Keener v. Dayton Elec. Mfg. Co.

Decision Date08 September 1969
Docket NumberNo. 2,No. 53845,53845,2
PartiesFrances M. KEENER, Respondent, v. DAYTON ELECTRIC MANUFACTURING COMPANY, Appellant
CourtMissouri Supreme Court

Robert L. Shirkey, Dale Beal, Kansas City, for respondent.

Roy A. Larson, Kansas City, for appellant; Sprinkle, Carter, Larson & Hanna, Kansas City, of counsel.

DONNELLY, Presiding Judge.

This is a products liability case. Plaintiff, widow of Harold Keener, sued for his wrongful death and received a verdict against Dayton Electric Manufacturing Company in the amount of $20,000. The product in question is a sump pump sold by Dayton as a wholesale distributor.

In 1964, L. E. Whittaker, a handyman electrician, installed the pump in the basement of Joy Hollan's house. It rested in a sump in the basement floor and served to pump water out of the basement. Whittaker did not ground the pump when he installed it.

On September 21, 1965, after several days of rain, Joy Hollan went to her basement and found it flooded to a depth described as ankle deep. She called upon her friends, the Keeners, for assistance. After attempting unsuccessfully to empty the basement with a rented gasoline-powered pump, Harold Keener went to work on the Dayton pump. With the pump plugged into an electric outlet, standing ankle deep in water with no rubber gloves or rubber boots, he stooped over and lifted the pump from the sump. When the pump cleared the floor of the sump, Keener received an electric shock which resulted in his death.

The pump, when sold by Dayton, was not equipped with a ground wire or an overload protector. Plaintiff alleges the pump was defective in these respects and seeks on appeal to sustain her recovery under a theory of strict liability in tort.

The law involving products liability has undergone dramatic change in recent years. See Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.Law Review 791; Roberts, Implied Warranties--The Privity Rule and Strict Liability--the Non-Food Cases, 27 Mo.Law Review 194. In Morrow v. Caloric Appliance Corporation, Mo.Sup., 372 S.W.2d 41, this Court en Banc held that privity of contract was not necessary in order for the purchasers of a gas range to recover on implied warranty for fire damage against the manufacturer. See also Williams v. Ford Motor Company, Mo.App., 411 S.W.2d 443. We now adopt the rule of strict liability in tort stated in 2 Restatement, Law of Torts, Second, § 402A, as follows:

'(1) One who sells any product in a defective condition reasonably 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, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

We adopt this rule of strict liability in tort for at least three reasons:

(1) '* * * The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers (and sellers) that put such products on the market rather than by the injured persons who are powerless to protect themselves.' Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901, 13 A.L.R.2d 1049.

(2) '* * * The main advantage to Missouri courts in fully adopting the Restatement theory could be release from the shackles of warranty language. Whether the words 'strict liability' or 'implied warranty' or both combined are used, the difference in Missouri would not be one of substance since our courts are clearly recognizing the tort nature of the liability imposed. However, using the language of the Restatement would avoid innumerable vexing problems that have arisen in other jurisdictions where the device of warranty is used to impose strict liability.' Krauskopf, Products Liability, 32 Mo.L.Rev. 459, 469.

(3) It is essential now that the Bench and Bar of Missouri be given some sense of direction in products liability cases.

We turn then to the questions raised on this appeal:

(1) May recovery for wrongful death be had in a products liability case in Missouri? We hold that it may. We recognize that 'the doctrine in this state always has been that the wrongful death statutes confer a cause of action ex delicto, not one ex contractu.' Bloss v. Dr. C. R. Woodson Sanitarium Co., 319 Mo. 1061, 1067, 5 S.W.2d 367, 368. However, liability in products liability cases is no longer 'governed by the law of contract warranties but by the law of strict liability in tort.' Greenman v. Yuba Power Products, Inc., supra, 377 P.2d 897, 901; 2 Restatement, supra, § 402A, p. 355. This is a tort action and recovery may be had for wrongful death.

(2) May Dayton, a wholesale distributor, be held liable? We hold that it may. The Restatement position is that § 402A, supra, 'applies to any person engaged in the business of selling products for use or consumption.' 2 Restatement, supra, § 402A, p. 350.

(3) Was Harold Keener a 'user or consumer,' and, therefore, entitled to the protection afforded under § 402A, supra? The Restatement position is that 'user' includes 'those who are utilizing * * * (the product) for the purpose of doing work upon it * * *.' 2 Restatement, supra, § 402A, p. 354. We hold that Harold Keener was a 'user' under § 402A, supra. Cf. Jacobs v. Frank Adams Electric Co., Mo.App., 97 S.W.2d 849, a negligence case.

(4) Was Harold Keener guilty of 'contributory negligence as a matter of law' as asserted by Dayton? We hold he was not. Contributory negligence, as we ordinarily apply it, is not a defense to strict liability. The 'defense which consists of voluntarily and unreasonably encountering a known danger * * * will, in general, relieve the defendant of strict liability.' Prosser, The Law of Torts, 3rd Ed., § 78, p. 539. Cf. Goetz v. Hydraulic Press Brick Co., 320 Mo. 586, 9 S.W.2d 606, 60 A.L.R. 1064. The Restatement position is that if the user 'discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.' 2 Restatement, supra, § 402A, p. 356. In 3 Restatement, Law of Trots, First, § 524, this defense is referred to as 'contributory fault.'

Dayton urges that Harold Keener must be convicted of 'contributory negligence as a matter of law' because he lifted the pump out of the sump while standing ankle deep in water, with no rubber gloves or rubber boots, and with the pump plugged into an electric outlet. Dayton argues that this 'was a voluntary exposure to a known danger.' In a sense, the argument is of some persuasion. However, it misses the mark in this case involving strict liability in tort. There is no evidence, direct or circumstantial, on this record on this appeal that Harold Keener had knowledge that the pump was not equipped with a ground wire or an overload protector. Therefore, there is no evidence justifying a finding that Harold Keener became chargeable with knowledge of the 'dangerous potentialities' of the pump by reason of such defects. Morrow...

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