Heath v. Sears, Roebuck & Co., JEAN-GUY

Decision Date18 July 1983
Docket Number83-093 and 83-053,JEAN-GUY,82-275,82-314,Nos. 82-203,s. 82-203
Citation123 N.H. 512,464 A.2d 288
Parties, 41 A.L.R.4th 30 Clifford A. HEATH et al. v. SEARS, ROEBUCK & CO. et al. Charles EASTMAN et al. v. CHASE MACHINERY & SUPPLY CO., INC., et al. Michael WELCH v. AMERICAN HONDA MOTOR CO., INC. William CUNNINGHAM v. INVACARE. Roger S. KIDDER et al. v.'S USED CARS AND PARTS, INC., et al. Norman MALLETT et al. v. BRIDGEPORT MACHINES, DIVISION OF TEXTRON, INC. SEARS, ROEBUCK & CO. v. WHITE ROGERS DIVISION, Emerson Electric Co. George D. LINEHAN, Administrator of the Estate of Francis A. Linehan v. CLARK EQUIPMENT CORP. et al. Ethel L. HOLT et al. v. RAICHE MOBILE HOMES, INC.
CourtNew Hampshire Supreme Court

Shute, Engel & Morse P.A., Exeter (Mark S. Gearreald, Exeter, on brief and orally), for Clifford A. and Carole A. Heath.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (John A. Lassey, Manchester, on brief and orally in No. 82-170, and Theodore Wadleigh, Manchester, on brief and orally in No. 82-314), for Sears, Roebuck & Co.

Law Offices of James J. Kalled, Ossipee (Robert G. Whaland, Ossipee, on brief and orally), for Charles and Marilyn Eastman.

Kearns, Colliander, Donahue & Tucker P.A., Exeter (David S. Brown, Exeter, on brief and orally), for Chase Machinery & Supply Co., Inc.

Holland & Aivalikles, Nashua (William E. Aivalikles, Nashua, on brief), for Michael Welch.

Devine, Millimet, Stahl & Branch P.A., Manchester (Lee C. Nyquist, Manchester, on brief and orally), for American Honda Motor Co., Inc.

Craig, Wenners, Craig & McDowell P.A., Manchester (Vincent A. Wenners, Jr., Manchester, on brief and orally), for William Cunningham.

Stark & Peltonen P.A., Manchester (John E. Peltonen, Manchester, on brief and orally), for Invacare.

Upton, Sanders & Smith, Concord (Gilbert Upton and Gary B. Richardson, Concord, on brief, and Mr. Richardson orally), for Roger S. and Edith Kidder.

Sulloway, Hollis & Soden, Concord (John W. Mitchell, Concord, on brief and orally), for Jean-Guy's Used Cars and Parts, Inc.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Ronald J. Lajoie, Manchester, on brief, and Katherine M. Hanna, Manchester, orally), for Jordan-Milton Machinery, Inc.

Burns, Bryant, Hinchey, Cox & Shea, Dover (James H. Schulte, Dover, on brief and orally), for Norman and Sandra Mallett.

Ransmeier & Spellman, Concord (Brian T. McDonough, Concord, on brief and orally), for Bridgeport Machines, Div. of Textron, Inc.

Ouellette, Hallisey, Dibble & Tanguay P.A., Dover (William L. Tanguay, Dover, on brief and orally), for White Rogers Div., Emerson Elec. Co.

Hamblett & Kerrigan P.A., Nashua, for George D. Linehan, administrator of the estate of Francis A. Linehan.

Devine, Millimet, Stahl & Branch P.A., Manchester, for Clark Equipment Corp.

Wiggin & Nourie, Manchester, for Intern. Harvester Co.

Ahlgren & Smith, Manchester, and Laflamme, Champagne & Moquin, Manchester, for Ethel L. and William R. Holt.

Law Offices of Emile Bussiere, Manchester, for Raiche Mobile Homes, inc.

Brown & Nixon P.A., Manchester (Edward W. Stewart, Jr., Manchester, on brief), for Christine Burnett & a., as amici curiae.

Stephen R. Fine, Manchester, and Jerome L. Silverstein, Nashua, for Steven Tate, as amicus curiae.

Perkins, Phillips & Waters P.A., Concord (Edmund J. Waters, Jr., Concord, on brief), by brief for Roderick LeFort, administrator of the estate of Jeanne Ann LeFort, as amicus curiae.

Mulvey, Noucas & Sullivan P.A., Portsmouth (William A. Mulvey, Jr., Portsmouth, on brief), by brief on behalf of toxic substance tort victims, as amici curiae.

Aeschliman & Tober, Portsmouth, and Howard A. Specter, Pittsburgh, Pa., (Stephen L. Tober, Portsmouth, on brief), for the Ass'n of Trial Lawyers of America and the New Hampshire Trial Lawyers Ass'n, as amici curiae.

Leahy, Denault & Moody, Claremont (Thomas P. Connair, Claremont, on brief), pro se, as amicus curiae.

Myers & Laufer, Concord (Howard B. Myers and Peter J. Duffy, Concord, on brief), for Volkswagen of America, Inc., and Volkswagenwerk, A.G., as amici curiae.

DOUGLAS, Justice.

