Gates v. Standard Brands Inc.

• Decision Date: 29 April 1986
• Docket Number: No. 6796-3-III,6796-3-III
• Parties: , Prod.Liab.Rep. (CCH) P 11,031, 1 A.L.R.5th 987 Edward L. GATES and Ruth E. Gates, husband and wife; Appellants, v. STANDARD BRANDS INCORPORATED, a corporation, d/b/a Standard Brands Foods, and d/b/a Curtiss, Respondent.
• Court: Washington Court of Appeals

Page 520

43 Wn.App. 520

719 P.2d 130, Prod.Liab.Rep. (CCH) P 11,031,

1 A.L.R.5th 987

Edward L. GATES and Ruth E. Gates, husband and wife; Appellants, v. STANDARD BRANDS INCORPORATED, a corporation, d/b/a Standard Brands Foods, and d/b/a Curtiss, Respondent.

No. 6796-3-III.

Court of Appeals of Washington Division 3, Panel One.

April 29, 1986.

Rehearing Denied June 19, 1986.

Guy Nelson, Hormel, Aiken & Nelson, Ephrata, for appellants.

David E. Sonn, Donald L. Dimmitt, Jeffers, Danielson, Sonn & Aylward, P.S., Wenatchee, for respondent.

MUNSON, Judge.

Edward L. Gates bit into a Baby Ruth candy bar, manufactured by Standard Brands, which contained a "snake bone." Mr. Gates subsequently brought this action, alleging breach of the implied warranty of fitness for human consumption. By special verdict, the jury found the candy bar was not "unreasonably dangerous." Mr. Gates appeals, claiming the trial court erred in: (1) ruling a cause of action for breach of the implied warranty of fitness for human consumption ceased to exist following the adoption of the Restatement (Second) of Torts § 402A (1965); (2) not finding as a matter of law the candy bar was "defective" according to section 402A; and (3) admitting testimony concerning Standard Brands' manufacturing process of candy bars.

Mr. Gates purchased a Baby Ruth candy bar. ¹ Eating it, he bit into something which he alleged was "gristly" or "spongy"; he testified he immediately noticed a nauseating taste; he became sick and began to vomit. Mr. Gates handed his wife the remaining piece of candy bar and the object, which was later identified as a snake vertebra.

Standard Brands' expert witness, an archaeologist at Central Washington University, testified the vertebra was several hundred to several thousand years old; was odorless and tasteless; and consisted of approximately 97 percent inorganic material. A quality control expert, called by Standard Brands, testified a Baby Ruth could not contain any matter which was either foul smelling or tasting because of the manufacturing process.

The court phrased its instructions in the terminology of the Restatement (Second) of Torts § 402A (1965), which required the jury to find, among other things, the candy bar was unreasonably dangerous. Mr. Gates excepted to these instructions because they did not express his theory of implied warranty of fitness for human consumption.

Mr. Gates contends the court's instructions improperly imposed the burden of proving the candy bar was "unreasonably dangerous" and, therefore, defective as defined by section 402A. Thus, instructions 5 [719 P.2d 132] and 6 ² erroneously prohibited him from presenting his breach of implied warranty theory. He maintains the court erred in rejecting his proposed instructions and ruling the implied warranty of fitness for human consumption no longer exists as a separate theory after the adoption of section 402A in Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969).

Washington first recognized a cause of action for breach of the implied warranty of fitness for human consumption over 70 years ago. Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633 (1913). The action was premised on the theory the law implies a special warranty that food sold is wholesome and fit for human consumption. Pulley v. Pacific Coca-Cola Bottling Co., 68 Wash.2d 778, 783, 415 P.2d 636 (1966); Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 289-90, 105 P.2d 76 (1940); Flessher v. Carstens Packing Co., 93 Wash. 48, 52, 160 P. 14 (1916); Mazetti, 75 Wash. at 624-25, 135 P. 633. As stated in Pulley, 68 Wash.2d at 783, 415 P.2d 636:

[M]anufacturers and retailers of food products have a duty to consumers, i.e., the general public, to provide adequate protection from the harmful effects of foreign objects. Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 357 P.2d 804 (1960); LaHue v. Coca Cola Bottling, Inc., 50 Wn.2d 645, 314 P.2d 421 (1957).

(Italics ours.)

Although the standard of liability was analogous to the standard embodied in the common law of implied contractual warranties, ³ the theory of Mazetti and its progeny arose by implication of law and principles of tort. Ulmer, 75 Wash.2d at 525, 452 P.2d 729; LaHue v. Coca Cola Bottling, Inc., 50 Wash.2d 645, 647, 314 P.2d 421 (1957); Mazetti, 75 Wash. at 625, 135 P. 633.

