Dart v. Wiebe Mfg., Inc.

• Decision Date: 14 November 1985
• Docket Number: No. 17766-PR,17766-PR
• Citation: 709 P.2d 876,147 Ariz. 242
• Parties: , 54 USLW 2304, Prod.Liab.Rep. (CCH) P 10,766 Donald J. DART, Plaintiff-Appellant, v. WIEBE MANUFACTURING, INC., a California corporation, Defendant-Appellee.
• Court: Arizona Supreme Court

Page 876

709 P.2d 876

147 Ariz. 242, 54 USLW 2304, Prod.Liab.Rep. (CCH) P 10,766

Donald J. DART, Plaintiff-Appellant, v. WIEBE MANUFACTURING, INC., a California corporation, Defendant-Appellee.

No. 17766-PR.

Supreme Court of Arizona, In Banc.

Nov. 14, 1985.

Kunz & Waugh by Richard M. Waugh, Phoenix, for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Killingsworth, Larry L. Smith, Phoenix, for appellee.

Langerman, Begam, Lewis & Marks by Richard W. Langerman, Amy G. Langerman, Phoenix, for amicus curiae Arizona Trial Lawyers Ass'n.

FELDMAN, Justice.

This is a product liability case in which plaintiff appealed judgment entered for the defendant. The court of appeals affirmed. Dart v. Wiebe Manufacturing, Inc., (No. 1 CA-CIV 5793, filed October 18, 1984). We accepted review in order to examine and settle the law pertaining to strict liability claims involving alleged design defects. See Rule 23(f), Ariz.R.Civ.App.P. 17A A.R.S. We have jurisdiction under Ariz.Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS

Wiebe Manufacturing, Inc. (defendant) manufactured a paper shredder and belt conveyor system used in the recycling of waste paper. The machine had no mechanical guards on the nip points at the rollers. Donald Dart (plaintiff) was an employee of Western Paper Stock Company, the owner of the machine. His employer instructed him to remove some paper wedged in a nip point in the conveyor. When he attempted to comply, his arm was pulled into the nip point where the flat belt passed over the roller and was torn off. He claimed the machine was defective and unreasonably dangerous because it was designed and distributed without safety guards which would have prevented the injury.

Plaintiff brought an action with separate counts of negligence and strict liability for the alleged design defect. The trial judge refused to give the separate instructions which plaintiff offered on each of these theories; instead, he gave a single instruction to cover both of them. Plaintiff asserts on review that the instruction given effectively deprived him of his strict liability, design defect claim. He also argues that the separate instructions which he offered, but the trial judge refused, correctly embodied both the traditional approach to strict liability and the proper wording for negligence cases.

In affirming the judgment, the court of appeals correctly noted that the "adequacy and propriety of [the] instructions [given] revolve around the holding in Brady v. Melody Homes Manufacturer, 121 Ariz. 253, 589 P.2d 896 (App.1978)." (Slip op. at 4.) The court construed Brady to hold that

There are two different bases of liability in design defect cases: ... if the product fails to perform as safely as an ordinary consumer would expect, ... then the manufacturer is liable under a strict liability standard. In addition, negligence is a possible theory of recovery if the issue is whether the manufacturer could have feasibly made the product safer.

Id. Correctly noting that there was strong evidence of the feasibility of a safer design, the court of appeals reasoned, nevertheless, that plaintiff had "limited his own theories of recovery by couching his strict liability claim in the terminology of feasible [design] alternatives" (Id. at 6, 7). The basis for the court's decision was that under Brady negligence principles are dispositive and strict liability concepts inapplicable when a plaintiff claims that a product design was improper and that the manufacturer should have adopted an alternative design. Thus, the ultimate conclusion was that the trial judge had not erred in giving a jury instruction combining strict liability and negligence into a single theory.

While such a result may reflect the holding of Brady v. Melody Homes, supra, plaintiff argues that Brady and its progeny have misconstrued our previous opinions and have improperly merged strict liability and negligence theories in design defect cases. Accordingly, we turn first to an examination of the legal principles appropriate to design defect cases grounded on either negligence or strict liability theories.

DESIGN DEFECT TESTS

Although the doctrine of strict liability in tort imposes liability without proof of negligence, the law does not impose liability for every injury caused by a product. Liability exists only if the product was in a "defective condition unreasonably dangerous." Restatement (Second) of Torts § 402A (1965) (hereinafter, Restatement § ____.) Thus, the central issue in a strict liability action is the definition to be given to the terms "defect" and "unreasonable danger." Birnbaum, Unmasking The Test For Design Defect: From Negligence [To Warranty] To Strict Liability To Negligence, 33 VAND.L.REV. 593, 597 (1980). Dean Wade, a leading commentator, calls this issue "the most vexing and pressing problem of products liability" law. Wade, On Product "Design Defects" And Their Actionability, 33 VAND.L.REV. 551 (1980).

