Markle v. Mulholland's Inc.
| Decision Date | 26 April 1973 |
| Citation | 265 Or. 259,509 P.2d 529 |
| Parties | , 12 UCC Rep.Serv. 793 Orrin R. MARKLE, Appellant, v. MULHOLLAND'S INC., an Oregon corporation, et al., Respondents. |
| Court | Oregon Supreme Court |
Franklyn N. Brown, Tigard, argued the cause for appellant. With him on the brief was James F. McCaffrey, Tigard.
Joe D. Bailey, Hillsboro, argued the cause for respondents. With him on the brief was Carrell F. Bradley, Hillsboro.
Plaintiff was injured when the left rear tire of his automobile blew out, causing the vehicle to leave to highway. The tire had been purchased by plaintiff for $12.35 nine months earlier, after it had been recapped. It had 5,000 to 6,000 miles of use at the time of the accident. Defendants are the recapper, the wholesaler, and the retailer of the recapped tire. At the completion of the testimony, the trial court granted defendants' motion for a directed verdict. Judgment was entered thereon, and plaintiff appealed.
Plaintiff's cause of action was pleaded in two counts: the first, in negligence; the second, in strict liability.
Plaintiff assigns as error failure to admit testimony by a rubber chemist that he inspected the tire after the accident and found the rubber of the side walls to be so subject to ozone deterioration that the casing was not suitable for recapping. However, plaintiff's counsel admitted, during his offer of proof, that '* * * we don't have testimony to say the because of this (ozone deterioration) the tire was dangerous.' It therefore was not error to reject the testimony because the condition concerning which the chemist testified was irrelevant to any defect in the tire which may have caused the accident.
Plaintiff's only other assignment of error was the granting of defendants' motion for a directed verdict. He contends there was sufficient evidence to take the case to the jury on both counts.
The only other expert witness presented by plaintiff testified that the failure of the tire was due to an air pocket in the casing which either was in existence in the casing at the time of original manufacture or was formed when a small pin hole developed in the inner layer of the casing, allowing air to seep into the cord. He did not say which was the more probable, nor could he say, in the latter event, whether the hole had already developed by the time the casing was retreaded and sold to plaintiff. The expert also testified that, in his opinion, the blowout was not due to impact. No one testified that the blowout was caused by the manner in which the retread had adhered to the casing. Plaintiff testified that from the time it had been purchased by him the recapped tire had been driven almost exclusively on paved roads, had been properly inflated, and had not been driven into curbs, large rocks or chuck holes, or otherwise abused.
Three specifications of negligence were pleaded:
1) Failing to properly test and inspect the tire by putting it in an ozone chamber;
2) Recapping a casing which showed ozone markings;
3) Failing to inspect after recapping to determine the degree of adherence of the cap to the casing.
The testimony of plaintiff's witnesses did not substantiate in any way any of the allegations of negligence in the complaint. As a result, plaintiff failed to sustain his negligence count.
Plaintiff contends that, even in the absence of being able to show negligence or the exact reason for the air pocket in the casing, the tire did not perform in accordance with a purchaser's reasonable expectations. He claims that evidence of such nonperformance, of the resultant dangerousness, and of the lack of probable causes for its nonperformance for which he would have been responsible is sufficient to take the case to the jury on his strict liability cause of action.
The initial problem with this cause of action is the nature of plaintiff's strict liability claim. The complaint on which the action was tried purports to state a cause of action for breach of warranty. In previous cases, because of the evolving nature of the law in this field, we have treated similar complaints as stating as broad and all-encompassing a cause of action as it was possible to state for strict liability arising out of the sale of goods. In those cases we did not limit the issue to the warranty type of strict liability under the Uniform Commercial Code (UCC). See McGrath v. White Motor Corp., 258 Or. 583, 484 P.2d 838 (1971), and Vanek v. Kirby, 253 Or. 494, 450 P.2d 778, 454 P.2d 647 (1969).
