Lewis v. ARIENS COMPANY

• Decision Date: 12 March 2001
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOHN A. LEWIS v. ARIENS COMPANY.

434 Mass. 643

751 NE 2d 862

JOHN A. LEWIS v. ARIENS COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

March 12, 2001.

July 19, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Deirdre Harris Robbins for the plaintiff.

Charles P. Reidy, III, for the defendant, was present but did not argue.

Hugh F. Young, Jr., of Virginia, David R. Geiger, & Hal Poret, for The Product Liability Advisory Council, Inc., amicus curiae, submitted a brief.

CORDY, J.

In 1988, John A. Lewis severely injured his right hand when it came in contact with the impeller blades of a snow blower manufactured and originally sold in 1966 by Ariens Company. Lewis purchased it used, from the sister of a friend, sixteen years later, in 1982. As a result of the accident, Lewis brought this product liability action claiming negligence, breach of warranty of merchantability, and unfair or deceptive trade practices in violation of G. L. c. 93A.

The primary issue on appeal is whether a remote purchaser may recover damages from a manufacturer under G. L. c. 93A for breach of its implied warranty of merchantability on the theory that the manufacturer had a continuing duty to warn him of product defects or dangers discovered after the snow blower entered the stream of commerce. We conclude that on the facts of this case there was no such duty and that Ariens is therefore not liable under G. L. c. 93A. We take this occasion to adopt the principles set forth in the Restatement (Third) of Torts: Products Liability § 10 (1998), regarding a manufacturer's continuing duty to warn users of substantial product risks or dangers discovered postsale.¹

1. Facts and procedural history. On January 26, 1988, while Lewis was clearing snow from his driveway, he walked to the front right side of the snow blower to disengage the clutch mechanism. As he did so, he slipped causing his hand to enter the snow blower's discharge chute and come in contact with the impeller blades. Lewis lost four fingers of his right hand.

In March, 1990, Lewis and his wife brought a three-count complaint seeking damages for negligence (defective design, inadequate warnings, and other claims); breach of warranties (but only tried as to breach of implied warranty of merchantability); and loss of consortium. He later amended his complaint to add a claim of unfair or deceptive trade practice under G. L. c. 93A. Before trial, the judge reserved the G. L. c. 93A claim for himself. A jury found Ariens had been negligent in its design of the snow blower but that Lewis had been fifty-two per cent negligent in his operation of the snow blower, thereby barring him recovery on that count. The jury also found that, when originally sold by Ariens in 1966, the snow blower was not reasonably safe for its intended or reasonably foreseeable use (in breach of its implied warranty of merchantability) and awarded Lewis $205,000.² The jury rejected the loss of consortium claim.

The trial judge dismissed the G. L. c. 93A claim ruling that the breach of implied warranty of merchantability occurred in 1966, at the time of sale, and two years before the enactment of the relevant sections of G. L. c. 93A.³ Lewis appealed from this ruling. From 1993 until 1997, the appeal lay dormant with the exception of a few motions regarding the record on appeal and a status review notice from the Superior Court.

In October, 1998, more than five years after the appeal had been filed, Lewis moved to amend the judge's decision on the G. L. c. 93A claim.⁴ The judge vacated his prior judgment and, relying on our holding in Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998), that a manufacturer retains a continuing duty to warn of risks discovered following a product's sale, concluded that Ariens had breached its implied warranty of merchantability by failing to warn Lewis about the dangers of its machines revealed in studies published shortly after the sale, and after the enactment of G. L. c. 93A.⁵ The judge concluded that Ariens was therefore liable under G. L. c. 93A, and awarded Lewis $205,000 in damages, doubled the award to $410,000 and awarded attorney's fees and costs.⁶,⁷ Ariens appealed from the judge's amended G. L. c. 93A judgment. The Appeals Court reversed, holding that the continuing duty to warn announced in Vassallo v. Baxter Healthcare Corp., supra,

did not extend to owners "of a product who purchased it second-hand, third-hand, or fourth-hand." Lewis v. Ariens Co., supra at 306.⁸,⁹ We granted Lewis's application for further appellate review.

