Cassisi v. Maytag Co.

Decision Date11 March 1981
Docket NumberNo. PP-125,PP-125
Citation396 So.2d 1140
CourtFlorida District Court of Appeals
PartiesNicholas J. CASSISI and Elayne E. Cassisi, individually and for the use and benefit of United States Fidelity & Guaranty Company, Appellants, v. The MAYTAG COMPANY, a Delaware Corporation, and McDuff Appliances, Inc., a Florida Corporation, Appellees.

Milton H. Baxley, II, Gainesville, for appellants.

Robert M. Sharp and Bruce S. Bullock of Bullock, Sharp & Childs, Jacksonville, Dale O. Morgan, Orlando, for appellees.

ERVIN, Judge.

The Cassisis and their homeowner's insurer appeal from a summary judgment entered against them in a products liability action founded on theories of strict liability, negligence, and breach of an implied warranty. The only issue for our determination is whether the lower court correctly ordered summary judgment on the ground the Cassisis' proofs failed to show their damages were caused by a product in a defective condition at both the time of the accident and the time it was within the possession of the manufacturer or the retailer. Because we find genuine issues of material fact remain unresolved on that question, we reverse the summary judgment and remand the cause for further proceedings consistent with this opinion.

Mrs. Cassisi's deposition testimony was that she had purchased the alleged offending product, a clothes dryer, from the retailer, McDuff Appliances; that during the 19 months of its use, no maintenance work or repairs had ever been performed on it; and that it had always been normally operated. On the date of the accident, Mrs. Cassisi left her home with the dryer in operation; upon her return, she found the house ravaged by fire.

While appellants' expert, Clayton Morrison, a registered professional engineer, was unable to pinpoint a specific defect within the dryer (it had been badly damaged), it was his opinion that the fire had begun inside the dryer. When asked if a malfunction was inherent in the product, he responded:

My conclusion is that it was inherent ... because I have concluded that the fire originated within the product. That is the source from which the fire pattern and the heat source emanates, is from the dryer itself. Now, you must therefore conclude, that it was due to some incorrect functioning of a part that was internal within the machine that caused the fire to start.

He also surmised that the malfunction was caused by an electrical short within the dryer. Mr. Morrison, however, was otherwise uncertain in his responses. He was unable to negate other possible causes of the fire, such as the possibility that flames from a fire originating outside the dryer during the machine's operation could have been drawn into its interior, causing the clothing to ignite; the possibility that the short could have occurred if either the circuit breakers were not functioning properly, or were not in existence; the possibility that the fire had been caused by a deterioration of the electrical wiring, such as its having been gnawed by rats; and, finally, the possibility that a defect could have occurred following the sale of the product to the Cassisis.

While appellants are not required to prove in a strict liability action that the manufacturer or retailer was negligent in the preparation or distribution of a product, they nevertheless have the burden, whether their case is founded in negligence, breach of an implied warranty, or strict liability, of establishing (1) that a defect was present in the product; (2) that it caused the injuries complained of; and (3) that it existed at the time the retailer or supplier parted possession with the product. 2 Frumer and Friedman, Products Liability, § 16A(4)(e)(i) at 3B-88, 89 (1980). Appellees argue that appellants' burden was not met because their evidence failed to pinpoint a defect inside the clothes dryer either at the time of the accident or at the time the product left the control of the manufacturer or supplier.

How a plaintiff meets his burden in a products liability case and thereby establishes a submissible case for jury consideration has been the source of frequent litigation. Since Section 402A of the Restatement of Torts (Second) has been adopted in Florida by West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (1976), that section should be carefully consulted in order to ascertain if the alleged offending product is one which may be subject to the Restatement's definition of defectiveness and, if so, to know what type of evidence must be presented to establish a submissible case of product defectiveness.

I. The Nature and Types of Product Defects

The black letter statement to Section 402A requires that a product be "in a defective condition unreasonably dangerous to the user or consumer or to his property ...." Thus, one who is injured while using a perfectly made axe or knife would have no right to a strict liability action against the manufacturer because the product that injured him was not defective. If the user is required to show only that the product was a factual cause in producing his injury, the manufacturer's liability to the injured party would be, as stated by West, supra at 90, and by Professor Wade, that of an insurer. 1

On first impression, the Restatement may seem to require proof that the product be both defective and unreasonably dangerous. That, however, is not the case. Section 402A defines defective condition by requiring the product to be "at the time it leaves the seller's hands in a condition not contemplated by the ultimate consumer, which would be unreasonably dangerous to him." See comment g. The words unreasonably dangerous are in turn defined as requiring the product to be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." See comment i. It appears that the terms defective and unreasonably dangerous are redundant. Dean Prosser, the reporter for the Council, explains that the words "unreasonably dangerous" were added to foreclose the possibility that makers of products having the inherent potentiality for causing harm, such as drugs, whiskey, sugar, butter, etc., would become "automatically responsible for all the harm that such things do in the world." Prosser, Strict Liability to the Consumer in California, 18 Hastings L.J. 9, 23 (1966). Thus only "bad" whiskey, butter, etc., are subject to the Restatement's standard. 2

Concerned with the ambiguity in the standard, a number of courts have held it is unnecessary for a plaintiff to prove that the product be both defective and unreasonably dangerous. See, e.g., Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Azzarello v. Black Brothers Co. Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Pyatt v. Engel Equipment Inc., 17 Ill.App.3d 1070, 309 N.E.2d 225 (1974). Cronin, for example, rejected a defendant's instruction requesting that the plaintiff must establish not only that the product contained a defect which proximately caused his injuries, but also that such condition made the product unreasonably dangerous to the user or consumer. 3 Cronin stated that the words "unreasonably dangerous" burden an injured plaintiff with an element which rings of negligence; that they are, when used in connection with the defective product terminology, susceptible to an interpretation which places a dual burden on the injured plaintiff to prove both that the product was defective and that it was unreasonably dangerous. 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d at 1162. The court concluded that a plaintiff satisfies his burden in a strict liability action as to any alleged product defect if he proves there was a defect in the manufacture or design of the product and shows that the defect was the cause of his injuries. Id.

Notwithstanding the controversy by both academe and the courts over the proper test for determining a product's defective condition, the standard for all product defects under Section 402A is the same: 4 Were the ordinary consumer's expectations frustrated by the product's failure to perform under the circumstances in which it failed? 5 This standard works reasonably well as to those types of product defects characterized as defects resulting from manufacturing flaws those caused by a miscarriage in the manufacturing process which produces an unintended result. 6 Thus, when a new product suddenly and unexpectedly malfunctions during the course of its normal operation, causing injury, the standard is relatively easy to apply.

The consumer expectation standard, though adequate to identify unintended manufactured defects, is more difficult to apply as to the other two generally recognized types of product defects: (1) design defects those which are due to design error because unforeseen hazards accompany normal use of the product created according to design, and (2) defects resulting from misinformation or inadequate warnings. 7 As to the last two defects, the standard is said to be a very vague and imprecise one because the ordinary consumer cannot be said to have expectations as to safety regarding many features of complexly made products that are purchased, such as the risk of fire from the way gasoline tanks are installed in cars, or the magnitude of risks involved in vehicles overturning. 8 Due to the difficulty in applying the consumer expectation standard to all types of product defects, many thoughtful commentators have suggested that it should be rejected, particularly as to those defects arising from design, in favor of a test that would weigh the utility of the design versus the magnitude of the inherent risk. 9

Heeding the call for a different test, some courts have explicitly rejected or modified the Restatement standard as to design defects. See Phipps v. General Motors...

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