DiPangrazio v. Salamonsen

• Decision Date: 10 July 1964
• Docket Number: No. 36846,36846
• Court: Washington Supreme Court
• Parties: Anthony C. DiPANGRAZIO, as Guardian ad Litem of Anthony Joseph DiPangrazio, Respondent. v. Peter SALAMONSEN and Otto Salamonsen, partners, and Northwest Builders Hardware, Inc., a Washington corporation, Appellants.

Page 720

64 Wn.2d 720

393 P.2d 936

Anthony C. DiPANGRAZIO, as Guardian ad Litem of Anthony Joseph DiPangrazio, Respondent. v. Peter SALAMONSEN and Otto Salamonsen, partners, and Northwest Builders Hardware, Inc., a Washington corporation, Appellants.

No. 36846.

Supreme Court of Washington, Department 2.

July 10, 1964.

Lycette, Diamond & Sylvester, Earle W. Zinn, Guttormsen, Scholfield, Willits & Ager, Seattle, for appellants.

Merges, Brain & Hilyer, Seattle, for respondent.

WEAVER, Judge.

This is an action by a 10-year-old minor for damages for personal injuries sustained when he crashed through a sliding glass door in the home of the Allen McClanes in Lynnwood.

Peter and Otto Salamonsen (hereafter called defendants Salamonsen) built the house and installed a sliding glass door which had been purchased by them from Northwest Builders Hardware, Inc. (hereafter called defendant Northwest). The door was aluminum-framed, 5 feet 11 inches by 6 feet 10 inches. It consisted of two sections, which had been glazed by defendant Northwest with Belgian crystal glass 3/16 of an inch thick. Defendants Salamonsen later sold the house to the McClanes, who are not parties to this action.

The incident occurred while plaintiff was an invited guest in the McClane home. That he was injured is undisputed.

Plaintiff's theory of recovery against the two defendants swings on a pendulum between negligence and breach of implied warranty. The complaint sounds primarily in negligence. The evidence adduced at trial presents a question of breach of implied warranty for having furnished an article inherently dangerous. The court's instructions lean more to the theory of negligence than to the theory of warranty. The appellate briefs swing, once again, to emphasize breach of implied warranty.

The jury returned a verdict for both defendants. Upon motion, the trial court granted plaintiff a new trial, and it is from this order that both defendants appeal.

Although the ultimate question for our decision is the propriety of the order granting a new trial, we must first dispose of the contention of both defendants that the court erred when it denied their challenge to the sufficiency of the evidence at the close of the case.

It is neither unexpected nor unusual that plaintiff should advance two theories upon which he bases his right to recovery--breach of implied warranty and negligence. Frequently the two theories are so intertwined that it is difficult to separate them with precision. Their relationship is discussed in the well-considered opinion in Freeman v. Navarre, 47 Wash.2d 760, 289 P.2d 1015 (1955).

In many of the decided cases confusion arises from the erroneous assumption that implied warranty of fitness and safety for the intended use of a chattel must spring from contract; that there must be privity of contract between the parties; that after acceptance, the fabricator is not liable for breach of warranty unless, within a reasonable time, notice of breach of warranty is given. RCW 63.04.500.

These arguments are specious and have no application to the fact pattern of the instant case in which a third party claims to have suffered injury from the use of the product of a remote manufacturer.

The seller's warranty is a curious hybrid of tort and contract. Prosser, Law of Torts (2d ed.) § 83, p. 493. It has not lost its original tort character. We recognized this in Esborg v. Bailey Drug Co., 61 Wash.2d 347, 378 P.2d 298 (1963), and LaHue v. Coca Cola Bottling, Inc., 50 Wash.2d 645, 314 P.2d 421 (1957). Of course, if breach of actual representations can be proved and there is privity of parties, the action may be in contract; but primarily, a manufacturer's liability for having furnished an inherently dangerous product to the public sounds in tort. That the action is a product of the common-law decisions has been recognized in a variety of situations. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962) and cases cited.

The Uniform Sales Act requirement of notice (RCW 63.04.500) may be a sound commercial rule designed to protect the seller against unduly delayed claims for damages, but were it applicable in a case such as this, it would be a misapplication of the statute and become a 'booby trap for the unwary.' As said in Greenman, supra:

'* * * It [the statute] does not provide that notice must be given of the breach of a warranty that arises independently of a contract of sale between the parties. * * *'

See LaHue v. Coca Cola Bottling, Inc., supra.

Defendants Salamonsen

Defendants Salamonsen were not retailers of a product; they were residential house constructors and sold this house and lot to the McClanes. Building materials available to them and customarily used as standard products in construction were purchased on the market from a reputable wholesaler in whom they had complete confidence. Selection of the door was made from a catalogue of defendant Northwest and purchased as a unit after its fabrication. The parties stipulated, and the jury was so instructed, that in 1957 in the Greater Seattle area, in excess of 90 per cent of all aluminum-framed, sliding-glass doors in homes of the same general type and price class as the McClane's used an aluminum-framed, sliding-glass door glazed with 3/16 inch crystal glass.

We pointed out recently (Glazer v. Adams, 64 Wash.Dec.2d 161, 165, 391 P.2d 195 (1964) that it is more difficult to illustrate and prove the negative than the affirmative. This observation is apposite.

We have reviewed and studied the record of this case carefully. We are unable to find any evidence of negligence on the part of the defendants Salamonsen. Although the factual pattern is slightly different, in Ringstad v. I. Magnin & Co., 39 Wash.2d 923, 926, 239 P.2d 848 (1952), we recognized the general rule that there is no obligation on a retailer of a chattel to test a product in the absence of some circumstance suggesting the necessity therefor. There is no such circumstance in the instant case, and we know of no reason why the same rule should not apply.

Nor do we find that the evidence supports a conclusion of breach of warranty by defendants Salamonsen. They sold land with a house on it.

The rule is set forth in Restatement, Torts §§ 352, 353:

' § 352. Except as stated in § 353, a vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.'

' § 353. A vendor of land, who conceals or fails to disclose to his vendee any condition whether natural or artificial involving unreasonable risk to persons upon the land, is subject to liability for bodily harm caused thereby to the vendee and others upon the land with the consent of the vendee or his subvendee, after the vendee has taken possession, if

'(a) the vendee does not know of the condition or the risk involved therein, and

'(b) the vendor knows of the condition and the risk involved therein and has reason to belive that the vendee will not discover the condition or realize the risk.'

There is nothing in the record to establish that defendants Salamonsen knew of a dangerous condition. In fact, the record is to the contrary.

The challenge to the sufficiency of the evidence of defendants Salamonsen should have been sustained. Hence, the order granting plaintiff a new trial against them is reversed.

Defendant Northwest

Respondent states in his brief:

'The respondent's [plaintiff's] claim of liability against the appellant, Northwest Builders Hardware, the manufacturer, is predicated on a doctrine of manufacturer liability and implied warranty.'

The crux of plaintiff's argument is that defendant Northwest, as manufacturer, furnished a product that is 'inherently and imminently dangerous' to human safety, which means nothing more than that substantial harm is to be anticipated if the chattel is defective. Prosser, Law of Torts (2d ed.) p. 500.

Was the 3/16 inch Belgian crystal glass door inherently or imminently dangerous? Did Northwest exercise reasonable care to make the door safe for the use for which it was manufactured?

These questions must be resolved by the trier of the facts under the rule that:

'A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to...