Halphen v. Johns-Manville Sales Corp.

• Decision Date: 24 February 1986
• Docket Number: JOHNS-MANVILLE,No. 85-CQ-0455,85-CQ-0455
• Citation: 484 So.2d 110
• Parties: , Prod.Liab.Rep. (CCH) P 10,935 Mrs. Jean HALPHEN v.SALES CORPORATION.
• Court: Louisiana Supreme Court

Page 110

484 So.2d 110

54 USLW 2475, Prod.Liab.Rep. (CCH) P 10,935

Mrs. Jean HALPHEN v. JOHNS-MANVILLE SALES CORPORATION.

No. 85-CQ-0455.

Supreme Court of Louisiana.

Feb. 24, 1986.

Rehearing Denied April 10, 1986.

Stephen W. Hanks, Helm, Pletcher & Hogan, Houston, Tex., Ronald Motley, Blatt & Fales, Barnwell, S.C., Jack Martzell, Martzell & Thomas, New Orleans, for plaintiff-appellee.

John G. Bissell, Michael L. Baker, Strong, Pipkin, Nelson & Bissell, Beaumont, Tex., John J. Weigel, Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.

Robert S. Rooth, L. Havard Scott, III, Joan G. Quinters, Jonathan C. McCall, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for amicus curiae.

DENNIS, Justice.

A widow sued an asbestos products manufacturer in a United States District Court for the wrongful death of her husband caused by his exposure to asbestos. ¹ She invoked Louisiana's strict products liability tort law under the court's diversity jurisdiction. Before trial the District Court excluded all evidence of whether the manufacturer knew or could have known of the dangers of asbestos on the grounds that such evidence is irrelevent to whether the product is unreasonably dangerous. After a trial, a jury found that the manufacturer's asbestos products were unreasonably dangerous and had been a proximate cause of the deceased's death. The District Court entered judgment awarding damages to the widow for her husband's illness and wrongful death.

The manufacturer appealed to the United States Court of Appeals. A divided three judge panel of that court affirmed. Halphen v. Johns-Manville Sales Corp., 737 F.2d 462 (5th Cir.1984). Acting en banc, however, the Court of Appeals recalled its decision and certified to us the following question:

Question Certified

In a strict products liability case, may a manufacturer be held liable for injuries caused by an unreasonably dangerous product if the manufacturer establishes that it did not know and reasonably could not have known of the inherent danger posed by its product? Halphen v. Johns-Manville Sales Corp., 752 F.2d 124, 755 F.2d at 393 (5th Cir.1985) (en banc).

Response to Certified Question

Having granted certification, we respond by (1) stating the legal precepts which govern the issues raised by the certified question, (2) answering the question specifically, and (3) elaborating the reasons for the precepts and answers.

1. Legal Precepts

There is general agreement upon the most basic principles of strict tort products liability. In order to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer's control. The plaintiff need not prove negligence by the maker in its manufacture or processing, since the manufacturer may be liable even though it exercised all possible care in the preparation and sale of its product. Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985); Hebert v. Brazzel, 403 So.2d 1242 (La.1981); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Hunt v. City Stores, 387 So.2d 585 (La.1980); Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978); Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

As strict products liability in tort was originally conceived, the manufacturer's ability to know of the danger of its product at the time of sale was immaterial. Under pure strict liability theory, the product is on trial, not the knowledge or conduct of the manufacturer. Subsequently, additional products liability theories developed which permit the plaintiff to recover when the manufacturer fails to give adequate warning or adopt an alternate design to make the product safer. Under these later theories, the knowledge available to the manufacturer when it designs, manufactures, and markets the product may be material. Accordingly, whether the knowledge of the danger in a product is material, relevant, or admissible depends on the particular theory of recovery under which the plaintiff tries his case.

An essential element of a plaintiff's case under each strict products liability theory of recovery is proof that the defendant's product was unreasonably dangerous to normal use. The method of proof of this element varies under each theory, however, and this is why the knowledge available to the manufacturer is material only with regard to certain theories. Because there is disagreement among jurisdictions as to the nature, the classification, and even the existence of some grounds of recovery, we will set forth the elements of each strict liability theory recognized by this court in order to explain whether knowledge available to the manufacturer is material under each theory.