The plaintiffs in these consolidated appeals challenge the constitutionality of RSA chapter 507-D (Supp.1979), governing suits for injuries caused by defective products.

In case No. 82-170, Clifford Heath was using a Sears drive ratchet to tighten the lug-bolt nuts while changing a rear tire on a logging skidder. The direction-change lever on the ratchet head snapped in two and a piece of the lever struck him, causing the near total loss of sight in one eye. The lever previously had been removed and reattached, allegedly because the metal used by the manufacturer was not suitable for northern climates and contracted in extremely cold weather. The United States District Court for the District of New Hampshire (Loughlin, J.), where the complaint was filed, transferred two questions to us by certification under Supreme Court Rule 34: Whether a "foreseeable repair" is a "modification or alteration" within the meaning of RSA 507-D:3 (Supp.1979), and whether that statutory section violates the equal protection provisions of either the State or the Federal Constitution.

In case No. 82-203, Roger Kidder was injured and permanently disabled after an accident involving a crane manufactured in 1958. Writs were brought against two prior owners and sellers of the crane for failure to disclose certain defects. The case was dismissed below by the Superior Court (Cann, J.), acting upon the recommendation of a Master (Frank B. Clancy, Esq.), because of the twelve-year statute of limitations contained in RSA 507-D:2, II(a) (Supp.1979).

In case No. 82-275, Norman Mallett was severely injured when his hand was drawn into a vertical rotary cutting disc attached to a milling machine. Both his action and the separate loss of consortium action filed by his wife were dismissed by the Superior Court (Dunn, J.) under the three-year limitation provision of RSA 507-D:2, I and :5 (Supp.1979). The plaintiffs challenge the three-year limitation as well as the "state of the art" defense set forth in RSA 507-D:4 (Supp.1979).

In case No. 82-314, Sears, Roebuck & Co., as a defendant in another products liability case not presently before this court, seeks indemnity against the White Rogers Division of Emerson Electric Co., alleging that the latter's defective gas control valve caused an explosion in a wall heater which injured a Hampton, New Hampshire resident. This case was dismissed by the Superior Court (Bean, J.) as not timely filed under RSA 507-D:2, III and :5 (Supp.1979).

In case No. 82-458, Charles Eastman, a New Hampshire resident, was injured in 1979 when a piece of a saw blade broke off and struck him in the eye. Because suit was filed more than twelve years after the Massachusetts manufacturer parted with control of the saw, the United States District Court for the District of New Hampshire (Devine, C.J.) transferred to us the question whether RSA 507-D:2, II(a) (Supp.1979) violates part one, article fourteen of the New Hampshire Constitution.

In case No. 82-485, Michael Welch was injured in an accident involving a Japanese motorcycle. His case was also transferred here by the Federal District Court (Loughlin, J.) for a determination of the constitutionality of the statute of limitations for products liability actions.

In case No. 82-497, William Cunningham, a paraplegic patient at the Veteran's Administration Hospital in Manchester, was sitting on a portable commode when it collapsed, causing his leg to fracture. Again, the case was transferred here by the Federal District Court (Loughlin, J.) to determine the constitutionality of RSA 507-D:2, I (Supp.1979).

All of these cases were consolidated for oral argument, and briefs from amici were filed as well. After the above cases were argued orally, cases Nos. 83-053 and 83-093 were filed in this court and consolidated for decision, without briefs or oral argument.

In case No. 83-053, Ethel Holt suffered permanent injuries from an explosion and fire in a mobile home that had been purchased from Raiche Mobile Homes, Inc., in March 1968. The suit was filed in June 1982, alleging that a defective bottled-gas cooking system in the mobile home caused the explosion and fire. The case was dismissed by the Superior Court (Flynn, J.) on the basis of the twelve-year limitation period provided in RSA 507-D:2, II(a) (Supp.1979), the constitutionality of which is being challenged on appeal.

Finally, in case No. 83-093, Francis Linehan was killed in December 1979 in an accident involving a forklift manufactured by Clark Equipment Corp. and a tractor-trailer manufactured by International Harvester Co. Wrongful death actions were filed in December 1981, within the two-year limitation period of RSA 556:11. Nevertheless, based on a Master's (Charles T. Gallagher, Esq.) recommendation, the Superior Court (Nadeau, J.) dismissed the suits because they were instituted more than twelve years after the defendants parted with possession or control of their machines or sold them. The decedent's administrator argues that RSA 507-D:2, II(a) (Supp.1979) is unconstitutional.

I. The Evolution of Products Liability Law.

The law of products liability is of relatively recent origin. It has been noted, in fact, that a scholarly commentator could remark as late as 1955 that " '[p]roducts liability does not rank as a term of art in the courts of law.' " W. Keeton, D. Owen, and J. Montgomery, Products Liability and Safety, Cases and Materials 19 (1980) (hereinafter cited as Products Liability and Safety) (quoting Wilson, Products Liability (pt. 1), 43 Calif.L.Rev. 614, 614 (1955)). Under Roman law at the time of Justinian, the vendor's liability turned upon whether he knew of the defect. Dig.Just. (Book 19, 533 A.D.), reprinted in Products Liability and Safety, at 21. By the thirteenth century in England, the growth of crafts in a feudal agricultural society led to...

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