d'Hedouville v. Pioneer Hotel Co.

Decision Date26 April 1977
Docket Number75-1755,Nos. 75-1576,75-2117 and 75-2426,s. 75-1576
Citation552 F.2d 886
PartiesJanet M. d'HEDOUVILLE, Plaintiff-Appellant, v. PIONEER HOTEL COMPANY and Pioneer Hotel Properties, Defendants, Monsanto Company, Defendant-Appellee. Janet M. d'HEDOUVILLE, Plaintiff-Appellee, v. PIONEER HOTEL COMPANY and Pioneer Hotel Properties, Defendants, Monsanto Company, Defendant-Cross-Appellant. Janet M. d'HEDOUVILLE, Plaintiff, v. PIONEER HOTEL COMPANY and Pioneer Hotel Properties, Defendants-Appellees, Monsanto Company, Defendant-Appellant. Janet M. d'HEDOUVILLE, Plaintiff, v. PIONEER HOTEL COMPANY and Pioneer Hotel Properties, Defendants-Appellants, Monsanto Company, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John F. Molloy, argued, Robertson, Molloy, Fickett & Jones, Tucson, Ariz., Elias M. Romley, argued, Moore & Romley, Phoenix, Ariz., for appellants.

John H. Westover, argued, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., for appellees.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING and SNEED, Circuit Judges, and WILLIAMS, * District Judge.

OPINION

BROWNING, Circuit Judge:

Fire broke out on the fourth floor of the Pioneer Hotel in Tucson, Arizona, shortly after midnight on December 20, 1970. It spread rapidly through the upper floors. Twenty-eight people were killed, and the hotel was severely damaged.

Paul d'Hedouville was one of the victims. His widow, Janet M. d'Hedouville, brought this wrongful death diversity action against the Pioneer Hotel, Monsanto Company, and others. Pioneer cross-claimed against Monsanto.

Mrs. d'Hedouville settled with all defendants except Monsanto. 1 Her claim and Pioneer's cross-claim, both against Monsanto, were submitted to the jury, which returned verdicts against Monsanto. Monsanto appeals on the grounds that the verdicts were not justified by the evidence and that error occurred at trial. Mrs. d'Hedouville and Pioneer appeal on the ground that the verdicts were inadequate.

I

Monsanto manufactured an acrylic fiber known as Type 26 and sold this fiber to Callaway Mills, which made it into carpeting. Carpeting of this type was installed in the Pioneer Hotel. Evidence was offered that Type 26 fiber ignites readily and does not self-extinguish, and that these characteristics contributed to the outbreak and rapid spread of the fire. Mrs. d'Hedouville and Pioneer contended that Type 26 fiber was unreasonably dangerous, and Monsanto therefore was strictly liable in tort under the principle of Restatement of Torts 2d § 402A. 2

Monsanto's arguments concerning the application of the doctrine of strict products liability to this case are considered below under three headings reflecting the basic propositions on which Monsanto's defense rests: (1) that Type 26 fiber was not dangerous for its intended use, (2) that Callaway Mills was aware of the flammability characteristics of Type 26 fiber, and (3) that Pioneer's negligence and an unknown person's act of arson were superseding causes of the deaths and property damage.

1. Monsanto argues the trial court erred in several respects in refusing to submit to the jury Monsanto's theory that Monsanto was not liable because Type 26 fiber was not dangerous for its intended use.

Monsanto asserts the trial court's instructions permitted the jury to hold Monsanto liable simply because the carpeting burned, and the trial court erred in refusing an instruction that a product was dangerously flammable only if its burning rate was such as to make the product dangerous for its intended use. 3 Monsanto's criticism of the instructions given by the court is not justified. 4 Moreover, Monsanto did not properly object to the court's failure to give the additional instruction for which it now argues. 5 In any event, the proposed instruction was unduly restrictive in several respects. It is not true, for example, that whether a product is unreasonably dangerous is to be determined by its "intended" use. The question is not whether Monsanto "intended" the use, but whether the use was reasonably foreseeable. See R. Hursh & H. Bailey, 1 American Law of Products Liability, § 4:40 at 758 (2d ed. 1974).

