Falcon Coal Co. v. Clark Equipment Co.
| Decision Date | 26 October 1990 |
| Docket Number | No. 89-CA-1685-MR,89-CA-1685-MR |
| Citation | 802 S.W.2d 947 |
| Parties | Prod.Liab.Rep.(CCH)P. 12,670 FALCON COAL COMPANY, Appellant, v. CLARK EQUIPMENT COMPANY, Appellee. |
| Court | Kentucky Court of Appeals |
Lee A. Smith, Todd & Smith, Pikeville, for appellant.
Michael A. Stidham, Jackson, Keith McCord, McCord, Weaver & Troutman, P.C., Knoxville, for appellee.
Before HOWARD, LESTER and WILHOIT, JJ.
This appeal is from a summary judgment by the Breathitt Circuit Court holding that the appellee, Clark Equipment Company, was not liable to the appellant, Falcon Coal Company, on a theory of strict liability in tort for damages in the amount of $140,000.00 due to the destruction by fire of a front-end loader manufactured and sold by the appellee to the appellant.
The only question raised as phrased by the appellant is whether it may recover from the appellee manufacturer "in a product liability tort action based upon the doctrine of strict liability where the subject damage is limited to the product itself."
The front-end loader was purchased by the appellant from the appellee in February 1973. In October of that same year, after being used for about 2,800 hours, the loader caught fire, allegedly due to a manufacturing defect, and sustained the injury for which damages are sought. The loader was insured against casualty loss, and the insurer paid the appellant under the terms of the insurance policy for the loss incurred.
The appellant argues that under the common law in this jurisdiction, the theory of recovery advanced by it is recognized. In support of this it cites C & S Fuel, Inc. v. Clark Equipment Company, 524 F.Supp. 949 (E.D.Ky.1981), Hardly Able Coal Company v. International Harvester Company, 494 F.Supp. 249 (N.D.Ill.1980), C.D. Herme, Inc. v. R.C. Tway Company, Inc., Ky., 294 S.W.2d 534 (1956), and Dealers Transport Company, Inc. v. Battery Distributing Company, Ky., 402 S.W.2d 441 (1966). The two federal district court cases involved the application of Kentucky law to facts nearly identical to those alleged here. Both courts believed that under Kentucky law a tort action in strict liability could be maintained where the defective product alone is damaged. Both courts cited C.D. Herme, Inc. v. R.C. Tway Company Inc., supra, in reaching their decisions, although the Kentucky district court appears to have been more persuaded by a prior similar unpublished decision of the U.S. Court for the Western District of Kentucky and the need for uniform application of the law. For a number of reasons we do not believe that the Herme case is dispositive of the question before us.
First of all, Herme was not a strict liability case and did not involve injury only to the product itself. Also, that case predated this jurisdiction's adoption of Section 402A of the Restatement (Second) of Torts in Dealers Transport Co., supra, and, of course, did not consider the meaning of "property" as used in that section. Finally, the decision in Herme also predated the adoption of KRS 355.2-314 and 355.2-315.
Section 402A of the Restatement (Second) of Torts provides in relevant part that "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property ...." (Emphasis added.) Our reading of ...
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