Brown for Hejna v. Yamaha Motor Corp., U.S.A.

• Decision Date: 13 November 1984
• Docket Number: No. 7210-6-II,7210-6-II
• Citation: 38 Wn.App. 914,691 P.2d 577
• Parties: Thomas A. BROWN, as Guardian ad litem for Shawn P. HEJNA, a minor; and Geri F. Peterson, individually, Respondents, v. YAMAHA MOTOR CORP., U.S.A., a corporation; Yamaha Motor Co., Ltd., a corporation, and; Yamaha International Corporation, Appellants.
• Court: Washington Court of Appeals

Page 914

38 Wn.App. 914

691 P.2d 577

Thomas A. BROWN, as Guardian ad litem for Shawn P. HEJNA, a minor; and Geri F. Peterson, individually, Respondents, v. YAMAHA MOTOR CORP., U.S.A., a corporation; Yamaha Motor Co., Ltd., a corporation, and; Yamaha International Corporation, Appellants.

No. 7210-6-II.

Court of Appeals of Washington Division 2.

Nov. 13, 1984.

Reconsideration Denied Dec. 5, 1984.

[691 P.2d 578] William R. Hickman, Seattle, for appellants.

Paul L. Stritmatter, Hoquiam, Richard Vroman, Aberdeen, for respondents.

WORSWICK, Acting Chief Judge.

Respondents Thomas A. Brown, as guardian ad litem, and Geri F. Peterson, individually, brought this action claiming damages for injuries sustained by Shawn P. Hejna, age 15, while riding a Yamaha motorcycle. Their claim was based on strict liability and, in the alternative, negligence for Yamaha's failure to install a "kill switch" on the machine. A kill switch is a device that permits a rider to shut off the engine without letting go of the handlebars. The jury rejected strict liability but found negligence and rendered a 10 million dollar verdict. It also found contributory negligence of 35 percent. ¹ The trial court granted respondents' motion for judgment n.o.v. as to contributory negligence and entered judgment for the full amount.

On this appeal, the three corporate appellants, Yamaha Motor Company, U.S.A., Yamaha, Ltd., and Yamaha International Corporation, make 19 assignments of error which raise two substantive and 12 procedural issues. Respondents cross-appeal on an issue relating to post-verdict interest.

As to the substantive issues, appellants contend that the jury's finding of negligence is inconsistent with its rejection of strict liability. They also contend that substantial evidence supported the contributory negligence finding which therefore should not have been disturbed. We reverse the judgment n.o.v. and otherwise affirm.

On January 30, 1980, Shawn went motorcycle riding with a friend in a park frequently used by dirt bike riders. The friend owned the bike. He allowed Shawn to use it to ride up some hillside trails. Shawn was unfamiliar with it and had problems at first. After one run, during which he experimented with the gearshift, he took it down to flat ground at the base of a hill. Then, from about 200 feet from the base of the hill, he started on a trail which ascended the hill to an open, flat area on top. When he was about 50 to 75 feet from the base of the hill, the friend noticed that Shawn was accelerating too fast and began waving his arms and yelling for him to slow down. He did not, but continued to accelerate as he climbed the hill. The machine became airborne at the top. Shawn fell off and sustained injuries which ultimately made him quadriplegic.

The evidence at trial was extensive and voluminous. A multitude of lay and expert witnesses testified. All the evidence revolved, however, around respondents' contention that the throttle had stuck on the run up the hill and that a kill switch would have permitted Shawn to maintain control and avoid the accident.

STRICT LIABILITY/NEGLIGENCE

It was clear throughout that respondents were pursuing strict liability and negligence as separate, alternative theories. ² The instructions were fully adequate to inform the jury of this. In accordance with current practice in these cases, the verdict was in the form of special interrogatories, backed up by suitable instructions, which required the jury to determine first whether liability attached under strict liability and, if not, whether appellants had been negligent. The jury rejected strict liability but found negligence. ³ Appellants now ask us to dismiss the claim outright or to grant a new trial (see Blue Chelan, Inc. v. Department of Labor & Indus., 101 Wash.2d 512, 681 P.2d 233 (1984)), because of the claimed inconsistency. We hold that the jury's findings were not inconsistent.

Appellants' argument presupposes that the "not reasonably safe" (or "unreasonably dangerous") element in a strict liability action is coextensive with negligent design or manufacture. This is contrary to settled Washington law under which a jury can find that a plaintiff did not meet the burden of proving a product "not reasonably safe" under a strict liability theory, and still find that negligence had been proved.

Appellants cite numerous cases from jurisdictions having a different perspective. Washington courts, however, have consistently held that negligence and strict liability are separate, nonexclusive theories equally available to a plaintiff. Davis v. Globe Machine Mfg. Co., Inc., 102 Wash.2d 68, 684 P.2d 692 (1984). When our Supreme Court first extended the strict liability concept to defective design cases, it adverted to the difficulty in defining the "defect" in a product where the alleged danger arose from the design. Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774 (1975). It chose to consider a product necessarily defective if it was unreasonably dangerous because of a deviation from the safety standards contemplated by a reasonable consumer, taking into account the intrinsic nature of the product. Tabert, 86 Wash.2d at 154, 542 P.2d 774. Thus, in such a case a jury does not evaluate the manufacturer's conduct. It only determines whether the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer. Ryder v. Kelly-Springfield Tire Co., 91 Wash.2d 111, 587 P.2d 160 (1978). In a strict liability case, the manufacturer's conduct is simply irrelevant. Lenhardt v. Ford Motor Co., 102 Wash.2d 208, 683 P.2d 1097 (1984).

Conversely, the manufacturer's conduct is the precise focus of the jury's attention in a negligence case, because negligence arises from a failure to use ordinary care. The application of negligence principles to a negligent design case is simply a special application of the general rule that a manufacturer has a duty to refrain from negligent manufacture. Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 476 P.2d 713 (1970). That rule requires a manufacturer to exercise care to eliminate from the product risk which he should recognize as creating an unreasonable likelihood of harm. Dipangrazio v. Salamonsen, 64 Wash.2d 720, 393 P.2d 936 (1964).

Any doubt that negligence and strict liability are separate and nonexclusive theories in Washington should have been erased by Davis v. Globe Machine Mfg. Co., Inc., supra, in which an injured worker sued under both theories to recover from the manufacturer of a glue spreading machine. The trial court took the negligence claim from the jury but submitted the strict liability claim. Appealing an adverse verdict, the plaintiff argued in part that the negligence claim should have gone to the jury. The defendant countered by arguing that the negligence issue was moot because the jury, by rejecting the strict liability claim, had necessarily found the product reasonably safe. Although the court went on to hold that the trial judge correctly took negligence from the jury, it took pains to announce its disagreement with the defendant's argument, stating:

Contrary to respondent's assertion, however, we have held that strict liability and negligence are not mutually exclusive theories of recovery. Ulmer v. Ford Motor Co., 75 Wn.2d 522, 531, 452 P.2d 729 (1969). See also Palmer v. Massey-Ferguson, Inc., 3 Wn.App. 508, 514, 476 P.2d 713 (1970). Negligence and strict liability are not mutually exclusive because they differ in focus: negligence focuses upon the...