Monsanto also objects to several evidentiary rulings related to whether the fiber was unreasonably dangerous. It asserts the trial court erred in admitting evidence relating to flammability tests Monsanto conducted on carpeting made from Type 26 fiber, contending the carpeting used in these tests was not comparable to the Callaway Mills carpeting involved in the fire. The trial court exercises a wide discretion in determining whether the probative value of evidence of tests and experiments exceeds the danger that such evidence may mislead the jury. McCormick, Law of Evidence, § 202 at 485-86 (2d ed. 1972). Although there were differences between the conditions involved in Monsanto's tests and the circumstances involved in the fire, these differences were not so great as to require exclusion of the test evidence as a matter of law. We also reject Monsanto's argument that the lack of precise criteria for determining whether the carpeting "passed" the test precluded admission of evidence of the results.

Monsanto argues the court erred in excluding evidence relating to flammability tests on other fibers. Evidence of the flammability of other fibers was marginally relevant, and the court admitted a good deal of evidence on this subject. Some limitation on the amount of such evidence received was permissible. We are not prepared to say the court committed error, particularly reversible error, in drawing the line where it did.

Monsanto contends it was error to admit government regulations regarding flammability of fabrics that became effective after the sale of the fiber and occurrence of the fire involved in this case. Proof of a regulatory code adopted after a defendant has acted, Monsanto asserts, is not relevant "to show that defendants' violation of its standards constitutes negligence." The rule is correctly quoted. See George v. Fox West Coast Theatres, 21 Ariz.App. 332, 337, 519 P.2d 185, 190 (1974). It is inapplicable to this case, however. The claim against Monsanto was based on strict liability, not on negligence alone, and under this theory Monsanto's due care was not in issue. Cf. Ault v. International Harvester Co., 13 Cal.3d 113, 118, 117 Cal.Rptr. 812, 814, 528 P.2d 1148, 1150 (1974).

2. One of Monsanto's most strongly pressed defenses to strict products liability was that Callaway Mills was aware of the flammability characteristics of the fiber. Several of Monsanto's contentions on appeal relate to this defense.

Restatement of Torts 2d § 402A imposes strict liability upon one who sells a product that is defective and unreasonably dangerous. Comment i states that a product is "unreasonably dangerous" if it is "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."

Pointing to the trial court's instructions (see note 4 supra ), Monsanto argues the court led the jury to believe the question was whether Type 26 fiber had a propensity for causing harm beyond that contemplated by Paul d'Hedouville and Pioneer. The controlling question, Monsanto asserts, was whether Callaway Mills was aware of the flammability characteristics of the fiber. Monsanto contends the evidence showed Callaway Mills had such knowledge. It follows, Monsanto concludes, that Type 26 fiber cannot be considered "unreasonably dangerous" and hence defective, and Monsanto's motion for directed verdict should have been granted. 6

Monsanto reaches the same destination by a second route, contending the real question is whether Monsanto breached a duty to warn, that this question is to be answered in accordance with the negligence rule of section 388 of the Restatement 7 rather than the strict liability rule of section 402A, and that under subsection (b) of section 388 the need to warn is to be determined by the knowledge possessed by the purchaser, Callaway Mills, and not by what may or may not have been known to subsequent users, such as Pioneer and Paul d'Hedouville.

Neither argument is sound.

Whether a product is "unreasonably dangerous" within the meaning of section 402A and therefore defective for the purpose of strict liability, is not determined by the subjective knowledge of the injured person or of any other particular individual or entity. The knowledge of Pioneer and Paul d'Hedouville would be relevant in determining whether they assumed the risk of injury from the unreasonably dangerous condition. But neither their subjective appreciation of the danger nor the subjective appreciation of Callaway Mills was relevant in determining whether carpet made from Type 26 fiber was defective because more dangerous than contemplated by the ordinary consumer of the product. Maas v. Dreher, 10 Ariz.App. 520, 523, 460 P.2d 191, 193-94 (1969). See also Jackson v. Coast Paint & Lacquer Co., 499 F.2d 809, 812, 814-15 (9th Cir. 1974). This determination was to be made by reference to a generalized and objective standard, i. e., "the ordinary knowledge common to the community." Restatement of Torts 2d § 402A, comment i. 8 That is what the jury was told. See note 4 supra.

The question remains whether the "community" whose knowledge is controlling consists of those who purchase fiber to make carpeting, or those who purchase the carpeting for use, or use it. Monsanto insists it is the former, since comment i states that the article "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it" (emphasis added) and the fiber itself is purchased only by the manufacturer of carpeting.

Noting that the seller's duty under section 402A is to "the ultimate user or consumer," we held in Jackson v. Coast Paint &...

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