In McGrath we called to the attention of the bar the difficulty engendered by the use of 'warranty' if it was the intention of the pleader to state as broad a case as possible in strict liability. The original opinion in McGrath was handed down April 29, 1971. It was, of course, not published in the Advance Sheets until a short time later. All the pleadings upon which the instant case was tried were made up by May 5, 1971. Plaintiff, apparently, heeded the admonition in McGrath and tendered before trial an amended complaint, but it was not accepted by the court for reasons not appearing in the record, and it was not filed.
At trial and upon appeal this case was treated as an ordinary strict liability case, and the Oregon cases discussed by both sides in their briefs were decided under Section 402A 1 of Restatement (Second) of Torts. No claims of lack of notice, of disclaimer, or of any other restriction upon liability particular to the provisions of the UCC were made. Under such circumstances we believe that plaintiff should not be prevented from putting what he apparently considers to be his best foot forward. We hold for the purposes of the case that plaintiff's allegations that the tire was not of merchantable quality and therefore blew out are the equivalent of an allegation that it was defective.
In Wights v. Staff Jennings, 241 Or. 301, 405 P.2d 624 (1965), we rationalized the seller's liability as being one of tort arising out of a breach of implied warranty of merchantable quality. We rejected as the Sole basis 2 for products liability the rationale of enterprise liability because its natural and logical extension would require the enterprise to be responsible for the 'inevitable accident toll' which results from all its activities, not just from its sale of goods. Wights was a case involving an ultrahazardous article; therefore, the application of Section 402A was unnecessary to establish liability. However, we subsequently adopted it in Heaton v. Ford Motor Co., 248 Or. 467, 470--471 435 P.2d 806, 808 (1967), and determined that liability under that section, as we conceive it, is '* * * conceptually related to the traditional warranty of merchantable quality in the law of sales.' When, in Heaton, we adopted Section 402A, we said nothing about enterprise liability, which is one of the rationales given in comment C under Section 402A for the formation of the rule.
Thereafter, we decided a series of cases under Section 402A without any further comment as to whether we were rejecting or accepting the enterprise liability rationale. This has been commented upon in Products Liability in Oregon: Present and Future, 8 Will L J 410, 424 (1972):
'* * * (T)he entire products liability case law is confused by the court's express rejection of the enterprise liability approach to products liability in Wights, and its later adoption in Heaton of Restatement (Second) of Torts, § 402A which is actually based on the enterprise liability theory * * *.' (Footnote omitted.)
We necessarily adopted a limited theory of enterprise liability when we adopted Section 402A. Why else would liability under the section be restricted to those who are engaged In the business of selling? It was restricted to them because they are in a position to spread the risk while others are not. The comment to the section so recognizes. However, that restricted form of enterprise liability should not be confused with the absolute liability we disavowed in Wights. We were correct in Heaton in rationalizing the seller's strict liability as being conceptually related to implied warranty of merchantable quality and in pointing out in Wights that if there were no more to the rationale of such liability then distribution of the risk occasioned by the enterprise, its logical extension would carry us to absurd lengths.
In addition to the enterprise liability rationale, something similar to the rationale behind an implied representation of merchantable quality also has to be part of the theoretical basis for the rule. There is no other way to account for the language used in the discussion of the meaning of 'defective condition' in comment g 3 to Section 402A, such as, 'in a condition not contemplated by the ultimate consumer.' The same can be said of language used in the discussion of 'unreasonably dangerous' under comment i, 4 such as, 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.' This language is consistent only with something conceptually similar to an expectation by the consumer of merchantable quality. It is an expectation which is the result of the manufacturer's or seller's placing the article in the stream of commerce with the intention that it be purchased. This expectation is given legal sanction by the law through an assumption that the seller, by so placing the article in the stream of commerce, has represented that the article is not unreasonably dangerous if put to its intended use. This is so even though the comment to Section 402A admonishes us that liability under the section is not in warranty because it is not subject to certain contract rules. 5 In addition the history of Section 402A shows the gradual evolution from the law of warranty.
The relation to warranty has been generally recognized. The following language from Dickerson, Products Liability: How Good Does a Product have...
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