Maas v. Dreher
| Decision Date | 06 November 1969 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 10 Ariz.App. 520,460 P.2d 191 |
| Parties | Edwin H. MAAS and Paula Maas, husband and wife, Appellants, v. Henry DREHER, individually, Union Carbide Corporation, a New York corporation, Germalene Building Maintenance, Inc., an Arizona corporation, and Germalene Supply, Inc., an Arizona corporation, Appellees. 860. |
| Court | Arizona Court of Appeals |
Shimmel, Hill & Bishop, by Richard A. Black, Phoenix, for appellee Union Carbide Corporation.
The plaintiff, Paula Maas, injured her hand when she purposely hit the corner of the lid of a plastic waste container in an attempt to make the lid fit properly. She then sued the manufacturer of the waste container, the retailer who sold it to her, and a salesman employee of the retailer to recover damages for these injuries to her hand.
Plaintiff's uncontradicted evidence showed that the waste container was assembled by a friend of the plaintiff immediately after purchase. The friend had some difficulty getting the lid on and used a dinner fork as a tool to make it slip into place. This difficulty with the lid was brought to the attention of the defendant salesman Dreher, and he told plaintiff that the container would be replaced. He then demonstrated to plaintiff that pending replacement she could try to put the lid on by inserting three corners of the lid into the top of the waste container and then use the heel of her hand to hit on the fourth corner to make it slip into place. On the following evening, after emptying the container, plaintiff attempted to replace the lid in the manner demonstrated by the salesman. The first time she hit the corner the lid did not slip into place. She then hit it again, and, upon hitting it the second time she sustained injuries to her hand.
Plaintiff's action was based upon two theories: (1) strict liability in tort against all three defendants for the sale of a defective product, and (2) negligence against the defendant retailer and its salesman based upon the salesman's demonstration and advice as to how the lid could be made to fit, pending replacement. At the close of plaintiff's case, the trial court directed a verdict in favor of all defendants.
In Arizona it is well established that under certain circumstances sellers of a product may be strictly liable in tort to a user or consumer of a product, without the necessity of showing by the plaintiff that the sellers were negligent or that the user or consumer had contractual privity with the selling defendants. O. S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968); Bailey v. Montgomery Ward & Co., 6 Ariz.App. 213, 431 P.2d 108 (1967); Tucson General Hospital v. Russell, 7 Ariz.App. 193, 437 P.2d 677 (1968); Estabrook v. J. C. Penney Co., 10 Ariz.App. 114, 456 P.2d 960 (1969); Caruth v. Mariani, 10 Ariz.App. 277, 458 P.2d 371 (1969); Wagner v. Coronet Hotel, 10 Ariz.App. 296, 458 P.2d 390 (1969). These decisions have expressly adopted the rule of strict liability set forth in Restatement (Second) of Torts Sec. 402A (1965), which reads in part as follows:
'(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.'
However, the adoption of the strict liability theory does not mean that the sellers of products are always liable to a user or consumer for any physical injury which might be sustained in the use or consumption of that product. Strict liability cannot be equated to absolute liability. Restatement (Second) of Torts Sec. 402A(1) Supra, limits the seller's liability to those situations where the product sold is 'in a Defective condition unreasonably dangerous to the user or consumer'. (Emphasis supplied.) 'To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the (product) in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff Was not aware that made the (product) unsafe for its intended use.' (Emphasis supplied.) (27 Cal.Rptr. at 701, 377 P.2d at 901).
Defendants contend that where the condition which caused the injury is open and obvious, the product cannot be 'unreasonably dangerous' and that therefore liability cannot be imposed upon the basis of strict liability in tort. There have been several prior Arizona decisions involving ordinary negligence or the duty of a landowner to a business invitee which have expressly held that where a condition is open and obvious, and known to the plaintiff, then such condition does not constitute an unreasonable risk of harm to the plaintiff. Wright v. Demeter, 8 Ariz.App. 65, 442 P.2d 888 (1968); Daugherty v. Montgomery Ward, 102 Ariz. 267, 428 P.2d 419 (1967); Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963); Moore v. South-Western Sash & Door Co., 71 Ariz. 418, 228 P.2d 993 (1951). In Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1962), a landmark decision in the development of the law of strict tort liability, the court stated that:
Also see Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). In that case the court held as follows:
Plaintiff cannot claim to be unaware of a condition which is open and obvious and known to her. In our opinion the above-stated principles are applicable in strict liability cases under Sec. 402A, Supra. As stated by Justice Traynor of the California Supreme Court, the Restatement of Torts' treatment of strict liability is primarily concerned with the surprise element of danger. Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363 at 370 (1965). If the condition causing injury is open, obvious and known to the plaintiff, or, stated another way, if the plaintiff is Aware of such condition, there can be no surprise element of danger. In this case, plaintiff has testified that the condition which caused her injury was not in any way hidden or concealed from her--that she knew what she was hitting when she purposely hit the corner of the of the waste container. Under the circumstances, such a condition cannot be held unreasonably dangerous. 1
Plaintiff contends that in order for the above principles to apply, not only must the condition be open, obvious and known to plaintiff, but in addition it must be shown that plaintiff subjectively appreciated the danger involved, and that in Arizona this issue must be submitted to the jury under appropriate instructions relative to contributory negligence or assumption of risk. The subjective appreciation of danger by '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.' (Emphasis supplied.)
plaintiff might well be pertinent in establishing these affirmative defenses to the extent that such defenses are applicable in strict liability cases. However, in this case we do not reach the question of affirmative defenses. As previously stated herein, one of the elements which Plaintiff must prove to establish a cause of action in strict liability is that the product was 'in a defective condition unreasonably dangerous'. This is determined by an objective test, not by the particular plaintiff's subjective appreciation of danger. As stated in the Restatement (Second) of Torts Sec. 402A, comment I at 352 (1965):
From the foregoing it is clear...
To continue reading
Request your trial
-
Southwest Pet Products, Inc. v. Koch Industries
...test before it could hold that Southwest made out a prima facie case for strict products liability. See, e.g., Maas v. Dreher, 10 Ariz.App. 520, 522 n. 1, 460 P.2d 191 (1969) ("In view of our conclusion that the product was not unreasonably dangerous, we do not deem it necessary to discuss ......
-
d'Hedouville v. Pioneer Hotel Co.
...Type 26 fiber was defective because more dangerous than contemplated by the ordinary consumer of the product. Maas v. Dreher, 10 Ariz.App. 520, 523, 460 P.2d 191, 193-94 (1969). See also Jackson v. Coast Paint & Lacquer Co., 499 F.2d 809, 812, 814-15 (9th Cir. 1974). This determination was ......
-
Rourke v. Garza
...beyond that which would be contemplated by an ordinary consumer with ordinary knowledge common to the community, Maas v. Dreher, 10 Ariz.App. 520, 460 P.2d 191 (1969); or whether the product was unreasonably dangerous. Restatement of Torts (Second), § 402(a), Comments g, Appellant further s......
-
Morrow v. Trailmobile, Inc.
...Where such is the case, a directed verdict for a manufacturer on the question of its negligence in design is proper. Maas v. Dreher, 10 Ariz.App. 520, 460 P.2d 191 (1969); Daugherty v. Montgomery Ward, 102 Ariz. 267, 428 P.2d 419 STRICT TORT LIABILITY It is the law of this state that one en......