2. Continuing duty to warn. Ariens contends that the trial judge's G. L. c. 93A ruling was premised on an erroneous interpretation of Massachusetts product liability law, and that it did not owe a continuing duty to warn Lewis because he was a remote purchaser.¹⁰

In Vassallo v. Baxter Healthcare Corp., supra at 22-23, we abandoned the strict liability approach to implied warranties of merchantability in favor of a "state of the art" standard similar to that articulated in the Restatement (Third) of Torts: Products Liability § 2(c) (1998).¹¹ Specifically, we revised our law to state that "a defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product." Id. at 23.¹² We also said that a manufacturer will be subject to the standard "of an expert in the appropriate field, and will remain subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale of the product." Id. Because the facts in Vassallo v. Baxter Healthcare Corp., supra,

did not require further explication of the nature and requirements of this continuing duty, and to whom it might be owed, we did not address those questions.¹³

Lewis urges us to adopt a rule similar to the one described in the Restatement (Third) of Torts: Products Liability § 10 (1998), set forth in full in the margin,¹⁴ which imposes a rule of reasonableness on a seller's postsale duty to warn users of dangerous products. In essence, where a seller knows or reasonably should have known of product dangers discovered postsale, the Restatement recognizes a duty to warn users of substantial risks of harm¹⁵ if a reasonable person in the seller's position would provide a warning and if "those to whom a warning might be provided can be identified," and the warning "effectively communicated" to them, id. at § 10(b)(2), (3). The black letter Restatement does not state that this duty to warn extends to direct purchasers only.¹⁶ Comment e to § 10, however, states that a seller's inability to identify those for whom warnings would be useful "may properly prevent a post-sale duty to warn from arising." Additionally, comment a to § 10 notes that "[t]he costs of identifying and communicating with product users years after sale are often daunting," and "[i]n light of the serious potential for overburdening sellers in this regard, the court should carefully examine the circumstances for and against imposing a duty to provide a post-sale warning in a particular case."¹⁷

We find that the principles set forth in § 10 represent a logical and balanced embodiment of the continuing duty rule we recognized in Vassallo v. Baxter Healthcare Corp., supra,

and a natural extension of our ruling in that case.¹⁸ We nevertheless concur with the Appeals Court that in this case Ariens owed no continuing duty to Lewis, who purchased the product at least second hand, sixteen years after it was originally sold, and did not own the product until years after a duty to provide additional warnings arguably arose. In these circumstances, he is a "member of a universe too diffuse and too large for manufacturers or sellers of original equipment to identify." Lewis v. Ariens Co., 49 Mass. App. Ct. 301, 306 (2000). It would be unreasonable to require a manufacturer to provide warnings to an individual in Lewis's circumstances. Therefore, Ariens did not breach its implied warranty of merchantability by failing to warn him in 1982 or 1988 of product dangers discovered in the early 1970's shortly after the product was sold to the original purchaser.

In light of our holding that a continuing duty to warn did not extend to Lewis in the circumstances of this case, the basis for the judge's finding of G. L. c. 93A liability fails.¹⁹ The amended judgment in favor of Lewis must be reversed, and judgment is to enter for Ariens on count IV of the amended complaint.

So ordered.

1. We acknowledge receipt of a brief filed by The Product Liability Advisory Council, Inc., as amici curiae.

2. The record indicates that Ariens paid the amount of the judgment plus interest and filed a stipulation of dismissal as to all counts other than the c. 93A count. The jury's findings are not a subject of this appeal.

3. The effective date of G. L. c. 93A, § 2, inserted by St. 1967, c. 813, § 1 (approved December 26, 1967), is March 26, 1968; and the effective date of G. L. c. 93A, § 9, inserted by St. 1969, c. 960 (approved August 13, 1969), is November 13, 1969.

4. As noted by the Appeals Court, this motion "had no basis in a known rule of civil procedure." Lewis v. Ariens Co., 49 Mass. App. Ct. 301. 304 n.7 (2000). The court, however, addressed the merits of the case because the defendant had not challenged the motion on that ground. Id.

5. In his amended ruling, the judge refers to these studies (published in 1971 and 1975) as identifying both the dangers of the snow blower and the availability of safer designs. He did not find a continuing duty to advise users of safer designs, and we did not recognize such a duty in Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (1998).

6. In the alternative, the judge also ruled that the breach of implied warranty of merchantability found by the jury...