Lamon v. McDonnell Douglas Corp.

• Decision Date: 20 March 1978
• Docket Number: No. 4228-I,4228-I
• Citation: 576 P.2d 426,19 Wn.App. 515
• Parties: Vicki L. LAMON, a single woman, Appellant, v. McDONNELL DOUGLAS CORPORATION, a Foreign Corporation, Respondent.
• Court: Washington Court of Appeals

Page 515

19 Wn.App. 515

576 P.2d 426

Vicki L. LAMON, a single woman, Appellant, v. McDONNELL DOUGLAS CORPORATION, a Foreign Corporation, Respondent.

No. 4228-I.

Court of Appeals of Washington, Division 1.

March 20, 1978.

Rehearing Denied June 6, 1978.

Jerry Schumm, Whitefish, for appellant.

Lane, Powell, Moss & Miller, G. Val Tollefson, Seattle, for respondent.

CALLOW, Judge.

The plaintiff, an airline stewardess, stepped into an open emergency hatch of a DC-10 airplane. She appeals from a summary judgment dismissing her personal injury action against the aircraft manufacturer.

The hatch in question is an integral part of the aircraft. It was put in the only area where it could be located for a variety of safety and design considerations. It is described in the "emergency exits" section of the DC-10 Cabin Attendants Familiarization Manual as follows:

Galley Escape Hatch and Ladder

An escape hatch, located in the forward right corner of the lower galley ceiling opening into the forward cabin right aisle floor, provides an alternate means of exit from the lower galley during abnormal conditions. A permanently attached ladder extends from the galley floor to the escape hatch. The hatch cover carpet is flush with the floor and held in place within its frame with velcro. It may be opened from the lower galley by pushing on the under side. The hatch cover can also be opened from the cabin. The covering carpet is held in position with velcro and can be lifted to expose a recessed handle in the hatch cover.

The plaintiff, as one of the cabin attendants, was familiar with the hatch. Furthermore, just before she stepped into it, she had seen another stewardess come up through it, announce that there had been a power failure necessitating its use, and then go back down into it. The plaintiff filed the affidavit of a California engineer which stated that he specialized in the reconstruction and analysis of industrial and traffic accidents and that:

On April 5, 1975, I examined the galley escape hatches on a DC-10 and a Boeing 747 airplane. The examination was made at the Seattle-Tacoma airport and the airplanes were part of the United Airlines fleet. Based on this examination it is my opinion that the design of the escape hatch cover on the DC-10 created an unreasonably dangerous condition for the cabin attendants. The condition was created because the hatch cover on the DC-10 consists of a loose panel, and in order to close the hatch after use the loose hatch cover has to be manually fitted into the hatch opening. If after using the hatch the user were to forget to replace the hatch cover the open hatch would constitute a serious hazard to cabin attendants who often have to walk backward in the performance of their duties. If when replaced the hatch cover were not properly fitted into the hatch opening it could act as a trap door and endanger the person stepping on it. The dangerous features of the DC-10 hatch cover are not present in the design of the Boeing 747 galley hatch cover. While quite similar in other respects, the Boeing 747 hatch cover is hinged to the floor and is equipped with a spring device which automatically closes and keeps the hatch cover closed when the hatch is not in use.

The following issues are presented: (1) What is the quantum of proof that must be presented before a plaintiff may submit a strict tort liability case to a jury? (2) Is a strict tort liability case, based on a manufacturer's failure to warn, made out where the condition in question is known to the plaintiff? (3) In a strict tort liability case, is a jury issue on liability presented when an expert witness states that, in his opinion, a product is defective, dangerous or unsafe?

A products liability case involves the claimed liability of a manufacturer, processor or nonmanufacturing seller for injury to the person or property of a buyer or third person caused by a product which has been sold. 1 R. Hursh & H. Bailey, American Law of Products Liability § 1:1 (2d ed. 1974); 63 Am.Jur.2d Products Liability § 1 (1972). Products liability cases are ordinarily predicated on one or more of three legal theories: strict tort liability, negligence and breach of warranty. Here, the plaintiff is relying primarily on the theory of strict tort liability. Strict tort liability is not absolute liability. It is "strict" in the sense that it is unnecessary for a plaintiff proceeding under that theory to prove that a defendant was negligent, and the defendant does not have available the defenses of lack of privity, lack of notice and disclaimer. 1 R. Hursh & H. Bailey, American Law of Products Liability § 4:10 (2d ed. 1974); 63 Am.Jur.2d Products Liability § 123 (1972).

The doctrine of strict tort liability was enunciated in Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969). The opinion adopted Restatement (Second) of Torts § 402A (1965), which states:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One 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, 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.

The doctrine has been held applicable in a number of cases including Teagle v. Fischer & Porter Co., 89 Wash.2d 149, 570 P.2d 438 (1977); Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774 (1975); Baumgardner v. American Motors Corp., 83 Wash.2d 751, 522 P.2d 829 (1974); and Haugen v. Minnesota Mining & Mfg. Co., 15 Wash.App. 379, 550 P.2d 71 (1976).

We must first inquire whether a duty was owed by the manufacturer to the injured party and whether or not that duty was breached. See Baumgardner v. American Motors Corp., supra 83 Wash.2d at 756, 522 P.2d 829. The instant case involves a claim that the product, although well manufactured, was defectively designed. The test to be applied to determine liability in strict tort liability design defect cases was enunciated in Seattle-First Nat'l Bank v. Tabert, supra 86 Wash.2d at 149-51, 542 P.2d at 776, as follows:

(S)trict liability does encompass a design defect . . .

A product may be just as dangerous and capable of producing injury whether its condition arises from a defect in design or from a defect in the manufacturing process. While a manufacturing defect may be more easily identified or proved, a design defect may produce an equally dangerous product. The end result is the same a defective product for which strict liability should attach.

The doctrine of strict liability does not impose legal responsibility simply because a product causes harm.

Such a result would embody absolute liability which is not the import of strict liability. . . .

. . . The literal language of the section creates liability for a product in a defective condition which is unreasonably dangerous. The Restatement comments add flesh to these bare bone words. Under comment g entitled "Defective condition " it is stated:

The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.

(Italics ours.)

Comment i, entitled "Unreasonably dangerous " states: The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

(Italics ours.)

Continuing, the opinion states at page 154, 542 P.2d at page 779:

If a product is unreasonably dangerous, it is necessarily defective. The plaintiff may, but should not be required to prove defectiveness as a separate matter.

Likewise, unreasonably dangerous implies a higher and different standard than what we conceive to be the intended thrust of section 402A strict liability. The emphasis is upon the consumer's reasonable expectation of buying a product which is reasonably safe. The ordinary consumer evaluates a product in terms of safety, recognizing that virtually no product is or can be made absolutely safe. Certainly that is the case with the automobile and all of its potential for injury.

Thus, we hold that liability is imposed under section 402A if a product is not reasonably safe. This means that it must be unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer. This evaluation of the product in terms of the reasonable expectations of the ordinary consumer allows the trier of the fact to take into account the intrinsic nature of the product. The purchaser of a Volkswagen cannot reasonably expect the same degree of safety as would the buyer of the much more expensive Cadillac. It must be borne in mind that we are dealing with a relative, not an absolute concept.

In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.

It cannot be said as a matter of law that the design of the escape hatch was defect free when the evidence is viewed (a) in the light most favorable to the plaintiff, (b) with the testimony of the expert in mind, and (c)...