Little v. PPG Industries, Inc.

• Decision Date: 10 May 1979
• Docket Number: No. 45629,45629
• Citation: 92 Wn.2d 118,594 P.2d 911
• Court: Washington Supreme Court
• Parties: Darlene LITTLE, as Administratrix of the Estate of Robert L. Little, Deceased, Respondent, v. PPG INDUSTRIES, INC., a Pennsylvania Corporation, Petitioner.

Page 118

92 Wn.2d 118

594 P.2d 911

Darlene LITTLE, as Administratrix of the Estate of Robert L Little, Deceased, Respondent, v. PPG INDUSTRIES, INC., a Pennsylvania Corporation, Petitioner.

No. 45629.

Supreme Court of Washington, En Banc.

May 10, 1979.

Lee, Smart, Cook, Biehl & Martin, P.S. Inc., Fred T. Smart, Patrick J. Clarke, John F. Biehl, Seattle, for petitioner.

Clinton, Fleck, Glein & Brown, Robert V. Brown, Lawrence Linville, Seattle, for respondent.

ROSELLINI, Justice.

This wrongful death action was brought by the widow of an employee of Bethlehem Steel Company who died while allegedly using a cleaning solvent manufactured by the defendant. The jury returned a verdict for the defendant. The Court of Appeals, Division Two, ordered a new trial, and we granted a petition for review of its decision.

The facts of the case are set forth in the opinion in 19 Wash.App. 812, 579 P.2d 940 (1978), and need not be repeated here. The plaintiff sought recovery upon theories of negligence and strict liability based upon the alleged failure to give adequate warning of the dangers involved in the use of the solvent. The Court of Appeals held that, while the Superior Court had given a jury instruction (requested by the plaintiff) which was substantially a correct statement of the plaintiff's theory of strict liability, it effectively removed that theory from the jury's consideration when it submitted interrogatories which spoke only of negligence. It also found error in refusing certain instructions requested by the plaintiff. On the defendant's cross appeal, it held that the Superior Court erred in refusing to submit the question of intervening cause to the jury. It was ordered that upon a new trial, the issue of the defendant's negligence should not be submitted to the jury. With some modification, we affirm the decision of the Court of Appeals.

It appears that the Superior Court, after considering the briefs and authorities submitted by the parties, concluded that negligence is an essential element in an action based on failure to warn, even though there is also an element of strict liability, that element being found in the manufacturer's presumed knowledge of the dangerous properties of his product.

The rule of strict liability for unreasonably dangerous products, embodied in the Restatement (Second) of Torts § 402A (1965) and approved as the law in this jurisdiction with respect to defective products, focuses attention upon the product, rather than upon the conduct of the supplier of the product. The rule, as formulated in the Restatement, speaks of products which are in a "defective condition." In comment H, it is said that where a defendant has "reason to anticipate that danger may result from a particular use" of his product and he fails to give adequate warning of such a danger, "a product sold without such warning is in a defective condition." This statement is open to question.

First, it is inaccurate to speak of a properly manufactured but necessarily dangerous product as being in a "defective" condition. As students of the Restatement have observed, it is more appropriate to describe an article bearing an inadequate warning as "unreasonably dangerous," than as "defective." See J. Montgomery & D. Owen, Reflections on the Theory and Administration of Strict Tort Liability for Defective Products, 27 S.C.L.Rev. 803, 819 Et seq. (1976), and the annotation at 53 A.L.R.3d 239 (1973). The drafters of the Restatement do characterize the product in this manner in comment J, where they say that "(i)n order to prevent the product from being unreasonably dangerous (even though faultlessly made), the seller may be required to give directions or warning, on the container, as to its use." A second objection to comment J is that it imposes a negligence concept upon the doctrine of strict liability.

The drafters of section 402A do not attempt to elaborate upon the supplier's duty with respect to warnings, and this omission has lead to some speculation as to their intent. Because of the language in comment J, and because the Restatement treats the duty to warn in another section, 388, and that section spells out the duty in terms of negligence, it has been suggested that section 388 should be read into section 402A by implication. See Annot., 53 A.L.R.3d at 246 (1973). As the annotation reveals, a number of courts have focused attention upon the supplier, making the reasonableness of his conduct the controlling consideration.

We think, however, that the objective of the rule of strict liability with respect to dangerous products is defeated if a plaintiff is required to prove that the defendant was negligent, or the latter is allowed to defend upon the ground that he was free of negligence. It is the adequacy of the warning which is given, or the necessity of such a warning, which must command the jury's attention, not the defendant's conduct.

While we agree with the defendant's contention that the rule of reasonableness has a role to play in products liability cases, it is a role which concerns itself with the sufficiency of the warning and the expectations of the user. The question is, Was the warning sufficient to catch the attention of persons who could be expected to use the product; to apprise them of its dangers and to advise them of the measures to take to avoid those dangers?

It is, of course, difficult to separate the concept of an "inadequate warning" from that of a "negligent supplier." If one is proven, the other generally can be inferred. However, this is not necessarily so, and proof of an inadequate warning will usually be a much simpler task for the plaintiff than proof of negligence on the part of the defendant, since the evidence upon that question is more accessible. It is also a question upon which common knowledge often has some bearing, in which case the jury can draw upon this source in making its decision.

In our own cases involving warnings with respect to dangerous products, the focus has been upon the warning itself and the reasonable expectations of the user, rather than upon the conduct of the defendant. In Teagle v. Fischer & Porter, Co., 89 Wash.2d 149, 570 P.2d 438 (1977), a case decided under the strict liability theory of section 402A, we held that the adequacy of a warning should be determined in the light of the same principles which we had applied in a case involving defective design. In that case, Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774, 779 (1975), we held that a product is not reasonably safe when it is unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer. We said:

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.

In Haysom v. Coleman Lantern Co., 89 Wash.2d 474, 573 P.2d 785 (1978), we treated a number of assignments of error, relating them to the issue of adequacy of warning as opposed to negligence of the defendant. In that case, we said that a warning need not be given at all in instances where a danger is obvious or known; ¹ that in some cases, where a defect is latent,the court may declare as a matter of law that an adequate warning was not given, but that in most cases the question is one for the jury. Haugen v. Minnesota Mining and Mfg. Co., 15 Wash.App. 379, 388, 550 P.2d 71 (1976), likewise makes the adequacy of the warning the controlling consideration.

In its instructions Nos. 13 and 14, ² which had been requested by the plaintiff, the court advised the jury of the duty to warn of the dangers involved in the use of a product. While the instructions did not specifically mention the duty to furnish directions for avoiding the danger, such a duty was implicit in the statement that the warning "should be such that, if followed, would make the product safe for users." Instruction No. 13 speaks in terms of the manufacturer's duty, but its focus is upon the product, the warning, and the user. The law could be more clearly stated. However, the instructions together adequately convey the plaintiff's theory and do so better than any other instruction which she proposed.

The Superior Court correctly refused the plaintiff's requested instruction which was couched in the language of the Restatement, since that instruction confuses the issue by describing the product as "defective." ³ However, the plaintiff's unnumbered instruction defining her burden of proof ⁴ was a correct statement of law which would have drawn the issue of adequacy of warning to the jury's attention. This instruction should have been given.

The Superior Court's concept of negligence as a necessary element in a warnings case, even where the doctrine of strict liability is asserted, is reflected in the instructions which it gave the jury. While an instruction defining the manufacturer's duty to warn was given, the only instruction apprising the jury of the plaintiff's contentions was instruction No. 4, which stated that the plaintiff claimed...