The Restatement definition resolves many cases; it defines a product in a "defective condition unreasonably dangerous" as one in a "condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." Restatement § 402(A) comment (g). See also, comment (i) (dangerous to extent beyond expectation of ordinary user or consumer). Ignoring the tautological problem, ¹ this test provides a legal standard by which to measure the concept of "defect" and works well in manufacturing defect cases where, almost by definition, the product contains a danger which the manufacturer did not intend and the customer did not expect. Brady v. Melody Homes Mfr., 121 Ariz. at 256, 589 P.2d at 899. Indeed, the "consumer expectation" test arises from and expresses principles of implied warranty, the predecessor of strict liability in tort. Wade, supra at 552-53. Despite its virtues in the manufacturing defect setting, the consumer expectation test fails to provide an adequate legal standard in design defect cases.

Design defects present the most perplexing problems in the field of strict products liability because there is no readily ascertainable external measure of defectiveness. While manufacturing flaws can be evaluated against the intended design of the product, no such objective standard exists in the design defect context.

Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 880 (Alaska 1979). Thus, while the consumer expectation test may sometimes work well in design defect cases (Brady, 121 Ariz. at 256, 589 P.2d at 899), it provides no resolution for those cases in which "the consumer would not know what to expect, because he would have no idea how safe the product could be made." Wade, On the Nature of Strict Tort Liability for Products, 44 MISS.L.J., 825, 829 (1973); Caterpillar Tractor v. Beck, 593 P.2d at 882 n. 35; Phillips, The Standard For Determining Defectiveness In Products Liability, 46 U.CIN.L.REV. 101, 105 (1977). Further, in manufacturing defect cases consumer expectation can often be equated with the manufacturer's own expectations, but in design defect cases the problem of whether to measure consumer expectations by objective or subjective standards complicates the task of determining what is an "expectation." Thus, concepts of absolute liability on the one hand or assumption of the risk and contributory negligence on the other may inadvertently be injected into the case. Birnbaum, supra at 599; Caterpillar Tractor v. Beck, supra. Some courts have devised a two-prong test for use in those design defect cases in which consumer expectation fails to provide an adequate standard. The first case to formulate this approach, Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978), holds that "defective design" exists either:

(1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner, or

(2) if, in light of the relevant factors ..., the benefits of the challenged design do not outweigh the risk of danger inherent in such design.

20 Cal.3d at 418, 143 Cal.Rptr. at 228, 573 P.2d at 446 (emphasis supplied). The Barker test has been adopted in the case law. See, e.g. Caterpillar Tractor v. Beck, 593 P.2d at 884; Ontai v. Straub Clinic and Hospital, 66 Haw. 237, 659 P.2d 734 (1983).

Two years before Barker this court was faced with the problem of developing a satisfactory test for design defect cases. In Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976), we stated that the concept of "unreasonable danger" was

... especially effective as a means of limiting the strict tort liability doctrine [where] the issue is the nature of the duty of a manufacturer with respect to safe design ... and in which there are serious questions as to the effect to be given harm-producing conduct or misuse on the part of the injured person.

113 Ariz. at 267, 550 P.2d at 1068 (quoting Annotation, 54 A.L.R.3d. 352, 358 (1973)). We expressly approved the risk/benefit analysis recommended by Dean Wade to determine if a design defect is "unreasonably dangerous." Id. We believe that the Barker analysis is a logical refinement of our previous reasoning in Byrns v. Riddell. Where the consumer expectation test is inappropriate, the question of defective and unreasonably dangerous condition may be determined by applying Wade's risk/benefit factors to decide whether "the benefits of the challenged design ... outweigh the risk of danger inherent in such design." Barker, 20 Cal.3d at 418, 143 Cal.Rptr. at 228, 573 P.2d at 446; see also, Byrns, 113 Ariz. at 267, 550 P.2d at 1068.

Brady strays from the path of strict liability at this point. Acknowledging that the Barker case "provides a springboard for the discussion of the product liability case based on design," 121 Ariz. at 257, 589 P.2d at 900, the court concluded that the Byrns-Barker test and the Wade analysis adopted a negligence...