Connor v. Skagit Corp.
| Decision Date | 21 December 1981 |
| Docket Number | No. 7636-1-I,7636-1-I |
| Citation | 638 P.2d 115,30 Wn.App. 725 |
| Parties | Barry CONNOR and Jacqueline Connor, his wife, Appellants, v. SKAGIT CORPORATION, and Bendix Corp., Respondents. |
| Court | Washington Court of Appeals |
Crane, Carroll, Boese, Dunham, Stamper & Daily, Douglas Dunham, Seattle, for appellants.
Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Philip
Talmadge, Robert Piper, Seattle, for respondents.
This is a products liability case brought by appellant Connor wherein he alleged that he was injured because of the defective design of logging equipment manufactured by the respondents, Skagit and Bendix. The trial resulted in a defense verdict. Connor contends that the trial court incorrectly instructed the jury.
Connor was employed by a logging company that used the equipment manufactured by Skagit and Bendix. The two pieces of equipment were a T-90 tower which consisted of a 90-foot high metal pole with a pulley system, and a Skagit Bu-80 yarder containing the power source and drums upon which the cable wrapped as it went from the top of the tower to the logs to be pulled from the woods to the landing where the equipment is located.
At the time of the accident, the logs were down a steep embankment and off to one side of the equipment. The operator could not see the logs being pulled until they crested the embankment near the landing. He judged the distance of the logs from the landing by the amount of cable on the drum. This required him to look away from the direction of the logs. Upon hearing a signal from the woods, the operator engaged the drum, drawing in the cable which pulled the logs. Connor was employed as a "chaser." He had been talking to the operator until the signal from the woods was heard. He stepped outside the cab and was standing on an attached ladder when the log suddenly crested the hill and struck him. Connor argued at trial that the equipment was defectively designed and it lacked sufficient warnings.
The first assignment of error is the giving of instruction 12:
The plaintiff has the burden of proof on each of the following allegations claiming defective design on the part of the defendants:
First, that the yarder and tower manufactured by the defendants were designed in such a manner as to expose persons working near the equipment to hazards or dangers which were greater than would be reasonably contemplated or recognized by persons working in the logging industry in western Washington and possessing the ordinary knowledge of persons so employed as to the characteristics of said equipment.
Second, that the alleged defective design was a proximate cause of injuries sustained by the plaintiff on September 13, 1974.
Third, that there was available to the defendants a feasible and practical alternate design which, more likely than not, would have prevented the accident which resulted in plaintiff's injuries.
If you find that the plaintiff has not sustained his burden of proof on any one or more of these propositions, your verdict must be for the defendants.
Connor argues that feasibility is a factor in determining whether a product is reasonably safe but it is not a part of the burden of proof. He cites Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774 (1975), where it was stated:
In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.
The Washington courts have on occasion elaborated on the role of feasibility of alternate design in the context of strict products liability. In Novak v. Piggly Wiggly Puget Sound Co., 22 Wash.App. 407, 591 P.2d 791 (1979), the plaintiff bystander was struck in the eye with a BB which was shot from the defendant manufacturer's gun and which ricocheted off a hard surface. In upholding the trial court's summary judgment in favor of the defendant, the court stated:
Plaintiff suggests no specific ways in which Daisy could have done more than give such warnings in order to lessen the danger encountered by Monte and Andrew....
The conceivable ways by which the manufacturer otherwise could have prevented this unfortunate accident are, to us, impracticable, if not absurd. Once a youngster obtained possession of a BB gun, it would be impossible for the manufacturer to prevent him from shooting at a target likely to produce a ricochet.... Therefore, we conclude that the BB gun, if accompanied by adequate warnings as to the user of the dangers inherent in its use, was not shown by plaintiff to be designed in such a way as to be dangerous to an extent beyond that which would be contemplated by the ordinary adult consumer, and there is no valid justification for subjecting Daisy to liability on the theory that it failed to take some reasonable action to reduce the dangers of ricochet to child users or bystanders. The trial court correctly granted summary judgment on the issue of strict liability for a defective design.
