exposure to a known danger as a matter of law.

Donald R. Newkirk, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and J. Eric Engstrom, Wichita, was with him on the brief for appellant.

Raymond L. Dahlberg, of Turner & Hensley, Chartered, Great Bend, argued the cause, and H. Lee Turner, Great Bend, and John V. Black, Pratt, were with him on the brief for appellee.

FOTH, Commissioner:

This is a products liability case arising out of a propane gas explosion. Plaintiff, an experienced plumber and furnace repair man operating his own business, was injured by the explosion on February 9, 1970, while preparing to repair a home furnace he had sold and installed some seven years before. The defendant Bryant Air-Conditioning Co., Inc., manufactured the furnace. (The owners of the home, Mr. and Mrs. Donald Dietz, were originally parties defendant but plaintiff's claim against them was dismissed prior to trial. They counterclaimed for damages to their home, but have not appealed from an adverse verdict on their claim so they are not parties to this appeal.)

Plaintiff alleged that the exploding gas was permitted to escape and accumulate in the basement of the Dietz home by the malfunction of relay switch which was designed to cut off the gas supply to the main burner and pilot light any time the pilot light went out. The malfunction, it was claimed, resulted from a design or manufacturing defect in the seal of the box containing the switch. It was plaintiff's theory that because the seal was inperfect, moisture and dirt could and did enter the box and corrode a metal shaft on which the switch turned. The resultant binding, he said, prevented the shaft from rotating and the switch from performing its intended function. This claim was submitted to the jury on theories of both negligence and strict liability, and resulted in a general plaintiff's verdict of $262,160.33. Defendant Bryant Air-Conditioning has appealed.

The first issue we must face on appeal is the propriety of the trial court's submission to the jury of the theory of strict liability. At trial Bryant specifically disclaimed any objection to the form of the court's instructions on this issue, but it advanced and renews here several reasons why the issue should not have been submitted at all.

First, it asserts that this court has never explicitly adopted the doctrine of strict liability as set out in the Restatement, Second, Torts, § 402A:

'(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 (1) applies although

'(a) the seller has exercised all possible care in the preparation and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

Bryant is correct in this assertion, but is also correct in the analysis in its brief here that 'this Court has for years recognized something closely akin to strict liability in the food and body preparation cases where privity is not required, negligence need not be proved if the product was dangerous and defective and injury resulted therefrom. (Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P.2d 930; Nichols v. Nold, 174 Kan. 613, 258 P.2d 317; Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413.)'

In recent years we have gone beyond the 'food and body preparation' cases and have held manufacturers and sellers strictly liable for other dangerously defective products. See, e. g., Jacobson v. Ford Motor Co., 199 Kan. 64, 427 P.2d 621 (1967) (defective brakes); Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P.2d 380 (1967) (bottle-recapping device); Bereman v. Burdolski, 204 Kan. 162, 460 P.2d 567 (1969) (defective brakes); Tilley v. International Harvester Co., 208 Kan. 75, 490 P.2d 392 (1971) (broken wheel); and Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 499 P.2d 539 (1972) (exploding bottle).

Liability in those cases was predicated on an implied warranty of fitness-a concept peculiar to the law of contracts. Yet no privity of contract was required between a manufacturer or seller and the damaged consumer, and the warranty in such a case in one which cannot be disclaimed. The anomaly of treating the resultant liability as a matter of contract was judicially recognized in the seminal case of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). It was there recognized that liability for damages resulting from putting in commerce a dangerously defective product is not the result of contract but, like other tort liability, is imposed by public policy.

In that case the court took note of the nearly universal judicial trend of imposing strict liability first as to food products and later as to other products which might if defective create an unreasonable hazard. After reviewing cases from many jurisdictions the California court reasoned as follows:

'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 (see e. g., Graham b. Bottenfield's Inc., 176 Kan. 68, 269 P.2d 413, 418; Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 614, 75 A.L.R.2d 103; Decker & Sons v. Capps, 139 Tex. 609, 617, 164 S.W.2d 828, 142 A.L.R. 1479), and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products (Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 84-96, 75 A.L.R.2d 1; General Motors Corp. v. Dodson, 47 Tenn.App. 438, 338 S.W.2d 655, 658-661; State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449, 455-456; Pabon v. Hackensack...

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