This theory of implied warranty was gradually extended to nonfood cases. ⁴ Recovery was allowed on the rationale that no logical distinction could be drawn between those particular products and food. See generally Comment, Defective Products Liability-Tort or Implied Warranty, 1 Gonz.L.Rev. 106 (1966). Finally, in Ulmer the court adopted a theory of strict liability as defined by the Restatement (Second) of Torts § 402A, ⁵ providing:

Section 402A, ... is in accord with the import of our cases which have been decided upon a theory of breach of implied warranty and we hereby adopt it as the law of this jurisdiction.... Consequently, our decision to discard the terminology of "implied warranty" and adopt the language of strict liability contained in the Restatement (Second) of Torts § 402A, applies only to the liability of manufacturers.

(Italics ours.) Ulmer, at 531-32, 452 P.2d 729. The court explained it was discarding the label of "implied warranty" because:

[I]t is illogical to create an implied warranty but refuse to attach to it any of the customary incidents of a warranty. For examples, in this court-created warranty, there is no necessity of a contract or privity between the parties; no necessity that the purchaser rely on the warranty; no requirement of notice of the breach within a reasonable time after learning of it; and no provision for disclaimer. There is also the difficulty of reconciling the implied warranty with the Uniform Sales Act, which provides that there shall be no implied warranties other than those listed therein. (See RCW 63.04.160).

(Italics ours.) Ulmer, at 529, 452 P.2d 729.

Notwithstanding Ulmer, Mr. Gates vigorously asserts that a separate cause of action for breach of the implied warranty of fitness for human consumption still exists in Washington. He contends (1) strict products liability, as defined by section 402A and adopted by Ulmer, embodies a different standard of liability, and (2) according to the Mazetti line of cases, he need only prove the candy bar was "unfit for human consumption" as opposed to "unreasonably dangerous". He concludes food may be "unfit" or "impure" without being "unreasonably dangerous" and, therefore, the court's instructions, based on section 402A, erroneously imposed on him the heavier burden of showing the candy bar was "unreasonably dangerous."

However, comparison of the two causes of action demonstrates that they are essentially the same:

(1) Under 402A, the defendant must be engaged as a manufacturer or seller of the product which caused the injury. Restatement (Second) of Torts § 402A(1)(a) (1965). Similarly, in Geisness v. Scow Bay Packing Co., 16 Wash.2d 1, 13-14, 132 P.2d 740 (1942), the court required the same element.

(2) Under both theories, the unwholesome or defective condition must exist at the time it leaves the manufacturer's hands. Compare Restatement (Second) of Torts § 402A comment g (1965) with Geisness, at 14, 132 P.2d 740.

(3) Neither the implied warranty in tort theory nor section 402A is subject to the various contractual doctrines such as privity, notice, or disclaimer; neither theory requires that the plaintiff prove the defendant was negligent. Compare Ulmer v. Ford Motor Co., supra, with Flessher v. Carstens Packing Co., supra; ⁶ and

(4) Finally, the crucial question is whether the standards "unfit for human consumption" and "defective condition unreasonably dangerous to the user" provide the same degree of liability with respect to the sale of food.

The standard of liability provided for in section 402A is the same as that found in implied warranty. As is true in several areas of the law, the term "unreasonably dangerous" cannot be taken literally. The meaning of that phrase has spawned many conceptual problems, but Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 152-55, 542 P.2d 774 (1975), eliminated much of the confusion. In Tabert, at 154, the court rejected the literal interpretation of unreasonably dangerous, and firmly established that the concept of defect in Washington, as refined by comment i to section 402A, is based on the "consumer's reasonable expectation of buying a product which is reasonably safe." Accordingly, the court held a product is defective when it is "not reasonably safe," which simply means: "it [the product] must be unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer." Tabert, at 154, 542 P.2d 774. See also section 402A comments g, h, and i. Thus, under Washington's formulation of section 402A, a product is defective, notwithstanding the phrase "unreasonably dangerous," when it is "not reasonably safe ... to an extent beyond that ... reasonably contemplated by the ordinary consumer."

We believe the concept of consumer expectations as set out in section 402A and formulated in Ulmer and Tabert reflects the same warranty heritage found in the theory of implied warranty in tort. Thus, we conclude the concepts represented by the labels "defective condition unreasonably dangerous" and "unfitness" are identical. ⁷ Consequently, we hold a cause of action for breach of an implied warranty of fitness for human consumption has been succeeded ⁸ by the "buyer oriented" consumer expectations test when determining whether food is defective. ⁹ See Lenhardt v. Ford Motor Co., 102 Wash.2d 208, 211-12, 683 P.2d 1097 (1984).

Mr. Gates next contends the court erred in refusing to hold a candy bar containing a snake vertebra is defective as a matter of law. Generally, whether a product is defective is a jury question. See Lenhardt, at 212, 683 P.2d 1097; Estate of Ryder...