In another case, the plaintiff stewardess fell through an open hatchway located in the floor of a DC-10 and into the galley area beneath the first-class cabin. The plaintiff's attorney submitted a memorandum in opposition to the motion for summary judgment and supported it with an affidavit of an engineer. The affiant compared the hatch cover design used in the DC-10 and the Boeing 747, and stated that:
The dangerous features of the DC-10 hatch cover are not present in the design of the Boeing 747 galley hatch cover. While quite similar in other respects, the Boeing 747 hatch cover is hinged to the floor and is equipped with a spring device which automatically closes and keeps the hatch cover closed when the hatch is not in use.
Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 349, 588 P.2d 1346 (1979). Based on the agreed statement of facts, this and other affidavits in the record of the case, the trial court dismissed the action. In reversing the trial court, the Supreme Court stated that:
The issue of whether the galley escape hatch was not reasonably safe was also raised in the affidavit by the comparison of the DC-10 hatch cover and the Boeing 747 hatch cover. In Tabert, we noted that feasibility of minimizing risk is a factual consideration germane to the ultimate fact of whether a product is reasonably safe. The comparison of the two hatches in the affidavit raises the inference that a reasonable alternative which poses less risk is feasible.
(Emphasis added.) Id. at 352, 588 P.2d 1346.
From a close reading of the Novak, Lamon and Tabert cases, it is apparent that the feasibility of eliminating or minimizing the risk is a factor to be considered by the trier of fact in determining whether the product met the expectations of the ordinary consumer. The plaintiff in the present case introduced a plethora of evidence in an attempt to show that alternate designs, which were both feasible and practical, were available to the defendants. Thus, this was a case in which the cost and feasibility of eliminating or minimizing the risk was relevant. Tabert, 86 Wash.2d at 154, 542 P.2d 774. In such a case, some of the same evidence tending to prove that the product was unsafe beyond the reasonable expectations of the ordinary consumer also necessarily tends to prove that feasible and practical alternate designs were available. Instruction 12 did not impose a burden upon plaintiff that he had not already assumed. Nor did the instruction enlarge plaintiff's burden of proof. Garcia v. Joseph Vince Co., 84 Cal.App.3d 868, 879, 148 Cal.Rptr. 843, 849 (1978). We believe it is consistent with Tabert to hold that the trial court did not err in instructing the jury that plaintiff had this burden of proof.
Connor next complains that the court failed to give his proposed supplemental instruction 3:
In determining the reasonable expectations of the "ordinary user" of a product, you may consider the following factors:
(1) The usefulness and the utility of the design;
(2) The likelihood, if any, that the design could cause injury, and if so, the probable seriousness of the injury;
(3) The availability of a substitute design which would meet the same need and which would lessen the likelihood, if any, of injury (4) The ability to eliminate any unsafe aspects of the design without impairing its usefulness, or making it too expensive or otherwise impairing its utility.
In determining this question, you should consider all of the evidence worthy of belief bearing upon any one or more of the factors. You should not single out any one factor to the exclusion of the others.
Connor objected to the court's instruction 13, which stated:
In determining the reasonable expectations of persons who will be using or working near the equipment, you may consider the following factors:
(a) The gravity of the potential harm from the claimed defect;
(b) The purpose and function of the equipment involved;
(c) The circumstances and conditions under which the equipment will normally be used;
(d) The number and experience of persons who will be using or working near the equipment when it is in operation;
(e) The manner in which plaintiff's injury occurred; and
(f) Any other factor or factors you believe reasonably bear on this issue.
Connor argues that the cost of eliminating or minimizing the risks, and the feasibility and practicality of eliminating or minimizing the risks, were critical factors in the determination of unsafe design and were omitted from the list of factors contained in the court's instruction 13, but could have been included by...
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