In describing the theories of recovery, we use the classifications of unreasonably dangerous products recognized by most courts. Additionally, we recognize products which are "unreasonably dangerous per se" as a separate class of defective products. For products in this category liability may be imposed solely on the basis of the intrinsic characteristics of the product irrespective of the manufacturer's intent, knowledge or conduct. This category should be acknowledged as giving rise to the purest form of strict liability and clearly distinguished from other theories in which the manufacturer's knowledge or conduct is an issue.

A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product. ² Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); cf. Entrevia v. Hood, 427 So.2d 1146 (La.1983); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 140 (1971). See Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo.1984); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); Carter v. Johns-Manville Sales Corp., 557 F.Supp. 1317 (E.D. Tex.1983); Prosser and Keeton on Torts, p. 699 (5th Ed. 1984); Keeton, Torts, Annual Survey of Texas Law, 1981, 35 Sw. L.J. 1, 9 (1981); Keeton, The Meaning of Defective in Products Liability Law, 45 Mo. L.Rev. 579, 592 (1980). This theory considers the product's danger-in-fact, not whether the manufacturer perceived or could have perceived the danger, because the theory's purpose is to evaluate the product itself, not the manufacturer's conduct. Likewise, the benefits are those actually found to flow from the use of the product, rather than as perceived at the time the product was designed and marketed. The fact that a risk or hazard related to the use of a product was not discoverable under existing technology or that the benefits appeared greater than they actually were are both irrelevant. Hunt v. City Stores, Inc., supra; Keeton, The Meaning of Defect, supra, p. 595; Keeton, Products Liability--Inadequacy of Information, 48 Tex.L.Rev. 398, 407-408 (1970). Under this theory, the plaintiff is not entitled to impugn the conduct of the manufacturer for its failure to adopt an alternative design or affix a warning or instruction to the product. A warning or other feature actually incorporated in the product when it leaves the manufacturer's control, however, may reduce the danger-in-fact. If a plaintiff proves that the product is unreasonably dangerous per se, it is not material that the case could have been tried as a design defect case or other type defect case.

A product is unreasonably dangerous in construction or composition if at the time it leaves the control of its manufacturer it contains an unintended abnormality or condition which makes the product more dangerous than it was designed to be. See Weber v. Fidelity & Casualty Ins. Co., N.Y., supra (cattle dip arsenic content exceeded intended specifications); MacPherson v. Buick Motors, 217 N.Y. 382, 111 N.E. 1050 (1916); Prosser and Keeton on Torts, p. 695 (5th ed. 1984); Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. (1965); Keeton, The Meaning of Defect, supra, p. 586. A manufacturer or supplier who sells a product with a construction or composition flaw is subject to liability without proof that there was any negligence on its part in creating or failing to discover the flaw. Evidence of what knowledge was available to the manufacturer has no relevance in such cases because the product, by definition, failed to conform to the manufacturer's own standards. 1A Frumer & Friedman, Products Liability 12.07[b][ii].

Although a product is not unreasonably dangerous per se or flawed by a construction defect, it may still be an unreasonably dangerous product if the manufacturer fails to adequately warn about a danger related to the way the product is designed. A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. Winterrowd v. The Travelers Indemnity Co., 462 So.2d 639 (La.1985); Hebert v. Brazzel, 403 So.2d 1242 (La.1981); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); cf. Rey v. Cuccia, 298 So.2d 840 (La.1974). In performing this duty a manufacturer is held to the knowledge and skill of an expert. It must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby. See Keeton, Product Liability--Problems Pertaining to Proof of Negligence, 19 Sw.L.J. 26, 30-33 (1965). A manufacturer also has a duty to test and inspect its product, and the extent of research and experiment must be commensurate with the dangers involved. See Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir.1985); Gideon v. Johns-Manville, 761 F.2d 1129 (5th Cir.1985); Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1089 (5th Cir.1973), cert. denied, 419 U.S....